"Heritage is, above all, a political concept. It asserts a public or national interest in things traditionally regarded as private. ‘Heritage belongs to the people, not to the owners’ remarked Evan Walker, Victorian Shadow Minister for Planning in 1980. He did not mean that because a building or place was part of ‘the heritage’ its owner ceased to have legal title to it. Rather he was insisting that the public retained a right to ensure its preservation that overrode the owner's right to alter or destroy it."

I have been asked to concentrate upon ’heritage’ issues in the context of the theme ’Lawyering Up - How to Avoid Litigation and to Manage it if it Does Occur’. In this paper I will attempt to crystallise the contemporary issues associated with heritage listing for property owners. I hope that this will provide some insight into the role which a lawyer experienced in planning and heritage law can play in helping clients whose properties are at risk of, or proposed for, local or state heritage listing.

Those who practice in the fields of planning and heritage law constantly experience the collision of law and politics. Because these areas are so intensely political, it is absolutely necessary that there be recourse to the courts to ensure that the ‘rules’ are not being abused. The Planning and Environment Court, in its original iteration as the Local Government Court, was given this role by Queensland Parliament over 40 years ago, replacing a system of administrative appeals to the Minister for Local Government - Caesar judging Caesar some might suggest. Over that time the Court's jurisdiction has expanded and now includes appeals against the listing of places of heritage significance under the Queensland Heritage Act 1992 (QHA). [2]

Because law and policy collide in these fields more than in any other, there are complex rules which govern when and how changes in policy, which are progressing towards legal status, should be applied. Understanding these rules is critical.

David Nicholls, Partner

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