Owning heritage affected property in NSW 

Have you been searching for an organisation to assist and support you by providing independent information about your current or nominated heritage listed property?

 The Society of Heritage Owners New South Wales [SoHONSW] prides ourselves on providing information, support, advice and advocacy specifically tailored to meet heritage owner's interests - without any fanatical heritage propaganda or punitive, owner hating approach and/or condescending attitude that has permeated almost all heritage issues in NSW for the past 30  years.

 

SoHONSW is unique

SoHONSW is the only organisation in New South Wales [and indeed Australia] that actively champions the interests of property owners with a current or looming heritage listing or otherwise affected by heritage planning overlays.

 

 

Australia wide there are just under 200,000 heritage listings [see our Heritage Statistics page on the left for details]. The overwhelming majority are listed by local government [Councils]. So we are talking about nearly 200,000 heritage listed items in Australia - all owned by someone - and the vast majority relating to the last 200 years since white settlement/invasion in Australia.  

 

While it is difficult to state with precision how much of this is in private versus public hands, limited studies such as one undertaken by some of our members in the Wollongong CBD, a regional city in NSW,  indicate the majority of Council only heritage listed items are in fact in private ownership. 

NSW alone has over 31,000 individually heritage listed items. Around 28,500 of those are items individually heritage listed by NSW local government [Councils] - the lowest tier of government in this country,  but possessing the greatest unchecked heritage discretionary powers and the least accountability for their heritage decisions.  

 

Thousands more - and in some cases half or almost an entire suburb or local government area - has been additionally 'pickled in aspic' by what is termed 'heritage overlays'. SoHONSW agrees with the recommendation of the Federal government's Productivity Commission Inquiry into Heritage that concluded all heritage overlay powers should be immediately removed from local Councils in Australia due to egregious and well documented abuses.

 

Aa result of the cunning manner in which the NSW Heritage Act and later policies were drafted as well as the 'hands off' approach by the NSW Department of Local Government, who have failed spectacularly to do anything about the outrageous heritage abuses of NSW Councils they have a duty to manage, heritage fanatics have had a free run in NSW for 30 years. They designed and then ran the system for their personal heritage hobby as well as more sinisterly, to benefit their heritage consultancy businesses.

 

The then Heritage Office of NSW [now the Heritage Branch of the NSW Department of Planning] focussed on the State heritage listed items,  and their work and training also focussed on meeting those requirements. As a result, there was no effective control of local Council heritage listings in NSW. This gap left the Council heritage field wide open to outrageous abuses and conflicts of interest.  Normally manipulated by heritage hobbyists and pro heritage organisations. The latter enjoy bucketloads of public monies lavished on them decade after decade, so they annually receive huge public funding to pursue their heritage interests. In contrast, owners and owners organisations get nothing.  This gross asymmetry of power and resources in conjunction with the policy vacuum created is, SoHONSW believes, what led to the wholly discredited local government heritage listing system in NSW.

The vast bulk of heritage listings in NSW are at local Council level, with the least degree of professionalism and competenece, so this is where the worst heritage rorts have occured.  SoHONSW concentrates our role on information and advice for owners with current or nominated NSW Council heritage listings. If our information also happens to assist the 1500 owners of NSW State heritage listed items. then that is wonderful, but our limited resources mean we focus on the area of most serious heritage abuses - NSW local Councils. 

 

 

SoHONSW is sequentially adding web pages as our volunteer resources allow. Our aim is to eventually provide a comprehensive information site to assist owners get up to speed on heritage issues affecting their property as quickly as possible.

A good place to start to better inform yourself about the gross abuses, malpractices and outright corruption in local Council heritage practice is our web page [see left hand side] titled Government Heritage Reports.  These two government reports document the matters we are highlighting. Reading these reports [or at a minimum the sections relating to local government heritage malpractice] is important for owners.  This is because the heritage mafia in NSW and this country continually make untrue or propagansist assertions about heritage and which unfortunately are often accepted at face value. Heritage owners who understand intimiately what is involved find their heritage propaganda odious.

 

Pro heritage organisations for example repeatedly commission "research" which always concludes heritage listings either have no detrimental effect on property values or enhance it. Owners who contact us repeatedly provide detailed valuation reports from experts in real estate valuation demonstrating unequivocally that heritage listing and/or heritage overlays, excepting for world class tourist sites like the Opera House or Uluru,  significantly damage their property values, as well as adding massive holding and other heritage specific costs. Yet the NSW Heritage Branch distributes heritage pamphlets to local Councils in NSW purporting to assist and advice owners and what to they only ever list? The benefits or advantages of owning a heritage listing property. Never any of the very real disadvantages we as owners must deal with.

 

When we carefully examine the methodology and other research parameters of this so called 'independent' research about heritage,  what do we find? Carefully manicured research methodology and terms of reference which ensure  no other conclusion is reached. Pure propaganda in other words, sculpted to get the outcome that suits their ideologically driven purposes. Often unfortunately paid for via tax payers money spent on subsidizing these pro-heritage organisations. Such propagada is then presented as "evidence" about heritage ownership and is then deliberately misused against owners. Slick heritage propaganda dressed up as indepedent research is abused to accuse owners of being ignorant when we cite adverse effects of heritage listing.

 

NSW Local government - because of their lack of skills - are especially vulnerable to blandly citing this purported 'research' as a fact rather than seeing it for what is it - pro heritage propaganda paid for and produced by heritage pro heritage propagandists to secure two results  -continuation of their hegemony over the heritage system in NSW and side lining of any criticisms of their abusive methods.

Privately owned heritage listed property in Australia is valued in billions of dollars. A very, very big deal. One, therefore, in which every law, process, policy, procedure and documentation must be managed to the highest levels of ethics, lawfulness, and pristine probity. Why? Because Australia is not Zimbabwe, where the government can arbitrarily take whatever private property land rights it wants, without adhering to a strict rules, without paying adequate or just compensation to affected owners and in breach of the Rule of Law -the very bedrock on which the entire western system of justice is predicated.

 
SoHONSW recognises that in certain circumstances, the government may acquire an interest of varying kinds or levels in privately owned property and that sometimes a government's interest may also adversely affect the property's value, including its permissible usage.

 

SoHONSW also recognises that the greater public good must be recognised in compelling cases,  and permit overriding of private property interests. For example, if much needed aging infrastructure such as electricity sub-stations require installing or expanding in order to meet electricity needs of many citizens, that substation - as unattractive and as property devaluing as it is - needs to go somewhere. Ditto for a railway station, hospital or eduation precinct.  

 

However, if any private property in a modern, western, capitalist democracy is to be so burdened 'in the public interest', then each step, each decision maker and each determination must not only be ethically and legally pristine, but above reproach, including from a natural justice perspective. Otherwise it is nothing more than state sanctioned theft. 

 

Most importantly, owners who experience property value losses for 'the social good' must be justly compensated to the best/highest use valuation. Our Australian Constitution requires that of the Federal government, yet local Councils, the lowest level of government and the one most likely to be sacked for incompetence, does not. A bizarre situation.

SoHONSW's primary focus is on local government heritage listings.

 

This is because there exists voluminous documentation, including the two relatively recent government reports - demonstrating beyond any doubt that this is where the most egregious heritage rorts occur.

Without giving NSW State government heritage listings our 'seal of approval', our general observation is they are more likely to be genuine heritage items [more particularly the recently listed items],  and the process tends to be more professional, with objective heritage standards used. There also appears to be a genuine interest in 'lifting the game' even higher, including de-listing items no longer meeting heritage listing criteria. None of these factors apply to local Council heritage listings in NSW.

SoHONSW considers Australia's local government heritage listings - particularly those in NSW - to be a mess, with an abject failure to apply not just reasonable or lawful, but in too many instances, any professionally acceptable heritage criteria whatsoever.Too many items are heritage listed by local Councils in NSW simply becasue they 'look' old [shallow astethics unrelated to genuine heritage assessment criteria] and/or pandering to local sentiment, often from a narrow sectional interests such as from an undistinguished local person with 'pull' on the local Council or worse still. money hungry heritage consultants trolling for expanded heritage lists to boost their income. Then there is the issue of facetious heritage listings, often done for ulterior purposes relating to a Council's desire to sabotage state government imposed higher density zonings.

 
In case you consider heritage owners may be biased, we refer you to evidence from long standing pro-heritage activists and organisations.  Architectural historian Michael House told the Productivity Commission that many heritage assessments were merely creative writing exercises in which all that was needed to heritage list was one sentence.

 

ICOMOS told the PC inquiry that too often heritage conservation zones "are often used for non-heritage purposes", commented on the misuse of heritage listings and noted the lack of local government heritage expertise as a "major weakness".

 

Even the NSW Heritage Office told the PC inquiry that local government used open-ended heritage listing criteria, which was subjective. Unsurprisingly, the PC inquiry found local government applied minimal rigor to heritage listings, set the threshhold bar too low and overlisted.

 

And that is what the pro heritage lobbyists had to say!

SoHONSW agrees and wants these problems remedied in NSW.   

The undifferentiated, debased mess of local NSW Council non-genuine heritage listings is achieved via the deliberate manipulation of such loose, subjective and easy to abuse processes and the failure of any state government agency to take an active monitoring and compliance role with respect to heritage.

Those responsible for this heritage listing system are the same people and organisations who benefit from its creation and from the continuation of heritage rorts - fanatical heritage hobbyists pursuing their personal hobby, blithely uncaring and even antipathetic to any losses sustained by owners and even more worryingly,  pro heritage orgamnisations and heritage specialist/consultants, whose private consultancy income directly benefits from ever expanding local Council heritage listings - irrespective of actual heritage merit. It could be argued the latter benefit the most from bogus or fraudulent Council heritage listings, as such listings boost the number of owners likely to consult their specialist heritage services.

When such considerations are coupled with an expensive, byzzantine nightmare of a system which only permitted affected NSW owners indirect and extremely expensive appeals against Council heritage listings, you may begin to appreciate why SoHONSW was formed and why we maintain a strong heritage reform agenda.

NSW local government heritage listings have chronically failed to meet even the most basic requirements of procedural fairness, despite the fact that natural justice principles must apply. Ironically, natural justice is lauded by heritage fanatics, who seem intent on applying it rigorously to all matters - excepting of course to owners of heritage listed or nominated properties. Why? They don't want it to get in the way of their heritage hobby or heritage dependent business.

'Natural justice' is and must be an integral part of the proper functioning of a modern democratic state, especially so when the government wishes to place a burden on privately owned property. For those unfamiliar with the term, it includes, but is not limited to:

 

 - transparency in all heritage listings decisions, policies, laws and practices. In a heritage context is means the rules, standards applied and processes are not only fully documented, a decision based on them can be seen [be transparent] at each step along the way;

- banning of conflicts of interest for anyone undertaking heritage listing tasks or roles. This has been rampant for the past 30 years and is one of the major reasons why local government heritage listings are in such disrepute. Decision making and reporting roles must not be undertaken by any person, business or organisation with a conflict of interest. A conflict of interest does not just encompass one existing at the time the decision is made and it is not just for the conflicted person to decide if it exists or not. A conflict of interest may be pecuniary [financial] or non-pecuniary [such as ideological]. The NSW Department of Local Government and indeed NSW public sector agencies have been required for a very long time to not only avoid actual conflicts of interest, but also perceived or suspected ones as well.  These same probity standards have not been applied to local government heritage listing, listing review and appeal processes; and

 - full and proper documentation of each step in the heritage listing process as well as the identities of those who contributed, wrote reports, signed off on recommendations and so on. There can be no natural justice if any NSW Council is permitted to heritage list items in secret and without revealing the full documentation they relied on to do so, as well as the identities of those involved. Other laws containing important rights for citizens in a democracy, such as the Freedom of Information Act will not work and is actively sabotaged if Councils have a practice - overt or covert - of destroying heritage listing documentation. Failing to properly retain such documents also breaches other NSW statutory laws, such as Archival laws and the NSW State Records Act, but is also an effective method to damage any decent owners appeal rights over decisions and/or the ability to review the ethics of participants in decisions to heritage list their property.

 
Heritage maladministration and/or corruption amonhst NSW Councils

 

SoHONSW also considers it maladministration [at best] and corruption [at worst] for members of pro heritage organisations,  Councillors, Council staff or heritage consultants to be sitting and voting on or having a say about heritage listings or policy, when their organisation and/or any of its members play any role whatsoever in the heritage nomination, heritage reporting on the item being assessed. It is a conflict of interest pure and simple and should preclude them from any role whatsoever.

 

SoHONSW says Council heritage listings must only occur via the application of valid, state approved heritage listing assessment tools that relate to the published [not secret] heritage criteria, beginning with the listing and delisting criteria in the NSW Heritage Act.  Other considerations which fall outside the criteria must be banned from inclusion, including waffly ideas like "when ever I walk past that place I get a warm feeling for the past" or "I don't want a multi-storey building to be built there." These latter issues are just some examples of the type of irrelevant considerations that have infected local Council heritage listings in NSW for 30 years, while other highly pertinent considerations, such as owner's opinion, the state of dereliction or lack of public safety, cost of repairs vis a vis the owners financial capacity,  were actively excluded. This is now changing as a result of the work we and our heritage owner members have been undertaking the past 6 years.

All heritage listings using other, or non-approved heritage criteria is ultra vires [outside the legal power of the Council], and should be immediately banned.

 

SoHONSW is also alarmed at the inappropriate delegation of NSW Council heritage planning functions to local Heritage Committees, who are invariably comprised of heritage hobbyists, local historians with their hands out for rate payers money to subsidize their dinky local 'museums' and those making their living off their heritage businesses.  

 

Refusal of many NSW Councils to delete items no longer meeting heritage listing criteria is a corrupt abuse of their discretionary heritage powers

There is strong evidence, including in NSW Land and Environment Court judgements finding NSW Councils are heritage listing for non-heritage reasons and such Councils  refusing to remove the heritage listed item from their Local Environment Plan's Heritage Schedule.  

 

Such listings should be removed via Executive fiat,  such as by the Minister for Planning or the Minister for Local Government if they cannot get elected Councillors or Councils staff to do their job lawfully.

 

SoHONSW suggest they start with North Sydney Council and Sydney City Councils who retain heritage listing and therefore heritage controls and limits over items, including over items which no longer exist.

 

That is correct reader.

 

That is their perversion of their heritage powers. NSW Councils do not have the power to punish owners of heritage items which no longer exist directly, so they add layer after layer of heritage controls over an item [examples included heritage listing the individual non-existent item, adding a heritage conservation zone over that, adding a heritage streetscape controls over that and then downzoning to the greatest extent they can] in order to persecute forever whoever now happens to own the land.

 

This has had the added 'benefit' for Councils who oppose State government imposed higher density provisions as it is an effective way to sabotage them without a direct legal fight and for Councils wanting more open space, it is a back door method of getting it, effectively by stealing it from the affected owners who they keep buried in multiple layers of heritage restrictions, even when the heritage item or heritage feature no longer exists. 

SoHONSW considers such Council practices heritage to be corruption, and is working to end it.

 

Council heritage listings should only persist as long as the item continues to meet the valid, lawful heritage listing assessment criteria and not meet the de-listing criteria. There must be a positive obligation on heritage listing authorities like Councils regularly and genuinely automatically review all items on their heritage schedule,  and immediately de-list any that fail to meet the delisting standards.

 

SoHONSW also demands that there be a simple, cheap, non-adversarial and easy to access direct appeal rights for any owners who dispute the validity of the heritage listing. The appeal system must be staffed by genuinely unbiased, independent persons steeped in procedural fairness principles and with an ability to apply and assess against the approved heritage listing criteria.  

Endemic maltreatment and abuse of heritage property owners in NSW must cease

 

Owners of heritage listed properties have contributed billions to the 'social good' via the part nationalisation of their property by the state. With older heritage listings at the local government level, this often occured without the owners knowledge, consent or effective ability to comment. In NSW, it also occured for most owners without them ever being advised of their appeal rights, in the event they disputed the validity of the listing. It occured with the knowledge of the listing local Council that even if an owner did find out what was happening and was aware of their limited appeal rights, the appeal system was so prohibitively expensive and cumbersome, few ever could afford it anyway.  This scenario is of part nationalisation of a citizens' private property - without most owners concurrent knowledge and few real, accessible appeal rights - including the full financial burden associated with that listing falling on the owner - and virtually none on the listing Council.

 
SoHONSW says that for 30 years in NSW this truly Kafka-esque situation resulted in perverse incentives that encouraged Councils to actively over-list and widely abuse their discretionary heritage powers, including for non-genuine heritage purposes. Official government reports agree.

 

When the Federal Liberal Party commissioned a Productivity Commission Report into this issue - independent of the heritage fanatics -  it came to exactly this conclusion.  The NSW Labor governmennt commissioned the NSW Heritage Act Review and while the report was more moderate in its language, the critique of local council heritage listings  was along the same lines [see left column to access these Government heritage reports].  

Other citizens subject to eg., state imposed conscription such as war service, have medals stuck in their honour, receive taxation and other benefits, public recognition, acclaim and awards. Not the owners of private property that the state has part nationalised via heritage listings. All of the honours and public acclaim go to the fanatical heritage organisations, their members and wealthy heritage consultants who have made the lives of heritage listed property owners hell for the past 30 years in NSW. It is time for NSW to get their heritage priorities right, reverse this and recognise and reward those who carry the entire burden associated with the public interest in their private property - the owners .

 
Why is it owners of heritage listed properties been so mistreated for the past 30 years by official heritage laws, structures, policies and heritage organisations? How did the heritage industry - those with their snouts shoved firmly in the heritage trough and those whose hobby was heritage - get away with such serious abuses of public sector legal, ethical and operational standards for so long  NSW?

 

This website goes part of the way towards explaining how the incestuous and internally self-referencing heritage mafia set up the heritage listing system and then ran it for their own benefit for 30 years. They demonised, marginalised or air brush out of the equation any fair consideration for affected owners. They ran a largely successful propaganda campaign, accusing anyone challenging their heritage hegemony, of the very things they were most deeply engaged in - lack of transparency, biased decision making, failure to consult, failure apply legitimate standards, failure to permit workable appeals system, rampant undeclared conflicts of interest, including financial self interest, maladministration and yes, even corruption. 

SoHONSW considers they were able to get away with it because of their mild mannered presentation, education levels and often their middle class backgrounds as historians, librarians, architects and so on, meant they managed to avoid being perceived as grossly self interested, grasping and/or fundamentally anti-democratic. The class based exploitation of heritage listings has been breathtaking,  particularly considering their penchant for exploiting the caricature of the ogre developer or 'white shoe brigade' whenever owners rights were under consideration.

Fanatics don't all dress in combat fatigues and sling an AK47 over their shoulder ala Che. Some of them wear Ferragamo shoes, live in the leafy Kur-ing-gai North Shore of Sydney, have post graduate qualifications, speak 'naicely' and spend their enormous slabs of free time available to them because of their personal wealth, on their heritage hobby horse. Problem is - they want other property owners, invariably less well off than they, to pay for and subsidize it. And we heritage owners, often working enormous hours and without the oodles of leisure time these 'Lady and Lord Bountifuls' enjoy, are in a catch up game to get our criticisms across and secure fair treatment.   

Through sheer dint of hard work and with zero government funding, owners and owners organisations like SoHONSW mounted compelling arguments for Federal and NSW state governments to investigate heritage rorts. They have now publicly identified and made pungent criticisms of the long standing heritage abuses we identified and asked them to fix Government also come up with excellent reform programs to end these heritage abuses, rorts and fraud.   Unsurprisingly, these reforms were vigorously opposed by those that first created and then benefitted most from the existing, rotten local government heritage listing system. When that seemed to fail, they have started to give grudging, half hearted support for some reforms - whilst simultaneously working the political system hard to ensure that when there is a change of government in NSW, the NSW Liberals will ditch their Federal Liberal colleagues criticisms and engage in a series of decisions which will have again the effect of opening the door wide to all these heritage malpractices once again.

 

In other words, the heritage fanatics have not accepted for one moment that heritage owners should enjoy any of the important reforms and now rights government's of both political persuasions who have investigated these problems state we should have and are engaged in a strategic process of undoing all the reforms we have won. This is the clearest demonstration yet they are fighting to get their 'on the nose' heritage hegemony back and clearly, stopping NSW local government heritage reforms dead in its tracks is their 2009 focus.     

The Society of Heritage Owners NSW offers affected owners:

• a clear focus on your rights
• a way forward to end the current punitive and owner-hating heritage listing laws, policies and practices in NSW
• a way to end current heritage fraud and abuses
• independence from fanatical pro-heritage organisations, who usually exhibit a hostile or at best disinterested attitude towards owners
• a successful track record lobbying for heritage reforms that recognise and respect owner's rights and our contribution
• accurate owner specific information located in one place without the standard fanatical heritage propaganda and
• regular updates of issues relevant to heritage owners