LSB September 2019_Web

BUILDING & PROPERTY LAW
CONTRIBUTORY ITEMS-WHAT WILL BE
THEIR STATUS?
Controversy exists in relation to those
items which are not to be transferred into
the Code, namely, “contributory items”.
Contributory items are not referred to
in the current Development Act and
there is no definition of them. They are
items that have been “designated for the
contribution they make to the historic
and architectural character of a particular
area and are located primarily in Historic
Conservation Zones”. 33 That designation
is made by local councils through the
identification of contributory items in
their development plans. Contributory
items are not the equivalent of local
heritage places but have heritage features
which contribute to the historic quality
of the Zone or Policy area. 34 There
are around 12,000 contributory items
identified in Development Plans at
present, the majority of which are
residential buildings and located in
existing Historic Conservation Zones.
The National Trust maintains that those
12,000 items represent just 1.8% of the
total 741,748 separate and medium density
dwellings in the state. 35 Further, until 2012
the Government was recognising and
not preventing the practice of including
contributory items in development plans.
The Practitioner Overview proposes
that within the proposed local heritage
areas overlay the existing Contributory
Items will be protected not by being
specifically listed but by appropriate code
provisions which recognise the importance
of keeping places which contribute to the
existing heritage or character values of
the area. There will be performance-based
provisions against which applications for
demolition and alterations and additions
to buildings must be assessed. The details
in the Practitioner Overview are vague
as to what considerations will be made
for demolition approval. It will include
consideration of the value the building
makes to the streetscape, the proposed
replacement building, contextual analysis
outcomes, (whatever that means) and
how well the theme is represented 36 . So
much depends on how these criteria are
set out in the Code, hence a lot of the
concern presently being expressed. For
example, it is not clear what is meant by
representation of “the theme”. Where
will the theme be described? Does it
mean that representation of that theme
must be assessed for the Local Heritage
Area where the building is located or
more broadly? If there is already one late
Victorian bluestone cottage in the area will
that be deemed sufficient enabling others
to be demolished and replaced with new
buildings?
CONCLUSION
Similar rules to those which presently
apply under the Development Act will
apply to state and local heritage listed
places under the PDI Act. While there
is less certainty about what will happen
with the proposed local heritage areas, and
more particularly those places previously
designated as contributory items situated
within them, it does appear on the
information presently available that there
will be less protection for those items. We
await the release of drafts of Phases 2 and
3 of the Code to confirm what the precise
new rules will be. Adelaide has a unique
built heritage. It would be disappointing
if the new planning legislation and its
Planning and Design Code undermines
that position.
Paul Leadbeter teaches law at the Adelaide
Law School and is a Consultant to Hilditch
Lawyers. He is also a Councillor of the National
Trust of South Australia. B
Endnotes
1 Since 1967 South Australia has had 4 different
systems of regulation, the Planning and
Development Act,1967, Planning Act ,1982,
Development Act,1993 and now the Planning,
Development and Infrastructure Act, 2016.
2 For example, the decline in South Australia’s
traditional industrial base of manufacturing motor
vehicles and white goods created a need for new
sources of work and employment with often
different land use requirements as well as the
release of large tracts of land for redevelopment.
3 Environmental concerns are many and varied but
the pressing need to try and prevent the further
decline in biodiversity, and to address the potential
impacts of climate change across the state are at
the forefront.
4 Some might say, an unfortunate choice of
proclamation date!
5 Planning Development and Infrastructure
Act,2016 s 65
6 Planning, Development and Infrastructure Act
2016 s66
7 SA Planning Portal, https://www.saplanningportal.
sa.gov.au/planning_reforms/implementation
8 National Trust South Australia, Heritage Living
Autumn `2019, ‘Headed for Disaster’ p5
9 See for example the material contained in the
Community Guide to Heritage and Character
in the New Planning System: https://www.
saplanningportal.sa.gov.au/__data/assets/pdf_
file/0006/545748/Community_guide_to_heritage_
and_character_in_the_new_planning_system.pdf
10 Susan Tonkin, ‘Essay: What is Heritage?’
Commonwealth Dept. of Environment and
Energy, undated, https://www.environment.gov.
au/system/files/pages/f4d5ba7d-e4eb-4ced-
9c0e-104471634fbb/files/essay-whatisheritagetonkin.pdf
11 Such as Ayers House, Home of Sir Henry Ayers
onetime SA Premier, and Beaumont House, built
for Augustus Short, the first Anglican Bishop of
Adelaide.
12 For example, the Former MLC Building at 185
Victoria Square and the home in more recent years
to a number of members of the legal profession
is on the State Heritage register, in part because it
was Adelaide’s first skyscraper(at 12 storeys) and
also the first example of a new building technique,
curtain wall construction.
13 Such as the humble dwelling in which Sir Hubert
Wilkins, Explorer and Aviator lived as a child at Mt
Bryan East.
14 Planning, Development and Infrastructure Act,
2016 s12
15 Planning, Development and Infrastructure Act,
2016 s14
16 Planning, Development and Infrastructure Act,
2016 s14(c)(ii)
17 Planning, Development and Infrastructure Act,
2016 s61
18 Currently this protection and the listing process is
found in the Heritage Places Act, 1993
19 Planning, Development and Infrastructure Act,
2016 s3
20 Planning, Development and Infrastructure Act,
2016 s3
21 Available at: SA Planning Portal https://www.
saplanningportal.sa.gov.au/__data/assets/
pdf_file/0007/545749/Practitioner_overview_of_
heritage_and_character_in_the_new_planning_
system.pdf
22 Ibid at p5
23 A heritage impact assessment is defined in
the Glossary to the guide as ‘An assessment
undertaken by a heritage expert which identifies
the impact of the proposed development on
heritage values’ see p9
24 Adaptive reuse is defined in the Glossary to the
guide as the process of repurposing buildings for
viable new uses and modern functions, other than
those originally intended, to address present-day
needs, action and sustainable investment. See p9
25 Planning, Development and Infrastructure Act,
2016 s106
26 Planning, Development and Infrastructure Act,
2016 s107
27 This will presumably be a list of all State heritage
places and areas.
28 It is unclear exactly to what this requirement
relates. Until the Code is available, we will not
know.
29 Planning, Development and Infrastructure
(General) Regulations 2017 Schedule 9 Table 3
Clause 3
30 SA Planning Portal, Practitioner Overview n21 at
p3,4,5.
31 SA Planning Portal, Practitioner Overview n21 at 6
32 SA Planning Portal, Practitioner Overview n21 at 6
33 National Trust South Australia, Heritage Living,
Autumn 2019,’What are Contributory Items and
Historic Conservation Zones?’ p.6
34 Botten, Jamie, ‘Heritage and the Law’, a paper
presented at the Heritage and Planning SÁ Styletraining
Seminar 18 July 2011, p 4
35 National Trust South Australia, n33 p6
36 SA Planning Portal, Practitioner Overview n21 at 7
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THE BULLETIN September 2019