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Historical overkill becomes theft

By Alan Anderson - posted Wednesday, 26 October 2005

Since communism's collapse, Australia's activist fringe has associated itself with a grab-bag of trendy issues, many ideologically inconsistent. One is heritage preservation, which is turning parts of our major cities into museums of architectural banality.

Governments maintain lists of heritage places, using the power of the state to prevent development. Frequently, listing imposes restrictions on private owners of land, who receive little or no compensation, causing several problems.

First, there is a question of principle. Is it correct for owners to have their property rights expropriated without compensation, through an arbitrary system? Certainty is a cornerstone of the law, yet owners can never predict what will make the list.


Second, there is an incentive to over-list. The NSW State Heritage Register has dozens of picturesque sewerage structures. Take the Croydon Sewer Vent, "a reinforced concrete vent stack built in 1922" with "neo-classical console brackets at the top of the shaft" and "a larger scale base than that of the Wentworth Road shaft".

This over-listing is all the more offensive when it occurs on private land. Failure to list an historical structure can lead to community protest. An inappropriate listing affects only one person: the owner. It is easy to support listing something that "it would be nice to save", when the entire cost is borne by the poor soul who owns it. Heritage becomes theft.

Third, owners have an incentive to act pre-emptively. Every historical structure is a potential liability. Accordingly, it makes sense to conceal or destroy the structure before it is listed. The system perversely discourages private preservation.

Fourth, heritage lists invite corruption. Local councils use heritage as an excuse to impede development - except by developers who have thrown a few shillings into the appropriate re-election fund.

Some of our heritage should be preserved. Yet if heritage is a public good, justifying an override of private property rights, then surely the cost should be borne by the public.

An alternative would be to replace the listing of privately owned heritage places with state and federal funding for heritage bodies to preserve heritage. Their powers would be limited to three methods: buying land from private owners; negotiating registrable voluntary agreements with owners to protect heritage in return for compensation; and running public campaigns to raise voluntary donations to protect specific places. In extraordinary cases, compulsory acquisition could be permitted with ministerial approval, but only in return for compensation "on just terms".


Such a system would solve the problems outlined above. Private property rights would be respected. The tendency to over-list would be controlled by the need to act within budget.

Instead of being a liability, historical structures would be an asset, leading owners to protect them instead of destroying them pre-emptively. By outlawing other forms of governmental heritage preservation, corruption would be reduced and with taxpayer money being spent, public scrutiny of heritage preservation would be enhanced.

There would be objections from trendy inner-city types. For instance, inhabitants of a row of Paddington terraces might say the preservation of their entire street would be unlikely to attract funding. But if such local "character" is really of value, residents could negotiate voluntary agreements to preserve relevant features, enhancing their property values. By permitting such voluntary agreements to be registered as property rights with the Land Titles Office, the agreements could be made enforceable on subsequent owners.

Our model of heritage preservation, based upon government regulation and the legalised theft of property rights, imposes hidden costs through lost development opportunities. It is time to adopt a model based on voluntarism and respect for property rights, under which the cost of heritage preservation is transparently determined and borne by the community.

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First published in the Sydney Morning Herald on October 17, 2005.

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About the Author

Alan Anderson was a senior adviser to Treasurer Peter Costello and Attorney-General Philip Ruddock. He has previously worked as a lawyer with Allens Arthur Robinson and a computer systems engineer with CSC Australia. He currently works as a management consultant in Sydney.

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All articles by Alan Anderson

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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