Wiffen, Graeme --- "Retaining the 'spirit of place': Housing and heritage" [2009] ALRCRefJl 40; (2009) 94 Australian Law Reform Commission Reform Journal 42

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Reform Issue 94 Summer 2009

This article appears on pages 42–44 of the original journal.

Retaining the ‘spirit of place’

Housing and heritage

By Graeme Wiffen*

Tensions between heritage and housing often arise.

Many will immediately think of an old house, which new owners want to extend, on a big block suitable for subdivision. Is the line of old houses near a railway station a heritage precinct or are they on land suitable for higher density? Should an old factory or a school with heritage significance be converted to ‘New York style lofts’, or is this introducing high density living to a new area?

Note that economics do not always go the one way. Demolishing the old house may allow for a more intensive use of the site, but the conversion of the factory might allow for an intensity that would not be allowable if the factory were demolished and more recent planning restrictions applied.

Heritage issues, therefore, impinge on housing as an aspect of the regulation of land use, and the most contentious issues often centre on which set of policies should apply. While this article refers to Australia’s heritage laws, most heritage issues are addressed at the local level by councils administering their local land use schemes.

Terminology

It is useful to avoid talking of ‘heritage buildings’ and to prefer ‘places of heritage significance’. The difference is important intellectually in approaching the question of the identification of what is important and legally in setting the parameters of the regulatory activity that heritage has become. As a regulatory activity, questions of heritage quickly intersect with law. Heritage laws are important in land use and development and seem to be under continual scrutiny.

These are some of the questions that the laws address.

What is significance?

The Australian national group of the International Committee for Monuments and Sites (Australia ICOMOS) is an organisation for heritage professionals. The Burra Charter, sponsored by Australia ICOMOS, asserts that in considering places with cultural heritage significance:

The aim of conservation is to retain the cultural significance of a place.
Place means site, area, land, landscape, building or other work, group of buildings or other works, and may include components, contents, spaces and views.
Cultural significance means aesthetic, historic, scientific, social or spiritual value for past present or future generations. Cultural significance is embodied in the place itself, its fabric, setting, use, association, meanings, records, related places and related objects.^[1]

At the recent ICOMOS Congress in Quebec, delegates considered how the task of conservation was not so much to preserve fabric but to assist in maintaining the ‘spirit of place’.

Setting a daunting regulatory task, ICOMOS is calling for the protection of the:

Spirit of place (which) is defined as the tangible (buildings, sites, landscapes, routes, objects) and the intangible elements (memories, narratives, written documents, rituals, festivals, traditional knowledge, values, textures, colours, odours, etc.), that is to say the physical and the spiritual elements that give meaning, value, emotion and mystery to place.^[2]

So a place may not be a house and may have natural or cultural significance and—within cultural—the significance may be within an Indigenous or non-Indigenous tradition. Similarly, the issue may not be to save an historic building, but to identify the significance of a place and work out how to preserve that significance, ideally in a way that maintains the ‘spirit of place’.

Regulatory scheme

Considering the question in this way does allow for a range of regulatory approaches. Walk down a city street where old facades have been preserved in front of multi-story developments and, before condemning the tokenism of facadism, consider: What is the place? Is it the buildings or the street with a historical streetscape? What was the significance? Does keeping the facade maintain it? Is the issue less about preserving the buildings and more about determining a setback between the old facade and the facade of the high-rise above it? And as the Quebec Declaration says: What about the ‘odours’ (sic)?

World heritage sites are required to have a buffer zone, so important heritage laws for the Sydney Opera House are not only those that preserve the building but the planning laws that protect views to and from the building up and down Sydney Harbour.

Australian heritage laws adopt the strategy of listing places of heritage significance on a heritage register. Reliance is often placed on plans of management to provide the fine detail of how places are to be treated. Once heritage significance is decided on, there can be trade offs with what is less significant but which may be of value to the owner.

Significance for whom?

It is clear that heritage is complex in a multicultural country with a long Indigenous tradition. Australia is also a federated nation of nine jurisdictions with heritage laws. Australia’s first national heritage laws, the Australian Heritage Commission Act 1975 (Cth), took a national perspective through a Register of the National Estate. By 2003 this comprised more than 14,000 items. In a pre-Dams case^[3] view of the Constitution, the Register of the National Estate was not supported by civil or criminal sanctions, but listing on the Register had persuasive authority. Unlike the US model on which it was based, this Register was not integrated with the state and territory lists, which did have sanctions.

This model changed in 2004, when the then Commonwealth Government repealed the legislation and brought national heritage laws within the omnibus Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Earlier the Council of Australian Governments had decided that heritage issues should be dealt with at whichever level of government is appropriate.^[4] The effect is to require attention to how a heritage place relates to Australia’s governmental divisions, not just for administrative convenience, but as part of the identification of significance. Is a place of national significance? Or state or territory significance? Or is it of local significance? While the duplication between the Register of the National Estate and the state and territory heritage registers has been reduced, there are misgivings that the new List of National Heritage Places under the EPBC Act has only 105 items of (truly?) national significance.^[5] The state and territories are to list items of significance to their areas and local government to its registers.

Significance for what?

The national legislation—the EPBC Act—protects the heritage values of a place, which is defined to include:

‘The place’s natural and cultural environment having aesthetic, historic, scientific, or social significance or other significance for current and future generations of Australians.’ (s 528)

Pause to note how broad this definition is. It moves a long way from the old house that has historic or architectural significance. For example, a place of social significance to a migrant group, who initially had few resources, may be very unprepossessing in aesthetic appeal and have little historic significance.

Note also the move to protect values. There was some fear that moving from protecting a place to protecting its values may, with an unsympathetic regulator, downgrade the overall protection: how little needs to be preserved to protect a place’s heritage values rather than the place itself? Some landmark cases though may go the other way. In considering the question of whether to allow the damming of a river in Queensland, the effect of the farming activities that would be facilitated on the Great Barrier Reef 500km away was judged to be relevant.^[6]

Who decides?

Heritage in some respects is a contentious and perhaps nebulous concept. Who decides what to protect is, therefore, an important issue. Heritage groups argue that questions of identification and management should be separated.^[7] What is heritage is a question for heritage experts. Whether what is identified should then be protected is a question of the allocation of resources, which, as a political issue, should be decided in a political process. Politicians seem to prefer to get involved in the first question and so perhaps avoid any opprobrium when they might decide not to protect a place with identified heritage significance. In most of Australia’s heritage legislation, the question of whether to list a place on a heritage register is a ministerial decision.

Who pays?

Broadly, the upkeep of a place with heritage significance falls to the owner. Most jurisdictions have a system of competitive grants that can be used to assist. Some jurisdictions provide for concessional local government rates. The Keating Labor Government introduced a tax-offset scheme for approved expenditure on a place listed on a heritage register. This was replaced with a grants program in 1999.

Heritage is a matter of private and public concern. Which should prevail and at what stage should this be considered? Potential financial hardship to the owner could be considered at the listing stage,^[8] at the stage of assessing an application to carry out work at a listed place, or not at all.

Heritage can easily be seen as an expensive impediment to the urgent and necessary provision of housing by homeowners for their families and by governments for a rapidly increasing population. It can also seem bedeviled by vague rules and discretionary judgments. Returning to the ICOMOS ambitious definition of the ‘spirit of place’ heritage significance is, on the other hand, an attempt to identify the places we want to keep in the midst of constant and vast changes and a way of teasing out the deeper meanings in where we live. Heritage is central to housing because it comprises ‘the physical and the spiritual elements that give meaning, value, emotion and mystery to place’.

* Graeme Wiffen is an Honorary Associate in the School of Law at Macquarie University where he taught consumer law, and planning and heritage law. He is on the boards of Australia ICOMOS, Australia’s national cultural heritage professional organisation, and the National Parks Association of New South Wales.

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[1] Article 2.2, The Australian ICOMOS Charter for the Conservation of Places of Cultural Significance (Burra Charter) quoted in B Boer and G Wiffen Heritage Law in Australia (2006), 108.

[2] ICOMOS, Quebec Declaration on the Preservation of the Spirit of Place, Adopted at Quebec, Canada, 4 October 2008, at the 16th General Assembly, <www.international.icomos.org/quebec2008/ index.htm> at 16 September 2009.

[3] Commonwealth v Tasmania (1983) 158 CLR 157, which accepted Commonwealth power in relation to heritage matters under the external affairs power and the World Heritage Convention.

[4] Heads of agreement on Commonwealth/State roles and responsibilities for the Environment, Nov 1997, Article 6, <www.environment.gov.au/epbc/publications/coag-agreement/index.html> at 16 September 2009.

[5] See <www.environment.gov.au/heritage/places/national/list.html> at 16 September 2009.

^[6] Queensland Conservation Council Inc v Minister for Heritage [2003] FCA 1463 (the Nathan Dam case).

[7] S McIntyre-Tamwoy Australia ICOMOS Comments on NSW Heritage Amendment Bill 2009. See Policies and Submissions <www.icomos.org/australia> at 16 September 2009.

[8] Productivity Commission (2006) Conservation of Australia’s Historic Heritage Places, Report No 37, Recommendation 10, p xxxv.