What lessons should be learned from the recent dramas with Gough Whitlam’s birthplace and the Palace Theatre?

We recently asked the major political parties in Victoria if they would commit to reform and strengthening the Heritage Act. Specifically, we argued that there is a need to implement a statutory trigger to require local government consideration of a heritage overlay following determination by Heritage Council that a place is not of state significance. Currently the Act only requires ‘’referral for consideration’’, and such a consideration is very rarely undertaken.

The Whitlam house debacle and the Palace Theatre saga both demonstrate the urgent need for places to be actively considered for a local heritage overlay if the Heritage Council determines that a place or object is not of state heritage significance but should be referred to local government for inclusion in the local heritage overlay. The problem is that the relevant local Council very rarely takes up the referral. They are not statutorily obliged to do so. So when the Palace Theatre was rejected by the Heritage Council for inclusion on the Victorian Heritage Register in July 2014, the finding that the place was really of local significance meant nothing unless the City of Melbourne wanted to pursue it. The City only decided to pursue internal controls much later, once Jinshan Investments decided to take a jackhammer to its interior, ripping out decorative plasterwork in a clear bid to thwart the process. Along with nearly 100 years of plasterwork, orderly planning went out of the window. This is embarrassing for Melbourne and embarrassing for Victoria.

The really stupid thing is that this appalling and wanton act of vandalism, whilst not illegal, should not have been fatal to the proper heritage protection of the Palace. The plasterwork and other key items were rescued from a skip by activists led by #SavethePalace including Melbourne Heritage Action and the National Trust. The firm of plaster workers still exists and offered to recreate anything ripped out.

If the Heritage Act was amended such that a decision by the Heritage Council that a place was of local significance automatically triggered an interim heritage overlay, orderly planning would be restored. The interim 12 month protection would still allow an owner to apply for permits for alterations or demolition, and give the Council 12 months to prepare a permanent overlay control, or ultimately pass up the permanent amendment.

There have been multiple failures with both the Palace Theatre and the Whitlam house. At the Palace there was a failure to act by City of Melbourne on recommendation by Heritage Council in July 2014 that the interior had local heritage significance. There was failure by DTPLI to act on request by Council staff following deliberate vandalism in November. They claim that more comparative information is needed. (That is ridiculous – officers of Heritage Victoria, part of DTPLI, put together a comprehensive review document as part of the Heritage Council proceedings in July.) There was failure by Jinshan in ordering deliberate destruction of interior decoration. Such actions are now a rare occurrence in Victoria, especially at high-profile sites.

And on 2 December there was a failure by the City’s heritage consultant. Following the act of vandalism the heritage adviser revised his initial advice that the place has significance internally. “Given the findings of the October assessment, and the subsequent loss of significant interior fabric, an archive should be prepared outlining and depicting the heritage values of the place and…lodged with the State Library of Victoria and VPRO…”

Firstly, the revised report mysteriously deletes reference to parts of the interior still intact. Secondly, you cannot simply put social and historical significance in an archive. The adviser’s updated report should have stated that the recent vandalism is not fatal to the social and historical significance of the place. The adviser said in his first review that the place had social and historical significance, and architectural interest. In other words he was satisfied as to its worth with or without architectural decoration. Nothing else has changed, except Jinshan’s heavy-handed tactics, and the adviser’s judgement.

Our opinion is that the significance is retained despite the vandalism to the plasterwork by Jinshan investments. That is all restorable. There isn’t a single theatre in Melbourne that has not had extensive internal restoration, following fires, upgrades or changes of fashion. Plasterwork is fabric, which is ultimately ephemeral but the enduring value is historical and social.

This notwithstanding, and despite convincing presentations to the Future Melbourne Committee by Paul Roser, Melbourne Heritage Action and #SavethePalace, Council has voted to withdraw a request to the DTPLI to provide interim heritage controls on the interior of the building, effectively closing the door on the protection of the most significant part of the building. Next week, the committee will vote on a permit application to demolish the building, and in the absence of meaningful heritage controls, there is unlikely to be a good heritage outcome. Then, because Council has not made a decision within its statutory 60 days, the whole circus moves on to VCAT.

Also relevant to both the Whitlam house and Palace Theatre sagas is the uncertainty which has been created for the developers who invested in these sites in good faith based on existing planning controls, only to be faced with the reactive application of heritage protections. Such uncertainty is not good for developers, it’s not good for the community, and it’s not good for heritage. Ultimately, it creates a lose/lose situation where it is difficult to achieve a good outcome for the site. The onus is on the State government to end this uncertainty by tightening controls, reviewing discretionary height limits with a view to making them mandatory, and reforming the Heritage Act. Furthermore, local councils must be more proactive in reviewing heritage controls to reflect changing community values and best practice in heritage conservation. Facadism and lip service to heritage values is no longer an acceptable compromise. There are so many ways we can conserve and interpret buildings in a meaningful way, and the National Trust is here to work with state and local government to make this happen.

There has been no failure by #SavethePalace or MHA or the rest of the community who value these places. The failure in the system can be resolved with a simple amendment to the Heritage Act (and related provision in the Planning & Environment Act). Such an amendment would have avoided the unseemly and disorderly events of the last few weeks.