Heritage Overlays: Part I – The Implications Beyond the Home
By Jennifer Barry, Solicitor, Lovegrove Solicitors
It is common knowledge that the majority of Melbourne’s older properties are most likely covered by the heritage overlay scheme which controls what can and can’t be done to the property to protect the history and heritage of the property.
However, what is less commonly known is that these restrictions go beyond the house and include other items on the land, such as the fencing around the property. While I’m sure this won’t surprise some readers, I imagine there are others scratching their heads and wondering why on earth the heritage protection would cover minor items like fences, surely the heritage-listing only covers the home itself.
Homeowners of a heritage property in Melbourne struck this very problem last year. The property, built in the 1920s, is covered by a heritage listing which restricts what can be done to the exterior of the property. The front fence of the property, built when the land surrounding the house was subdivided many years ago, was severely weather damaged and close to collapse and the homeowners applied to the council for a permit to construct a new front fence.
Properties covered by the heritage register in Victoria must apply for a permit to do anything which alters the property, such as building repairs & constructions, extensions, subdivisions and construction of new structures such as fences or decks.
Often, there will be a requirement for the proposed new structure or extension to be one which will be in-keeping with the heritage nature of the property, so in order to hopefully get the permit approved by the Council as soon as possible, it is wise for homeowners to engage a town planner or architect skilled in dealing with heritage overlays to prepare the permit application.
The homeowners in Melbourne engaged a skilled architect who designed a front fence which suited and enhanced the heritage aspects of the property, far more than the existing fence they were trying to replace. However, the permit application was rejected by the Council on the basis that the fence applied for was a height which would prevent pedestrians from seeing the heritage property over the fence. This was perhaps an excuse; the property in question is a large red-brick home which would clearly be visible over a high fence.
As a result of the Council’s rejection, the homeowners were required to go a step further and apply to VCAT to obtain a permit. Whilst it is possible to apply to VCAT to overturn a Council rejection of a permit application for a heritage property, it is important to be aware that success is not guaranteed and this route can be expensive. For the best prospect of success, it is essential to engage a specialist construction & planning lawyer, experienced in heritage matters, to prepare the case to be presented to VCAT. In addition, it must be noted that VCAT will likely not overturn the Council’s decision unless it can be demonstrated that there are significant reasons why it should be allowed. The heritage architect will likely be able to assist with the development of these arguments.
The homeowners in question were able to obtain a permit to construct a new fence after coming to a compromise with the Council at the VCAT hearing. Although they did not obtain the higher fence they applied for, they did obtain a permit for a fence between their requested height and the Council approved height. To obtain that concession from the Council, they were required to modify the fence design so that the wood panels were spaced slightly apart to allow pedestrians to view the house through the fence and to lower the height of the gates to allow pedestrians to view the house over the gates. Although these compromises weren’t ideal, the homeowners were willing to accept them to obtain the higher front fence.
When owning, buying or considering purchasing, a heritage listed property, it is important to consider the future obligations under the heritage listing and whether you are prepared to undertake and comply with the extra permit requirements. Whilst it may be possible to overturn a Council’s rejection of a permit application through VCAT, this can be expensive and success is not guaranteed. To ensure the best chance of success at VCAT, it is advisable to engage a specialist construction and planning lawyer to prepare the application and to go to the hearing armed with compromises and concessions that you would be prepared to make for the best chance of coming to a mutually acceptable settlement with the Council.
By Jennifer Barry of Lovegrove Solicitors
The Lovegrove Solicitor’s E-Library is a free online resource of articles, which puts a wealth of information at your finger tips. The articles in the E- Library have been written by lawyers and a number of them have been published in the Australian, The Age and the Herald Sun. Some of the articles date back to the 1990’s. To access click here.
© Lovegrove Solicitors 2013
