Legal & Financial Aspects of Architectural Conservation

The Smolenice Castle Conference Central Europe

Marc Denhez, Stephen Dennis, Marc Denhez, Stephen Dennis

• Publisher: Dundurn Press
• Year: 1997
• ISBN:
  9781459720381
• Topic: Architecture
• Subtopic: Architecture Methods & Materials

How do governments design their strategy for heritage property? What do they try to accomplish in their laws and their tax systems to favour the re-use of older buildings, districts, and cities? What institutional framework can assist the restoration of tourist designations and the conservation of neighbourhoods? In this international study, eighteen experts from ten countries describe the legal challenges and solutions relating to such property. Beyond a carefully described theoretical framework, actual case studies demonstrate how communities and countries can make adjustments to their legislation so that older buildings can be better protected

This book stems from an international conference at Smolenice Castle in Slovakia, in November 1994.

PART I:
Strategy and Planning

Law, Heritage and Democratic Society

Jaroslav Kilián*

Contents

The goal of this exercise is not to address theory: it is to engage in a practical exchange of experiences, i.e., a platform for discussion among people who are equally responsible for the care of cultural monuments, who have experience, and who have achieved good results.

Societal background

Central Europe includes countries that are going through profound societal changes. The preservation of cultural monuments, however, is not a new question. For many years, there has been discussion of the problems in the conservation of monuments and their protection from threats, degradation and destruction. The subject is complex.

Methodology

The following introduction explores a few questions, beginning with the development of a philosophy about how to restore, e.g., about the relationship of monuments to society and to the development of democracy.

I will also explore the question of the methods that can be used to get funding for the preservation of cultural monuments and (from the professional viewpoint) to deal with the legal and legislative aspects of cultural preservation.

Historical evolution

Interest in the conservation of historical monuments has a tradition dating back hundreds of years. This interest has retained many of the same motives throughout this long period of time, but the methods by which society has attempted to achieve these goals have changed repeatedly. From the romantic collectors of curiosities to the interest in exceptional architecture, society has come to a greater understanding of architecture as a whole.

Evolving geographic scope

As a further step in the understanding of architecture, professionals started to look at groups of monuments, and society is now interested in towns, settlements, cultural landscapes and the environment. This is a definite development during recent years that shows that the cultural heritage is something that presents a wider picture than artifacts of museum interest: in today’s society, we discuss the problems of “cultural identity,” and cultural monuments are objects with which a society can identify.

Beyond “artifacts”

Personal dimension

For today’s person, a monument is part of his/her environment. It is a part of all of life’s actions, i.e., how that person lives. The attitudes with which professionals view the conservation of monuments would not be well developed if this conservation were viewed only as a physical action, with no moral or spiritual overtones. There is, in the preservation of monuments, a relationship between a person and his/her culture and environment.

In this new era, Central Europe is being restructured as a democratic society. We are not building something entirely new: indeed for many years, this was the tradition in which our societies grew. There have been certain disturbances which interrupted this life:

Relation to social history

• from the viewpoint of personal lives these events were (and are) impossible to ignore,

• but from the viewpoint of the development of society as a whole, this was just one episode.

The conservation community, which has a positive relationship to cultural monuments, must be conscious of the fact that these values have a long life: compared to the qualities that are intrinsic to cultural heritage, the cycle of political change is much shorter and much less important.

Today’s democratic society is being built on the foundation of basic human rights.

Keystone: The balancing of rights

Among human rights belong:

• property rights, and

• the right to a cultural identity.

Participation

Society must conduct itself with laws that guarantee that public actions will be decided with the participation of all those who create that society. There is no longer any toleration for authoritarian actions of the State over its citizens.

Role of law

Legal relationships and laws create a framework for this kind of behaviour. With respect to the preservation of monuments, one has to consider two basic issues.

• First is the public interest in protecting the cultural heritage that belongs to everyone, i.e., not just to the owner but to the entire society.

• On the other hand, society must ensure that the enabling factors that are used do not disrupt other laws.

Current challenge

It is essential to minimize conflicts between the interest of the public and the interest of the individual. That is why it is necessary to look for tools that are non-adversarial for the preservation of monuments. In other words, the law for the preservation of monuments should work in a preventive way and in a positive way. As of today, however, we cannot say that conservation of monuments allows us to use any method to truly attain our goal. Other democratic societies are already following the methods that Central Europe is hoping to use and are achieving some success. Conservation goals are proving difficult to fulfil (by those who are responsible for the preservation of monuments); it is a question of the capability to negotiate, to discuss, to decide and to mediate between the public interest and the interest of the individual. This task must turn on professionalism.

Actions based on standards, not instincts

If the law of historic preservation is being changed, it is important to create a good context for the conservation of monuments. As long as the law is used to create possibilities for historic preservation work, it should also create possibilities to mediate the relationships with and among the owners. These laws must be implemented professionally and objectively: professionals cannot depend simply only on their own convictions (that they are acting in the public interest).

Reality check

What are the heritage community’s goals in this respect? How does it define its priorities? There is a big difference between that which it would wish, and that which is realistic based on these complicated economic and societal relationships. The formulation of goals and methods — not just relating to financial arrangements, but relating to our capabilities, intellect and interpersonal relationships — must be based on real possibilities. In the past, these control mechanisms did not exist in Central Europe. The assessment of goals, realistically based on efforts by people, did not exist.

Objectivity

For many professionals, the cultural monument that they wish to preserve is the focus of their interest. To what degree do they permit their own personal interest (in the research of this object) to interfere with the illustration of the full richness of that object? The ideal outcome of research must be the result of combined efforts and intentions. If that does not happen — i.e., if supporters do not “take themselves personally out of the picture” and turn the exercise into a joint effort — they will end up halfway down the road towards the assessment of that object, but without the result of having saved it.

Muiti-discipiinary

Therefore, while weighing the legal aspects of the preservation of monuments, it is necessary to remember that the preservation of monuments is a multi-disciplinary effort. It is inadequate to talk only about technology or administrative processes. As the Venice Charter says, the preservation of monuments is defined as a method that is based on sciences, and it is clear that it involves many professions. The following are several different spheres that the preparation of preservation law involves; they are not in the order of their importance, but more in a sequential order:

Property rights

1. The historic monument is a structural work, affected by ownership rights. Today’s society is very sensitive to ownership rights. The owner has the right to freely decide the fate of a building, but the State, with the help of legislation, puts certain restrictions on that right. Protection of cultural values should be not only in the interest of the public, but also in the interest of the owner of the monument; however, heritage officials alone are not the final judges in a conflict between the economic priorities of the owner and cultural priorities. The law can create conditions, but even it cannot limit those rights too strictly without financial compensation.

Land planning

2. Cultural heritage does include monuments that are not buildings, but buildings constitute the largest part of our cultural heritage. Movable property, buildings and land are located on territories that are affected by land planning. Urbanism is a science that does research into the use of land and buildings, and it also resolves conflicts between neighbours and owners of buildings. The role of urbanism as a science is to offer information to enable objective planning and developments for the growth of cities, and for the use and organization of territory. The assessment of cultural monuments must fit into the mechanisms of land planning. The first step is the creation of a good context for the preservation of individual cultural monuments (and naturally for the protection of groups of monuments and settlements).

Construction standards, etc.

3. Historic buildings, as buildings, fall under the jurisdiction of the building laws. Building laws address the rights and responsibilities of the property owner concerning changes and additions. These changes must conform to the building law, as well as with the preservation of cultural monuments.

Proactive stance

4. All these features have their pros and cons. The resolution between the pros and cons is the responsibility of the public administration, which is why the public administration must find methods of resolution. It must find ways to create a positive context for the preservation of historic monuments, so that they can be handled in a suitable manner.

Economics

5. It is necessary to consider the economic background of the whole process. People operate economically, and economic laws apply just as natural laws apply. It has often been said that the economy drives politics, but economics drives its own laws. It does so in conjunction with politics, but it has its own reasons and mechanisms. That is why, in preserving monuments, professionals must understand the mechanisms of the economic world and find out which tools to use, i.e., both positive tools and restrictive tools. If those who are involved in the preservation of cultural monuments can argue the economic aspects of the cultural heritage and the national economy, the conservation community will have more eager listeners from the financial side than if it has only cultural arguments for historic preservation.

Consumerism

6. The public administration and society have a responsibility to protect the consumer. The preservation of cultural monuments is a service that is offered by expert bodies that have the duty and experience to do this; along with the right to protect the consumer, they have the responsibility to check the quality of the work done in the restoration. This interest is not only focused on the owner, but also on the general cultural welfare. Damage caused by unprofessional building firms or by non-professional restoration practices is often greater than damage caused by neglect.

Environment

7. At present, protection of the environment is considered a larger issue than protection of the cultural heritage, so the connection between the environment and cultural monuments becomes more important all the time. Interest in cultural landscapes also includes interest in the overall environment. Protection of cultural landscapes (with a view to their content) requires special methods and tools. It is not possible to apply rules that have been used on the restoration of small accessory structures, for example, to the protection of entire cultural landscapes.

Archaeology

8. Another spe...