Australia: The heritage ripple effect: New regulation of development on land adjoining heritage places - 1 December 2016

Last Updated: 4 December 2016
Article by David Nicholls

Owners of properties adjoining heritage places will be affected by a new State assessment trigger and State Development Assessment Provisions (SDAP). The Sustainable Planning Regulation (No. 4) 2016 (SPR4) and an amendment to SDAP are due to commence on 5 December 2016. SPR4 provides that making a material change of use (MCU) of premises on a lot that shares a common boundary with a lot that is, or contains, a Queensland heritage place, will be subject to code assessment. The exceptions to this requirement are MCU's for or involving:

  • a dwelling house more than 25 metres from the boundary of the lot containing the Queensland Heritage Place
  • any use more than 75 metres from the boundary of the lot containing the Queensland Heritage Place
  • only single storey buildings or structures
  • only internal alterations or minor external alterations of existing buildings or structures.

It can be observed that the underlying intent of SPR4 is to discourage buildings or uses close to the boundary of heritage places, or those which are greater than one storey, regardless of the actual location of the relevant heritage buildings within the curtilage of the heritage place. The reference to distance from the boundary of the heritage place suggests a de facto expansion of the influence of heritage places beyond the boundaries that were determined at the point of listing of those places.

There seems to be an inherent presumption that development in excess of the exclusions proposed potentially adversely affects heritage buildings. Such a presumption is questionable because development on adjoining land is highly unlikely to have an adverse effect on a Queensland heritage place unless it has been listed under the aesthetic significance criteria in section 35(1)(e) of the Queensland Heritage Act 1992 (QHA) and even then, the statement of significance would need to identify the adjoining land as part of the setting of the place, or that views of the place from the adjoining land form part of the place's cultural significance. It must be noted that there are seven other criteria under which places may be listed, none of which seem to be capable of bringing in views or settings as an element of the listing.

Development falling under the new concurrence trigger is required to be assessed against the relevant provisions of SDAP and the chief executive administering the Sustainable Planning Act (SPA) will act as a concurrence agency. Notably, the referral jurisdiction is stated as the purpose of the SPA rather than the purpose of the QHA. This seems odd as the trigger relates to the State interest in Queensland heritage places entered in the register under the QHA. Therefore, it must be understood as expanding the scope of the QHA by collateral amendments to regulations under the SPA.

SDAP Module 9 has been completely re-written. The purpose of the code recognises that it seeks to regulate development on and adjoining a State heritage place so as to conserve cultural heritage significance for the benefit of the community and future generations and minimise or mitigate unavoidable impacts on cultural heritage significance. It also states that its purpose is to "maintain or enhance the setting and streetscape adjoining the state heritage place, and views to and from the state heritage place, where these aspects from part of its cultural heritage significance".

The cultural heritage significance of a Queensland heritage place is found in the citation which identifies the cultural heritage criteria under which, and the reasons why, the place was entered in the register. The citation is not open to expansion, reinterpretation or reinvention so as to give traction to the new State assessment criteria. Thus, for owners of properties adjoining Queensland heritage places, it is important to examine and understand the nature and effect of the criteria under which an adjoining heritage place was listed.

The performance outcome for development on land adjoining a State heritage place is contained in table 9.1.3 of the Module and is as follows:

"Table 9.1.3: Material change of use on land adjoining a state heritage place"

A place may, for example, be entered in the register solely because of its historic significance and not because of its aesthetic significance. In that instance, the place itself will have cultural heritage significance but its setting is unlikely to form part of the citation for its entry. On the other hand, a place which may have been listed because of its aesthetic values may include in the citation reference to the importance of its setting or to particular views of the place. If the setting or views of the place form part of its cultural heritage significance, development on adjoining land that would impede the views may arguably result in an adverse impact on the place's cultural heritage values.

It is important that owners of land suitable for redevelopment adjoining State heritage places understand how these changes may affect their development rights. The changes have a de facto retrospective operation on property rights because owners of adjoining land:

  • usually will not have been consulted when adjoining places are proposed for entry in the heritage register;
  • usually will not be aware of the provisions in a heritage citation with potential to adversely affect their development rights; and
  • probably would not have objected to a proposed entry (if they knew about it) believing that the heritage listing of the adjoining property would not affect their interests.

It is self-evident that those land owners would have been relaxed about such heritage listings because, until now, the State's powers to restrict development were limited to heritage sites and did not extend to adjoining land.

It is important for owners of adjoining land to note that presently, under section 34 of the QHA, the chief executive administering the QHA may change the citation or statement of significance for a heritage place with the consent of the owner of the heritage place and the Queensland Heritage Council. This means the citation could be changed to reference particular views or the setting of a heritage place without the consent of the adjoining owner, who would currently have no recourse under the QHA to prevent such action. While there is a right under the QHA for any person (which would include an adjoining land owner) to apply to have a place removed from the register, there is no ability to apply to have a statement of significance altered, nor to legally challenge an adverse change to a statement of significance.

The changes to the regulations and the proposed changes to SDAP are significant because they expand the reach of the QHA and thereby affect the rights of third parties who are currently not affected by that Act. The QHA should be amended in parallel with the commencement of the regulations and SDAP so as to require the consent of adjoining owners to any amendment to the statement of significance which potentially attracts the operation of the new concurrence powers. Property owners should also be given the right to appeal against the heritage listing of an adjoining property.

The exercise of concurrence powers pursuant to the new trigger is subject to review by the Planning and Environment Court in relation to refusal or the imposition of unreasonable conditions.

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David Nicholls
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