Specialist Corporate and Commercial Lawyers
Owning in a heritage conversation area
Owning a property in a heritage conversation area has both pros and cons – on one hand, you can own a beautiful, historical property in an area that is usually less dense and well preserved. However, works to your property require consideration of additional regulations and requirements that properties outside a heritage conservation area do not. These works usually require some form of Council approval, even if they are minor.
A heritage conversation area (HCA) is an area of land that is recognised and valued for the collective nature of buildings and elements in that area that contribute to an overall heritage significance that has been deemed to be worth protecting. It can include a group of buildings, landscapes, or whole suburbs with particular heritage values.
The Inner West Council in Sydney has 107 conservation areas alone, and that does not include the HCAs in other Council areas nearby, such as the 75 in the City of Sydney. Closer to home, Newcastle has 8 HCAs and Lake Macquarie has 3.
HCAs are granted statutory recognition and protection through listings on the relevant local environmental plan. This listing provides the local Council with a mechanism for managing change on an areawide basis. Generally, if a property is contained within the boundaries of a HCA, external and structural alterations, demolition, and subdivision will need to be approved by the local Council.
Within a HCA, buildings are generally classified as “contributory” or “non-contributory”. Contributory buildings are those that contribute to the character of the HCA, whereas non-contributory buildings do not contribute to the character or significance of the HCA.
Works to non-contributary buildings in the HCA will still require consideration of the heritage issues, even if the proposal is for demolition and rebuild. In such circumstances, a new construction would need to be designed that was sympathetic to the HCA.
Focusing on HCAs in Newcastle, three types of approval are available for works within a HCA: a development application, a heritage minor works or maintenance notification, and exempt development. Each works proposal must be assessed on its own merits and requirements to determine the appropriate approval type.
A development application will be required in most cases where works are proposed to a property within a HCA (although each case should be assessed by a qualified planner, lawyer, or other consultant to confirm). A development application for works within a HCA will be like the process for any other development application, although a heritage impact statement (HIS) from a qualified heritage expert may be required. A HIS is a document that sets out the impact that the proposed development will have on the heritage values of an item, place, or conversation area and will explain how the proposed development is sympathetic to the HCA.
If works are to be carried out to a building, work, relic, tree or place in a HCA, development consent may not be necessary if Council deem the works to be of a minor nature or for maintenance of the property. Minor or maintenance works are those likely to not affect the significance of the property. Under the Newcastle Local Environmental Plan 2012, “maintenance” is defined as “ongoing protective care, it does not include the removal or disturbance of existing fabric, alterations (such as carrying out extensions or additions) or the introduction of new materials or technology”. Generally, Council advises that if the works would be considered exempt development but for the site being in a HCA, it will likely be minor works and development consent will not be required.
However, Council must be notified of the works and a written response must be received from Council advising that no development consent is required before works commence.
There are limited circumstances under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 where work can be done as exempt development in a HCA.
Regardless of what works are proposed, an owner of property within a HCA must be mindful of ensuring that their proposed works are sympathetic to the heritage values of the area. Most Council’s have guidelines available for owners in an attempt to assist them in complying with the HCA – these guidelines usually include comments on appropriate paint colours, landscaping features and, in Newcastle’s case, the inclusion of verandas.
Works in a HCA need to be thoughtfully designed and proposed to Council to allow it to assess and, hopefully, approve the works. Obtaining early, qualified opinions from those experienced in the heritage conservation area where your property resides is crucial – we preach it, but due diligence and preparation is key to success.
This article was co-written by Koreen Partridge, Senior Associate.
This article is not legal advice. It is intended to provide commentary and general information only. Access to this article does not entitle you to rely on it as legal advice. You should obtain formal legal advice specific to your own situation. Please contact us if you require advice on matters covered by this article.