Heritage Protection: A Big Block Of Trouble
The Block winners Darren and Dea Jolly face a $180k fine after demolishing a heritage property without the proper approvals. With upset neighbours and the council on their tail, Darren and Dea have learnt the hard way that you should never mess with heritage. So how do you balance a love of unique heritage design with the practicality of a build?
Many people give importance to the protection of buildings and places from destruction due to their cultural or social significance to the local community, State or nation. Legislation protecting heritage places highlights the communities pride in preserving buildings for the benefit of future generations.
The Heritage of Western Australia Act 1990 (WA) allows a place to be added on the Registrar of Heritage Places if it is of cultural heritage significance of possesses a special interest related or associated with cultural heritage, and is of value for the present community and future generations.
When deciding if a property is of “cultural heritage significance” emphasis will be given to the relative value which is placed on its aesthetic, historic, scientific or social significance for the present community and future generations. Many older and unique homes have been heritage listed. Such listing add value to the street and preserves the historical culture of an area despite some properties being run down to the state where they are no longer safe to live in.
This was the case for The Block’s Darrell and Dea’s property in an affluent suburb of Melbourne. Despite good intentions to maintain the roof and front exterior, the properties structural integrity was so poor that this proved impossible. By knocking down the whole of the property Darrell and Dea breached their partial demolition order and had to apply for a retrospective full demolition approval.
What do you need to be registered as a Heritage Place?
Heritage places are protected under both State and Commonwealth laws. In Western Australia the Heritage Council compiles and administers the Register of Heritage Places. Local governments also protect heritage through the planning scheme.
In deciding if a place possesses sufficient significance for entry into the Register, the Minster may have regard to:
- Distinctive features of scarcity value;
- The character of the place and its landscape or townscape value;
- The buildings beauty and proportions, the degree of utility of its material, design and scale and any contribution it makes to the significant of the area; and
- Whether the place provides a notable example of a particular period, type of place, importance for general education and architecture.
How does being “Heritage” affect the development of my property?
Once a place is listed on the Register it is protected in a number of ways. Controls include:
- It is an offence for a person to damage or despoil the place or remove anything from that place without authorisation and approval from the Heritage Council or local council.
- Development approval and building licences cannot be granted without the decision making authority first referring the matter to the Heritage Council for advice.
- Action with respect to development approval and building licenses must be consistent with the Heritage Council advice unless it is not prudent or feasible to impose conditions consistent with the advice.
Heritage Protection in your local area
The Heritage Act requires local governments to prepare an inventory of buildings within its district which they are of the opinion are, or may become, of cultural heritage significance. Each year this inventory is updated and each addition is reviewed every four years. In preparing an inventory, a local government should ensure that they have proper public consultation. Although there are no legal consequences attached to a listing on the local government inventory, it may be used by town planning schemes.
Town Planning Schemes Protection of Heritage Buildings
The Block’s Darrell and Dea are in hot water as the demolition approval they received for the property was only partial and did not allow the total demolition of the building. To prevent costly legal actions, it is important to following planning approvals and seek acceptance before you make an action. As Darrell and Dea have found, it is easier to ask for approval than beg for forgiveness!
A local government may (but is not required to) protect heritage placed under its town planning scheme. This is usually regulated by requiring a person to obtain approval for any development which may impact a place listed on the heritage inventory.
Approval is typically sought for:
- Alterations to the inside of the buildings;
- Construction of and certain additions to houses; and
Developers of heritage listed properties may also be required to provide additional information with their development applications. This may include aspects such as the colour, materials and style of development. Such approvals should be sought early in the renovation process as many councils require the continued use of old finishing’s including tiles, doors and window panes.
To get a demolition permit requires the application to be submitted to the local government who then has a ten day time frame to process the application. When lodging the application it needs to be completed and the plans and supporting documents need to accompany it. These can be lodged in paper or electronic copy using the standard Building Commission form provided by the local government. Each council may have different requirements so be sure to double check with your local area before beginning any work.
Seek Acceptance not Forgiveness
Councils are unlikely to be flexible and allow retrospective approval as it sends the message that you may demolish then seek forgiveness. This can have devastating impacts on heritage properties that have been protected for decades. If you have fallen in love with a heritage house project be sure to get a pre-sale building renovation approval to ensure the house you want can be saved. If it’s structurally sound, be sure to seek all necessary council approvals prior to altering or demolishing the premises. As The Block’s Darrell and Dea found out, the penalty can blow the build budget!
About the author:
Haley Graydon is a law clerk at Lynn & Brown. Haley is currently in her final year of study at UWA. The areas of law that Haley has a keen interest in is family law and estates.