An insidious home invasion
Secure property rights in NSW are being steadily eroded by the widespread use of local government heritage orders. Where heritage orders were once used to protect old buildings of great historical significance they are today used routinely to take autonomy away from land and home owners. Unlike zoning laws heritage laws can be extremely targeted in their application. If the local council decides that the bricks in your home look quite funky or that the stepping stones in your garden are cute then your home can be heritage listed irrespective of your own wishes. Once your home gets heritage listed modifications such as painting the exterior or any form of asthetic modification are subject to an additional approval process. Basic home maintenance that most home owners do routinely without permission becomes subject to government control. Demolition becomes nearly impossible.
Heritage listing is insidious. Analoguous to raising the water temperature on a frog until it boils heritage listings are rolled out incrementally in a way that does not readily generate a concerted political response. Unlike other development laws that are applied uniformly the application of heritage orders is applied arbitrarily on a case by case basis.
This news article from late last years outlines some of the madness happening in Sydney under my local government.
Pensioner Sylvia DeMeur, who owns one of the houses in Toongabbie, said she was horrified to discover her unpretentious bungalow was being considered for heritage status.
Although her massive brick chimney is said to introduce “verticality into an otherwise horizontal architectural composition”, Ms DeMeur believes her Lamonerie Rd property has no historic value.
“If it was built by convicts or 100 years old, that’s fair enough, but this is just an ordinary fibro house that the next-door neighbour could have built,” she said.
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My view of my property is that it is like a piece of canvas. If you don’t like the picture that I paint then buy your own bloody canvas.
The homeowner has been told that it will depress the property value by $60k. Is this legal? Could she sue for the difference? What legal right does the council have to destroy an individual’s property?
What would be the consequences for the owners of heritage-listed houses if they ignored the demands of the local council and painted the house luminescent violet?
I posted a pro LDP comment on the article page. Let’s hope it gets through and gets us some attention or some new members.
Pommy: I don’t think so. The just terms qualifier only applies to the Commonwealth. LDP reforms include extending these rules to the States and Shires. This was the gist of my comments on the paper’s blog.
Every house in my street is heritage listed with my house being the lone exception.
Youz lot just wanna destroy our priceless heritage! Why doesn’t she just move to her summer home? Why should coucils be forced to pay a fair price if they want something? Geeze, youll be complaining about income tax, and conscription, next!
In practical terms, some government has found a good way to reduce the costs of housing, thus lowering prices alround! If you see a house you like which is about 50K too much, get a heritage listing and you can afford it! I think they’re on to a (vote) winner here.
Imagine if any regulatory taking by any level of government had to be subject to just compensation requirements.
You may say that I’m a dreamer
But I’m not the only one
Are local governments constrained by constitutions or is there some alternative basis for their existance? My understanding is that they are in essence an extention of state government and subject only to state government legislation.
I was going to make Jason’s point. If government had to pay just compensation when they passed regulation, then they would have an incentive to only pass legislation that created a net benefit.
Politically, this is a small issue and a small solution — but I actually think it is vitally important. A requirement for just compensation would be fairly acceptable to most Australians, but could make a significant difference to the behaviour of government.
I’m against all heritage laws on principle as a violation of property rights.
I have no problem with caveats on property contracts, ie: conditions of purchase and contract law in general.
I can think of two justifications for heritage laws:
1) Old buildings look nice to some people 2) Renovations or demolition may devalue houses around you.
In response:
1) How could you be so arrogant as to think the law should deny another person their right to do what they want on their property, just so you can have a nice view.
2) In the unlikely event of someone doing renovations that would de-value their neighbours properties, this is too bad, but this could be addressed by caveats and contract law.
Of course, if you damage your neighbours property directly you should pay compensation.
How did we get to this stage where councils have to give you approval for every single piece of building or landscaping or tree cutting you do anyway?
And Terje, how do you become the only non-heritage listed property on your street?
Tim,
Circa the year 2000 the area in the streets around my house was declared a heritage area and all the houses were at that time also heritage listed. The previous owner spent five years lobbying the local government to try and get the house removed from the heritage list. They did this on the grounds that it lacked historical or architectual significance and that it was poorly maintained (I think they worked hard at the latter). I bought into the area knowing it was a heritage area which entails it’s own set of construction restrictions. However I refused to buy the house unless it was removed from the actual heritage list. The council voted to remove the house from the list on 14th February 2005 a few days before I signed the purchase contract.
Interestingly one end of my street meets the border to a neighbouring council. Across the border they have also designated a heritage area and have listed many homes.
You mentioned caveats. Amoung the caveats on the original sale of the property post subdivision in the early 1900s was that it could not be used for farming pigs or chickens and the value of any dwelling constructed must be above a given threshold. I agree that caveats are appropriate and that heritage laws are a violation of property rights.
Regards,
Terje.
I’ve twice fought proposed heritage listing of properties (in Sydney), both times by being combative.
In one case I lobbied the Councillors directly. They are politicians, after all, and don’t like to upset people. Letters and personal representation make a difference at that level.
In the other case I made it plain to Council staff I was willing to go to the Land and Environment Court if they didn’t back off.
Heritage orders can be fought in the L&E Court. It’s not an overly legalistic place but you need expert evidence to back up your arguments. It is quite common for Councils to lose there.
Unfortunately there is no way to claim damages for reduced property values.
Interesting.
I think in the past that some people saw prestige in having their home heritage listed. I think people may be waking up to what it really represents.
I saw something a couple of years ago where one council (possibly Brisbane) was talking about preserving an area of circa 1950s homes, as an example of post war shit box housing, which it felt was rapidly disappearing. I think they used different, more technical terms than mine, but the meaning was the same.
Up here at one stage about 30 years ago we replaced most of the council when we formed a rate payers committee and stood candidates against them when they acted totally beyond the pail. Only two of the previous council survived, one with our endorsement, the other with a determined effort by the National Party to prevent me from getting in.
To achieve this you need two things; A council that is really bad to the extent that a hell of a lot of people are upset, and some really good well respected people behind you.
‘“If it was built by convicts or 100 years old, that’s fair enough, but this is just an ordinary fibro house that the next-door neighbour could have built,” she said.’
That’s like saying, If it was other people’s property, I’m all in favour of the government stealing the use-rights, but where I draw the line is at my own property. What she doesn’t see is that she has set herself up for the government to confiscate her property use-rights, by agreeing for it to be done to others, imagining that their case is different to hers. It isn’t. That is why liberty and property have to be defended as a matter of principle; it can’t be done ad hoc as a matter of expedience. In a sense, she got what she deserved.
Evidently that`s a ridiculous way of expropriation! Something similar happened in our neighbourhoods in Toronto but nobody made a step forward to regain it. That`s only the question of time only when your house becomes a heritage especially if it owns some special historical or art qualities. You can`t raise your voice after you wake up from the surprise that the home you have been living for several years it`s not yours anymore.
The Commonwealth Constitution has a “just compensation” requirement whenever they acquire any interest in property that negatively impacts on its value. NSW Consitution has no such requirement however after the NSW government tried to cheat private landholders about of 20 million or so when they appropriated land at Darling Harbour, they bowed to public pressure and enacted the Just Compensation Act. It also applies to any “interest” the state acquires in your property that reduces its optimal or higest/best use value. Local government actually have the ability to justly compensate owners of properties they heritage list as well, they simply chose not to do so.
Local government, the lowest, least accountable and most corrupt teir of government [if being sacked for corruption is your yardstick] can wipe hundreds of thousands of dollars in value off your property – millions in the event is is a CBD or ocean front property – just because some local heritage nutter nominated your property because they like looking at the eg., steep tin roof when they walk past. Local Councils are hostages to local heritage buffs, many of whom do not own property themselves but delight in nominating ours for part nationalisation. Councils pander to these heritage terrorists and often stack their local heritage committees with them, in which case they recommend even more asbestos houses and cute sewer vents be heritage listed. An owner cannot appeal a local heritage listing directly as the cunning drafters of the NSW Heritage Act made sure of that. Owners have to stump up $50-200,000 for a full blown redvelopment application just to challenge the validity of the heritage listing in the NSW Land and Environment Court. NSW Planning Minister had an inquiry into the NSW Heritage Act and its report was finalised late 2007. It appears he has been reforming heritage in NSW however the Birkentock Brigade have gotten into bed with the heritage luvvies and are generating a lot of publicity against these reforms. Even Brad Hazzard the NSW Liberal opposition spokesperson has been conned into decrying these much needed heritge reforms. He probably thought it was a free kick at Sartor, however as much as I detest Sartor, credit where credit is due – he appears to be genuinely trying to clean up the heritage mess in NSW, especially at the local government level. Someone needs to tell Brad Hazzard a true liberal respects private property rights, believes only in just compensation if the state abrogates those rights and he needs to re-think his capturing by these heritage terrorists.
A good comment. Thanks for the details.
Does Wollongong Heritage Owners have a website or blog?
Measuring corruption by the incident of governments being “sacked” is hardly a fair measure because there is no real mechanism to sack state or federal governments.
Wollongong Heritage Owners does not have a web site but the Society of Heritage Owners NSW does at http://www.sohonsw.com . Its a great website for owners but parts of it are still under construction.
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