A Brief History of Terrible Planning Law: The Batman Treaty

Every so often someone will bail me up at the pub and ask why their miniscule little gallery gets weekly visits from every bureaucrat with a badge, yet its possible to get approval to build terrible apartment blocks everywhere/mine national forests/demolish public housing etc etc.

The short answer is that Australian planning and building laws don’t scale much based on risk or size. The process you go through to set up a gallery in an old warehouse is virtually the same as if you were tearing the warehouse down to put in a new apartment complex. This occurs because the systems are structured to produce a series of controls, mostly cost barriers, aimed at managing the activities of the kind of people who can afford to build new buildings.

When applied to less heavily financed activity, those systems are usually insurmountable. For the most part this is posed as a public health issue but if you trudge back through Australia’s planning history, the logic of the system has another origin.

From the very first moment of Australian planning law, our system was geared towards controlling large enterprise and, in doing so, pricing out those interests with less capital.

The key moment of this is Governor Bourke’s 1835 proclamation regarding Melbourne, arguably the single most important document in Australian history as it simultaneously enforces terra nullius and sets out who could legally use the new nation under what conditions.

You can read the whole thing here, but the key parts are:

I, the Governor, in virtue and in exercise of the power and authority in me vested do hereby proclaim and notify to all His Majesty’s Subjects, and others whom it may concern, that every such treaty, bargain, and contract with the Aboriginal Natives, […] is void and of no effect against the rights of the Crown; and that all persons who shall be found in possession of any such Lands […] will be considered as trespassers…

A few months earlier, John Batman had sailed from Tasmania to Port Phillip, where he successfully negotiated a ‘treaty’ with Wurundjeri leaders of the Kulin nation. They granted him two thousand square kilometres of their land in return for an annual payment of knives, jackets, rugs and flour. Today, we tend to view this as trickery on his part. At the same time, the Wurundjeri were aware of the threat they faced and negotiated a treaty which did protect them from being entirely removed from their land, or subjected to active violence.

Regardless, Bourke’s proclamation effectively said the treaty was worthless, and specified Batman would need to apply to the Crown (and pay a licensing fee) for approval to use the land.

Batman’s treaty was a test case. At that point, there was no legal assurance that the Crown’s powers extended beyond the boundaries of New South Wales and Tasmania. Batman arrived in Victoria with the aim of going into an area devoid of British law and seeing what he could get away with.

His ‘treaty’ was intended to prevent the Crown taking action against him by appealing to the sentiments of both Bourke and his boss, Lord Glenelg, who was in charge of British colonies. Both men had seen conflicts with indigenous people internationally, both knew it was morally fraught and economically costly, and were willing to consider less forceful processes.

When Batman arrived in Victoria, it was obvious to Bourke that he had no real capacity to stop him. Batman stood to produce significant economic benefit through exporting wool back to Britain, and sending out the troops to stop him would have been both costly, ineffective and politically disastrous. Accordingly, Batman did two things;

(1)Declared that the Crown owned all of Australia, not just Tasmania and the land around Sydney.

(2)Declared that anyone who wanted to use Australia had to pay the Crown a licensing fee, those who didn’t were using the land illegally, and they would be prosecuted. This included the people who’d lived on said land for centuries.

The end result of this was the biggest and fasted land rush the Empire had ever seen. The Wurundjeri found their treaty with Batman discarded, their land swamped with pastoralists, their food sources wiped out and any request for recompense treated like trespass.

The legal framing here is important. By over riding the treaty, Bourke made Wurundjeri resistance a matter of criminal trespass, rather than a military conflict. Had the treaty survived, the resultant conflict would have been a war rather than a criminal issue, and their prior occupation of the land something that could be upheld under British law.

This is because its impossible to either sign a contract for property, or militarily invade a country, without implicitly recognising a certain element of land rights. In a similar situation, the Xhosa people in the Cape Colonies had re-claimed their land a few years earlier.

Effectively what Bourke realised is that the commercial interests impacting upon the Australian landmass were too large to stop, but could be harnessed to profit the crown and colonise Australia with limited governmental investment.

Thus, instead of sending out the military to invade the Kulin nation, the Wurundjeri were mostly shot, or forced into starvation, by squatters exercising their right to prevent trespassers.

It’s easy to see this as a historical incident within colonisation; a sort of regrettable encounter with a pre-modern Terra Australis. Yet this is still how land is accessed in Australia. Unclaimed or unused land is zoned, usually through a state planning act under powers devolved by the Crown, absorbed within something like a Local Environmental Plan, and the right to use it can be obtained by seeking Development Approval. The costs associated with applying for approval are now spread out more broadly, but they still work to control a particular level of economic activity, whilst pricing others off the land. Bourke’s proclamation is the extreme end of this system, but it isn’t an anomaly.

On the Merits of Darwin Not Being Copenhagen

A few months back I did a talk at Trading Ideas,  with Joanna Best  from Troppo Architects, Charles Darwin PVC Giselle Byrnes, and one of my favourite Lord Mayors, Katrina Fong Lim. The thing I like most about Darwin is that, unlike so many cities in Australia, it isn’t hell bent on being anything other than what it is.

Reflecting on that, my talk was on the penchant within Australian urban policy to adopted a mythology formed in places like New York, London and, more recently Copenhagen:

Over the last decade or so it’s become popular to talk about ‘Creative Cities’ and the ‘Creative Class’. For a lot of smaller and regional cities, this has become short hand for “Our city is collapsing and we don’t know what to do. Maybe if we use the word ‘creativity’ a lot things will be okay!”

It’s good to be able to name and describe a problem, but this doesn’t really work. One of the reasons for this is that the language of the ‘creative city’ has been shaped by people like Charles Landry, Richard Florida and Jan Gehl, based on their experience in places like New York, Portland and Copenhagen.

If there’s something that’s immediately obvious about Darwin, it’s that it’s not New York or Portland, and its most certainly not Copenhagen. One of the things I think we need to get better at in Australia is recognising that we can’t simply transfer policies and ideas from European and American cities to Australia. I don’t say this in a parochial way. I say this because Australian cities have an economic, demographic, geographical, meteorological and governmental underpinning that is unique.

Comparing Darwin to Copenhagen is a good way to think about this.

Copenhagen was founded as a fishing village in the 10th century and its average temperature is about eight degrees. Copenhagen is about 1,250 km from London and 440 km from Berlin.

Darwin was founded in 1869 and the average temperature is about 32 degrees. Its closest neighbours are Jakarta, Perth and Adelaide, none of which are less than 2500km away.

One of the things I think we need to get better at when we have these conversations is recognising our differences from the cities of the Western Hemisphere. Our historical and geographical isolation is not merely a cosmetic difference. It is a major and unavoidable part of the structure of our cities.

A useful first step is to think about the purposes for which Australian cities were built. In Darwin’s case, we know that when John Macdougal Stuart returned from the Northern Territory in 1861, he told Governor Daly:

…the soil is of the first description; and the grass, although dry, most abundant… this is certainly the finest country I have seen in Australia.


If this country is settled, it will be one of the finest colonies under the crown, suitable for the growth of any and everything – what a splendid country for growing cotton.

When Goyder came up here to survey the future city, he was interested in its port, because that helped the British build a military link to their acquisitions in South East Asia by linking Singapore and Sydney.

Neither Goyder nor Stuart gave much thought to creativity. They didn’t say Darwin was going to be a great place for night markets, cultural festivals, artists and tourists, with innumerable vibrant laneways. They said it was a good place for cattle farming and a naval base.

Those early origins are still evident. Darwin is still a military outpost, and its still a cattle port. It shares its origins with most Australian cities; the historical origins of Australia’s urban centres are almost entirely wrapped up in shipping primary goods back to the British Empire. That, structurally, historically and culturally was their purpose.

Australian cities functioned on this rationale right up until the Seventies. Then in 1971 US President Nixon tore up a thing called the Bretton Woods Agreement and Globalisation happened. This was a rude shock for Australia, because we’d been a nation founded on a system of tariffs design to protect our historical role as a supplier of goods to Britain.

As the global economy re-geared, the way our economy functioned had to change rapidly. Australia actually did pretty well; we floated the Australian dollar on the stock exchange in 1983, we flooded resources into higher education, and we began trying to establish relationships with Asia.

During this time, it became obvious that Australia couldn’t compete with developing nations in manufacturing. We’re still a big farming nation, and we’re still, obviously, a big mining nation, but it became obvious to policy makers by the mid-Eighties that we needed something else; we needed a lot of smart people and we needed those people to be thinking up new ideas; not just new ideas about how to make money, but new ideas about how you take a cities designed for shipping cattle and housing soldiers, into cities designed to compete in a global economy built on knowledge.

And this is where we come to the topic of the creative city.

One of the worst things Australian cities do today is look at successful cities elsewhere and try to mimic what they’ve done. We see this a lot with Jan Gehl’s work. He does some great things, but no matter how much places like Wollongong or Adelaide alter their public domain, they’ll never be a European city with almost a thousand years of history, a high population density and 45 minute flight to the world’s largest economic centres.

Unfortunately, one of the negative impacts I think Gehl, Florida and Landry have had in Australia is to allow policy makers to believe complex problems can be solved with simple fables in which urban design, small bars and laneways full of novelty street furniture will produce a stable demographic and a prosperous economy.

This isn’t to say I don’t think we should change. On the contrary, the other thing I think Australian cities do badly is cling to the idea they can keep doing what they used to do. We’ve been clinging on to our car industry, fossil fuels, suburban growth and building roads everywhere for too long. Australia is no longer a place of manufacturing hubs connected to sleeper suburbs. That model no longer works.

So what do we need to do? Well, the problem we face is that no-one really knows.

When mining and manufacturing fail, we turn to the Landry, Florida and Gehl mythologies at this point simply because we don’t know how else to formulate policy or plan our cities, and they offer us simple solutions to our complex problems.

I don’t have a better simple solution, so instead I thought I’d go back to an earlier era of urban studies. When the first big cities were starting to form, they had the good fortune to house people like Socrates, Plato and Aristotle. In the case of Athens, were all those people lived, the city had a forum that bought all the citizens together, whereupon they would all yell at each other, argue passionately and vote.

When something bad happened to Athens, like the Spartans invaded it, this forum allowed the city to draw together its citizens, pool their ideas, and help them decide what to do. The city only really faltered when it stopped harnessing the collective energy of its citizens. Indeed, the word for city, ‘polis’, doesn’t have anything to do with the built environment. It draws from ‘politea’, or the community of citizens.

The Roman word for this was civitas, providing the origin for our modern words ‘city’ and ‘citizen. The city was not a product of its design, its industries or its architecture. On the contrary, those were by-products made possibly only by its citizenship. Quite literally the city was its citizens. When I think about cultural policy and the purposes of a creative city, this is what I think we should be aiming for; mechanisms that allow cities to bring together, combine and amplify the voices and ideas of their citizens.