Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are to amend the Heritage Act 1977 (the Heritage Act) and
the Environmental Planning and Assessment Act 1979 (the Planning Act) as follows:

(a) to insert objects into the Heritage Act,

(b) to require criteria used by the Heritage Council to determine whether a place,
building, work, relic, moveable object or precinct (an item) is of State heritage
significance to be approved by the Minister for Planning (the Minister),

(c) to reduce the membership of the Heritage Council from a maximum of
15 members to a maximum of 11 members and to remove the appointment of
members nominated by particular organisations (other than the National Trust
of Australia (New South Wales)),

(d) to require the Minister, when considering the inclusion or removal of an item
on or from the State Heritage Register, to consider whether the item should be
conserved and other specified effects of the listing,

(e) to provide for the endorsement by the Heritage Council of conservation
management plans for items listed on the State Heritage Register and other
matters related to those plans,

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Heritage Amendment Bill 2009
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(f) to enable the Minister or Chairperson of the Heritage Council to make stop
work orders to prevent an item that is subject to an interim heritage order or is
listed on the State Heritage Register from being harmed,

(g) to provide for the referral by councils of disputed proposals to list items as
heritage items in local environmental plans to independent hearing and
assessment panels,

(h) to prevent a consent authority from refusing a development application for
integrated development on heritage grounds if the development is the subject
of a relevant approval under the Heritage Act,
        (i) to make other minor amendments and amendments of a law revision,
consequential or savings and transitional nature.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation, other than provisions related to certain amendments
made by the Environmental Planning and Assessment Amendment Act 2008.

Schedule 1 Amendment of Heritage Act 1977 No 136
Heritage Council
Schedule 1 [9] substitutes sections 8 and 9 of the Heritage Act and repeals other
provisions currently relating to the membership and procedures of the Heritage
Council. The proposed sections reduce the maximum membership of the Council
from 15 to 11, replace the Director of the Heritage Office with the Director-General
of the Department of Planning as a statutory member of the Council and remove
those members who were formerly appointed by organisations (other than the
member appointed from nominations made by the National Trust of Australia (New
South Wales)). The amendments retain the 3 statutory members and provide for up
to 8 appointed members, while widening the qualifications, knowledge and skills
such members may possess before being appointed.

Schedule 1 [2] and [7] make amendments consequential on the amendment made by
Schedule 1 [9].

Schedule 1 [8] gives the Heritage Council the status and privileges of the Crown by
declaring it to be a NSW Government agency.

Schedule 1 [10] amends section 21 of the Heritage Act to update the functions of the
Heritage Council to reflect changes to plan-making processes under the Planning
Act.

Schedule 1 [43] inserts proposed Schedule 2 into the Heritage Act, containing
provisions relating to the membership and procedure of the Heritage Council.

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State Heritage Register and items of State heritage significance
Schedule 1 [6] amends section 4A of the Heritage Act to require the criteria that the
Heritage Council uses to make decisions about whether an item is of State heritage
significance to be approved by the Minister before the Minister publishes them in the
Gazette and to require only those published criteria to be used by the Council.

Currently, the criteria must merely be notified to the Minister before they are
published in the Gazette.

Schedule 1 [13] amends section 32 of the Heritage Act to require the Minister, when
determining whether to direct that an item be listed on the State Heritage Register, to
consider whether the long-term conservation of the item is necessary, whether listing
would render the item incapable of reasonable or economic use and whether it would
cause undue financial hardship.

Schedule 1 [14] amends section 33 of the Heritage Act to provide that before making
a recommendation for the listing of a precinct the Council must publish a notice of
intention to consider listing in at least one metropolitan newspaper and one local
newspaper circulating in the precinct, rather than giving written notice to each owner
or occupier of land in the precinct, as is currently the case.

Schedule 1 [16] amends section 33 of the Heritage Act to prohibit the Heritage
Council from recommending that an item be listed on the State Heritage Register
unless it is satisfied that the item satisfies at least one of the criteria established under
section 4A of that Act and also provides that the Council may consider whether the
long-term conservation of the item is necessary, whether listing would render the
item incapable of reasonable or economic use and whether listing would cause undue
financial hardship. Schedule 1 [15] and [26] make consequential amendments.

Schedule 1 [17] amends section 34 of the Heritage Act to make it clear that the
Minister may refer a recommendation for the listing of an item on the State Heritage
Register to a review body on the Minister’s own motion or at the request of an
affected owner, mortgagee, lessee or occupier.

Schedule 1 [24] amends section 37 of the Heritage Act to require notice of the
Minister’s decision on a proposed State Heritage Register listing to be given in the
same manner as notice of an intention to consider the listing by the Heritage Council.

Schedule 1 [25] amends section 38 of the Heritage Act relating to the power of the
Minister to direct that an item be removed from the State Heritage Register on the
recommendation of the Heritage Council. Under the amended section, the Minister
may make such a direction, after considering a recommendation by the Heritage
Council, if of the opinion that the item is not of State heritage significance or that the
long-term conservation of the item is not necessary and if either the listing would
render the item incapable of reasonable or economic use or if the listing would cause
undue financial hardship to the owner, mortgagee or lessee of the item or land on
which it is situated.

Schedule 1 [27] inserts proposed section 38A into the Heritage Act to enable the
Heritage Council to endorse conservation management plans for items listed on the
State Heritage Register and to enable regulations to be made for or with respect to
conservation management plans.

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Controlled activities
Schedule 1 [28] amends section 57 of the Heritage Act to exempt a person from
having to obtain approval to work on an item that is listed on the State Heritage
Register if the work is exempted from the operation of Part 4 of that Act by a
conservation management plan endorsed by the Heritage Council.

Schedule 1 [29] amends section 62 of the Heritage Act to require the relevant
approval body to consider any applicable conservation management plan when
determining whether to grant approval to carry out work on an item listed on the State
Heritage Register.

Schedule 1 [32] inserts proposed Division 5 of Part 4 (proposed section 79C) into the
Heritage Act. The proposed Division enables the Minister or the Chairperson of the
Heritage Council to make a stop work order (being an order that work on an item
cease for a period of 40 days) if of the opinion that an item that is subject to an interim
heritage order or listed on the State Heritage Register is being or is about to be
harmed. Only one stop work order may be made in relation to any work and other
remedies under the Heritage Act may be pursued in relation to the work. An order
may not be made if approval for the work has been given under Part 4 of the Heritage
Act. Schedule 1 [11] makes a consequential amendment.

Other amendments
Schedule 1 [1] inserts proposed section 3 into the Heritage Act to set out the objects
of that Act.

Schedule 1 [3] amends section 4 of the Heritage Act to update definitions.

Schedule 1 [4] amends section 4 of the Heritage Act to omit a redundant definition.

Schedule 1 [5] amends section 4 of the Heritage Act to substitute the definition of
relic, so that a relic under that Act must be of State or local heritage significance but
is no longer required to be more than 50 years old. Schedule 1 [33] makes a
consequential amendment.

Schedule 1 [12], [34] and [35] make minor amendments consequential on the
inclusion of the Heritage Council in the Department of Planning.

Schedule 1 [18], [20]–[23], [36] and [37] make law revision amendments.

Schedule 1 [19] amends section 36 of the Heritage Act to enable regulations to be
made to remove or change the right of a party to legal or other representation at a
review by the Planning Assessment Commission of a recommendation that an item
be listed on the State Heritage Register.

Schedule 1 [30] amends section 72 of the Heritage Act to enable regulations to be
made to remove or change the right of a party to legal or other representation at a
review by the Planning Assessment Commission of an appeal against a decision by
the Heritage Council about an application for approval of actions in relation to an
item that is subject to an interim heritage order or listed on the State Heritage
Register.

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Schedule 1 [31] amends section 79 of the Heritage Act to enable regulations to be
made to remove or change the right of a party to legal or other representation at a
review by the Planning Assessment Commission of an appeal under the Planning Act
or other Act that is to be determined by the Minister for Planning.

Schedule 1 [38] amends section 170 of the Heritage Act to require government
instrumentalities to enter on their Heritage and Conservation Registers items of the
environmental heritage that are required to be listed on the Registers in accordance
with the regulations. Currently, items subject to interim heritage orders or listed on
the State Heritage Register, or that could be subject to such an order or listing, or that
are listed in environmental planning instruments, are required to be entered on the
Registers.

Schedule 1 [39] amends section 170A of the Heritage Act to remove the requirement
for government instrumentalities to include information about matters related to
Heritage and Conservation Registers in their annual reports.

Schedule 1 [40] inserts proposed section 170B into the Heritage Act. The proposed
section enables a council to refer a submission about the inclusion of an item as an
item of heritage significance in a proposed local environmental plan to an
independent hearing and assessment panel established under the Planning Act.

Schedule 1 [41] amends Schedule 1 to the Heritage Act to enable regulations
containing savings and transitional provisions to be made consequent on the
enactment of the proposed Act.

Schedule 1 [42] amends Schedule 1 to the Heritage Act to insert savings and
transitional provisions consequential on the enactment of the proposed Act.

Schedule 2 Amendment of Environmental Planning
and Assessment Act 1979 No 203
Schedule 2 [1]–[3] amend uncommenced provisions of the Planning Act as proposed
to be inserted by the Environmental Planning and Assessment Amendment Act 2008
(the 2008 Act).

Section 23G (2) (a) of the Planning Act (as proposed to be inserted by the 2008 Act)
confers on joint regional planning panels (regional panels) functions as a consent
authority that are conferred on it under an environmental planning instrument.

Schedule 2 [1] clarifies that the relevant functions as a consent authority that may be
conferred on a regional panel under section 23G (2) (a) are any of the consent
authority functions of a local council. This enables the council to retain certain
functions as a consent authority for development applications determined by a
regional panel.

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Schedule 2 [2] resolves a technical issue concerning the entity to which a regional
panel’s exercise of a local council’s functions as consent authority conferred on the
panel under section 23G (2) (a), is to be attributed. The effect of the amendment is to
deem a regional panel to be the applicable local council in the exercise of those
functions, subject to the regulations. The amendment also clarifies that a regional
panel is to exercise functions conferred on it under section 23G (2) (a) to the
exclusion of the applicable council.

The amendment also allows proposed section 23G (5A) and (5B) to apply in relation
to the functions conferred on a regional panel under an environmental planning
instrument that are conferred on the Planning Assessment Commission under
section 23D (1) (d) of the Planning Act (as proposed to be inserted by the 2008 Act).

Schedule 2 [3] specifically provides for a power to make regulations for or with
respect to the functions conferred by the Planning Act on a regional panel.

Schedule 2 [4] amends section 90 of the Planning Act to apply the provisions of that
Act relating to procedures for integrated development to development made by or on
behalf of the Crown if it is development that requires an approval to carry out work
under section 57 (1) of the Heritage Act (a heritage approval).

Schedule 2 [5] amends section 90A of the Planning Act to insert a definition of
heritage approval.

Schedule 2 [6] inserts proposed section 92 into the Planning Act. The proposed
section prohibits a consent authority from refusing development consent on heritage
grounds if a heritage approval has been granted in respect of the same development.

Schedule 2 [7] amends section 118 of the Planning Act to enable the functions of
preparing, making and approving development control plans to be conferred on
panels appointed under Division 1AA of Part 6 of that Act to exercise planning
functions of councils.

Schedule 2 [8] amends section 118 of the Planning Act to enable the functions of
preparing and approving contributions plans to be conferred on panels appointed
under Division 1AA of Part 6 of that Act to exercise planning functions of councils.

Schedule 2 [9] amends section 158 of the Planning Act to exclude committees, or
members of committees, established under section 22 of that Act, from personal
liability for things done or omitted to be done for the purposes of that Act. The
amendment will be taken to have commenced on the same day as the removal of the
previous provision relating to the liability of such committees (see proposed
section 2 of the proposed Act).

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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