There is an old saying many of you will have heard – ‘The law is an ass’. It’s an interesting statement. The ass or donkey is not renowned for its intellect but it is in fact a sturdy beast of burden that will carry heavy loads without complaint. Heritage law for some Councils is in fact ‘a heavy load’.
With competing agendas creating and angling for different outcomes, the current situation in Boroondara Council is an excellent example of legislative failure, at least at a local level, and an inability at a State level to ensure compliance with heritage values enshrined in legislation. The amendment simply makes no sense as currently applied by the State Government.
At a Council level, Planning Departments have competing agendas. On the one hand multi-occupancy on single occupancy sites makes for significant increases in rates and revenue per property.
It would also seem that it is somewhat mischievous to permit demolition permits on properties known to be included in projected Heritage overlays being submitted to Heritage Victoria and the Victorian Heritage Council for approval. In saying this, it’s recognised that the approval process for heritage listing can take up to 12-18 months. In this case Boroondara is imploring the Planning Minister to intervene.
There are several deficiencies at work. The Heritage Council is seemingly underfunded and understaffed. With this in mind, it would be sensible of the Council’s in question with outstanding demolition orders on properties included on proposed heritage overlays, or indeed properties to be heritage listed in their own right, to apply a freeze, an injunction on these properties until a decision has been handed down by the Heritage Council. In turn this could be added to current State Heritage legislation as an amendment to current legislation to prevent any such demolitions being pursued through VCAT or the courts.
This is a most serious issue for Heritage protection. To date this demolition permit loophole has been used to demolish properties in Armadale, North Caulfield, Hawthorn, Kew, Black Rock and Beaumaris. Councils such as Boroondara, Stonnington, Glen Eira and Kingston have all been placed in such untimely dilemmas.
It comes down to properly maintaining heritage listings and overlays within their province and keeping them up to date.
It would appear the dilemma between development offering significant revenue increases and the preservation of heritage style properties is somewhat daunting for our elected officials.
As has been stated previously, the maintenance of the Victorian Heritage Database is unfortunately not keeping pace with the shift in Real Estate valuations and the mounting pressures for development. The process, due to lack of Heritage Inspection staff is interminably slow.
This article from Melissa Heagney in Domain covers much of the current angst.
Heritage knockdowns: Boroondara Council calls on government to close a planning ‘loophole’
Boroondara Council is calling on the state government to close a planning “loophole” which has seen a Victorian-era home torn down, and puts another six homes at risk.
An amendment made to the council’s planning rules by the state government last year allows home owners who have approval to tear down and rebuild a house, to push ahead even if the council attempts to stop them by placing an interim heritage overlay on the property. The council is calling on Planning Minister Richard Wynne to change this.
The properties the council argues are now at risk include homes on Belford Road in Kew East, Toorak Road in Camberwell, Moir Street in Hawthorn, and on Auburn Road and Burwood Road in Hawthorn East. Each has approval for demolition.
Local residents were dismayed at the recent demolition of a 130-year-old home at 368 Auburn Road in Hawthorn, knocked down two weeks ago.
In wake of the razing, the council fears for the other residences in question.
“All six properties can be demolished in accordance with the loophole implemented in the Boroondara Planning Scheme by the minister through Amendment C299,” Boroondara Mayor Jane Addis said.
“Typically, an interim Heritage Overlay would invalidate these building permits, thereby protecting properties from demolition and maintain their contribution to their respective heritage precincts.
“We fear that without the removal of the loophole, these six properties will share the same fate as 368 Auburn Road, Hawthorn.
“Council has requested the minister to remove this loophole four times now and we are hopeful the Minister will now act.”
Planning Minister Richard Wynne has argued that the changes to Boroondara’s rules made the planning process fairer for home owners.
“I introduced the planning amendment to stop this council from continually moving the goalposts,” Mr Wynne told Domain in an email. It was the only council with such an amendment, he said.
Since February 2018, more than 20 amendments had been approved for the Boroondara planning scheme to provide heritage protection for precincts and individual sites, Mr Wynne said.
It was the most extensive application of interim heritage overlays in any council area in Victoria in recent times, protecting thousands of properties.
He said Boroondara had been too slow putting together its heritage applications.
The issue in Boroondara came to a head after approval to tear down a home at 25-27 Victoria Avenue, Canterbury was brought into question when the council introduced an interim heritage overlay on the property after it had been torn down.
The Victoria Avenue property was legally demolished in early 2018.
“It doesn’t make sense for the council to seek heritage protection for a house … many months after approving a demolition permit to knock it down,” Mr Wynne said.
But Boroondara Council argued Mr Wynne had taken six months to review some of these studies before a decision was made.
The council had been undertaking heritage gap studies while some home owners applied for demolitions. As there had been no heritage protection in place at the time, the council was unable to protect such houses.
Under Victoria’s planning rules, a council permit to demolish a home is only required in certain circumstances including: if it is listed on the heritage register; is larger than 40 square metres; or would create a danger to the public when being torn down.
Losing these types of homes has raised the ire of local residents, politicians and the National Trust, with two state MPs airing the issue this week.
The National Trust raised concerns about the number of homes under threat as a result of the Boroondara-specific planning scheme amendment.
“This issue has highlighted the need for clearer and more consistent State Government guidelines around heritage protection, including interim heritage overlays,” National Trust of Australia (Victoria) chief executive Simon Ambrose said.
Boroondara Council and other councils should be “identifying places of potential heritage significance and seeking heritage protection before demolition permits are issued”, he said.
“The best way to do this is through implementing strategic heritage studies, like the gap studies recently undertaken by the City of Boroondara,” he said.
“But even in individual cases, councils have a safety net under the Building Act to withhold consent for demolition and apply for interim heritage protection if it’s warranted.”
So as the Chief Executive of the National Trust has stated, Councils have a safety net under the building Act to ‘withhold consent for a demolition and apply for interim protection if it is warranted’. We would also suggest ‘if they have an appetite for it’.
The whole scenario illustrates perfectly that the time to act is now. The minister must step in and prevent demolitions until heritage status is determined.
Councils must urgently create ‘Gap’ studies and ensure that their heritage registers are up to date. Local Government and State Government bureaucracies can move slowly and often it’s too slowly. It’s time to step in and intervene – co-operatively to save our valuable heritage buildings and precincts – State Government and Local Government – co-operatively. We simply cannot afford to lose further heritage treasures. Act now and stop politicking. This is far too important.