From environmental citizenship to heritage citizenship? The Victorian Ombudsman, the Brookland Greens gas leak and the Windsor Hotel redevelopment

This an abridged version of a paper I delivered at The University of Melbourne, Australian Institute of Art History “International Conference to explore approaches to the preservation of urban built heritage, with a focus on Melbourne” in October 2014.

——

The Victorian Environment Protection Authority’s embrace of the notion and principles of ‘environmental citizenship’ points towards a principled attempt to begin the process for redistributing power and reprioritising community concerns in environmental laws in the state. Lightly grounded in scholarship, particularly the work of Dobson, Victoria’s Environmental Citizenship Strategy positions the community as having a role in environmental regulation and asserts that the authority’s function is to enforce environmental standards and be responsive to community concerns about environmental harms. The enthusiasm for a novel form of citizenship-based policy development, notwithstanding that the policy is part of the broader State government Environmental Partnerships program, has not, however, migrated to heritage laws. There is no policy support for an idea of ‘heritage citizenship’, for instance. I argue that there should be; that we need to reflect on the purpose and function of heritage laws with concepts of citizenship in mind.

My paper relies on two place-based controversies connected by time, by government mishandling, and – most significantly for the paper – by the critique of the Victorian Ombudsman. The environmental citizenship concept can be traced to the Ombudsman’s report into the Brookland Greens Estate gas leak saga in Cranbourne, while the other Ombudsman report – about the redevelopment of the heritage-protected Windsor Hotel has led us to nowhere in particular. This is despite the nature and topic of the Ombudsman’s critiques being comparable. The paper distills the similarities in the Ombudsman’s critique and offers some preliminary thoughts about what a notion of ‘heritage citizenship’ would mean in our existing legal landscape.

The Ombudsman’s report into the Brookland Greens Estate gas leak concluded that the Victorian Environment Protection Authority particularly had mishandled regulatory oversight and made poor administrative decisions about the estate development and regulatory control over the adjacent landfill from where the gas emanated. Specifically, the authority:

  • had poorly enforced the laws it was charged to administer. It prioritised relationships with organisations it was supposed to regulate instead of prioritising the welfare of the people it was supposed to protect.
  • did not compel compliance with the law. It did not adequately respond to improved standards and environmental knowledge and failed to escalate enforcement when there was a clear need to do so.
  • lost sight of its overarching environmental protection objectives.
  • had consolidated decision making within a bureaucratic elite, making the organization unresponsive and rendering itself functionally hamstrung.
  • did not take a formal or influential role in court proceedings when it had the opportunity to do so and the knowledge to influence.

The Victorian Ombudsman, 16 months after its inquiry into the Brookland Greens Estate was directed to inquire into the events that led to the planning and heritage approval of the highly contested Hotel Windsor redevelopment. The Victorian government approved the redevelopment through the Minister for Planning in his role as responsible authority: a role he had because of the proposed size of the redevelopment. His decision was supported by an advisory committee recommendation. The project had the support of the City of Melbourne. Heritage Victoria also promptly granted a heritage permit under the Heritage Act.

The focus of the Ombudsman’s report was a plan hatched within the Minister for Planning’s office to generate community opposition to the project upon the release of the advisory committee recommendation report. This was intended to curate a political imperative to reject the project, but the plan was inadvertently disclosed and the rejection of the redevelopment became a political impossibility (and potentially a legal minefield). From the Ombudsman’s report it can be deduced that:

  • an appointee to the advisory panel was implicated in conflict, having previously worked on the site with a member of the development team, bringing into focus the small and interconnected community working on the Windsor Hotel.
  • key decisions, recommendations and strategies were devised by Ministerial staffers with insufficient oversight, accountability, expertise and management.
  • the community was seen as something to use for political purposes rather than as contributing meaningfully to decisions about heritage.
  • the Department of Planning, through its then Secretary, asserted that decisions made under the Heritage Act can be reached by a decision-maker giving equal weight to impacts on heritage of development and to the impacts of economic use of a heritage place arising from non-development. This dispelled any idea that the administration of the Heritage Act ought to achieve its main statutory goal: ‘to provide for the protection and conservation of places and objects of cultural heritage significance and the registration of such places and objects’.

Across both Ombudsman reports there were findings or suggestions about inappropriate administrative conduct, power resting in an exclusive elite, a failure to prioritise community concerns and expectations. and a sidelining of the community in decision-making. Still, the inquiry into the Windsor Hotel has not led to a policy response comparable to the Environmental Citizenship Strategy, which was triggered by the report of the Ombudsman and others prepared for and by the Environment Protection Authority about the Brookland Greens Estate.

However, there is a breadth of scholarship on urban citizenship and justice that could – or may still – provide a starting point for reconsidering legal and policy frameworks and encounters with heritage and planning laws. A notion of ‘heritage citizenship’ could be extracted from this scholarship. Selectively and notably, Fainstein has argued that a just city is one that is one that is diverse, democratic, and equitable; where the community and its collective “quality of life”, rather than politics, is the central figure. Her work draws upon justice theories and philosophy as well as social geographers, prime among them Harvey, whose work articulates a right of city dwellers to urban identity, citizenship and belonging; a right not to be dispossessed. Of particular relevance to heritage, Szerszynski has argued that urban citizenry includes the right to be and of the visual and a responsibility to the visual. Smith and Mcquarrie argue that urban citizenship is not only about belonging within the city, but also belonging within the law of the city, where ‘belonging’ is different from simply ‘being heard’ in law. Finally, legal scholar, Merryman has argued that the basis for heritage conservation is the public interest. So the public should be central in decisions about heritage.

Under the existing planning and heritage law regime, however, the experience that many in the community have, including those opposing the Windsor Hotel redevelopment, is that they are kept on the periphery. Planning and heritage laws restructured around a concept of heritage citizenship would, however, bring community into the framework more explicitly. Community rights and interests and their position in the city as dwellers and responsibility bearers should mean that heritage laws are primarily and unashamedly about heritage protection for them; rather than their interests merely being a factor to balance against proprietary and capital interests. Heritage citizenship would see also a dispersal of power within the administrative system for heritage protection, with less dependence on a professionalised and hierarchical bureaucracy, power reallocated away from the Minister, and a more purposeful role for all of us urban citizens.

Avoiding regulatory responsibility for the Great Barrier Reef

In a recent article Professor Donald Rothwell and I critique a judgment of the Australian Administrative Appeals Tribunal and discuss the consequences of uncertain marine park boundaries on the regulation of Australia’s most celebrated and threatened World Heritage Area: the Great Barrier Reef in northern Queensland. The impetus for the court case and the subject matter of the article appeared in the first instance trivial – a complaint by an island resident against a seaplane operation. However, the complaint demonstrated the failure of the existing legal structures to consider environmental effects of a marine or above water activity experienced on land. It also highlighted the ineffectiveness of government agencies to co-ordinate assessment of a proposal requiring approval in a way that ensured the requirements of various laws were met.

In our article we also analyse the law of marine boundaries in Australia and highlight deficiencies in the analysis of the tribunal and the lawyers representing the Great Barrier Reef Marine Park Authority.

The article is titled ‘The limits of the Great Barrier Reef Marine Park: Defining bays and redefining regulatory control’ and has been published in volume 37 of the Federal Law Review.

The failure of the EPBC Act to preserve the heritage values of ANZAC Cove

The controversy surrounding the Australian Government’s request of the Turkish Government to undertake road building works at ANZAC Cove, and the ensuing damage alleged to have been caused to the heritage values of ANZAC Cove, raises questions about how the work was requested and approved by the Commonwealth Government without being assessed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

The Federal Parliament passed the Environment and Heritage Legislation Amendment Act (No 1) 2003 (Heritage Amendment Act) in August 2003. Following Senate approval, the then Minister for the Environment and Heritage, Dr David Kemp (minister), commented that ‘for the first time, Australians will be able to nominate and protect those places that define us as Australians, that tell us stories about who we are and how we came to be the nation we are today’ and that the laws would ‘provide real protection for the heritage values of the places’.

The Heritage Amendment Act established a National Heritage List. Places in Australia and abroad that possess outstanding heritage values to Australia because of their importance to Australia’s natural and cultural history are eligible for inclusion on the List. A place that has been included on the National Heritage List is referred to as a National Heritage place.

Shortly before the Heritage Amendment Act commenced on 1 January 2004, the Prime Minister, in a door-stop interview on 18 December 2003, commented that ‘… ANZAC Cove … seems overwhelmingly the appropriate first choice for listing on the National Heritage List’. However, ANZAC Cove is not among the seven places that have been listed in the 16 months since the Heritage Amendment Act commenced.

If ANZAC Cove had been listed on the National Heritage List (or indeed, should it be listed in the future), it would have been protected under sections 15B(7), 15C(11) and 15C(12) of the EPBC Act. These sections generally provide that a person must not take an ‘action’ outside of Australia that has, will have or is likely to have a significant impact on the national heritage values of a national heritage place without the approval of the minister. These sections create maximum penalties of up to $5.5 million for a corporation and imprisonment for a term of up to seven years for a natural person.

Under international law, a nation cannot impose its laws on a foreign entity acting in a foreign land. Consequently, the above sections of the EPBC Act could only apply to Australian citizens, governments and corporations. This means that even if ANZAC Cove had been listed on the National Heritage List, the fact that the offensive road building works were undertaken by a Turkish company meant that the EPBC Act could not have regulated the works.

Nevertheless, even if ANZAC Cove had been listed on the National Heritage List, the Australian Government could have requested and approved the building works without the need for the works to be assessed and approved under the EPBC Act. Under the EPBC Act, the Australian Government’s request to the Turkish Government to construct the road, and any approval of the Australian Government of the design and extent of works, would not amount to an ‘action’ regulated under the EPBC Act. This was recently confirmed in the January 2005 case of Save the Ridge Inc. v Commonwealth of Australia [2005] FCA 17, where the Federal Court held that the adoption and amendment of development plans by a federal government agency is not an ‘action’ under the EPBC Act. By implication, this case stands for the proposition that ‘actions’ can only be taken by the entity or person physically undertaking the work on the ground.

Despite these limitations, section 160 of the EPBC Act provides a potential avenue to address this shortcoming. Section 160(1) requires Commonwealth agencies and employees to obtain and consider an advice from the minister before it gives certain types of authorisations as listed in section 160(2) or prescribed by regulation. For example, section 160(2)(a) requires such advice to be obtained before the Commonwealth, under Australia’s foreign aid program, enters into a contract, agreement or arrangement for implementing a project that has, will have or is likely to have a significant impact on the environment anywhere in the world. A regulation made under section 160(2)(d) could require such advice to be obtained by a Commonwealth agency or employee before requesting, recommending or approving an action that has, will have or is likely to have a significant impact on the heritage values of an overseas place inscribed on the National Heritage List.

Of course, this would only be effective if ANZAC Cove was placed on the National Heritage List. While Turkey has objected to the perceived intrusion of such action on its sovereignty, introducing a regulation under section 160(2)(d) still has merit—the Turkish Government may at some point change its mind, and other places around the world, Kokoda for example, may also justify inclusion on the National Heritage List.

This commentary was written by me and published on Freehills’ website. Freehills owns the copyright and should be cited as the author. It has been reproduced here with Freehills’ consent.