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Society of Heritage Owners NSW Just, transparent heritage laws with positive incentives for owners. |
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SoHONSW has identified the four major heritage rorts in NSW we consider should be the highest priority for the NSW Planning Minister to reform in 2009:
1. The overwhelming majority of local government listings in NSW coming about via the application of professionally unacceptable heritage assessment tools and criteria, which requires a full review and rectification.
This includes the wholly discredited 'walk by' or 'drive by' heritage assessment method, much favoured by heritage fanatics because it leaves the assessment process wide open to their tastes and personal biases. Heritage assessment in that case boils down to their personal opinion, not assessed rihorously against professionally acceptable criteria. Minimal restrictions on heritage fanatics recommending for heritage listing whatever took their fancy, irrespective of genuine heritage merit as defined against professionally accepted, legitimate and therefore more objedtive heritage assessment tools is the corrupt heritage listing system SoHONSW seeks to end.
SoHONSW believes a significant contributing factor to bogus heritage listing by Councils in NSW is their chronic use of unqualified heritage assessors to undertake these tasks and/or persons with serious pecuniary and non-pecuniary conflicts of interest which in a modern democracy are people who should have been excluded from undertaking such a task. For example, appointing a NSW Heritage Office website promoted specialist Heritage Architect who is also a member of extremist pro-heritage organisation/s and operates a heritage specialist business in the local government area is a clear and serious conflict of interest. It is akin to appointing Dracula to the bloodbank. After appointing individuals with serious conflicts of interests to undertake this senstivie local heritage assessment task, Councils in NSW then failed to properly supervise these heritage assessors and/or place reasonable boundaries
 on them about how they conducted their work. In most cases, these heritage fanatics whose personal income is tightly correlated to ever expanding heritage listings proceeded to recommend the heritage listing of ever more marginal and frankly ludicrous items. Part of this push to expand heritage lists was to also argue for more and more obscure heritage listing categories. On the recommendations of these often biased and conflict ridden "heritage experts" many NSW Councils proceeded to heritage list privately owned items over the past 30 years - often without having any effective mechanisms in place to notify owners of this and/or advise them clearly of their appeal avenues.
SoHONSW say NSW Council heritage listings were manipulated by the heritage industry to effectively operate as a 'closed shop' for 30 years,. Consqeuently, recommendations flowing from such a person, without the application of professionally valid heritage listing criteria and acted on by a Council remain highly suspect. SoHONSW says prima facie invalid is the only correct status for such items.
This incestuous and largely unaccountable heritage listing process has been permitted to operate for most of the last 30 years in NSW. The word 'unaccountable' is used deliberately. Many Councils' purported 'notifications policy' [many Councils did not even have such a policy till this decade so most owners did not get this anyway] failed to advise owners about the heritage nomination on their property, failed to tell them if they proceeded to heritage list and failed to tell them about any possible appeal rights if they wished to dispute it.
The purported appeal system against a heritage zoning or listing was also manipulated by its architects to fail to provide direct, simple and cost effective appeals against a heritage listing.
It is SoHONSW's position that any heritage listings which came about as a result of 'walk by' or 'drive bys' are automatically suspect, should be deemed to be invalid unless proven to be valid against professionally accepted assessment criteria and must be independently reviewed to assess genuineness or otherwise at the Councils cost if they wish to insist on the validity of their listing. Any Council heritage listings based on recommendations by either unqualified assessors and/or those with conflicts of interest [such as locally based heritage architects or other heritage specialists whose private business would be likely to benefit from increased heritage listings in the local area about which they were reporting] or who failed to assess using professionally accepted heritage assessment criteria, should also be reviewed independently.
2. Local Councils gross abuse of their discretionary power to create heritage precincts, heritage zones, heritage areas heritage streetscapes, heritage curtileges, heritage overlays and/or heritage conservation zones is so serious and increasing in such a scale that the NSW government must follow the recommendations of the Productivity Report [see Chapter 11] and remove this power from Councils immediately as well as independently review any of these existing classfications to assess genuineness.
Various terms are used interchangably to describe this phenomenon. Irrespective of the term favoured, SoHONSW says carving out these zones is invariably nothing but a rort. They have become the favoured technique used by heritage fanatics to quarrantine a large areas from state government imposed higher density zonings. It therefore has zero to do with heritage ie., saving a genuine heritage item. In fact, it is the favourite subversionn tool for heritage fanatics to use against properties which they know full well would individually fail to meet even the current low bar statutory criteria for heritage listing, but when grouped together accompanied by an expensive, highly sympathetic "heritage consultants report" which puts forward an argument for a heritage area to be created, simulates genuineness.
Heritage zones used by most NSW Councils are nothing more than a back door method of sabotaging state government zoning requirements and rarely if ever do they have anything whatsoever to do with genuine heritage protection.
The process is also often manipulated by heritage fanatics who work on creating these zones for years, normally without ever informing the owners and when it reaches the point where they have assembled biased documentation favouring their position, owners are only informed at the last minute and deliberately left with extremely short periods of time in which to gather together their finances and make a decision to oppose it.
The creation of such heritage overlays, in SoHONSW's view, is more than mere Council maladministration of their heritage discretionary powers. We say it constitutes 'corruption' within the definition of the Ombdusmans Act [NSW]. This is because Council heritage listing powers are being abused for non-genuine heritage purposes.
It is such a common local government rort that the 2006 Productivity Commission Report devoted its entire Chapter 11 to this issue and featured NSW's Kur-ing-gai Council in a break out box on the topic. It also noted that in some local government areas this "device" has been used to sterilise 80% of the land from any form of development.
SoHONSW says the manipulation and creation of these purported but fake heritage precincts has now become the favourite strategy of heritage fanatics and anti-development groups, who work cooperatively to bring these zonings about.
SoHONSW wants all NSW Councils to have their power to create these heritage precincts removed and all existing precincts be reviewed by an independent panel to assess their validity or otherwise. Any heritage precincts that fail to meet independent criteria or which Councils fail to review in specified time frames should be immediately de-listed by the NSW Planning Minister.
3. Sneaky down-zonings of heritage listed properties by Councils often after an owner has purchased it, and other incremental layers of heritage regulation which operate to gut the value of the item owners paid market rate for.
According to Sydney Morning Herald Built Environment writer Elizabeth Farrelly, down zoning a property is one of the strictest and most unalterable rules of planning. It is not supposed to happen.
Unfortunately in NSW, all too often over the past 30 years, Councils have done this thing which is not supposed to happen to owners of properties they heritage listed, without the owner ever being notified of the changes or their appeal rights.
SoHONSW says this was lack of owner notification was designed to deliberately thwart any potential appeals which could overturn the decision in a timely manner. Let us examine one aspect only, which is that of curtilege. In summary, 'curtilege' is the skirt or area of land surrounding a heritage listed item which represemts its ideal heritage context. When NSW commenced heritage listing items such as buildings, the building itself was heritage listed, not the entire property comprising the land to its outside boundaries. Heritage fanatics commenced a political lobbying campaign in the issue of curtileges, arguing that for historical authenticity, it should extent to cover all the land in a Deposit Plan, not just the heritage listed item. This meant a farmer could have a heritage listed shed on 200 hectares and because of this the entire property was 'deemed' to be heritage listed to its very boundaries, it necessitated a raft of additonal, expensive heritage specialist reports should they wish to lodge a Development Application over any part of the land. Unfortunatley the NSW Department of Planning mandarins were slow witted and failed to see the implications of what their rogue satellite Heritage Office staff were promoting. The DoP accepted a recommendation that the Model Local Environment Plans [LEP's] contain this deemed heritage curtilage provision.
The next step from the heritage fanatics was to again amend the Model LEP and DCP's ech yar to create increasingly tighter restrictions, such as only to permit architectually sympathetic styles behind or adjacent to a heritage listed item, so owners who paid market price for a zoning allowing them to build to 6 storeys suddenly found themselves down-zoned to one or two. They also faced the unsurmoutable task of making eg., a CBD office block fit the architectural style of a the heritage listed item, such as one storey weatherboard cottage.
These constant tightening of heritage was an war of attrition against owners waged by heritage fanatics, who were, in conjunction with one eyed zealots within the then rogue NSW Heritage Office, successful in exploiting the state government's Model Codes to down-zone ever more land. Curtileges proposals are now expanding ever wider to half a kilometre or more from the heritage listed item and many streets away.
Such creeping heritage overlays have nothing whatsoever to do with protecting genuine heritage and everything to do with exploiting this last remaining discretionary power NSW Councils have to sabotage state government and Planning policies about increased densities. SoHONSW is also alarmed at the Councils failure to adhere to the NSW State Records Act and/or Archives Act so owners lodging applications under section 12 of the NSW Local Government Act or the NSW Freedom of Information Act are finding no documents in the possession or control of the Council showing who made these decisions, on what basis etc. Another handy method to evade scrutiny of their heritage decision making and to obscure follow up about any conflicts by those making these decisions .
4. The grossly inadequate heritage training being received by NSW Council's Heritage Officers.
It is SOHONSW's observation that unlike other planning training, the NSW Department of Local Government has virtually ceded the entire field of training NSW Council Heritage Officers to the NSW Local Government and Shires Association and the NSW Heritage Office [now Heritage Branch of the NSW Department of Planning].
Bothe these NSW Departments have been negligent in so doing.
The offically sanctioned and paid for "training" received by NSW Council Heritage Officers has been either conducted by committed pro-heritage activisits [often with their private businesses incomes highly dependent on their heritage specialities] and/or from persons or organisations with a clear extreme pro heritage agenda and notorious for opposing government attempts to reform or rein in well documented local government heritage abuses. Owners of course and owners reprentative organisations like ours never receive an invitation to speak to Council Heritage Officers being trained despite the fact that dealing with owners features again and again as the most significant aspect of their role.
In fact, by ceding the training of NSW Heritage Officers to beneficiaries of the current rotten local government heritage listing system, the NSW Department of Local Government could open themselves up to allegations of failing to carry out their function and duties in a proper manner and actively facilitating heritage rorts the state and federal government have been working assiduously on ending. The NSW Department of Local Government have policy officers for all sorts of things, including dog control, so why is it they do not have somone for Heritage when the two recent government reports on the topic slam local Councils heritage practices?
The training of NSW Council Heritage Officers has also unfortunately air brushing out of the purported heritage training, minimising or ridiculing the:
- findings and recommendations of the Federal governments 2006 Productivity Commission Report into heritage which identified serious, well entrenched heritage malpractices and abuses at the local government level and devoted and entire chapter to the problem;
- 2008 NSW Heritage Review Act which also devoted a full chapter to local government heritage problems and also made wide ranging recommendations for remedying them [despite the fact that the NSW Heritage Council is actually chaired by Ms Gabrielle Kibble who also Chaired this Review and despite the fact that the contents and recommendations contained in this Review were endorsed by the NSW Heritage Council;
- views of owners of heritage listed properties who sought to challenge the validity of the heritage listing or nomination. The training has zero input from heritage owners organisations about our perceptions of corruption, maladministration, conflicts of interest or mismanagement of Council heritage listings and what we want to be done to overcome this. Even more interestingly, often our criticisms are highly congruent with the criticisms and contents of the two major government heritage reports which also get short shrift if any attention at all;
- heritage reforms, with zero critical content in regard to the past 30 years of local government heritage practice and/or how Councils should go about fixing this now [pro-active management of heritage errors];
-zero content about Council's positive obligation to actively de-heritage list items which do not meet the heritage listing professional standards approved by the NSW Heritage Act Review; and
- zero content about ethical, anti-corruption and other public probity issues that impact directly on NSW Councils and all their Councillors, staff and officers and the particular issues this throws up that are applicable to heritage.
The latter issue is of extreme concern as failure to include such content could falsely lull Council Heritage Officers into failing to recognise and appropriately apply public sector probity and anti-corruption standards to their management of heritage.
We want the NSW Department of Local Government to create and issue a policy Circula about for approved attendance at heritage training courses, which includes minimum course content requirements, including:
- a critique of the local government heritage listing practices [already exhaustively documented in the two government reports];
- that when any pro-heritage propaganda [eg., heritage is a socal good, that heritage listings do not place unreasonable burdens on owners, that owners engage is 'demolition by neglect'] is being promulgated either in a documentary or lecture form, that the opposing view is put for at least the same length/duration/format/sector representative; and
- no Councils may send, support, sponsor or approve any Coucillors staff or others to heritage training unless the training meets the policy on minimum acceptable standards for heritage training.
SoHONSW also wants the NSW Department of Local Government to fund a full time Heritage Policy Officer position within that Department with an explicit mandate to work on creating an unbiased, up to date program, procedures and policies on heritage issues. We believe a significant contributor to the widely identified problems in local government heritage listings in NSW can be sheeted home to the failure of the NSW Department of Local Government to take responsibility and address local government heritage mismanagement over the past 30 years. They sat back and allowed the fanatics to dictate the entire show, resulting in the rorts and heritage nonsense we have today.
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