By Tom Cowie
In one sentence, an anonymous submission put forward a house in Melbourne’s east for heritage protection, sparking a legal fight almost a year later and purportedly costing the home’s owner almost half a million dollars.
Tian Xiang Sun bought the home at 23 Clapham Street, Balwyn at auction in July last year, and the sale was due to settle in October.
This Balwyn home was nominated for heritage protection without the owner’s knowledge.Credit: Luis Enrique Ascui
Sun had planned to demolish the existing house and replace it with a new home as there was no heritage overlay in place. He entered into a building contract shortly after the sale, but in September a public submission was put to the local council that the home be heritage listed.
The submission, cited in a letter by Sun’s legal team to the City of Boroondara, said the house was “an interesting and well-resolved example of a low-slung Japanese-influenced craftsman bungalow”.
It also praised the house’s “superb and highly intact decorative detailing”.
The property was one of eight in Balwyn, Camberwell, Kew and Surrey Hills recently recommended by council officers for protection after introduction of the community heritage nomination process last year.
Sun completed the house sale agreement but defaulted on the building contract as he could not go ahead with his construction plans.
The Chinese-born owner has engaged law firm Mills Oakley, sending a legal letter of demand to the council alleging its community heritage nomination process is unfair and discriminated against him because of his ethnic background.
Despite the legal fracas, the City of Boroondara is forging ahead with the controversial new system that allows the public to identify potential heritage houses, even when the people doing so don’t live in the area.
Earlier this month, Boroondara councillors voted to endorse the system, putting aside pleas from objectors who said it could be used by heritage “vigilantes” to attack their neighbours. There were also claims of racist targeting of Asian home owners.
Heritage protections can be controversial as they restrict what an owner can do to a house, especially when it comes to renovations or demolition. Property values can be affected.
The Mills Oakley letter, seen by The Age, said there were concerns about the legal and financial ramifications for the owner of 23 Clapham Street if the house received heritage protection.
Sun was unaware of the heritage nomination for several months after settlement because there was no obligation on the seller or the council to relay the information.
He claims his current losses are $461,250 and continue to rise daily, according to the letter. It did not go into detail about the losses.
As part of the legal action, his lawyers queried why the nomination of 23 Clapham Street was accepted when it didn’t include any new information about the house as required in the community process.
In previous council-wide heritage studies of the area in 1991 and 2015, 23 Clapham Street had been passed over for protection.
“A community submission simply commenting on the characteristics of the property could hardly be considered ‘new’ information,” the Mills Oakley letter said.
Sun’s lawyers also raised the issue of alleged discrimination in relation to his ethnic background. However, there was no further information provided.
Boroondara organised an additional council meeting on Monday, just two weeks after the process was approved, to discuss the legal threat. In an agenda posted online before the meeting, council officers denied allegations relating to racial targeting.
“These allegations are rejected as baseless,” the officer report said.
“It is worth noting that the nomination ... was lodged by the nominator and accepted by council before the settlement date. Accordingly, council officers had no knowledge of the current owner’s identity when the nomination was accepted.”
The Victorian Civil and Administrative Tribunal confirmed that a matter involving the parties was filed on its human rights list last week.
Boroondara councillors voted on Monday to retain the nomination process and to proceed with including 23 Clapham Street in the heritage overlay.
They rejected the recommended inclusion of a new requirement for submissions to come only from people who live in Boroondara.
Councillor Cynthia Watson, an opponent of the public nomination process, said this was a mistake.
“Is it fair that somebody from Vladivostok can see your property on the internet and then put it forward?” she said.
She also said houses being nominated during the settlement period was an example of heritage going too far.
“Property owners are collateral damage to heritage protection,” she said.
Scott Walker, Boroondara’s director of urban living, said the council was confident of successfully defending the legal action.
“Council bases its decision solely on the heritage value of the property, regardless of who nominated it, who owns it, or when it was purchased,” he said.
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