Heritage Overlays – A Concealed Threat
Written By Alex Milne, Construction Lawyer & Planning Lawyer, Lovegrove Solicitors
2nd of March 2012
Dealing with a situation where a Heritage overlay is imposed upon one’s property can be a particularly harrowing experience. The seemingly benign name belies the harsh reality that the day a heritage overlay is imposed on your property is for many people the greatest single instance of drop in wealth they will experience in their entire lives. The value of your theoretically safe property investment could “go significantly south” with the stroke of a pen. There is essentially no ability to seek compensation for this loss.
This may seem unjust, and if the council derived its power from Commonwealth legislation, it would quite possibly be unconstitutional. I sense the potential for a sequel to ‘The Castle’ where Darryl Kerrigan is forced to band together with neighbours to fight a proposed Heritage overlay being imposed on their street. However in this case, the councils are empowered by state legislation. The Australian Constitution cannot come to the rescue.
Discussing the matter of heritage overlays with a private town planner recently, he argued that owners should fight as hard and as long as they can to avoid being subjected to a heritage overlay. Victory is to have your property denoted as ‘non-contributory’. If your property is declared non-contributory, then you will not have the same limitations on demolition and renovation as those properties which are deemed ‘contributory’ or, heaven forbid, ‘significant’. In practice the trick can be to make it easier for the council to leave you out than to leave you in.
For those people unlucky enough to have been saddled with a heritage overlay already, it requires careful preparation. Any proposed demolition or renovation will require a planning permit. Even things as simple as re-painting the front fence, or pruning a tree would require a planning permit. In deciding whether or not to grant the permit, council will likely place great emphasis on the heritage implications. A prospective developer will require the assistance of a good private town planner and a skilled architect to produce a proposal which will be accepted by council.
In many cases the first proposal will be rejected by council. An appeal to VCAT will be the primary avenue available to appeal this rejection. In order to successfully appeal the decision, one will need a ‘hook’, on which to base their argument.
A permit will not be allowed by VCAT unless you can show significant reasons why it should be allowed. Common reasons relied upon can include the fact that the existing property is in a dilapidated state and beyond reasonable repair. It may also be argued that the property in question is of little or no heritage significance, contrary to its listing in the heritage overlay. To argue this point, the legal team will need to be augmented by obtaining expert evidence from a heritage architect or town planner. You may also require the testimony of such an expert as to the fact that the proposed redevelopment will not be out of touch with the heritage character of the area.
Essentially, to challenge a heritage overlay, at either stage, you will need a significant war-chest to budget for a fight. One will also need to reconcile themselves to the fact that they will have to make some concessions in order to obtain approval. If you intend to proceed with your plan to drop an ultra-modern ‘flying saucer’ addition to your property, you are likely to be given short shrift by the Council and by VCAT. Some designs are destined to be knocked back before they are even proposed, and the costs of a re-design are made inevitable.
For a design to have a chance of success, it must make an effort to comply with the Council’s policies in relation to Heritage developments, and should be designed to sit comfortably in the area rather than standing out like a “sore thumb”. VCAT can be more flexible than the Council though, so treading the VCAT path can be a useful exercise if compromises are made, and the necessary preparatory work is undertaken to give the application a chance of success.
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