Heritage forum speech by Reece McDougall

In Parliament |

Reece McDougall was the CEO of GML Heritage until 2013. He is currently the special advisor to GML. Reece was Executive Director of the NSW Heritage Office from 2006 to 2008, and Assistant Director/Director from 1998 to 2006.

This speech was delivered at '40 Years of the NSW Heritage Act - A Forum' on 18 April 2017.


1.0 Introduction 

The Heritage Act is an Act to conserve the environmental heritage of the State. 

Environmental heritage being defined as those places, buildings, works relics, moveable objects and precincts of State and local heritage significance. 

The interesting thing to note here is although it is often forgotten the Act also aims to conserve items of local heritage significance be it that we rely primarily on local councils to do this. 

Since its introduction in 1977 we may ask how successful has it been it achieving this aim? 

Prior to the Heritage Act there was little legislative protection to heritage items in NSW. 

The County of Cumberland Planning Scheme 1951 was the first attempt to protect significant heritage. 

Clause 38 enabled the Governor to proclaim any land building or work to be a place of scientific or historic interest. Progress on the proclamation was slow with only 5 buildings being declared in the first 5 years and over the next 14 years only a total of 16 buildings were protected under this clause. 

In addition, the National Parks and Wildlife Act 1967 provided some recognition of historic sites in addition to natural and Aboriginal heritage. 

When the Heritage Act was first introduced by the Wran Government it was recognized and promoted as one of the most powerful pieces of legislation in NSW with the potential to override any other State Act.

In fact even future Premiers found out, much to their frustration, they did not have the power to automatically revoke a listing on the SHR, only the Minister could after a recommendation from the Heritage Council and a due process of assessment and public consultation. 

I believe that there were four main influences that facilitated the introduction of a Heritage Act in NSW. 

The first was the legal recognition of the National Trust under its own act in 1960 and the subsequent lobbying by the Trust to stimulate interest in heritage conservation and pressure the government to introduce heritage legislation. 

The second was international factors which focused the community’s attention on the value and vulnerability of its heritage. 

There was increased opportunity to travel and observe and increasing technological change.  This change in social conscience of the community compounded with the widespread destruction of significant heritage buildings such as  St Malo and Subiaco. 

Thirdly it culminated as Meridith Burgmann has previously outlined in a distinctly Australian response with the imposition of green bans meaning withholding labour for a noble cause. This generated widespread community interest and debate and was a key influence in recognizing the need for a Heritage Act. 

One action that was not widely known was that in those days the Director of the National Trust would regularly meet with BLF- Jack Mundey in secret in a George Street pub and provide a list of threatened items as potential candidates for green bans. 

This was done because there was concern that the conservative National Trust members would be critical of the National Trust having a relationship with a left wing organization such as the BLF. 

The fourth factor was the introduction of the Hope Report:   The Report of the Committee of Inquiry into the National Estate provided the basis for the NSW legislation. 

The first attempt to provide legislative provisions to protect heritage came with the introduction of the Environmental Planning Bill on 24 March 1976 by the then Liberal government, just a few days before the State election. 

The specific heritage provisions in this planning bill were contained in a mere 16 clauses in Part V of the Bill, it was restricted to cultural and archaeological items and very limited in its application and was widely criticized as purely window dressing. 

It was not until May 1977 that separate comprehensive legislation was drafted by the new Labour Government which with the assistance of the National Trust went on to become the NSW Heritage Act. 

The Bill itself was nearly withdrawn after the opposition sought 18 amendments which would have highly modified and watered down the Act if they had accepted by the government. 

In response the National Trust took out a half page advertisement in the SMH stating it was dismayed by the oppositions attacks on the Heritage Bill  and appealed to the public to lobby their local member to support the Bill in its present form. 

There is no doubt this action prompted the opposition to drop the majority of its proposed amendments and the Trust’s action enhanced its acceptance by the community generally and Parliament. 

The Bill was finally approved by Parliament on 30 November 1977 with three amendments. The membership of the Heritage Council was expanded to include one additional member to cover property rights, the willful neglect provisions were expanded and lastly there were further restraints placed on in the right to inspect property. 

One of the first actions by the Heritage Council and Minister was the gazettal of PCOs for all the buildings proclaimed under the County of Cumberland Planning Scheme. 

The Act originally provided for protection of the State’s Environmental Heritage by a variety of orders. 

These included S130 orders providing an early warning system, S 136 orders used as a last resort to stop demolition work on a potential heritage item, interim conservation orders and permanent conservation orders. 

In the first 5 years of the operation of the Act  - 1186 S 130 orders, 229 Interim Conservation Orders  and 196 Permanent Conservation Orders were gazetted. 

Twenty eight S136 emergency orders were also made. 

Some controversial items which were considered significant were lost in this period due to political or administrative decisions including Kelvin House, Castlereagh Street, Sydney , Abbotsford, Picton, Springfield Neutral Bay and the Regent Theatre George Street Sydney. 

In these early years and prior to 1996 the Heritage Act primarily applied to heritage at risk and was in the main threat driven. 

Even the term Permanent Conservation Order implied tight regulation and control of heritage items. 

The vast majority of PCOS were applied to buildings privately owned and did not include State government properties.

In the 1990s there was growing realization that the Act required major changes to better reflect the management of the States heritage between local and State government. 

The Heritage Amendment Act, 1998 provided the opportunity for a new approach to heritage management and amongst other things created the State Heritage Register to replace the old system of PCOs. 

The Register came into being on 2 April 1999 to list heritage places and items of particular importance to the people of NSW. 

2.0 The State Heritage Register 

The creation of a State Heritage Register was one of the most significant initiatives to achieve better management of the State’s heritage. It changed the negative perception of control  of State heritage items to one of recognition and celebration. 

When the Register first came into force with the transfer of PCOs to the Register. 

The total number of items on the SHR items now totals about 1680. 

This equals about 42 listings per year over the last 40 years of the Act. In some years there were more listings eg when the all the State items on Government S170 Registers were bulk listed.  In some years there were less for example in 2005 which included the extensive work to formally recognize the state heritage significance of Braidwood the first town in NSW to be listed on the SHR. 

In the period of the NSW Heritage Office the then Heritage Office Senior Management Team estimated that there could be between 5,000 and 10,000 potential State items. 

On the basis of an average of 40 listings per year this means that if we continue at this rate it could take another 80-200 years to approach a complete comprehensive State Heritage Register. 

The approach to recognizing State heritage items also changed. 

In 1996 after creation of the NSW Heritage Office as a separate government agency the aim was not only to have a comprehensive register but also a diverse one which included not only the ‘built heritage’ but also natural, Aboriginal, movable and maritime. 

With this aim listings were expanded to include natural areas like the Old Growth Forest on the North Coast and Malabar Headland, Aboriginal sites like the Brewarrina Fishtraps and multi cultural properties such as New Italy as well as moveable objects. 

A number of initiatives were tried including regional assessments, thematic studies and even a request for public nomination of their special heritage icons. 

Some of my favourite listings and celebrations included Braidwood, the western Sydney colonial properties, the Japanese midget sub and the Former Rathmines Airbase. 

A tremendous amount of work was put in my staff to get the affected owners supportive of the listing and keen to recognize and promote its values.

This approached resulted in fantastic media events which got widespread recognition in the community and Ministers love good publicity where even the Opposition supports the action. 

3.0 Key Factors for the Effective Administration of the Heritage Act in NSW 

From my experience I believe there are a number of key factors that are critical to the effective administration of the heritage Act. 

Government and Ministerial Support 

Like the old saying to make hay while the sun shines you need to take advantage of every moment when you get a Government and a Minister supportive of heritage. 

In this regard Minister Refshauge stood out head and shoulders above the rest. 

He was an enthusiastic supporter of conserving and promoting our heritage and it didn’t hurt that he was also the Deputy Premier. 

We had some excellent heritage outcomes in his period of administration and regularly had him on TV, the Sydney Morning Herald and local press promoting heritage listings and initiatives. 

This included having the Minister fly over Richmond Airdrome in a red tiger moth to announce its’ listing on the SHR, climbing the Cronulla Sand Dune with the Premier to promote its long overdue protection or diving into the depths of Sydney Harbor to place a plaque on a significant maritime archeological site. 

Even when you get a Minister who is less enthusiastic about the heritage portfolio you may change your workplan but can still achieve get some good results. 

For example Minister Sartor who could not contain his laughter when I once described him to a Ministerial delegation as being passionate about heritage stood firm against very strong opposition from some of the townsfolk and local developers to list Braidwood, the first town to be listed on the State Heritage Register. I believe many Ministers today would have not withstood the community and political pressures and would have deferred such a controversial decision. 

Good staff and resources and a strong Heritage Council 

Getting good results is easy when you are supported by competent staff. I was very fortunate to have great staff who had the knowledge, skills and enthusiasm to achieve some excellent heritage outcomes. Their worked was backed by a strong and committed Heritage Council who were keen to promote their work. 

Adequate Funding 

Adequate funding was needed to fund the day to day running of the Heritage Office but also to provide a pool of monies for grants and loans for heritage property owners. 

On a number of occasions the provision of a grant under the Heritage Act made the difference in achieving the retention and conservation of heritage items. 

One of the best examples in this regard was the adaptive reuse and conservation of the Mine Managers Residence at Broken Hill. The building was originally proposed for demolition to allow the construction of a much-needed seniors living village. It was a very sensitive issue in the community with the local paper running front page headlines we care for old people not old houses. Instead of using the protective measures under the Heritage Act we entered into discussions with the owner/proponent and he agreed to a stay of demolition. This provided a brief period where the Heritage Office architects looked at alternate designs which enabled the residence to be retained. 

This was eventually achieved with its adaptive reuse as the new administration building for the village and supported by a a grant to facilitate its future adaptive reuse and conservation. 

Focus on Promotion and Recognition rather than regulation 

Rather than regulation, our focus was on the recognition, promotion and celebration of heritage with the NSW community. 

Ministers love positive media and we put in a tremendous amount of work in getting the support of owners and the community before announcing the listing on the SHR. 

Supporting Local Government 

The bulk of the community’s heritage is under the management of local councils. Recognising this the Heritage Office had dedicated staff and packages to support councils including provision of grants and funding of the heritage advisors in rural areas. 

By  2006  the majority of councils (90%)had heritage schedules and 82 or 78% of rural councils had access to heritage advisor services. 

State Government Agencies 

The addition of S170 provisions to require agencies to prepare a conservation register of their heritage assets and manage them consistent with State owned heritage management Principles was a great step forward.

Over half the items on the State Register were in Government ownership. 

Regular forums were held with the key government agencies to exchange ideas and identify issues affecting their long term conservation. 

4.0 Positive and Negative Actions over the last 10 years 

Positives

  • Replacement of PCOs with the State Heritage Register.
  • Inclusion of heritage provisions under S170 to address the management of heritage assets by government authorities.
  • Replacement of willful neglect with minimum maintenance provisions.
  • Provision of Heritage Agreements.
  • Change in the definition of relic to reflect significance not age.
  • Separation of the Heritage Office from Department of Planning and creation of a separate agency which provided direct advice not filtered on censored advice to the Minister.
  • Conservation and Adaptive Reuse of the former Kings School buildings at Parramatta as the headquarters of the Heritage Office. The Kings School was a clear example to owners and developers that things didn’t have to stand still in time to be conserved but could be adaptively reused for other sympathetic purposes.
  • Establishment of committees with appropriate delegations to ensure the efficient administration of the work of the Heritage Council.
  • Establishment of delegations to the Director and senior management of the Heritage Office – much of the work could be efficiently done under staff delegation leaving the Heritage Council to focus on big-ticket items.
  • Regular weekly meetings with Minister.
  • Availability of a Significant Heritage Fund to provide monies to achieve good outcomes. eg purchase of land to protect the setting of Exerter Farm
  • Creation of a Heritage Promotion Team to promote, recognize and educate the community as to the value of its heritage.
  • Open door meetings for owners and applicants to discuss issues and development proposals before submitting an application formally under the Act.
  • Consultation and discussion with owners before considering SHR listings resulting in their support when listing formally announced.
  • Establishment and support of heritage network for local heritage advisors
  • Finally establishing ‘Heritage’ in the Ministerial Title 

Negatives 

  • Removal of the NSW Heritage Office as a separate agency and re-establishment as a Division of the Department of Planning.
  • Removal of Heritage Staff from the Kings School and placement in other spaces in Parramatta.
  • Loss of the Heritage and Conservation Fund and replacement with a annual Treasury Allocation.
  • Loss of the Heritage Promotion Team and its services. 

5.0 Current Concerns and The Way Forward 

I believe there are a number of concerns with current heritage management in NSW. 

  • There appears to be an overwhelming focus of the current government on finances and development. 
  • To me there is a great inbalance in the current approach and what has been lost is the other key considerations of ensuring community well being and of which heritage is an essential and integral part and makes a major contribution to our quality of life. This is widely recognized by the Aboriginal community and we should learn from them. 
  • In particular I am concerned at the ever increasing selling off of government/community properties including heritage assets to achieve a short term financial gain to fund government development projects. To me these are community assets and should not be sold or leased without the support of the community. 
  • I am still waiting for a separate Aboriginal Heritage Act. Yes we can list Aboriginal cultural heritage sites on the SHR and as Aboriginal Places under the NP&W Act but the focus is still on the controlled destruction of Aboriginal heritage via archaeological permits. We need equality in identifying and managing both Aboriginal and Non Aboriginal heritage.  We should have similar system to that which exists in New Zealand. This would enable an Aboriginal Heritage Council and Heritage Council to meet separately each month and then come together bi monthly or quarterly as a NSW Environmental Heritage Council to discuss key issues and policies. 
  • In addition I believe that there is little evidence of promotion and celebration of our heritage. I cant remember when I last saw a major positive heritage story in the paper or electronic media. My greatest fear when Director at the Heritage Office was that the Heritage staff would end up focusing on applications and paperwork and basically were confined to policing the policeable. 
  • Local Government is similarly focused on development and housing. My own council, Sutherland Council once a model council in heritage management now gives token consideration to heritage. For example one of its more recent decisions was to provide the incentive of extra car spaces to the developer of the Art Deco Commonwealth Bank at Cronulla in return for retaining only a part of its original facade. 
  • The loss of heritage trades and skills and training in these services is also a concern. 

Recommendations 

  • A major injection of Government funding to enable the completion of a comprehensive State Heritage Register within in the next 4 years ie by 2020. 
  • Creation of a heritage lottery similar to that used in the united kingdom to generate additional funds for assisting owners of heritage properties. The existing $5 lottery would be an ideal candidate with only limited sales at the moment but with the potential to greatly increase under the heritage lottery banner. I am sure there will be people who would not normally buy lottery tickets would in this instance purchase tickets knowing the money will support heritage. 
  • A rethink to our approach in the protection, conservation and management of archaeological sites in NSW. 

Thank you for inviting me here to speak today.

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