Municpal Instruments in Law for Cultural Heritage Protection

The NHRA requires municipalities to provide for the protection of heritage (areas) through their zoning schemes or by-laws, hence, municipalities may use these instruments to regulate access to, the use of, the protection of, the management of, incentives for, and fines for the despoliation of designated resources.  As command-and-control instruments, by-laws provide a greater level of protection than any other governance instrument, due to their direct and immediate enforceability by the municipality.  However, it is also argued that the capacity to make by-laws remains a challenge to South African municipalities, particularly as the drafting of “law” can be complex and onerous.  These by-laws may therefore also be preceded or informed by municipal policies, strategies, plans or programmes on cultural heritage resources.  Further means of protection of a heritage resource includes the erection of signage indicating its status at or near the heritage area.  Municipalities can also use financial mechanisms as part of their planning schemes or in their by-laws to assist with the conservation of heritage resources. (p15)

Drafting by-laws on CHRM may also aid in providing certainty to developers concerning what the rules and principles are in terms of heritage management. This means that municipalities can pass specific by-laws relating to whether certain areas are appropriate for development. These by-laws could be more than just blanket provisions on CHRM. A municipality may prescribe specific restrictions in respect of such an area, especially where the proposed development is close to declared heritage resource areas. Municipalities have the licence to create innovative by-laws and may even elect to supplement these by-laws with other mechanisms such as incentives, policies, etc.  Municipalities could equally put in place incentives as tools that ensure that heritage resources are enhanced, maintained, and will contribute to local economic development.  These incentives may be information-based, market-based or regulatory, and could contribute to the conservation of cultural heritage resources. Some of the incentives that could be put in place include tax incentives that allow owners of historic or artistic properties to avoid paying property taxes if they ensure that the property is kept in good condition, with its value and history intact. (p16)

…local governments can develop comprehensive plans and procedures to identify, mitigate, and enhance the impacts of all development projects on their cultural heritage.  It is apparent that when making decisions and implementing plans, the protection and management of cultural heritage resources must be appropriately acknowledged. Furthermore, the City of Cape Town indicates through its planning instruments that protection is best afforded to cultural heritage resources through balancing the need to conserve heritage resources with the need for development.  This is evidenced by the City of Cape Town’s IDP and SDF, which set out the Municipality’s plans to manage and protect its heritage resources. Aside from the usual plans and regulations, cities can also explore the potential of local management plans, by-laws, or incentives. Due to their local binding force, by-laws are possibly the most authoritative regulatory instrument available for municipal administrations.  By-laws bind both the municipality (its political and administrative structures) and the community (including residents, ratepayers, and non-governmental organisations). A by-law on CHRM may therefore aid in restricting activities that would have detrimental impacts on cultural heritage resources. In this way the local management of cultural heritage resources can aid in streamlining the management of development applications at the municipal level. Regulatory tools and instruments such as by-laws and land-use schemes should accordingly be utilised to their full extent to provide the sufficient protection of cultural heritage resources and to avoid any further deterioration, loss and destruction of them.

Extract from the Heritage Portal