The Pendulum Swings The SAT and Local Heritage Joel Gilman Solicitor, State Heritage Office

The High- (or Low-) water Mark: Moullin & Town of Cottesloe (2002) Town Planning Appeals Tribunal (since replaced by the SAT) TPAT held that a planning decision should give “very little” weight to inclusion in an MI; give “some weight” to inclusion in a TPS heritage list; and give “substantial weight” to a state Register entry. Place was not included in an MI, TPS heritage list or state Register, but was part of a “heritage area” defined by a “heritage strategy” and subject to design guidelines recommended by a heritage consultant. TPAT rejected most of the design guidelines because they had not been formally adopted by the local council.

2002-6: Consistency TPAT and SAT more concerned with the contribution of a local heritage place to the streetscape or “amenity”, rather than significance of individual local heritage places Cases:

2006-7: Sea Change New local policies on heritage SPP 3.5 – Historic Heritage Conservation - SAT feels less need to rely on local heritage policies New SAT members with heritage savvy SAT inclined to give greater weight to inclusion of place in a TPS list, which can now be the “dominant consideration” in a planning decision Cases:

: The Full Swing SAT inclined to give substantial weight to ad hoc determination of heritage significance, even without MI or TPS listing. Cases:

2011: A Retreat? Recent decisions suggest a higher burden on LG to justify planning refusal or conditions based on heritage or “character” considerations “Character strategy” may be a more appropriate way to protect heritage. Cases:

2012 and Beyond Some thoughts on the SAT…

Local Heritage Agreements A place does not have to be on the state Register to be the subject of a s. 29 Heritage Agreement Often required as a condition of subdivision approval SHO is very happy to assist LGs with preparation of Heritage Agreements where appropriate

Formal Request We need a written request from you to provide assistance with a heritage agreement, on your letterhead, signed by the Director of Planning or someone higher A request by telephone or , or made to the Regional Heritage Advisor, is not sufficient

SHO is only the scribe In a heritage agreement for a local heritage place, HCWA is not a party. SHO’s role in assisting you is limited to ensuring the agreement is valid and enforceable under the Heritage Act LG needs to negotiate the substance of the agreement with the owner (conservation works, etc.)