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BUILDING & PROPERTY LAW Heritage protection under the Planning, Development and Infrastructure Act PAUL LEADBETER, SENIOR LECTURER, ADELAIDE LAW SCHOOL It seems that no one is ever completely happy with the regulatory systems put in place by government to regulate the use and development of land 1 . To some extent this reflects the fact that planning of land use and its development is a dynamic process with change to the regulatory scheme and associated planning policy being influenced to varying degrees by changing demographics, technology changes and different infrastructure needs as well as the need to address economic 2 and environmental concerns 3 . Further influencers of change include changing trends in lifestyles and housing choice and pressure from interest groups such as the development industry and resident action groups. There had been concerns expressed over many years by both the development industry and community groups about the South Australian land use planning system which operated under the Development Act 1993. This led to an extensive and lengthy review by an Expert Panel on Planning Reform appointed by the State Labor Government in February, 2013. In its final report delivered in late 2015 it concluded that: “Our planning system should provide communities with a clear understanding of the policies that will guide development, while ensuring that unnecessary costs and delays for applicants and assessing authorities are minimised. It is critical to the competitiveness of the state, but our current planning system is not up to this task.” The then State Labor Government took on the task of drafting new planning legislation taking on board the majority of the Expert Panel’s recommendations. On 1 April, 2017 4 a new Planning, Development and Infrastructure Act 2016 (the PDI Act) came into partial operation with the intention being that the PDI Act, (which will eventually repeal the Development Act 1993 and thereby end the 25 year old planning system and policies implemented under that legislation), would be fully operational by the end of June, 2020. Provisions in the PDI Act are being gradually implemented along with key policy documents, the most important of which is the Planning and Design Code 5 . The Planning and Design Code (the Code) effectively replaces the old council area development plans and sets out zones, policy areas, definitions of land uses and land use classes, and the specific rules and policies that will govern the use and development of land within particular zones 6 . The Code is being developed by the State Planning Commission and is to be released in three phases. The first phase is that applying to all land that is not within a council area and it came into operation on 1 July, 2019. It is understood that drafts of the second phase of the Code (dealing with regional council areas) and the third phase (dealing with Metropolitan Adelaide) will be released for comment in October, 2019 with actual implementation of them some months later. 7 This article looks at how the PDI Act addresses the issue of development control and heritage. In the first half of 2019, concerned local councillors, community action groups like the Community Alliance and the National Trust of SA have campaigned strongly for better heritage protection under the PDI Act believing that the new Planning and Design Code is not going to offer the same level of protection for places with heritage value as the existing Development Act 1993. 8 The State Planning Commission, which has the responsibility for developing the Code provisions that address heritage disagrees 9 . WHAT IS “HERITAGE”? “Heritage” is basically all that one generation inherits from another. It can include (and is most commonly thought of) as structures and objects but it also extends to gardens and landscape (such as reserve areas), and traditions. Susan Tonkin has argued that each generation decides what should and should not be kept from earlier generations and what can be discarded 10 . In the 1970’s when heritage protection legislation first commenced in Australia, much of the focus was on protecting grand public buildings, churches and the large grand homes of the wealthy colonists in each state 11 . In more recent times the dwellings of workers in the colonies have been seen worthy of protection, together with examples of early industrial buildings and sites and more recent buildings of significant architectural merit or interest 12 or where significant events occurred or a prominent South Australian may once have resided 13 . It should be noted that, disappointingly, there is no direct reference to heritage or the need or desirability of retaining or protecting heritage places in the Objects of the PDI Act. 14 The Principles of good planning 15 which seek to further the objects of the Act do refer to built form being durable and designed to be adaptive 12 THE BULLETIN September 2019
BUILDING & PROPERTY LAW The old Z Ward for the criminal insane (left); St Andrews Church in Walkerville (right). Photos: National Trust SA in the sense of building reuse but that provision essentially speaks to buildings being constructed today. 16 There is also a requirement that the Minister ensure that a State Planning Policy be developed by the Commission that specifies policies and principles that are to be applied to encourage and support the adaptive re-use of buildings and places. 17 LISTING OF PLACES OF HERITAGE VALUE South Australia has had legislation providing for the listing of places of state heritage value for 42 years 18 and since the commencement of the Development Act 1993, the listing of places of local heritage value via amendments to council development plans. Both state and local heritage places will continue to be recognised under the PDI Act with the identification and listing of state heritage places and areas remaining under the Heritage Places Act 1993 and local heritage places being able to be designated in the Planning and Design Code following a process set out in section 67 of the PDI Act. The same criteria are applicable for listing places of local heritage value in both the PDI Act and the Development Act 1993. The listing of places as state or local heritage places means that any proposal to undertake development in relation to those places will undergo a level of scrutiny not experienced by many other forms of development. Under the PDI Act, “development” in relation to a state heritage place includes the demolition, removal, conversion, alteration or painting of, or addition to, the place, or any other work that could materially affect the heritage value of the place. 19 This provision is identical to that contained in the Development Act 1993. However, the definition of development as it relates to local heritage places varies from that presently found in the Development Act. Instead of listing a range of activities that would comprise development in relation to the local heritage place, (as it does for state heritage places), it simply refers to “any work (including painting) that could materially affect the heritage value of the place…” 20 . It then states that the heritage value must be specified by the Planning and Design Code either generally in relation to local heritage places or in relation to the particular local heritage place. This definition makes the provisions within the Code extremely important. Unfortunately, as noted above, Phases 2 and 3 of the Code are not yet available. However, in May, 2019 the Department of Planning, Transport and Infrastructure released a Practitioner Overview of Heritage and Character in the New Planning System 21 (the Practitioner Overview) which provides some indication of the proposed approach in the Code. It suggests that the Code will provide that demolition of a local heritage place will only be considered if a building has little heritage value, is structurally unsound or has public safety issues or is economically unviable to repair. For some of these criteria it notes that support from a suitably qualified person would be required, 22 as well as a heritage impact assessment. 23 It also notes that adaptive reuse policies will be strengthened to make adaptive reuse easier. 24 Alterations and additions will be code assessed (performance assessed) and certain alterations which do not affect heritage values, such as the demolition of a modern lean-to at the rear of a building will be “deemed to satisfy” which will mean they must be granted consent. 25 The defining of the heritage values in the Planning and Design Code is going to be of significance in terms of determining how much protection will continue to be accorded to local heritage places under the PDI Act. Arguably the protection accorded to state heritage places under the PDI Act will be less than under the current Development Act. Both the demolition and alterations or additions to a state heritage place will be Code assessed (Performance Assessed) 26 which means the development proposal has to be assessed against the Code, applying flexible broad policies rather than more prescriptive criteria. There will not be any non-complying classification as there is at present for development involving state heritage places. Arguably, it leaves state heritage places more vulnerable to demolition. Note also that any development that is “in the State Heritage Place Overlay or State Heritage Area Overlay” under the Code 27 and specified in the Code as being in a class to which the referral provision applies 28 must be referred to the Minister responsible for Heritage who has the power to direct the planning authority to refuse consent or attach specified conditions to any consent given. 29 There are 17 state heritage areas, around 2,300 state heritage places and 7,000 local heritage places currently identified in South Australia and the Practitioner Overview indicates that these will all be carried across into the Code. 30 At present many council development plans also have Historic (Conservation) Zones and Historic (Conservation) Policy Areas and there has been a Planning Bulletin issued by Planning SA in 2001 which sets out the guidelines for the establishment of such zones and areas. 31 It would appear that these zones and policy areas will be transitioned into the Code and depicted as “Local Heritage Areas” 32 . Of some concern is the requirement in s67(4) of the PDI Act which requires that the creation of any new heritage character or preservation zone or subzone must be approved by 51% of property owners within that area. The Greens have introduced a bill into the Legislative Assembly seeking to repeal this provision. September 2019 THE BULLETIN 13
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