PROTECTING OUR HERITAGE

Fixing our broken heritage protection system

Heritage protection and management in south Australia is in a parlous and deteriorating state. The legislative, policy and administrative structures established over the last fifty years are in dire need of reform if we want to protect our built and natural heritage for the future.

PICTURED

Top: Shed 26 at Port Adelaide prior to demolition. Right: Waite Gatehouse rally, 2021. The urgency of fixing our moribund heritage protection system is exacerbated by the disastrous planning ‘reforms’ enacted over a period of years spanning terms of the Marshall Liberal Government and the previous Labor Government and the larger, global issue of climate change and its impacts on our built and natural environments. Over the last twenty years, a series of reviews and recommendations to maintain and strengthen protections have failed to take effect. The last four years have seen a further serious decline in protections and their management. The governance and management of heritage protection in South Australia has been further undermined by the creeping politicisation and under resourcing of supposedly independent bodies such as the South Australian Heritage Council. South Australia’s Heritage Places Act has not been significantly amended since it was proclaimed almost thirty years ago.

Here we suggest three areas of focus to start to fix our broken heritage protection system so that it might be fit for its purpose of sustaining our built, cultural and natural heritage.

Protecting our heritage

The community wants a robust and reliable heritage protection system

It is a truism to say that heritage is important to the community. The conservation of heritage drives tourism, creates skilled jobs and opportunities for education and learning, preserves our environment, and contributes to our sense of place and well-being. This was once again affirmed by Parliament’s Environment, Resources and Development Committee (ERDC), which found in its 2018 Inquiry that heritage is greatly valued by the community, and that there is a strong desire among South Australians to reform heritage protection and management. These findings are consistent with the extensive analysis of community views undertaken by the National Trust in 2016 in response to earlier proposed changes. To date the recommendations of the ERDC report have not been acted upon, despite Ministerial commitments made in 2019 to provide a response back to the Committee by the end of 2020. Many of the useful suggestions made by the Committee have been ignored and the effort and insights of the many individuals and organisations who made submissions to the inquiry appear to have been wasted. In the absence of any constructive response to the ERDC report from government, we suggest that the key areas for improvement can be summarised as: simplification, accountability, and effectiveness.

1. simplification

South Australia’s heritage protection laws are needlessly complex, as is the system of governance for decision making about the designation of heritage places and their management. Australia’s three-tiered system of government- national, state and local- is partly to blame as well as boundaries between competing State government agencies. The result of this overly complex, often contradictory legislative and policy environment is confusion, uncertainty and inefficiency. Simplification is needed in three key areas: • How heritage protections are defined; • How and by whom decisions about heritage protection are made, and • How decisions about the future management, use and alteration of designated heritage items are made. Criteria for determining eligibility for heritage designation (i.e. ‘listing’) are applied inconsistently between and across each level of government. We need one set of integrated criteria for assessing heritage value- as defined by the community- that can be applied, not just to individual buildings, but also to areas, landscapes, trees, gardens and objects, and to intangible heritage such as traditional knowledge and practices. An over emphasis on ‘old buildings’ fails to recognise the real value of heritage to the community. Protection for Aboriginal heritage needs to be integrated, not treated separately.

we need a single decision-making body, one that is truly independent, to represent the community’s views on what should be protected, not a myriad of unaccountable committees making decisions about what we protect and why. we need a single piece of legislation that encompasses and underpins all decisions about heritage. That Act should be the responsibility of a single Minister, to ensure clear accountability to the public and to the Parliament for the proper protection of our heritage.

2. Accountability

The credibility and integrity of the heritage protection system depends on effective transparency and accountability for decision making. The governance of heritage decisionmaking bodies and the transparency of their decisions has been problematic for some time. Prior to the last state election, the Liberal party, from Opposition, committed to review the role of the South Australian Heritage Council. This has not happened. The Council and the Minister are the key decision makers under the Heritage Places Act. The constitution, governance and management of the Heritage Council and the discretionary powers of the Minister under the Act need to be reviewed to improve accountability and transparency. Section 18(7) of the Act provides the Minister with power to direct the removal of a provisional entry from the Heritage Register where the Minister is of the opinion that confirmation of the entry would be “contrary to the public interest”. However, there is a great lack of transparency surrounding the exercise of this power. The Act does not define what is and is not in the public interest, nor are there any guidelines to assist in interpreting this provision. Moreover, the Minister is not required to make the reasons for such a decision known to the public. There is no right of appeal. This Ministerial power has been used to veto the listing of: • The Elders Pavilion at the Adelaide

Showground; • Shed 26 in Port Adelaide; • Traversers 1 and 2 at the Islington

Railway Workshops; and • Union Hall at the University of

Adelaide. In each of these cases, the veto of the provisional heritage listing by the Minister has made possible demolition of a building which, in the view of the Heritage Council, should have been afforded the greatest level of protection. Such a power undermines the integrity and credibility of the state heritage listing process. The integrity of the heritage nomination and assessment process by the Heritage Council would be further safeguarded by instituting conflict of interest provisions as exist in other Australian jurisdictions. Council members ought to be required to declare pecuniary interests in a matter before the Council, and a failure to do so should be the subject of a financial penalty as it is under the Planning, Development and Infrastructure Act. A record of such disclosures should be kept and made accessible by the public. Membership of the Council should include significant community representation and be governed by transparent rules of appointment.

3. Effectiveness

South Australia’s heritage protection system was established in response to public concern about the loss of significant places, particularly historic buildings. Since that time, new pressures for urban development, a lack of strategic investment in heritage and new challenges such as climate change make more of our heritage vulnerable to damage or loss. We need an effective heritage protection system more than ever and the public need to be informed about its value and effectiveness. For twenty years a lack of resourcing to support heritage protection has been noted but not acted upon. In its 2003 Heritage Directions paper the Rann government observed that “adequacy of funding needs to be reviewed”. Fifteen years later the Heritage Council reported to the 2018 ERDC Inquiry that a “reduction in funding has impaired heritage expertise, impacting understanding and goodwill.” Resourcing is however only one of the problems. The enforcement of penalty provisions under the Heritage Places Act has been weak. Only one single prosecution has been made for neglect of a state heritage place under the Act in 30 years. Government has not taken its role in enforcement as seriously as other states which further erodes the credibility and effectiveness of heritage protection. One of the functions of the Heritage Council is to report to the Minister on the state of heritage protection, including ‘shortcomings and opprotunities’. However, these reports are generally not made public, except, occasionally in summary forum. The latest available ‘summary’ report from 2020 identified 25 recommended actions. It appears that, 18 months later, few if any of these actions have been completed. The Minister responsible for heritage protection should be providing a report to the Parliament on an annual basis on the state of protected places and items, identifying current and future risks and documenting the many benefits of protection. This should also include analysis of the impact and effectiveness of public and private investment and incentives.

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Union Hall at the University of Adelaide demolition, 2010. By simplifying the heritage protection system and improving its accountability and effectiveness the public will play a greater part in preserving our heritage, recognising its value and maximising and sharing the benefits for all.

Planning and the Heritage Protection system

Planning law, policy and regulation have continued to encroach upon our heritage protection system, weakening and undermining its effectiveness. The introduction of the state-wide Planning and Design Code (‘the Code’) for South Australia has been described by the government as “the cornerstone of the most significant reform to the South Australian planning system in over 25 years”. The Code, which took full effect across the State in March 2021 continues the pattern of subsuming heritage protections within planning rules, creating uncertainty and confusion and ultimately diminishing their effectiveness, placing more and more of our heritage at risk. The policies of the Code and the process by which they were created has attracted much criticism. Public dissatisfaction with the Code and its development triggered an enquiry by the Legislative Review Committee of Parliament (LRC).

In November 2021 the Legislative Review Committee of Parliament released a report making 14 recommendations for consideration by the Minister for Planning and the Parliament.

Among the recommendations are that the Minister for Planning and Local Government: • establish an independent review of the Planning, Development and

Infrastructure Act 2016 and the implementation of the Planning and Design Code to determine its impacts on community rights, sustainability and protection of the environment as identified in this Report. A review would also include the fees, charges and costs to councils of operating the new planning system. The Committee also recommends that the report resulting from the review be tabled in both Houses of Parliament by the close of 2022.

• implement each of the recommendations made by the

Environment, Resources and

Development Committee in its

Inquiry into Heritage Reform (2019) as a matter of priority.

• add to the terms of reference for the Heritage Reform Advisory

Panel’s Heritage Reform Review, a review into demolition controls under the Planning and Design

Code to advise on the impact of the Code on approvals for demolition of heritage assets and

• add to the terms of reference for the Heritage Reform Advisory

Panel’s Heritage Reform Review, a review into the outcomes for ‘Representative Buildings’ and whether the protections provided under the Planning and

Design Code and its supporting instruments are sufficient to protect Representative Buildings and retain the character of neighbourhoods. In compiling their report the Committee “heard extensive evidence that the consultation process [for the Code] did not meet community expectations, nor the principles set out in the [Community Engagement Charter]” established by the Planning, Development and Infrastructure Act. One of the fundamental failures of the consultation process was the disparity in the engagement of stakeholders, with community interests sidelined and development interests given a privileged seat at the table. Similarly, the processes for amending the Code lack transparency and accountability to the community. This was dramatically demonstrated late in 2021 with a proposed Code Amendment, initiated somewhere with the planning department, to rezone for commercial development some 70 hectares of the Adelaide Park Lands, an area that had been recognised on the National Heritage List and recommended for State Heritage listing by the Heritage Council three years. The huge public backlash against this amendment led to a tactical retreat by the Government, but demonstrated how the Code-based assessment of development proposals will run roughshod over established heritage protections. Future Code amendments clearly have the ability to further compromise heritage protection. The Adelaide Park Lands example and other developments in the past year show that one of the main outcomes of the Planning and Design Code will be a further loss of our heritage, greenspace and trees, contrary to the stated objectives of the Planning, Development and Infrastructure (PDI) Act that spawned the Code. The next government will need to act with urgency on the recommendations of the LRC Report to start to address the detrimental effects of the Code and the PDI Act more broadly on our heritage and the systems that are meant to protect it.

saving our Trees

Trees play a vital part in our natural and urban environments. As shelter and food supporting biodiversity and as shade and beautification for our streets, towns and cities, trees add significantly to our amenity and wellbeing. They give character to many neighbourhoods and increase property values. Trees play an important part in the relationship of Aboriginal people to country, and help all of us to live longer, happier and healthier lives by improving air quality, cooling our built environment and contributing to mental wellbeing. Trees, especially mature trees, also play an important role in capturing and storing carbon. The value and benefits of trees, particularly mature trees are well known. In recognition of the myriad benefits provided by trees, the State Government’s 30-Year Plan for Greater Adelaide first released in 2010 set a goal of increasing urban green cover by 20% by 2045. However, Adelaide is not meeting this target, largely due to the loss of its mature trees, estimated at more than 75,000 each year. Between 2013 and 2020, urban tree cover in South Australia declined by 9% from 21.37% cover to 19.45%. In Adelaide, changes have been variable. Some councils, such as the City of Playford, have borne the brunt of this decline. Since 2009, Playford has experienced a 5.4% decrease in canopy cover. The loss of tree canopy contributes to the urban heat island effect, and so it is not surprising that Playford, as one of the councils with the lowest canopy cover, is the hottest local government area in metropolitan Adelaide. The problem arises primarily from the loss of trees on private land, typically for new housing development. A 2020 study has revealed that in the western suburbs, although people’s gardens only make up 20% of land, they contain 40% of the tree canopy. Although many Councils do plant trees on public land, the sustained net loss of trees on private land is driving the overall loss of tree canopy. Offset schemes which increase tree planting on public land cannot adequately compensate for tree loss occurring on private land as a result of poor planning decisions and inadequate tree protection. Residential land accounts for 80% of metropolitan Adelaide, and so further canopy loss on this land can only contribute to the urban heat island effect, disrupt nature corridors, reduce carbon capture and reduce the liveability of our city. In the last two years the National Trust has worked with other environmental non-government organisations to document the problem and propose solutions. The first two of these reports is entitled: What’s Happening to Adelaide’s Trees? followed by A Call to Action: Protecting Adelaide’s Tree Canopy. Most recently, the Comparison of Australia’s Tree Laws demonstrates that tree protections on private land in South Australia are the worst in the nation. Urgent reforms are needed to reduce further declines in tree canopy and green cover, which have been further exacerbated by the failure of the Planning and Design Code to provide adequate protections and incentives to address the loss of mature trees across metropolitan Adelaide.

For more information visit: www.saveourtrees.org.au

Protecting our heritage

urgent reforms are needed to reduce further declines in tree canopy and green cover, which have been further exacerbated by the failure of the Planning and design Code to provide adequate protections and incentives to address the loss of mature trees across metropolitan Adelaide.