HERITAGE SOUTH AFRICA SYMPOSIUM
SWELLENDAM, September 2006
PROVINCIAL HERITAGE RESOURCE AUTHORITIES, LOCAL AUTHORITIES
AND CONSERVATION BODIES
by Stephen Townsend Chief Executive Officer: Heritage Western Cape
1. INTRODUCTION
The National Heritage Resources Act of 1999 (NHR Act) which came into effect in April 2000 is a very far reaching piece of legislation: briefly, it demands the establishment of a heritage resource management system involving a national heritage resource authority, a provincial heritage resource authority (PHRA) in each region or province and the local authorities which, once the system is established, will be responsible for grade 1, 2 and 3 heritage resources respectively.
The system requires that these graded heritage resources be formally identified as national and provincial heritage sites which musf be placed on heritage registers and local heritage resources which may be placed on a heritage register. The system also provides for the identification of protected areas and heritage areas. All of these formal identifications must follow exhaustive procedures and, once the processes have been carried out, these formally identified sites, areas and resources are described as being formally protected. This part of the system is comprehensive and clear.
The system also requires the assessment of a very wide range of applications relating to either certain structures (those more than sixty years old) and sites (where archaeological material is discovered) or certain development activities (for example, involving three or more consolidated erven or sites larger than 5000sqm). These general protections are very far reaching and generate a very large number of applications to the provincial heritage resource authorities, and this part of the system itself is often arbitrary in its applicability.
The Act also intends that groups and communities be encouraged to play important roles in the system and it specifically provides for the registration of conservation bodies which must, logically, clearly indicate the geographical area of interest and the categories of heritage resources that they are interested in. The Act is intended to be far reaching and it is. lndeed, the Act effectively provides for the management and protection of much of the environment in much the same way as the planning and environmental controls do.
2. RESPONSIBILITIES OF LOCAL AUTHORITIES vis a vis the NHR Act
Briefly, the sections of the Act which establish the responsibilities of the local authorities yis a yis the management of heritage resources are the following:
2.1 Competency of local authorities: Section 8(1) establishes the three-tier (or three-sphere) system.
Section 8(6)(a) states that local authorities may not perform any function under this Act unless deemed competentl and Section 8(6)(c) requires that local authorities must apply to the provincial heritage resources authority for an assessment of competence. Competence must be assessed by the provincial heritage resource authority (PHRA) in terms of criteria including availability of adequate staff, expertise, experience and administrative systems (the system should include explicit arrangements for consulting special interest groups like registered conservation bodies, for decision making and for appeals).
2.2 Zoning Schemes and Planning:
Section 30(5) requires that when compiling or revising its zoning scheme, the local authoiity "shall compile an inventory of the heritage resources which fall within its area or jurisdiction". This inventory must be submitted to the provincial heritage resource authority which must assess the list and include those buildings satisfying its criteria on its Heritage Register.
Section 30(6) enables anybody to submit such an inventory to the PHRA. This is a significant provision for conservation bodies.
Section 31(1) requires that when revising a town or regional planning scheme or spatial pian, the local authority must investigate the designation of heritage or conservation areas. The integrated development plan (lDP) of every local authority3 has a spatial plan component which, strictly speaking, should include reference to the designation of conservation areas.
Section 31(2) enables the PHRA to initiate such processes with local authorities.
2.3 Building Plan Approvals:
I have noted that the National Heritage Resources Act intends to and does interfere with a wide range of management and decision-making processes regarding the development of the environment.
The mechanism for ensuring that this happens is contained within Section 7 of the National Building Regulations and Building Standards Act (NBR&BS Act) which requires that no building plan may be approved unless all other appticabte law has been complied with; this section of the NBR&BS Act ensures that building plans are not approved in the following cases where the NHR Act is clearly an applicable law:
Section 27(18): No plan for any work to a provincial heritage site (old national monuments) may be approved by a local authority until the PHRA has granted a permit
Section 34(1): No plan for any work to or demolition of a building older than sixty years may be approved by a local authority until the PHRA has granted a permit. lt is important to note, however, that if the PHRA refuses an application regarding a building more than sixty years old, it must proclaim the building or site as a provincial heritage site or place it on the Heritage Register (Section 34(2)).
I should note here that the most important benefit gained by a local authority in submitting an inventory to the PHRA (and not necessarily in terms of Section 30(5) as described above) is that gained when the PHRA makes an exemption from the requirements of Section 34(1) within any geographical area on the grounds that all heritage resources in the area are adequately provided for (by having an approved inventory) (Section 3a(3)).
Section 38: No building plans may be approved by a local authority or works conducted without a permit from the PHRA in the following cases:
- construction of a road, wall, canal, etc longer than 300m
- construction of a bridge or similar longer than 50m
- any development changing the character of a site larger than 5000sqm
- any development changing the character of a site involving three or more erven (inctuding consolidations now or within the last five years)
- a rezoning of a site larger than 10000sqm
All of these cases must have been assessed and approved by the PHRA before a local authority can grant any approval; and any NBR&BS Act approval must take into account any PHRA conditions
Section 48(2): Any condition imposed applicable law and must be approved through a permit granted by the PHRA is also an be complied with for any associated building plan to be approved.
2.4 Conclusions regarding the relationship between PHRAs and local authorities:
ln essence, until the local authorities are granted competence to deal with the grade 3 heritage resources within their municipal areas, all applications relating to heritage resources must be referred to the PHRA. This must be intolerable for the local authorities and for proponents of development (who often must go to Cape Town from far afield). lt is also intolerable for Heritage Western Cape which does not have the resources to cope adequately with all the applications that are submitted.
I am also very confident that only a fraction of the necessary applications are actually submitted to HWC and I am very confident that many local authorities are, through ignorance or deliberately, ignoring the NHR Act. It must be in the local authorities' interest to be deemed competent or, at least, to have an inventory of the buildings in any historical core approved by HWC and so be exempted from the requirements of Section 34 relating to insignificant buildings more than sixty years old within the area covered by the inventory.
Given these conclusions, in the short while I have been at HWC, we have given considerable attention to those local authorities who engage in heritage matters: these authorities include Cape Town, Stellenbosch, Mossel Bay, Knysna, Paarl. Not all of the interactions have been particularly satisfactory or fruitful but they are part of a process of informing and persuading the local authorities of their responsibilities and the benefits and opportunities for them.
Also, because of local government reorganisation in the late 1990s, most local authorities in South Africa have been rearranged geographically which has necessitated the consolidation or "integration" of their zoning schemes. These projects aimed at developing integrated zoning schemes are the ideal opportunity for the PHRA to ensure that inventories are researched and incorporated into the new zoning schemes.
3. CONSERVATION BODIES
As I have said, PHRAs must keep a register of Conservation Bodies who have applied to be registered as interested in parlicular categories of heritage resources in particular geographical areas (Section 25(1)(b)).
It should be self-evident that both the geographical area and the category of heritage resource should be described with some precision if the body is to be consulted in a consistent way: vagueness or lack of clarity in either must lead to uncertainty in the PHRA, uneven advice from local authorities and heritage practitioners and frustration for the conservation body. Of the approximately iwenty-five bodies that have apptied to Heritage Western Cape for registration a only two or three have been appropriately clear and precise and, as a consequence, we have in recent months written to most of the bodies asking them to be more precise.
I should add that although all modern South African legislation encourages public and community consultation, it is clear that a number of bodies that have applied to HWC for registration are not interested in heritage resources as defined in the NHR Act; they may be interested in over-lapping matters such as, for example, the friends-of-a-museum group whose constitution shows ctearly that the group is only interested in the museum collection and some ratepayers' associations (though not all) which are interested in development (but not necessarily in heritage resources).
3.1 Management of development applications:
Managing development is often conflict-ridden and controversial: indeed, imposing conservation-oriented controls is always so. This is, however, not so much because developers resist controls per se (and we do need to remember that we all become "developers" when we need to improve or alter our own homes): the real cause of conflict is the surprise of a belatedly or inappropriately suggested limitation.
Conservation bodies are clearly interested parties in heritage resource management and the PHRAs must consult with them as part of heritage resource management processes in respect of the categories of heritage resources they have indicated an interest.
3.2 Consultation of conservation bodies:
ldeally, every application to HWC that involves a heritage resource in an area and category of interest to a registered body should be referred to that body for their comment; and it is certainly our intention that this be done. At present this does not always happen; and this is for a wide range of reasons, including lack of clarity regarding the geographical area and/or category of interest, HWC's inadequate administrative supporl systems (including its filing system) which has led both to misplacing applications to register or misplacing the file itself, ignorance of the case officer regarding the interest of a conservation body, etc. These failures are all the results of HWC's inadequate capacity.
However, there is, I believe, a responsibility tied to such consultation: the conservation body must establish its own "bureaucracy", its own procedures for ensuring that comments are made timeously to the PHRA or applicant and that the people who are making the comments are adequately informed and are properly mandated to do so.
3.3 Conservation bodies and local authorities:
Many conservation bodies do also have relationships with local authorities, indeed, in some cases their initial reason for coming into being may have been to advise the local authority. These bodies have a dual consultative role and can be particularly influential in that they can make input into the decision-making of both local authority and the PHRA.
They do, however, need to understand both the system and how they fit into the system and, perhaps more importantly, what the limits of their credibility are. They need, especially, to understand the limits of the decision-making powers of the authorities so that their demands are not unreasonable and, therefore, counter-productive.
4.0 Appeals against decislons:
Every decision by the PHRA or local authority that is contrary to an opinion received from a conservation body should lead to that body being advised of a right of appeal. For example, decisions made in terms of the NHR Act can be appealed to the PHRA in terms of that Act and those made in terms of the planning law can be appealed through the Municipal Systems Act first and then through the Land Use Planning Ordinance.
However, the rights of appeal are, of course, not always advised; and this may be because the case officer and applicant's agent are not aware of any contrary opinion, workloads may lead to delay for so long that it becomes too late and/or the contrary opinion of the conseryation body may not be heritage related. lt is also true that an appeal received after the appeal period cannot be treated as a valid appeal although there are circumstances where the beginning and end of the period are disputed or uncertain.
I should say, however, that many appeals (not only from conservation bodies) are very poorly articulated. ln the case of appeals against decisions made regarding demolitions or alterations and additions to buildings more than sixty years old (Section 34), the appellants do not address the first criterion, that is the significance of the building. This must be the first matter to address because if the building is not of sufficient significance to be placed on the heritage register, the PHRA cannot refuse the application (neither the first instance nor on appeal). Such appeals are, therefore, a considerable waste of resources and source of frustration and will, inevitably be regarded as frivolous or even as vexatious.
This is particularly disappointing for an agency like HWC which is drowning in work and is then forced to go through time-consuming processes which have no hope of success because the appellant is using (abusing) the heritage resources legislation because he/she does like the rights derived from the zoning scheme. lndeed, appeals of this sort bring heritage resource management into disrepute.
4.1 ldentifying heritage resources:
It is self-evident (or should be) that the identification of heritage resources is the first step in the creation of a rational and effective management system: identification, description, recording, listing and mapping are all components of this activity. lt is also self-evident that a law that sets out to protect vaguely or ill-defined objects will, self-evidently, be very difficult to administer (as is the
case with the general protections found in Sections 34 and 38 in particular).
Also self-evidently, conservation bodies and other NGOs have a very real opportunity in this arena: the authorities (the PHRAs and the local authorities) have an enormous task before them and it is one that they cannot do without assistance from civil society. The Act is redolent with references to the importance of heritage resources to the community, the importance of consulting affected communities and the public at large, and the necessity of seeking comment from the public. lndeed, I argue that the initial identification of the heritage resources is the primary responsibility of conservation bodies and of the public at large. This is also, probably, the arena which individuals and civil society can best and most appropriately assist the state.
Furthermore, the Act is constructed precisely to encourage this: as I have already pointed out local authorities must compile inventories of heritage resources when they amend their zoning schemes and they must refer to conservation areas when they draw up their lDPs.
Therefore, conservation bodies can and must take an active role in identifying the objects of their interest. They must advise the appropriate authorities of their interest in these objects and they must ensure that the authorities list, register and map these objects in a way that is accessible to and a part of the mechanics of scrutinising development proposals by the authorities. I should add that this is not new: in a number of towns groups of people began decades ago with this process and parts of Cape Town,6 Wynberg Village, East London, Pietermaritzburg were studied in the 1970s and early 1980s and today large parts of many historic cores of towns have been studied (often by consultants employed by the local authority).
I should add that a conseryation body that has not identified what it hopes to conserve will not be convincing or effective. And nor, in my opinion, do they deserve to be.
4.2 Evaluating significance and the Guide to Grading:
Evaluating the degree or the extent of the significance of an identified heritage resource' is the immediate next step. lndeed, it is artificial to separate identification of heritage resources (which rely on their descriptions) from the evaluation or grading of their significances (which rely on the values contained or underpinning those descriptions).
These evaluations must, however, be primarily the responsibility of the heritage authorities, although conservation bodies and special-interest NGOs must understand the system devised for evaluating significance and the implications of the evaluations.
As I have described above, the Act establishes a three-grade system which also determines the responsible authority: Grade I resources are the responsibility of the national agency, SAHRA. Grade ll resources are the responsibility of the provincial authority (locally, Heritage Western Cape) and Grade lll resources are the responsibility of the local authorities (when deemed competent: there are no locat authorities yet deemed competent in the Western Cape). I should mention, however, that the grading does not, by itself protect the heritage resource: once a grading has been assigned and approved by the heritage resource authority, the authority must follow a number of steps to formally declare the resource as a national heritage site or as a provincial heritage site (grade 1 and 2 heritage resources) or place the resource on the heritage register and protect it through the local zoning scheme (grade 3 heritage resources). Until these formal steps are taken, the buildings or sites may well be identified and graded but are not yet properly protected; and their management will be the responsibility of the PHRA rather than SAHRA or the local authority.
The Heritage Western Cape Council approved a Guide to Grading in June 2005 which gives some guidance in these matters. I must confess to being critical of the Guide because it is very vague and does not give any guidance on how to initiate the process of developing an inventory. But, be that as it may, it is a first step and it does spell out the national framework; and it will give sufficient guidance to any conservation body who wishes either to initiate its own local inventory or who wishes to engage with the local authority to persuade them to do so.
5. CONCLUSIONS
I hope that I have given a broad overview of the relationships between the provincial heritage authorities, the local authorities and conservation bodies; and I hope that I have, in doing this, shown where there are opportunities for both the local authorities and the conservation bodies to develop their engagement and effectiveness in heritage resource management.
I hope also that I have persuaded you that the first step must be to identify clearly what the objects of our shared interest are: heritage resource management will not be effective in the region until every local authority has an inventory of heritage resources within its boundaries and each heritage resource is graded and mapped and the local authority understands its responsibilities in this respect.
I hope, too, that I have persuaded you that heritage resource management is a collaborative endeavour and that the effectiveness of each party is reliant on each party understanding its role and acting appropriately and confidently within those confines.
Dr Stephen S Townsend
17 September 2006
Note: For further information contact Heritage Western Cape on www.hwc.org.za
