Frequently Asked Questions

Table 1 Historic heritage places on statutory lists/registers, at 30 June 2005

Number

a Commonwealth Heritage List. b Government-owned and managed places on the NSW s. 170 Register
c Estimated number of properties covered by individual and area Heritage Overlay controls. d Included in State figure. e About 27 per cent are residential homes. f Includes non-government lists. About 36 per cent are residential homes, 77 per cent are 20^th Century places and 7 per cent are also listed on the State Register.
g Included in State figure.

na Not available. .. Nil. nsl Not separately listed.

Sources: NSW Heritage Office (sub. 157 p. 60 and sub. DR384, p. 4); CHCANZ (sub. 139, p. 10); WA Heritage Council; correspondence with State and Territory Heritage Offices.

Examples of positive heritage incentives NSW should adopt include:

•  voluntary heritage agreements for all privately owned property, not via coercion or punitive regulation and an emergency non-consenting listing being only used as a last resort, when there is evidence an owner is about to demolish and/or when the Council has valid professional reports that an private property already meets stringent heritage listing requirements [not on spec as is the current situation];
• Introduce a compulsory consideration by NSW Councils of the reasonableness or otherwise of a heritage listing on the owner. In order to retain existing heritage listings on private property as well as when contemplating future listings, NSW Councils must be forced to be accountable financially for their decisions. An important weighting should be any loss of asset value [including lost opportunity costs] to the owners and whether in the owners subjective financial circumstances [weighed against the Council?s annual budget] means it is reasonable to require the private owner to bear all the costs alone, or whether the losses are too significant a burden to place on a citizen, in which case the public interest is not met. In such cases, if the Council sincerely wishes the private property to be heritage listed and the burden on the owner is unreasonable, the Council can compulsorily acquire the property using their compulsory acquisitions power under the NSW Act
• up to 100% Council rate rebates for owners of privately owned heritage properties when they produce receipts demonstrating they have spent money on any aspect of the upkeep of a heritage listed property. This works against a rational ?demolition by neglect? approach by owners of these properties. The rate rebate should be cumulative (can apply for many years rebate refund in one year) as some large scale heritage work is more expensive than can be refunded in one year. The beauty of this system is for the first time in NSW, there is a cost to the local Council for heritage listing an item. The cost is nowhere in proportion to the cost to the owner of such a listing, but the 100% rate rebate acts as a reminder to Councillors that a claimed ?community interest? in a property being maintained for the ?public good? has financial consequences for them also;

• ban down-zoning heritage listed properties, and introduce transferable/sellable heritage density bonuses should be in the Department of Planning Model DCP?s (we recommend between 14-27.5% as per Sydney City Council with the higher densities in the CBD areas). This one amendment ensures heritage listed properties become instantly desirable to the market. They become attractive properties to acquire and keep well maintained. The City of Perth and Sydney City Council also have programs along these lines. It is called Heritage Floor Space ?HFS? and has been in place for 20 years in some areas in Australia;
  

• Allegedly transferrable heritage bonuses like this [as well as other kinds] have already been negotiated by individual Councils and Councillors outside of the current DCP provisions. These options should be available for all owners of heritage listed properties and included as such in all Model DCP so it is advertised as available to all. It should not rely on personal favours or whims bestowed by an individual Councillor on individual owners of heritage properties. Back room deals bring the entire local heritage system into further disrepute;

• private heritage owners permitted to sell and/or transfer their normal FSR allowance as well as the additional heritage bonuses (owners can split the two if they wish) to developers to use on other sites that do not enjoy that density/height level. This will make heritage listed properties desirable in the market and thus compensate owners, attract buyers and encourage pristine maintenance;

• Automatic 100% waiver of Council fees incurred by owners of heritage listed properties when they lodge a DA for exempt/complying/heritage conservation work (Strathfield Council already have such a scheme);

• 100% reimbursement on any Council DA fees for owners who obtain any specialist reports or incur additional costs all or partially attributable to the Council heritage zoning eg., heritage impact statements. This is also more likely to result in heritage properties being maintained. WHO has members enthusiastic about their heritage listing and who want to bring the property back to its authentic self, but find the non-reimbursement of such additional costs a positive disincentive to undertake such work;

• a compulsory heritage levy on all local government budgets (eg., 0.05% annually: can be increased with Ministerial approval) to establish a Council Heritage Buy Back Account to be used exclusively by the Council to sequentially offer to purchase privately held heritage listed properties they deemed significant enough to heritage list. This purchase system to be strongly weighted in favour humanitarian considerations, such as earliest purchases of properties owned by elderly, disabled, retiring or otherwise disadvantaged persons (such as properties not paying their way and/or posing a health or other risk to a resident owner). There are terrible cases of elderly, poor owners being entombed in unsellable properties and/or unable to pay for high care accommodation and medical bills for a dignified last stage of their life as they cannot off-load their Council heritage listed properties;

• immediate suspension on any new heritage listings by local government, until such time as a fresh, positive incentive scheme for local heritage listing based on voluntary agreement model is adopted and implemented, and positive incentives put in place. Interim Emergency Heritage Orders can be used in the case of a genuine heritage emergency. This concept puts the pressure back on the pro heritage organisations and heritage fanatics to cease their delaying tactics and get the new system rapidly into place;

• in recognition of the lack of professionalism and totally inadequate standards of reports commissioned by almost all NSW Councils that led to the original listings of many properties 'walk by or drive by' assessments without any genuine assessment of the interior and exterior fabric of an item, how much is original and so on,  all current private owners of Council-only heritage listed properties be immediately sent a letter offering them a proper review of their original Council heritage listing. Owners who opt for this get access to it. Owners who do not want it and accept the validity of the heritage assessment can opt out. This review offer to all private owners is a means for Councils to get serious about their heritage priorities, to decide what is most important to them and to focus their support on those items. It also means the sins of over listing by local government, revealed clearly in the 2006 Productivity Commission Report, can be rectified at the appropriate level ie., with the tier of government that proceeded to heritage list private property without grossly inadequate reports;
• A proper appeals system for owners of private property that has been heritage listed by a local Council. The current system favours and extends Council misconduct in abusive or fraudulent heritage listings. An appeal should not be tied to a requirement for an expensive demolition order and/or redevelopment application [DA]. Property owners should be able to appeal a Council heritage listing either to the Council and/or the NSW Administrative Decisions Tribunal, or a local Panel - not the NSW Land and Environment Court. Any cases in which a majority of Councillors agree with the owners submission immediately be removed from the LEP Schedule at the next Council meeting and if the Council refuses the owners request or fails to give a decision within a fixed period of time, the owner can appeal.

• Reviews reporting on the validity or otherwise of existing NSW Council heritage listings of private property may only be by qualified heritage experts who are independent of the original heritage listing process, the Council, the Councillors, staff and pro heritage organisations. Incestuous local practices must be banned and as should conflicts of pecuniary and non-pecuniary nature. If an owner can demonstrate a breach of conflict of interest policy in respect of a heritage listing affecting their property, the decicion to heritage list must be voided as a result;
  
• Council, Council staff and/or Councillors agree not to direct any heritage experts or report authors in any manner eg., not propose meetings, discussions and not to approach the independent experts. Experts to initiate all contact. This avoids the problem of heritage fanatic Councillors lobbying the heritage report writers ;

• to be credible, all Council expert heritage assessment and be conducted only using professional and relevant Guidelines such as the NSW Heritage Offices 'Assessing Heritage Significance Manual' as modified by the Productivity Commission Report's recommendations to remedy deficiencies they identified in that assessment tool and any recommendations from the NSW Heritage Review.

• The NSW Model DCP state clearly that it is the feature/s of the heritage item only that are being assessed and it is only acceptable to assess against established, credible criteria that is the relevant issue - not local nostalgia, sentiment or personal views of unqualified persons who have not given the heritage assessment task and/or for non-heritage reasons such as blocking a higher density development,

• that any current Council heritage listed properties that fails an expert asessors test for heritage listing be immediately recommended for removal from Schedule of the LEP at the next in time Council meeting and that the heritage fanatics favourite game of death or bankruptcy by more expert reports ie., continually seeking additional reports, peer reviews and so forth, which are recognized tactics used to increase costs, and delay implementation, be banned;

• the heritage goals for NSW local government should be set out in a manner that binds Councils to reduce and/or eliminate proven over listing. Council should be required to secure a smaller pool of highest quality properties assessed to have serious heritage merit, and all efforts will be made to keep them in tip-top condition, and to move them sequentially into public ownership (eg., via the aforementioned heritage levy). Multiple examples of the same heritage feature for example should be strongly discouraged;

• to remove as quickly as possible any marginal, non-original, poor quality properties from the current Council heritage list, any that meet criteria already recognized as reasons for demolition or development in cases heard before the Land and Environment Court [precedent established], are similar to cases for lifting of the heritage order/demolition/redevelopment precedent previously approved, as well as those as per the Productivity Commission report where listing imposes an unreasonable burden on a private owner and/or the costs of compensating the private owner are high and therefore disproportionate to the heritage value.

• the heritage review process should commence with highest density zonings being the highest priority [normally CBD areas] as this is where the land pressure is tightest, where heritage listings are most prolific and where discredited listing procedures are more likely to have been used as these items tended to be listed early on;

•  creation of annual Council Heritage Awards where private owners of Council heritage listed buildings are eligible for a $10,000+ award which is awarded annually by a Council and Heritage Owners assessment panel [Marrickville and Strathfield Councils have a heritage award scheme]: in the past 3 years Strathfield Council has allocated $60,000 in grants to heritage owners [SMH 9 December 2005];

• inclusion and acceptance of alternative and creative means of preserving heritage buildings that in truth do not qualify for heritage listing when objective assessment tools such as the NSW Heritage Office Guidelines [as modified by the PC report recommendations and any recommendations from the NSW Heritage Act Review] are used correctly ie., local old buildings with no genuine heritage merit, no architectural rarity value, less than 65% original fabric left, external features not in original condition but which otherwise from a the point of an uninformed viewer may still 'look pretty', 'look old' or elicit nostalgia, sentiment, memories or a fondness for type OR who would fail to be listed using the Productivity Commission recommended heritage criteria. These are 'memory records' devices which can be used by Council when delisting any current Schedule 5 properties and/or allowing a demolition/redevelopment. In includes digital pictures lodged with the Council Library and/or 1:1 photo image on the façade of any replacement building [see SMH Domain Home section 'New Sensation' 7 September 2006 p10-11]. This latter idea was accepted by a Council in Victoria who had heritage listed a building with no architectural merit and little original fabric but nevertheless one Councillor who like weatherboards held up the entire DA approval process!

• Use of modern technology to create Virtual Heritage Preservation Records as an option for owners whose heritage listing is lifted as it is not a true heritage property but which is of some nostalgic or sentimental interest OR who have permission to demolish. This can be housed in the Council Library heritage collection and available on-line : this includes 3D virtual tours guided by a tour guide of properties prior to demolition. The beauty of this is that it is available across time, open 24/7 and available to all. Anyone with a physical disability for example who currently cannot access a heritage property can have access.

• Any ratepayers who are neighbours of heritage listed properties or who are near heritage precincts should be advised in writing by the NSW Council about the real effects on their property and be invited to comment. In particular, they should be informed about the effect of bulk, height and uniformity of style provisions on them. They should also be told that they may also need to commission and pay for Heritage Impact Statements for any changes to their properties. Neighbours in adjacent properties currently are not been advised by NSW Councils about the effects on their land use, amenity and new restrictions on their property;

• due to notorious abuses by local government in creating 'heritage precincts' as a back door system to defeat increased densities sought at the state level, the Federal Productivity Commission Inquiry report into Heritage has recommended the heritage precinct power be removed from local government and only be done at the state level. A full review of all NSW Council's so called "heritage precincts" should occur;

• State Model LEP/DCP actively permits heritage listed private held buildings to be moved to new sites and/or donated to the Council for them to relocate as an acceptable option, especially it the item has high heritage value but it located in a high density zone, with massive and unreasonable losses to the owner;

• a tax deductible scheme with charity status whereby owners of Council-only heritage listed properties can either donate the building and/or the whole property and have a full charity tax deduction and/or reimbursement of all past rates they have paid on the property and/or all maintenance costs. This may sound implausible that anyone would want to donate their property, but SoHONSW has met such owners of Council-only heritage listed properties who are so devoted to their building and who want this option as some are concerned the property will be sold or not appreciated by those that inherit the property;

• no appointment of full time specialist Heritage Officers for NSW Councils. The reasons are that heritage specialists work, as opposed to generalist Planning work , tends to attract heritage fanatics. There is evidence of heritage fanatics being involved in the selection process for such positions and engaging in what experts call 'homosocial selection' ie,. favouring the employment of applicants who think exactly as they do anbd culling out unbiased applicants. There is also evidence that in order to survive the Council internal politics in specialist positions that tend to attract planning staff with a very narrow interest in heritage, they will work to impress others with the same mind set. A disastrous situation is where a full time Heritage Officer like this is reporting to and/or catering to eg., Heritage Committees that are also populated by narrowly-focussed heritage fanatics. SoHONSW has had consistent feedback from owners interactions about the appalling attitudes of these specialist Council Heritage Officers. A full time permanent Heritage Officer unfortunately is too likely to be 'captured' and manipulated by pro-heritage fanatics and see owners as 'the enemy' and

• NSW Councils also be permitted to use their section 94 contributions money to offer to buy Council only heritage listed properties in private hands and turn the land into inner CBD parks and the buildings into community areas and/or commercial spaces.