Life imitating art?
In the news this week we were told that the owner of the house that was the location for the iconic Australian movie 'The Castle' wants to demolish the house so that it can be developed like the surrounding properties.
The house is located within Mooney Valley City Council's area, and the Council is voting on whether to apply for Heritage Listing of the house. In the end the bid to have it Heritage Listed went down, five votes to four.
What does Heritage Listing mean?
Heritage listing is not compulsory acquisition, the owner would still own the house, and it would not necessarily mean that the property couldn't be demolished.
What it would mean is that if an application was made to demolish or otherwise develop the site then the owner would have to satisfy an additional level of criteria. The owner could also still sell the property to a developer if the property was heritage listed.
Much of the argument around heritage listing centred around the significance of the site. The Council said that “...the significant heritage or sentimental side is from the movie — and the house was supposed to be in Coolaroo — no one would have known it was in Strathmore.” However, a former tenant who moved into the home in 2006 and told 3AW people would knock on the door and ask for Darryl, the tenant had no idea who Darryl was or why people were asking until a friend recognised the home when watching the movie. Most movie watchers are probably sophisticated enough to realise that the house wasn't actually in Coolaroo.
What happened in the movie?
In the movie Darryl Kernigan successfully challenges an attempt to compulsorily acquire his home. He commences legal proceedings on the basis that the developers have under valued his home, which would actually be a legitimate complaint in real life. He also argues that he doesn't want to sell his home, regardless of the price offered, because his home is his Castle. This argument is perhaps less legitimate in real life.
His bumbling solicitor, Denis Denuto, who is quoted frequently by those practising in the legal profession in Australia, makes a couple of comments that 'it is in the constitution' and 'it's Mabo' and 'it's the vibe of the thing'. While he is unable to indicate which part of the constitution he is relying upon, he accidentally stumbles onto a legitimate argument which is later carried through by a QC, Lawrence Hammill, who meets Darryl outside of court and takes a liking to him, deciding to take on the case pro bono.
Section 51(xxxi) of the Constitution of Australia provides that the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws. The argument in the movie centres around the three words 'on just terms'.
Where the movie starts to depart from reality is that the legal argument basically went, there are no just terms for taking a man's home from him, and the developer shouldn't be allowed to take the home at all. In reality, what would have happened is the Court would have indicated that the money being paid was inadequate, and made a finding about adequate compensation.
So is it life imitating art?
In a word, no. Even if the heritage listing had been successful, it would not have stopped the government or a developer from compulsorily acquiring the land which is the plot of the movie.
However, what Darryl Kernigan wanted (as well as the right to live in his home) was for that home to continue to exist, because to him it was a marvel, a beautiful family home in which a family should live, not a property that should be knocked down to extend an airport. In that sense, what is currently happening is a bit like the movie, except that it seems that the heritage listing won't go ahead. There is talk of moving the entire structure to another location rather than demolishing it, but this would be an expensive undertaking so it seems unlikely.
What should I do?
If your property is being Heritage Listed then you should speak with Bruce Coode about what this means, whether there is anything that you can do, and what your options are.
Bruce has successfully assisted clients with applications to council for a DA on heritage listed properties that involved significant changes to the heritage listed items, or the demolition of the heritage listed items. You may still be able to do what you had originally planned, you should make an appointment to speak with him about your options.