;;o;;;;;;o;;;;;;o;;;;;;;;.;;;;;;;;o;;;;;;o;;;;;;o;;;;;;;;;;;;;;;;SUBMISSION BY HENLY COX

	Mr Henly J Cox	

		
		
Heritage Inquiry		
Productivity Commission		
Belconnen ACT		
Email: heritage@pc.gov.au		

Dear Sirs

Re: draft report into Conservation of Australia’s Historic Heritage Places

Introduction
This submission is made in response to the Draft Report of the Productivity Commission. It is made by me as an individual rather than as a representative of any organisation or company I am a member of or I am employed by.  My qualifications and experience in making this submission are summarised immediately below.
Qualifications and Experience
Henly Cox has gained the following qualifications: Assoc Dip Town & Country Planning, Diploma Local Government Management, Diploma Heritage Conservation, and Director of Henly Cox “The Heritage Man” Pty Ltd.  He has qualifications in heritage conservation, town planning, and local government management.
Henly is a committee member of the Newcastle Industrial Heritage Association, a member of the Hunter Heritage Forum, a member of the Planning Institute of Australia and has been a qualified practising town planner for 25 years in both the government and private sectors and has specialised in Heritage Conservation and Urban Design for the past 6 years.  He has specialist skills in heritage-related statutory planning and design analysis, as well as development and urban planning issues. His consulting expertise includes heritage advice on major development strategies, heritage impact assessment, preparation of LEP’s and DCP’s, conservation area studies and site research and fabric analysis.
Submission
My submission draws upon the excellent submissions of David Logan and Garry Vines.  Both of these people have provided well thought out arguments identifying the problems inherent in the draft report.  I commend them to you and freely acknowledge my use of their work in this submission including phraseology and original arguments.
I believe in the concept of procedural fairness and equity in the planning and land ownership systems.  While I acknowledge that, the Commission's recommendations appear to be aimed at addressing what it considers inequities within the current heritage management systems operating throughout Australia I am at a loss to understand how the major recommendation achieves this outcome especially as Heritage is about society and its subsets rather than the individual.
My comments are generally related to the New South Wales Heritage Management System with which I am most familiar.
I am strongly opposed to the Commission's key recommendation that privately owned properties should only be statutorily listed after a negotiated conservation agreement has been entered into, and should remain listed only while an agreement is in force.  The reasons for my opposition to the recommendations are summarised below.
The heritage management system that exists in New South Wales is the result of a process that has evolved through trial and error over approximately 30 years.  The listing of heritage places in statutory instruments is an essential part of that process to identify to the community and potential purchasers that these places have heritage significance. I consider that the de-listing of heritage properties through opposition by the owner at the time has led to in- equitable situations arising for subsequent owners.
I believe that the implementation of the recommendations in the Draft Report would inevitably result in only a handful of places of heritage significance being listed in statutory plans.  Further, the vast majority of places that are already statutory listed would, inevitably, be de-listed if the current recommendations were to be implemented.  Ultimately, this would not be in the best interests of property owners or the greater community and would be a detrimental outcome for heritage places throughout Australia. This is because (human nature being what it is) if property owners are given the choice of being subject to additional planning controls they will inevitably choose not to be controlled even while acknowledging that there may be no additional cost or other impact to them directly.
The public now accepts that heritage is managed as part of the planning system.  I therefore find the Commission's suggestion that heritage listing is somehow different to other forms of planning control nonsensical.  Heritage restrictions are no different in their effect to, say, lot area restrictions, dwelling densities or height controls, which can apply to individual properties or building groupings for valid planning reasons. Such restrictions are not removed simply because a particular owner might not wish them to apply.
The process that has evolved in New South Wales has, in the main, been supported by the property industry, which has consistently advocated for comprehensive heritage lists as a means of achieving a degree of certainty for property owners.  Voluntary lists, as would appear to be encouraged by the Draft Report, have been rejected as a means of responsible heritage management on the basis that they ultimately create uncertainty and confusion.
The introduction of voluntary listings would be a regressive step that would return the New South Wales heritage management system to where it was approximately 30 years ago.  In those days, heritage battles over possible listings in the face of development proposals opposed by the community were an everyday occurrence, placing enormous pressure on local government councillors and State government planning ministers. The non-listing or, worse, de-listing of places that have heritage significance, would inevitably result in the regular re-occurrence of these battles with the (now educated) community strongly agitating for protection of places in the face of perceived unsympathetic development.  These battles are now relatively rare in New South Wales, largely because the vast majority of places that should be listed have been listed, and are adequately controlled.
The de-listing of existing properties probably would not result in demolition, given their inherent value.  However, there is strong evidence that the absence of statutory listing would lead to a diminution of their heritage value over time through lack of adequate control over unsympathetic alterations, additions and new development within these properties.  It appears to me that the Commission has failed to recognize or has chosen to ignore some of the more positive effects of heritage controls over the years in preventing the destruction of heritage buildings through inappropriate alterations and additions. The involvement of a heritage practitioner, whether it be the council's heritage adviser or a specialist engaged by the applicant, can lead to a better design outcome through consideration of alternative options. These need not impose additional costs on the owner but at the same time can often add value to the property.  There is also the positive effect of encouraging good urban design in the vicinity and retaining visual character.  This is a situation, which results when bulk, scale and form has to be considered because of the areas particular design and landscape elements.
In the vast majority of development proposals involving heritage-listed properties a negotiated solution is achieved, often with valuable input provided at pre-DA stage by the council heritage adviser.  In the vast majority of cases, the heritage listing does not hinder the achievement of a good design outcome, but rather assists it. The Draft Report acknowledges that in the vast majority of cases (96%) heritage-related development applications are approved with less than 4% refused.  It would therefore seem that heritage listing, per se, does not necessarily hinder development proposals, but rather can actually help to achieve better design outcomes than for non-listed properties often for no other reason than the involvement of an architect or urban designer in the process.
While, I would acknowledge that owners of heritage-listed buildings are generally faced with additional costs when preparing Development Applications for their properties, because of the need to obtain some form of heritage impact assessment this is, in most cases, nowhere near as expensive as is suggested in the Draft Report.  Further, the Draft report acknowledges that in the vast majority of heritage-listed properties (i.e. houses located within low-density zones) this additional cost is the only additional burden for owners of heritage-listed properties.
I believe that the Commission's key recommendation for a negotiated conservation agreement as a pre-requisite for any statutory listing is a 'one size fits all' solution that is both unnecessary and counterproductive. I strongly urge the Commission to re-consider the recommendations in its Draft Report.
The remainder of the submission is given over to specific comments about the key points, findings and recommendations, point by point

Key points

1.	Historic heritage places provide important cultural benefits to the wider community, in addition to the use value they provide to their owners.
•	There is extensive private sector involvement in the conservation of historic heritage places.
•	Governments at all levels not only own heritage sites, but also identify, list and provide strong regulatory protection for non-government heritage places, to provide broad community benefits.

Comment:
Agreed: but I am not sure that extensive private sector involvement properly describes the situation.  After all if the properties were not identified by some agency (usually public funded or indirectly so) the private sector would not involve itself either financially or morally.

2.	The recently adopted three-tier framework (whereby the Australian Government takes responsibility for natiridDRAFT FINDING 4.3
Partially agree:  there are variations but is this not idiosyncratic of our government system rather than an issue of heritage.  Surely we are able to find ways to improve the system by finding areas of commonality just as we have done in other areas –building requirements for example.
The level of assistance provided to non-government owners of historic heritage places varies considerably between States and Territories. The level of expenditure on government-owned heritage places is difficult to calculate since no jurisdiction requires explicit budgetary recognition of such expenditure.

Comment:
Agreed:  this is an issue that should be readily rectified.  However more import is to create a level playing field for all stake holders and this means ensuring the commonwealth and state governments recognise and then commit to their share of the responsibility rather than simply divest there responsibilities onto local government and the private individual.  The issue of community benefit verses individuals paying most of the costs need to be more fully explored.  As suggested in the opening remarks, heritage is more about community and society than it is about the property an individual owns, as such there are inequities in sharing costs and benefits.
DRAFT FINDING 5.1
(5	Planning controls and heritage conservation at the local level)
There is a high level of discretion for decision- making on heritage matters at the local government level, derived in part from limited State government guidance and this has resulted in inconsistent outcomes within many local governments.

Comment:
DRAFT FINDING 5.2
Agreed: but the finding suggests that this is a bad thing but as I have found time and time again each LGA is different in terms of its history and cultural heritage.  Therefore they should be able to approach it differently just as they do in other matters.  The essentials however are not different as there are standard acts and regulations for the whole state.  The differences are not as great as implied.  Guidance is a two edged sword; on the one hand two much can be restrictive and in flexible and on the other too little can result in misunderstanding and inconsistent outcomes.  The real issue is delivery of a robust but fair system to all.  This is better achieved by improving particular elements rather than destroying the core – which is what I think the PC would be doing if its major recommendation got into legislation.
While statements of significance are recommended in State guidance material, no State requires its local governments to include a statutory statement of significance in their local heritage lists. The absence of such statements seriously impairs subsequent decision-making about listed properties.

Comment:
Disagree:  providing a statement does exist in NSW.  This is a general requirement and it does not matter where the statement is.  In fact it is preferable that the statement not be in a statutory document because it then becomes a legal entity which can only be changed by an amending instrument.  The real problem is the accessibility to the statement and its ability to communicate the essence of what is significant.  Both of these matters can be dealt with by minor amendment to government regulation and by education of the industry, regulators and the public.
DRAFT FINDING 5.3
Heritage conservation areas impose less stringent restrictions on the ability to demolish and redevelop properties than do individual heritage controls.

Comment:
DRAFT FINDING 5.4
Agreed: this is as it should be, but the investigative methodology to identify them and then the assessment methodology to assess work in them is the same as for a heritage item.  The difference lies in the context and in the degree of integrity of HCA’s.  HCA’s are about broad brush homogeneity and groups of representative structures, buildings and landscapes while heritage items are usually about detail elements of the building and its site, and only that specific site unless other individual sites are of the exact same significance. It is comparable to the notion of the difference in significance of a cultural place (say a war cemetery) verses a cultural landscape (say the battle field), i.e. the cemetery is a specific part of the battle field and has integrity by itself but the battlefield cannot be part of the cemetery because of its broad scale nature.
Heritage controls can be applied to properties that have not been individually listed or contained within a heritage conservation zone. Typically, the owner is informed only upon seeking development approval.

Comment:
Agreed: but this not a fault of the system but rather the arrogance and lack of proper communication by the planning authority.  A situation no different to any bureaucracy government or private.  A properly developed and implemented system would not allow the event to occur.  In my experience however it is also the fault of the land owner or developer who chooses not to properly investigate the rules that apply to his land or chooses no to read the fine print on council rate notices or the inserts that go with them.  The system of data availability and communication can be improved.
DRAFT FINDING 5.5
Many property owners do not fully understand the effect that heritage listing has on their property. This is not simply a reflection of a lack of awareness by owners of the implications of listing; rather it flows from unclear legislative requirements and inconsistent administrative actions. More specifically, it is a direct result of the failure of all State Heritage Acts to specifically require a statement of significance for heritage listing at the local level.

Comment:
Disagree:  as discussed earlier statements of significance are a general requirement at the local level.  The issue is more a matter of consistency, content and accessibility.   As to the criticism about understanding or awareness this applies generally to all legislation and sub ordinate regulation and to most property owners about most things.  I educate property owners and developers every day about many matters they either are unaware of, or do not understand that’s why they engage me.  It’s the nature of our complex world.
DRAFT FINDING 5.6
There is significant scope to improve the management of heritage conservation by local governments in their systems and processes for land use and planning.

Comment:
Agree: I have worked as a local government planner and heritage specialist and I would have to say that there is significant scope for improvement but not by shoving more onto local government.  In my experience the issue is about education resources and justification.  If we address those issues in regard to heritage at the local level then management would not be such an issue.  I would also say that heritage is left wing of the planning system and as planning is highly political then so to would be heritage.  I used to say when I worked in council that I worked with 900 heritage experts but only I was qualified.  The issue is also one of commitment.  In the realm of local government heritage is a late comer and is also highly political.  As a result it is easily abused because it does not have the same stakeholder support as the more established services such as roads, rubbish and building.  In part it is an image problem but it is also another area which council has to fund either through rate revenue or grants.
DRAFT FINDING 6.1
(6	Analytical framework)
While under some circumstances (particularly where neighbourhood amenity is to be preserved) heritage listing can have a positive impact on property values, the constraints on development potential associated with listing can have a significant negative impact on the prices of individual properties. The potential for owner detriment arising from development controls may differ significantly between properties.

Comment:
Agreed: but this is only a bad thing if you view heritage as some foreign beast and do not do your home work when acquiring or developing property.  Any property can be subject to the fluctuations described, for instance a change in frequency of coal freight can drive down the value of property near rail lines or a group home approval near a seniors village.  The key is treating development as a development constraint – the quicker every one recognises that heritage is just another development constraint to deal with the quicker the perceived differences will disappear.  There is also the inability of people to recognise the greater benefit of heritage controls and this coupled with unreal expectations about what they can do results in the conclusion that “heritage is bad”.
DRAFT FINDING 6.2
Current methods of identifying historic heritage places for statutory listing focus on the benefits expected to accrue to the community. Typically, there is little, if any, consideration of the costs imposed either on the owner or the community more generally.

Comment:
Agreed:  the emphasis should be on the benefits expected to accrue to the community.  I also agree that additional consideration of costs needs to be carried out.  In so doing all stakeholders should contribute.  But there also needs to be proper quantification of the benefits.  The argument about unfair costs is equally applicable to the questionable arguments about benefits or rather lack of benefits accruing.  Just as developers and property owners argue about the cost impost on heritage they conveniently forget to use the same cost benefit tools to properly quantify the benefits.  But at the end of the day there should be more funding or incentives for owners.
DRAFT FINDING 7.1

(7	Assessing governments’ involvement)
The three-tier legislative framework is an appropriate model for government involvement in heritage conservation. It delineates the responsibility of each level of government for historic heritage conservation and, consistent with the principle of subsidiarity, aligns the scale of heritage significance with its level of government decision- making.

Comment:
Agreed: so why try to duck shove a core component of the system onto local government and create a scenario for cyclical decreasing of heritage stock and heritage values?
DRAFT FINDING 7.2
Negotiated agreements are desirable as they facilitate voluntary conservation and ensure the costs of conservation are considered alongside the community benefits.

Comment:
Partly Agree:  Negotiated agreements exist in NSW and should be promoted more.  The problem is that to make them a fundamental part of the system ignores the fact that all stakeholders have a say and as equity should prevail, they should pay their share.  Our system and that proposed in this report does not address this issue.  The central thrust of funding is currently a little bit from government to make every one feel good and the property owner can do the rest.  There has to be better and more equitable funding strategies that include all stakeholders and rewards investments in conservation.  In part that is why I keep suggesting a national or a state heritage/conservation lottery.
DRAFT FINDING 7.3
The current arrangements for (i) agreed management plans and (ii) heritage protection on the sale of property provide a sound basis for the conservation of Australian Government-owned heritage properties. However, clearly identifying expenditure on conservation would improve accountability and provide more incentives for government agencies to better conserve listed heritage places.

Comment:
DRAFT FINDING 7.4
Agreed: governments are just as arbitrary about heritage as private owners and developers and need to lead by example.  Accountability includes proper maintenance scheduling and assessing of benefits as well as identifying expenditure.  There is also a need for governments to consider expanding fabric protection by requiring all heritage items and identified sites to be maintained to an acceptable level.
State, Territory and local governments do not have a systematic framework for the management of, and expenditure on, the conservation of government-owned heritage places. Management of government-owned places could be improved through the introduction of conservation management plans and transparent reporting of expenditure on conservation.

Comment:
Agreed: but not that in NSW there is a mechanism in operation requiring all state heritage properties to be listed and maintained.  The issue is more about funding although organisations such as the railways and roads do have a very jaundice views about heritage.
DRAFT FINDING 7.5
At the State, Territory and local government levels, there is an over-reliance on prescriptive regulation to achieve heritage conservation objectives. In many cases, this has led to poor outcomes, through for example, inappropriate listing imposing unwarranted costs (such as denial of redevelopment opportunity) and possibly perverse effects (such as destruction to avoid maintenance costs).

Comment:
Disagree:  this is a very interesting finding and appears to be counter productive.  On the one hand it’s arguing over prescription which is a classic commonwealth and state government solution to problems (in other words it is the status quo) and on the other hand suggesting that this in heritage terms is imposing unwarranted costs even though this is applicable to all prescriptive regulation.  Then there is the argument that unwarranted costs include denial of redevelopment opportunity and then perverse effects.  It is contended that most of this is a storm in a tea cup.  Yes there is over prescription in some respects but if non regulation will not solve the issue then why not? This has been discussed above.  Are there really unwarranted and perverse costs or are these just reactions to acceptable heritage planning practices when individuals do not get their own way.  For examples governments have deliberately ignored heritage rules and values in the past so why not private individuals?  As to redevelopment opportunities it is contended that this is no different to any other planning prohibition by virtue of zoning, planning objective or development standard.
DRAFT FINDING 7.6
The current listing process does not provide a mechanism for rigorously identifying the costs and benefits of conserving a place. Typically, the assessment process does not prioritise places according to heritage significance or conservation need, and little or no account is taken of the added costs of conservation when the decision is made to list a place and impose regulatory controls. As a consequence:
•	the community has an incentive to over-list (or be non-selective) as they do not bear the costs of conservation; and
•	property owners can suffer an erosion of property rights and loss of value. As a result, they are unlikely to actively conserve heritage values and may, in some cases, have an incentive to degrade or destroy the heritage place.

Comment:
Partly agree:  yes there are some excesses of this type in the system and probably there are questionable practises as regards costs.  But I am not aware of any legislation in this contrary that prescribes in its provisions requirements of a fiscal nature as described in the finding.  Is the PC serious?  As to incentive to over list this is an issue which is readily addressed in the existing planning system by public consultation and political resolution.  If the listing of sites is not challenged at the time of exhibition then clearly over selection is a distinct possibility.  As to devaluing this has previously been discussed above and is far more complex than suggested.  As to non maintenance this is a very small issue because at the end of the day non maintenance regardless of the reason is a financial loss.  It is more likely that lack of commitment and financial resources is the answer but it is easier to lay the blame at heritages door.  This is not to say that there are not cases of deliberate neglect but it is not the significant issue suggested by the PC.
DRAFT FINDING 7.7
The assistance available to private owners of heritage properties is poorly targeted, and in some cases, falls well short of the additional costs of obligations imposed on owners as a result of listing. In these circumstances, property owners will not have an incentive to actively conserve heritage values.

Comment:
Agreed:  this is an issue that has existed since legislation was introduced.  It is readily fixable by revamping of incentives and properly funding heritage either through the grant programs or an independent system such as the heritage lottery.  However the finding does ignore the fact that heritage can raise property values.  As with most property situations value is related to many variables and heritage is just one.
DRAFT FINDING 7.8
At the local government level, the management of heritage conservation under local planning schemes is not working well, primarily because of:
•	the imposition of unclear and uncertain restrictions on property owners;
•	the failure to prepare a statement of significance for each place listed on a local list;
•	inconsistent use and interpretation of heritage controls; and
•	the application of heritage controls to places that have little, if any, heritage significance in order to achieve other planning objectives.

Comment:
Disagree:  lack of knowledge or understanding does not justify that there are unclear or uncertain restrictions on property owners.  In fact the provisions are generally very clear and not uncertain.  The real issue is that until detailed assessment is done there are always imponderables and of course depending on what is being proposed the results may still appear this way.  As to failure to list statement of significance this is not the case in this state, and the real issue is about accessibility and communication not listing.  As to inconsistent use and interpretation, this potentially exists for any piece of legislation and is dependent on training, experience, political intervention, other resources, and age of planning instrument to name a few.  As to application of heritage controls to places of little significance this also is about external issues such as politics, experience and training rather than the legislation/system.
DRAFT FINDING 8.1
(8	Getting incentives right)
Conservation of historic heritage on privately owned heritage property could be more effectively achieved through negotiated conservation agreements between governments and owners.

Comment:
Disagree:  for the reasons discussed earlier and because such agreements need to be funded and there is nothing in the findings which addresses how to pay for it or indicates that the government is prepared to provide adequate funding for local government to achieve the desired result.

Recommendations

DRAFT RECOMMENDATION 8.1
The Commission’s key recommendation is as follows:
Privately-owned properties should be included on a national, State, Territory, or local government statutory heritage list only after a negotiated conservation agreement has been entered into and should remain listed only while an agreement is in force.

Comment:
Disagree:  I have addressed the key recommendation at the beginning of my submission.

The following lists the recommendations in chapter order:
DRAFT RECOMMENDATION 3.1
(3	Overview of historic heritage conservation in Australia)
All levels of government should put in place measures for collecting, maintaining and disseminating relevant data series on the conservation of Australia’s historic heritage places.

Comment:
Agreed:  but is not this mechanism already available in the Statement of Environment Reports? And if not where is an appropriate place for it?

DRAFT RECOMMENDATION 7.1

7	Assessing governments’ involvement
The Australian Government should phase out the Register of the National Estate for historic heritage purposes, beginning with the closure of the Register to any new nominations.

Comment:
DRAFT RECOMMENDATION 7.2
Disagree: this should not happen.  Under the new heritage system at the commonwealth level there is now the national list of icons, the commonwealth list for government property and the register.  The register is the only opportunity to have a central combined listing of the commonwealth at all levels of government and community Australia wide.  Further with the data bases discussed earlier will aid transparency and creation of a truly holistic system of heritage sites.  The other two commonwealth lists are selective and designed to serve a specific purpose.
State and Territory governments should remove any reference to the Register of the National Estate from their planning and heritage legislation and regulations.

Comment:
DRAFT RECOMMENDATION 7.3
prior to the purchase of that property, would remain covered by the existing ‘package’ of restrictions and concessions (if any). These arrangements would be reassessed at the time of any substantive development application when negotiations for a new conservation agreement would occur and listing would continue only if an agreement is reached.

Comment:
Disagree:  for the reasons given above.

DRAFT RECOMMENDATION 9.7
State and Territory governments should modify their planning legislation and regulations to remove any requirement to take heritage considerations into account in relation to any individual property other than those requirements relating to zoned heritage areas.

Comment:
Disagree:  this is a potential monumental corruption of the heritage system – firstly it appears to reflect a miss understanding of how heritage and planning inter relates which is to say heritage is not incorporated into planning schemes as zonings but usually as specialist add on provisions and schedules and/or special restrictions.  Secondly, the planning instruments and the physical environment they control are dynamic so it is impossible to be as categorical as implied by the recommendation in most matters included in a planning instrument and finally why are individual properties single out? There are many more individual properties of heritage potential than areas.
DRAFT RECOMMENDATION 9.8
State and Territory governments should remove the identification and management of heritage, zones, precincts or similar areas from their heritage conservation legislation and regulations, leaving these matters to local government planning schemes.

Comment:
Disagree:  this finding ignores the fact that states have their own heritage properties and are part of a three tier heritage system.  States as does the commonwealth with hold planning controls over their property and thus could create a serious heritage vacuum by deleting many properties or they could make a mockery of local systems by introducing inequitable double standards.  At least there is some transparency at the moment but under the recommendation the transparency would be removed because the state government will no longer be bound by its own rules.

Concluding remakes

I believe the system should stay, that the system should be stream lined, properly funded by contributions by all the stakeholders and that heritage conservation is more important than economic rationalism because it helps understand our culture and other peoples as well.  It also contributes an economic and cultural benefit to our communities and the country.  All levels of government have a social, moral and economic role to play in the conservation of our heritage, as does the owner.  This draft report is unhelpful in most of its findings in terms of the above comments.  The system is not broken, it does have some problems; it should be fixed not destroyed.  In closing I would ask that a heritage lottery as is operating in the United Kingdom be set up in this country.  Privately run it would resolve some of the commonwealths concerns over funding and make the funding and operation of conservation agreements more attractive for all stakeholders.

I therefore submit that the draft report should be scrapped and a new draft prepared which is more rational, contains proper verifiable findings and builds on the nation’s investment in cultural heritage rather than attempts to destroy it.

Yours faithfully

Henly Cox
22/2/06