©The Sun
(Used by permission)
Analysis by Jacqueline Ann Surin
Heritage conservation on shaking foundation with current law
WHEN the 77–year–old Bok House on Jalan Ampang was demolished last December, just nine months after the National Heritage Act 2005 was gazetted, the outcry was only to be expected.
What was the point of having legislation that could not protect a site that had been nominated by Badan Warisan Malaysia for listing as a heritage site under the Act?
But even before Bok House, there was the 1990 demolition of Eastern Hotel in Kuala Lumpur and the 1993 destruction of Penang’s Metropole Hotel.
In the meantime, other historically– and culturally–significant buildings continue to be threatened. Two heritage buildings in Penang – St Joseph’s Novitiate and Chapel, and Loke Mansion – stand to be damaged unless the municipal council stipulates preventive measures for Hunza Properties, which is developing a project in the vicinity.
Badan Warisan president Tan Sri Ahmad Sarji Abdul Hamid noted earlier this month that the lack of legislation was blamed when heritage buildings were demolished before.
“But now, despite the law, he said in his keynote address at a Badan Warisan workshop entitled Heritage Matters: Promoting and Protecting Place.
Confusion also remains as to what criteria will be used to define “heritage” under the Act, said workshop participants.
For example, when Bok House was torn down, Culture, Arts and Heritage Minister Datuk Seri Rais Yatim said there was little the government could do because it was private property, and the conservation costs would have been too high.
At the same time, the Act’s definition of what constitutes
heritage is too broad and could lead to subjective interpretations, leading
workshop participants to call for the sub–categories of sites that would qualify
as heritage to be extended, and assessed using specific criteria.
The categories of buildings and places could be based on the English Heritage model, which clearly stipulates general principles of heritage and sets out a comprehensive overview of 20 building types in an effort to bring clarity to what is a subjective analysis, Ahmad Sarji noted.
Apart from the lack of clarity, the Act is also a “toothless tiger” because it does not empower the ministry to enforce a site’s protection and conservation.
The powers to draw up and approve structure and building plans are still vested with the local authorities, and the Act itself stipulates the need for the ministry to consult with state authorities in several instances before a decision is made.
Even though the Act places an obligation on stakeholders to understand and practice conservation, the law will not be able to protect heritage sites if it has no teeth, said architect Laurence Loh, who restored the famed Cheong Fatt Tze Mansion in Penang.
“The Act is supposedly a concurrent law. The states have not adopted it yet,” he noted.
“There is a need to create bylaws, guidelines and policies, which are now lacking, to enable the Act and ensure compliance,” he added.
The Act also deters, rather than encourages, property owners from seeking heritage status. For example, Clause 70 states that an owner can only sell a property that has been listed as a national heritage with the Heritage Commissioner’s prior approval.
It further stipulates that the owner must give the Commissioner priority to purchase the property and where there is dispute over reasonable compensation, the minister’s decision “shall be final”.
The situation today is that property owners stand to lose their right to development if their building is listed as a national heritage, especially if it’s located in the city centre because the land value would be affected if it cannot be put to higher density use.
“The property owner should be fairly compensated should his or her rights to property be restricted in the event that the property is gazetted as heritage, and prevented from being fully developed,” said architect Lillian Tay, another conservation supporter.
She explained that when a heritage property is maintained, the community at large – including neighbouring businesses and the tourism industry – are the ultimate beneficiaries.
“Often the owner may not stand to gain as much financially from keeping a heritage building, particularly if it is a building on a large land lot in the city.
“Thus, the relevant authorities should act in the public’s interest to find solutions to enable our heritage buildings to be conserved while not depriving the individual’s right to enjoy the value of the property,” Tay said.
Among some possible solutions are that the government provide financial incentives, including cheap funds for conservation work, tax and import duty waivers, pioneer status to heritage development companies, transfer of development rights, modifications or waivers of normal planning requirements, and double deduction for expenses for training of conservation professionals, the workshop proposed.
Corporations who have invested or want to invest in heritage conservation should also be given tax breaks.
HSBC Bank Malaysia public affairs head Elizabeth Wee said when the bank was helping to raise money to fit out Suffolk House in Penang, in the final restoration phase, it raised more than RM2.7 million, exceeding the original RM1.5 million target.
“This just shows there’s money out there for heritage conservation. What’s lacking to entice more corporate citizenry are the tax breaks and information on what’s needed to support conservation work,” she added.
Ahmad Sarji observed that when the government wanted to prioritise manufacturing, it offered a whole package of financial incentives that spurred the sector to overtake the traditional commodities sector.
“If the government is serious about conservation and restoration, it should also introduce a package of incentives for it,” he said, adding that conservation work was expensive and without incentives, owners may leave their properties in a state of disrepair, hence justifying their eventual demolition.
Ahmad Sarji, who is also Permodalan Nasional Bhd (PNB) chairman, noted that despite the corporation spending more than RM300 million to purchase Stadium Negara and Merdeka Stadium, and to conserve them as national heritage, it received no tax breaks.
It’s not all doom and gloom for Malaysia, though. United Nations Educational, Scientific and Cultural Organization (Unesco) Asia Pacific regional advisor for culture Richard Engelhardt said conservation efforts are going well in Malaysia compared to other places.
Roadmap for conservation must be put in place
“The government is trying to put into place coherent legislation on heritage conservation, and is mobilising the best people to administer the National Heritage Act,” he noted.
And while there are implementation problems, that’s to be expected. “Every law is like that. And the Heritage Commissioner (appointed by the minister under the Act) has to work out the implementation.”
Malaysia also has other good things going for it. “The heritage conservation professionals here are world–class and internationally–recognised for their technical competence and understanding,” Engelhardt said.
Additionally, there is admirable corporate citizenry in heritage conservation including by corporations like PNB, HSBC, Digi and Golden Hope, and Malaysia’s construction industry is quite well regulated, he noted.
He declared that of the 46 Asia Pacific countries he covers, he would list Malaysia as one of the top conservation areas.
Still, there are challenges. Engelhardt, who is also Badan Warisan advisor, noted that because the construction industry uses modern technologies and materials, there is a serious shortage of traditional skills within the industry.
The boundaries between private and public rights have also yet to be clearly defined. “Obviously, it’s a different definition from state to state and agency to agency,” Engelhardt noted. And because conserving heritage sometimes requires a transition of proprietorship from the private to the public, this is an area that needs to be publicly debated with the courts weighing in to clearly define the situation when individual rights are involved.
Despite these challenges, Engelhardt is optimistic. “Obviously, we cannot win every single conservation battle. That’s not possible because it means there will be no room for modern development.”
Conservation, he added, is not meant to stop development. “It’s more like a speed bump that slows development down so that we can think about how we are driving, what the road signs mean and which direction we’re heading in.”
Still, there is urgent need for government to address the current situation. “The government is the guardian of cultural and natural resources. Government must use instruments like policies, laws, plans and guidelines to ensure the longterm sustainability of these resources,” Loh said.