What is the heritage protection system? 

29 Jun 2024

Heritage protection may be imposed on a person’s property and can reduce the relatively safe value of a property with little compensation to seek for any loss. For this reason, heritage protection schemes are highly publicised and controversial; some high street historical buildings may be worth preserving via heritage controls,1however when such schemes are imposed on privately owned dwellings a homeowner may experience the single biggest drop in wealth a person can experience in their life.2

At the heart of the issue is whether a property is genuinely worth preserving. As historical cities like Melbourne and Sydney grow, the argument intensifies as cities expand and more economic uses for space are required.  

Generally, there are two types of local heritage protections: a heritage listing generally covers land and buildings, while a heritage overlay usually controls modifications only to the external parts of a building.3 

For items of local heritage significance, such as most homes, these protections are applied in planning schemes by local council. The Council identifies and manages these additional protections by requiring permits for any changes that could affect heritage significance. Its purpose may be to: 

  • To conserve and enhance heritage places of cultural significance. 
  • To conserve and enhance those elements which contribute to the significance of heritage places. 
  • To ensure that development does not adversely affect the significance of heritage places.  
  • To conserve specifically identified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage value4.

How can heritage protection affect my property? 

Any proposed demolition or renovation will require a planning permit, allowing the local council to determine if proposed building work will detract from the “heritage significance” the property provides that area. This restriction of development options and additional council approval requirements means that any attempted changes to a property will be assessed against the Council’s polices in relation to developments, which will generally aim for designs which sit comfortably with those of surrounding houses. A prospective developer will generally require the assistance of a town planner and a skilled architect in order to produce an acceptable proposal.  

It is common knowledge that many properties in inner city areas may have heritage status, what is less commonly known is that these restrictions can go beyond the house and include other items, such as fencing. For this reason, even the painting of a fence may require a permit.  

This firm has recently been involved in the opposition process for a client living in a rural farming area on a disused dairy, where local volunteers recommend the property for heritage status. The house itself was over 130 years old, surrounded by many disused outbuildings. Every building on the property required renovation and was in poor condition. The imposition of such a recommendation would mean that any renovation work would require the approval of the same Council who imposed the heritage status.  

How does the opposition process work? 

The proprietors of a property recommended to be given heritage will be provided an opportunity to contest such a listing by making submissions in opposition. The opposition process can be long and expensive, however the imposition of heritage status can be far more costly in the long run. It is not uncommon when multiple properties are recommended in a close area for many people to sell up as a way to avoid the restrictions.  

Some of the primary reasons used for opposition can be: 

  • The house is in a dilapidated state or requires renovations, and that any protection imposed on the property would restrict such works.  
  • Past renovations/alterations to the property have altered it to a point where it is no longer valued as demonstrative of heritage value.  
  • The initial purpose of the building has changed.  

Heritage in Victoria 

In Victoria, the preservation and conservation of heritage listed property comes from the Heritage Act 2017 (Vic). 

Local councils are responsible for local heritage and locally significant places, while the State Government, Heritage Victoria and the Heritage Council of Victoria are responsible for state heritage.5 A place included in the register is legally protected and cannot be altered in any way without a permit from Heritage Victoria.6 

Anyone wishing to oppose registration are given the opportunity to present to the Heritage Council of Victoria at a Registration Hearing.7 

If the Heritage Council reject an application, a homeowner can apply to VCAT to overturn the Council rejection. At this level, success is not guaranteed and can be expensive.  

Heritage in NSW 

In NSW, heritage recommendations come from local council, who are in the role of assessing applications and oppositions. As each local Council is different, the values given to properties can vary.  

Conclusion 

Heritage listing is a system decades old which can restrict a homeowner from modifications to their old home and reduce the property’s value to a prospective developer. Property owners are advised to object to such heritage impositions by consulting with an experienced construction and planning lawyer. 

Disclaimer

This article is not legal advice rather a discussion of the topic in only general terms

  1. https://www.cbdnews.com.au/more-than-120-cbd-buildings-and-sites-win-heritage-protection-in-monumental-planning-change/ ↩︎
  2. https://www.theage.com.au/national/victoria/it-boggles-my-mind-melbourne-council-quietly-puts-heritage-protection-on-900-suburban-homes-20230112-p5cbzw.html ↩︎
  3. https://archipro.com.au/article/what-you-need-to-know-about-renovating-a-heritage-home-archipro-au-au ↩︎
  4.  https://www.elementsofhome.com.au/what-is-the-difference-between-a-heritage-overlay-and-a-heritage-listed-building-in-victoria/ ↩︎
  5. https://www.planning.vic.gov.au/guides-and-resources/guides/all-guides/local-heritage-protection ↩︎
  6. https://heritagecouncil.vic.gov.au/heritage-protection/register/#:~:text=Those%20opposing%20registration%20are%20given,a%20meeting%20of%20the%20Council. ↩︎
  7.  https://heritagecouncil.vic.gov.au/heritage-protection/register/#:~:text=Those%20opposing%20registration%20are%20given,a%20meeting%20of%20the%20Council. ↩︎