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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Heritage Bill 1999
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Definitions 2
4. Meaning of "owner" 6
5. Meaning of "place" 7
6. Application of Act 8
Part 2 -- The Heritage Council
7. Heritage Council established 9
8. Members 9
9. Constitution, proceedings etc. 10
10 . Remuneration of members 10
Part 3 -- Functions, powers and
accountability
11 . Heritage Council functions and powers 11
12 . Delegation by Minister 12
13 . Minister may give directions 13
14 . Minister to have access to information 13
15 . Delegation by Heritage Council 14
16 . Public referrals to Heritage Council 15
page i
95--1
Heritage Bill 1999
Contents
Part 4 -- Staff
17 . Chief executive officer 16
18 . Other staff 16
19 . Use of other government staff, etc. 16
Part 5 -- Finance
20 . Funds of Heritage Council 18
21 . Heritage Fund 18
22 . Borrowing from Treasurer 19
23 . Other borrowing 19
24 . Guarantee by Treasurer 19
25 . Effect of guarantee 20
26 . Charges for guarantees 20
27 . Application of Financial Administration and Audit
Act 1985 20
Part 6 -- Heritage Register
Division 1 -- The Register
28 . The Register 21
29 . Content and form of Register 21
30 . Public inspection 22
Division 2 -- Entry in the Register
31 . Grounds for entry in the Register 22
32 . Assessment criteria 22
33 . Interim entry 23
34 . Procedure following interim entry 24
35 . Submissions to be reported to Minister 24
36 . No objection to permanent entry 25
37 . Heritage Council to take certain action if objection to
permanent entry 25
38 . Minister to take certain action if objection to
permanent entry 26
39 . When an entry in the Register has effect 27
40 . Time limit for making entry in the Register permanent 27
page ii
Heritage Bill 1999
Contents
Division 3 -- Changing or removing an entry in the
Register
41 . Updating or correcting an entry in the Register 27
42 . Changing the area of a registered place or State
heritage area 28
43 . Special Ministerial direction to remove an interim
entry from the Register 28
44 . Removing a permanent entry from the Register 29
45 . When a change to, or removal of, an entry has effect 29
46 . Certain places not to be considered for re-entry in the
Register for 5 years 29
Division 4 -- Notification and information
47 . Public notice and notification of interested persons 29
48 . Notifications on title 31
49 . Informing public authorities 32
50 . Certificates 32
Part 7 -- Public authorities
Division 1 -- Heritage inventories
51 . Local government heritage inventories 33
52 . Heritage inventories of other public authorities 33
53 . Consultation for local government heritage inventories 34
54 . Heritage Council involvement with heritage
inventories 34
55 . Time in which heritage inventories to be completed 35
56 . Review and revision of heritage inventories 35
57 . Heritage Council may establish or revise heritage
inventories in certain cases 36
Division 2 -- Other matters concerning public
authorities
58 . Public authorities to cooperate with Heritage Council 36
Part 8 -- Approvals and advice of Heritage
Council as to works
59 . Works to be approved 38
60 . Exemptions 38
page iii
Heritage Bill 1999
Contents
61 . Application for approval 39
62 . Works of significant public interest 39
63 . Matters to be considered in deciding applications 39
64 . Time limit for deciding applications 40
65 . Conditions etc. 40
66 . Notification when application decided 40
67 . Appeals from decisions on applications 41
68 . Planning authorities to seek advice of Heritage
Council as to works on land adjacent to registered
places 41
69 . Relationship to other laws 41
Part 9 -- Heritage agreements
70 . Parties to, and effect of, heritage agreements 42
71 . Places to which heritage agreements can apply 42
72 . Approval of Heritage Council required 43
73 . When heritage agreements have effect 43
74 . Subject matter of heritage agreements 43
75 . Notifications on title 44
76 . Notification to interested persons 45
77 . Other rights of action not affected 45
78 . Damages for breach of heritage agreements 46
79 . Records of heritage agreements 46
Part 10 -- Conservation incentives
80 . Heritage Council may provide assistance or incentives 48
81 . Remission of taxes, rates and charges 48
82 . Payment of remitted taxes, rates and charges 50
83 . Modification or non-application of laws impeding
conservation 51
84 . Heritage Council approvals override certain decisions
of local governments 53
85 . Revaluations 54
page iv
Heritage Bill 1999
Contents
Part 11 -- Protection and conservation
orders
Division 1 -- Protection orders
86 . Protection orders for unregistered places 56
87 . Effect of protection orders 57
88 . Extension of protection orders 58
89 . Contravention of protection orders 58
90 . Appeals as to protection orders 58
Division 2 -- Conservation orders
91 . Conservation orders for registered places and State
heritage areas 59
92 . Compliance with conservation orders 59
93 . Appeals as to conservation orders 59
94 . Heritage Council may give effect to conservation
orders 60
Part 12 -- Compensation as to approvals
and protection orders
95 . Definition 61
96 . Compensation 61
97 . Losses that can be compensated 62
98 . Assessment of compensation 62
99 . Commercial Arbitration Act 1985 to apply 63
100 . Payment of compensation 64
Part 13 -- Enforcement and legal
proceedings
Division 1 -- Inspectors
101 . Appointment of inspectors 65
102 . Identity cards 65
103 . Powers of inspectors 66
104 . Warrants for entry onto premises 67
105 . Police assistance 67
106 . Offences in relation to inspectors 67
page v
Heritage Bill 1999
Contents
Division 2 -- Legal proceedings
107 . Time limit for proceedings 68
108 . Who may institute proceedings 68
109 . Committal for trial on indictment 68
110 . Evidentiary provision 69
111 . Defences in certain proceedings 69
112 . Offences by bodies corporate 70
113 . Court orders in respect of convictions for certain
offences 70
114 . Enforcement of court orders under section 113(2) 71
Part 14 -- Acquiring land
115 . Interests in land may be taken under Land
Administration Act 1997 for conservation purposes 72
116 . Compensation for land taken 72
117 . Request for land to be taken 73
Part 15 -- Miscellaneous
118 . Damaging or despoiling registered places 74
119 . Notice of intention to sell land 74
120 . Service of documents 74
121 . Protection from liability for wrongdoing 75
122 . Limit on actions 75
123 . Confidentiality 75
124 . Regulations 76
125 . Repeal 76
126 . Transitional and savings 76
127 . Review of Act 77
Schedule 1 -- Constitution and proceedings
of the Heritage Council
Division 1 -- Constitution and proceedings of the
Heritage Council
1. Chairperson unable to act 78
2. Term of office 78
3. Resignation, removal etc. 79
4. Leave of absence 79
page vi
Heritage Bill 1999
Contents
5. Council member unable to act 79
6. Saving 79
7. Member not a public service officer by virtue of
appointment as member 80
8. Co-opted Council members 80
9. Committees of the Council 80
10 . General procedure 81
11 . Presiding member 81
12 . Quorum 81
13 . Voting 81
14 . Minutes 81
15 . Decisions may be made without meeting 81
16 . Telephone or video meetings 82
Division 2 -- Disclosure of interests, etc.
17 . Disclosure of interests 82
18 . Voting by interested members 82
19 . Clause 18 may be declared inapplicable 83
20 . Quorum where clause 18 applies 83
21 . Minister may declare clauses 18 and 20 inapplicable 83
Schedule 2 -- Transitional and savings
1. Interpretation 84
2. Former Council members 84
3. Staff 84
4. Assets and liabilities of former Council to vest in new
Council 85
5. Stamp duty 85
6. Proceedings and remedies 85
7. Heritage Fund 86
8. Records 86
9. Financial reporting of former Council 86
10 . The Register 86
11 . Local government heritage inventories 87
12 . Procedures in relation to entry in the Register or
changing or removing an entry 87
13 . Heritage agreements 87
page vii
Heritage Bill 1999
Contents
14 . References to the former Council in agreements and
instruments 87
15 . Conservation and restoration orders 88
16 . Overriding certain decisions of local governments 88
17 . Payments remitted under repealed Act 88
18 . Ministerial orders as to written laws affecting the
conservation of registered places 88
19 . Certain places not entered in Register not to be
proposed for registration for 5 years 89
page viii
Western Australia
LEGISLATIVE ASSEMBLY
Heritage Bill 1999
A Bill for
An Act to provide for the conservation of Western Australia's
cultural heritage, to repeal the Heritage of Western Australia Act 1990
and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Heritage Bill 1999
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Heritage Act 1999.
2. Commencement
5 (1) This Act comes into operation on the day on which the Planning
Appeals Act 1999 comes into operation or such later day as is
fixed by proclamation.
(2) The proclamation referred to in subsection (1) is to be published
in the Gazette before the day on which the Planning Appeals
10 Act 1999 comes into operation.
3. Definitions
In this Act, unless the contrary intention appears --
"building", in relation to land, includes any man-made
structure erected or placed on or in the land, and any part of
15 the building or structure;
"conservation", in relation to a place or area, includes --
(a) the retention of the cultural heritage significance of
the place or area; and
(b) any maintenance, preservation, restoration,
20 reconstruction or adaptation of the place or area for
that purpose;
"conservation order" means an order made under section 91;
"Council" means the Heritage Council of Western Australia
established under section 7;
25 "cultural heritage significance", in relation to a place or area,
means significance to any group or community (including
future generations) in relation to the archaeological,
page 2
Heritage Bill 1999
Preliminary Part 1
s. 3
architectural, cultural, historical, scientific, social or
technical value of the place or area;
"development" means the development or use of any land,
including any of the following --
5 (a) any demolition, erection, construction, alteration of
or addition to any building on the land;
(b) the carrying out on the land of any excavation or
other earthworks;
(c) the subdivision or amalgamation of land including
10 buildings or airspace,
but does not include any act or thing or class of act or thing
that is for the time being excluded from this definition by
the regulations;
"fabric", in relation to a place, means all the physical material
15 of the place;
"heritage agreement" means an agreement entered into under
section 70;
"Heritage Fund" means the account referred to in
section 21(1);
20 "land" includes --
(a) any interest in land; and
(b) any building on or in the land;
"National Trust" means the National Trust of Australia (W.A.)
established under the National Trust of Australia (W.A.)
25 Act 1964;
"occupier", in relation to land, means a person by whom or on
whose behalf the land is lawfully occupied, or if there is no
person in lawful occupation, a person entitled to possession
(which includes the receipt of income or the right to receive
30 income from the land);
page 3
Heritage Bill 1999
Part 1 Preliminary
s. 3
"owner" has a meaning affected by section 4;
"place" has a meaning affected by section 5;
"planning authority" means --
(a) the Western Australian Planning Commission;
5 (b) the East Perth Redevelopment Authority;
(c) the Subiaco Redevelopment Authority; or
(d) a local government administering a town planning
scheme;
"planning law" means any of --
10 (a) the East Perth Redevelopment Act 1991;
(b) the Local Government (Miscellaneous Provisions)
Act 1960;
(c) the Metropolitan Region Town Planning Scheme
Act 1959;
15 (d) the Subiaco Redevelopment Act 1994;
(e) the Town Planning and Development Act 1928;
(f) the Western Australian Planning Commission
Act 1985;
"protection order" means an order made under section 86;
20 "public authority" means --
(a) a Minister;
(b) an agency as defined in the Public Sector
Management Act 1994; or
(c) a body, whether corporate or unincorporate, or the
25 holder of an office, post or position, being a body,
office, post or position that is established or
continued for a public purpose under a written law,
including a local government or regional local
government;
page 4
Heritage Bill 1999
Preliminary Part 1
s. 3
"public notice" means bringing a matter to the notice of the
public by --
(a) publication of a notice in the Gazette; and
(b) a notice published in a daily newspaper circulating
5 throughout the State;
"Register" means the Western Australian Heritage Register
referred to in section 28;
"registered place" means a place entered in the Register under
section 31(1);
10 "State heritage area" means an area entered in the Register
under section 31(1);
"town planning" means either city, town, suburban, or rural
planning and development, or all four;
"town planning scheme" means a scheme that has been
15 approved by the Minister and published in the Gazette
under section 7 of the Town Planning and Development
Act 1928;
"works", in relation to a place or area, includes any of the
following --
20 (a) development of the place or area;
(b) any physical intervention or action which may result
in a change to the nature or appearance of the fabric
of the place or of the area;
(c) the removal, destruction or lopping of a tree from or
25 at the place or area otherwise than in accordance with
the provisions of the Conservation and Land
Management Act 1984;
(d) the removal of any equipment, furniture, fitting or
other item forming part of a place from the place or a
30 place in the area.
page 5
Heritage Bill 1999
Part 1 Preliminary
s. 4
4. Meaning of "owner"
(1) In this Act --
"owner" --
(a) in relation to unalienated land that, under a written
5 law other than the Land Administration Act 1997 --
(i) is vested in a person or body;
(ii) is dedicated to a purpose of a person or body;
or
(iii) is placed under the control of a person or
10 body,
means that person or body;
(b) in relation to unalienated land other than that referred
to in paragraph (a) means the State of Western
Australia and, if relevant --
15 (i) a management body, as defined in the Land
Administration Act 1997, for the land; or
(ii) a public authority that is in possession of, or
controls, the land;
(c) in relation to land that is subject to the Transfer of
20 Land Act 1893 means, subject to subsection (2), a
proprietor within the meaning of that Act except a
mortgagee who is not a mortgagee in possession; or
(d) in relation to land that is subject to the Registration of
Deeds Act 1856, means the holder of an interest
25 registered by memorial under that Act except a
mortgagee who is not a mortgagee in possession.
(2) If --
(a) the proprietor of land that is subject to the Transfer of
Land Act 1893 is the State of Western Australia; and
page 6
Heritage Bill 1999
Preliminary Part 1
s. 5
(b) a public authority is in possession of, or controls, the
land,
the public authority is the owner of the land for the posposes of
this Act.
5 5. Meaning of "place"
(1) In this Act --
"place" means a defined or readily identifiable portion of land.
(2) For the purposes of the definition of "place" in subsection (1) --
(a) the portion of land may be comprised in separate titles
10 and in different ownership; and
(b) it is immaterial that water covers the land at any
particular time.
(3) Any of the following things at a place can be treated as forming
part of the place --
15 (a) an archaeological site;
(b) a building and such of the building's immediate
surrounds as may be required for its conservation;
(c) a structure that is historically or physically associated or
connected with the place if the primary importance of
20 the structure derives in part from its association with the
place;
(d) equipment, furniture, fittings or other items (whether
fixed or not) that are historically or physically associated
or connected with any building, or activity conducted, at
25 the place;
(e) a garden, man-made park or other landscaping;
(f) a tree or group of trees (whether planted or naturally
occurring) in a man-made setting.
page 7
Heritage Bill 1999
Part 1 Preliminary
s. 6
6. Application of Act
(1) This Act binds the Crown not only in right of the State but also,
so far as the legislative power of Parliament permits, the Crown
in all its other capacities.
5 (2) This Act does not apply to --
(a) an Aboriginal site; or
(b) Aboriginal cultural material,
as defined in the Aboriginal Heritage Act 1972, to the extent to
which that Act applies to the site or the material.
10 (3) Nothing in this Act affects the operation of the Aboriginal
Heritage Act 1972.
(4) This Act does not apply to the natural heritage of the State.
page 8
Heritage Bill 1999
The Heritage Council Part 2
s. 7
Part 2 -- The Heritage Council
7. Heritage Council established
(1) A body called the Heritage Council of Western Australia is
established.
5 (2) The Council is a body corporate with perpetual succession.
(3) Proceedings may be taken by or against the Council in its
corporate name.
(4) The Council is an agent of the Crown and enjoys the status,
immunities and privileges of the Crown.
10 8. Members
(1) The Council is to comprise 11 persons appointed by the
Minister who have such experience, skills and qualifications as
the Minister considers appropriate to enable them to make a
contribution to the work of the Council.
15 (2) The Council members are to comprise --
(a) the chairperson;
(b) a person chosen from 3 persons nominated by the
National Trust;
(c) a person chosen from 3 persons nominated by the
20 Western Australian Municipal Association constituted
under section 9.58 of the Local Government Act 1995;
(d) a person representing the interests of owners, chosen
from persons nominated after public advertisement of
the position;
25 (e) a person representing organizations with interests
relevant to the conservation of places of cultural heritage
significance, chosen from persons nominated after
public advertisement of the position; and
page 9
Heritage Bill 1999
Part 2 The Heritage Council
s. 9
(f) 6 other persons chosen from persons nominated after
public advertisement of the positions.
(3) The chief executive officer is not to be appointed as a Council
member.
5 (4) If, within 30 days of a request to do so, a body referred to in
subsection (2)(b) or (c) fails to nominate a person in accordance
with that request, the Minister may make such appointment for
the purpose of that provision as the Minister thinks fit.
(5) On the request of a body referred to in subsection (2)(b) or (c),
10 the Minister may extend the period of time referred to in
subsection (4) for nominations by the body.
9. Constitution, proceedings etc.
Schedule 1 has effect with respect to the Council and its
members.
15 10. Remuneration of members
(1) A member of the Council or a committee is to be paid such
remuneration and travelling and other allowances as are
determined in the member's case by the Minister on the
recommendation of the Minister for Public Sector Management.
20 (2) A Council member who is an employee (as defined in the
Public Sector Management Act 1994) is to be paid only such
travelling and subsistence allowances as are determined in the
member's case by the Minister on the recommendation of the
Minister for Public Sector Management.
page 10
Heritage Bill 1999
Functions, powers and accountability Part 3
s. 11
Part 3 -- Functions, powers and accountability
11. Heritage Council functions and powers
(1) It is a function of the Council --
(a) to identify places within the State that are of cultural
5 heritage significance;
(b) to advise the Minister on matters relating to places in
Western Australia that are, or might be, of cultural
heritage significance;
(c) to represent the Minister in negotiations relating to the
10 matters referred to in paragraph (b);
(d) to have regard to the recommendations of, and the lists
and records compiled by, the Australian Heritage
Commission, the National Trust, local governments and
other persons that have made available information
15 relating to places that are, or might be, of cultural
heritage significance;
(e) to provide advice in relation to heritage agreements or
proposed heritage agreements and to conduct
negotiations in relation to such agreements;
20 (f) to protect places that are, or might be, of cultural
heritage significance from destruction, deterioration,
damage or injudicious treatment;
(g) where development of a registered place or State
heritage area or development adjacent to a registered
25 place is proposed, to ensure that the development does
not adversely affect the cultural heritage significance of
the place or area;
(h) to advise and assist local governments in identifying and
conserving places that are, or might be, of cultural
30 heritage significance;
page 11
Heritage Bill 1999
Part 3 Functions, powers and accountability
s. 12
(i) to promote public awareness and knowledge of issues
relevant to the conservation of Western Australia's
cultural heritage;
(j) to encourage or provide education or training in respect
5 of Western Australia's cultural heritage;
(k) to arrange or conduct research and investigations
relating to Western Australia's cultural heritage;
(l) to promote and assist in the proper management and
maintenance of registered places and State heritage
10 areas;
(m) to deliver any place or thing in the Council's possession
or control in relation to cultural heritage into the
possession or control of any person for the purpose of
making the place or thing accessible to the public or
15 available for study;
(n) to implement policies to give effect to its functions;
(o) to do anything else that it is required or authorized to do
under this Act or any other written law.
(2) The Council has power to do all things necessary or convenient
20 to be done for or in connection with the performance of its
functions under this Act.
12. Delegation by Minister
(1) The Minister may, by instrument, delegate to any person the
performance of any of the Minister's functions except --
25 (a) this power of delegation; and
(b) the Minister's powers under sections 13 and 14.
(2) A function performed by a delegate is to be taken as being
performed by the Minister.
page 12
Heritage Bill 1999
Functions, powers and accountability Part 3
s. 13
(3) A delegate performing a function under this section is to be
taken to do so in accordance with the terms of the delegation
unless the contrary is shown.
13. Minister may give directions
5 (1) The Minister may give directions in writing to the Council with
respect to the performance of its functions under this Act either
generally or, subject to subsection (2), in relation to a particular
matter and the Council must give effect to any such direction.
(2) A direction may not be given under subsection (1) in respect
10 of --
(a) the content or effect of advice to be given by the
Council; or
(b) the result of an evaluation of the cultural heritage
significance of a particular place or area.
15 (3) The text of any direction given under subsection (1) must be
included in the annual report submitted by the accountable
authority of the Council under section 66 of the Financial
Administration and Audit Act 1985.
14. Minister to have access to information
20 (1) The Minister is entitled --
(a) to have information in the possession of the Council;
and
(b) where the information is in or on a document, to have,
and make and retain copies of, that document.
25 (2) For the purposes of subsection (1) the Minister may --
(a) request the Council to furnish information to the
Minister;
page 13
Heritage Bill 1999
Part 3 Functions, powers and accountability
s. 15
(b) request the Council to give the Minister access to
information;
(c) for the purposes of paragraph (b) make use of the staff
of the Council to obtain the information and furnish it to
5 the Minister.
(3) The Council must comply with a request under subsection (2)
and make its staff and facilities available to the Minister for the
purposes of subsection (2)(c).
(4) In this section --
10 "document" includes any tape, disc or other device or medium
on which information is recorded or stored;
"information" means information specified, or of a description
specified, by the Minister that relates to the functions of the
Council.
15 15. Delegation by Heritage Council
(1) The Council may, by instrument, delegate to any person the
performance of any of the Council's functions under this Act
except this power of delegation.
(2) A function performed by a delegate is to be taken as being
20 performed by the Council.
(3) A delegate performing a function under this section is to be
taken to do so in accordance with the terms of the delegation
unless the contrary is shown.
(4) Nothing in this section is to be read as limiting the ability of the
25 Council to act through its staff and agents in the normal course
of business.
page 14
Heritage Bill 1999
Functions, powers and accountability Part 3
s. 16
16. Public referrals to Heritage Council
(1) Any person may refer in writing to the Council any matter
concerning the conservation of a registered place, a State
heritage area or any other place or area which is, or might be, of
5 cultural heritage significance.
(2) On a referral under subsection (1), the Council --
(a) may request from the person referring the matter such
further information as is necessary for the Council to
decide how to deal with the matter;
10 (b) may deal with the matter as it thinks fit, including
reporting or making recommendations to a public
authority or other persons; and
(c) is to inform the person referring the matter about how
the matter is dealt with.
page 15
Heritage Bill 1999
Part 4 Staff
s. 17
Part 4 -- Staff
17. Chief executive officer
(1) A chief executive officer of the Council is to be appointed under
Part 3 of the Public Sector Management Act 1994.
5 (2) Subject to the control of the Council, the chief executive officer
is to --
(a) provide advice and assistance to the Council and the
Minister in the administration of this Act; and
(b) administer the day to day operations of the Council.
10 18. Other staff
(1) The chief executive officer may engage persons as staff of the
Council.
(2) Persons referred to in subsection (1) are to be employed, subject
to any relevant industrial award, order or agreement, on such
15 terms and conditions as the chief executive officer determines.
(3) Nothing in subsection (2) affects the operation of the Workplace
Agreements Act 1993.
(4) Part 3 Division 3 of the Public Sector Management Act 1994
does not apply to the Council but this section does not affect the
20 power of the chief executive officer to engage a person under a
contract for services or appoint a person on a casual
employment basis under section 100 of that Act.
19. Use of other government staff, etc.
(1) The Council may by arrangement with the relevant employer
25 make use, either full-time or part-time, of the services of any
officer or employee --
(a) in the Public Service;
page 16
Heritage Bill 1999
Staff Part 4
s. 19
(b) in a State agency or instrumentality; or
(c) otherwise in the service of the Crown in right of the
State.
(2) The Council may by arrangement with --
5 (a) a department of the Public Service; or
(b) a State agency or instrumentality,
make use of any facilities of the department, agency or
instrumentality.
(3) An arrangement under subsection (1) or (2) is to be made on
10 such terms as are agreed to by the parties.
page 17
Heritage Bill 1999
Part 5 Finance
s. 20
Part 5 -- Finance
20. Funds of Heritage Council
The funds available for the purpose of enabling the Council to
perform its functions consist of --
5 (a) moneys from time to time appropriated by Parliament;
(b) moneys received by the Council in the performance of
its functions;
(c) moneys received by the Council by way of fees or
charges, or from the sale or rental of property owned by
10 the Council or from the management of property
administered by the Council;
(d) moneys borrowed by the Council under section 22
or 23;
(e) moneys from Commonwealth sources; and
15 (f) other moneys lawfully received by, made available to, or
payable to, the Council.
21. Heritage Fund
(1) The funds referred to in section 20 are to be credited to an
account to be called the "Heritage Fund" at the Treasury,
20 forming part of the Trust Fund constituted under section 9 of the
Financial Administration and Audit Act 1985.
(2) The Heritage Fund is to be charged with --
(a) the remuneration and allowances payable under
section 10;
25 (b) interest on and repayment of moneys borrowed by the
Council under section 22 or 23 and any other fees or
charges payable in respect of any such borrowing; and
page 18
Heritage Bill 1999
Finance Part 5
s. 22
(c) all other expenditure lawfully incurred by the Council in
the performance of its functions.
22. Borrowing from Treasurer
(1) The Council may borrow from the Treasurer such amounts as
5 the Treasurer approves on such terms and conditions relating to
repayment and payment of interest as the Treasurer imposes.
(2) By force of this subsection the Heritage Fund and the assets of
the Council are charged with the due performance by the
Council of its obligations in respect of a loan under
10 subsection (1).
23. Other borrowing
(1) In addition to its powers under section 22, the Council may with
the prior written approval of the Treasurer and on such terms
and conditions as the Treasurer approves, borrow moneys for
15 the purpose of performing its functions.
(2) Any moneys borrowed by the Council under subsection (1) may
be raised --
(a) as one loan or as several loans; and
(b) in such manner as the Treasurer approves.
20 (3) The total amount of the moneys so borrowed in any one
financial year is not to exceed such amount as the Treasurer
approves.
24. Guarantee by Treasurer
(1) The Treasurer may, in the name and on behalf of the Crown in
25 right of the State, guarantee the payment of any moneys payable
by the Council in respect of moneys borrowed by the Council
under section 23.
page 19
Heritage Bill 1999
Part 5 Finance
s. 25
(2) A guarantee is to be in such form and contain such terms and
conditions as the Treasurer determines.
(3) Before a guarantee is given, the Council is to --
(a) give to the Treasurer such security as the Treasurer
5 requires; and
(b) execute all instruments that are necessary for the
purpose.
25. Effect of guarantee
(1) The due payment of moneys payable by the Treasurer under a
10 guarantee under section 24 is guaranteed by the State.
(2) Any such payment is to be made by the Treasurer and charged
to the Consolidated Fund, and this subsection appropriates that
Fund accordingly.
(3) The Treasurer is to cause to be credited to the Consolidated
15 Fund any amounts received or recovered from the Council or
otherwise in respect of any payment made by the Treasurer
under a guarantee given under section 24.
26. Charges for guarantees
(1) The Treasurer may fix charges to be paid by the Council to the
20 Treasurer for the benefit of the Consolidated Fund in respect of
a guarantee given under section 24.
(2) Payment of any charges fixed under subsection (1) is to be made
at such time or times as the Treasurer determines.
27. Application of Financial Administration and Audit Act 1985
25 The provisions of the Financial Administration and Audit
Act 1985 regulating the financial administration, audit and
reporting of statutory authorities apply to and in respect of the
Council and its operations.
page 20
Heritage Bill 1999
Heritage Register Part 6
The Register Division 1
s. 28
Part 6 -- Heritage Register
Division 1 -- The Register
28. The Register
The Council is to establish and maintain the Western Australian
5 Heritage Register (the "Register").
29. Content and form of Register
(1) An entry in the Register in relation to a place or area must
contain --
(a) an adequate description to enable the place or area to be
10 identified;
(b) the date of interim entry, permanent entry and any
change to an entry;
(c) the name of the local government district in which the
place or area is located;
15 (d) a statement explaining the cultural heritage significance
of the place or area; and
(e) such other matters as are prescribed by regulation.
(2) If an entry is removed from the Register, the Register must
contain --
20 (a) the date of the removal of the entry; and
(b) a statement as to why the entry was removed.
(3) The Register is to be in a form approved by the Council.
(4) The Register is to be a comprehensive register of places and
areas of cultural heritage significance for the State, not merely
25 an index of examples; and a place or area is not to be left out of
the Register because similar examples are already entered.
page 21
Heritage Bill 1999
Part 6 Heritage Register
Division 2 Entry in the Register
s. 30
30. Public inspection
The Council is to ensure that the Register, or a copy of it, is
available for public inspection --
(a) at the office of the Council during ordinary business
5 hours; or
(b) by such other means as the Council determines.
Division 2 -- Entry in the Register
31. Grounds for entry in the Register
(1) A place or area may be entered in the Register if, in the opinion
10 of the Council --
(a) the place or area is of cultural heritage significance for
the State; and
(b) the place or area meets one or more of the assessment
criteria determined by the Council under section 32.
15 (2) An area may be entered in the Register even though each place
comprising the area may not itself satisfy the requirements of
subsection (1).
32. Assessment criteria
(1) The Council is to determine and publish the criteria to be used
20 in assessing the cultural heritage significance of places and
areas.
(2) In determining the assessment criteria, the Council is to have
regard to the following matters --
(a) the importance of a place or area in demonstrating the
25 evolution or pattern of Western Australian history;
(b) the importance of a place or area in demonstrating rare,
uncommon or endangered aspects of Western
Australia's heritage;
page 22
Heritage Bill 1999
Heritage Register Part 6
Entry in the Register Division 2
s. 33
(c) the potential of a place or area to yield information that
will contribute to an understanding of Western
Australia's history;
(d) the importance of a place or area in demonstrating the
5 characteristics of a broader class of places or areas;
(e) the importance of a place or area in demonstrating a
high degree of creative or technical achievement;
(f) the strong or special meaning that a place or area has for
any group or community because of social, cultural or
10 spiritual associations;
(g) the importance of a place or area in exhibiting particular
aesthetic characteristics valued by any group or
community;
(h) the special association that a place or area has with the
15 life or work of a person, group or organization of
importance in Western Australia's history;
(i) the condition of a place or area and in particular --
(i) the likelihood of the long-term viability or
sustainability of the values identified in respect
20 of a place or area; and
(ii) the place or area's potential for restoration and
the time which restoration is likely to take;
(j) any other matter that in the opinion of the Council is
relevant to the assessment of cultural heritage
25 significance.
33. Interim entry
(1) The Council, on its own initiative or on application to it by any
person, may enter a place or area in the Register on an interim
basis if in its opinion the place or area satisfies the grounds for
30 entry in the Register.
page 23
Heritage Bill 1999
Part 6 Heritage Register
Division 2 Entry in the Register
s. 34
(2) Before entering a place or area in the Register on an interim
basis, the Council may invite written or oral submissions from
any person with a special knowledge of, or interest in, the place
or area, and may have regard to the submissions in making its
5 decision.
34. Procedure following interim entry
If a place or area is entered in the Register on an interim basis,
the Council must --
(a) do the things that it is required to do under Division 4;
10 (b) in the public notice required under Division 4, invite
written submissions to be made to the Council, within
42 days of publication in the Gazette or such longer
period as specified in the notice, in support of, or
objecting to, making the interim entry in the Register
15 permanent;
(c) as soon as practicable after the interim entry is made,
cause a notification of the entry to be prepared in a form
approved by the Registrar of Titles or the Registrar of
Deeds, as the case requires, and deposited at the
20 Department within the meaning of the Transfer of Land
Act 1893; and
(d) notify the Minister as soon as practicable after the entry
is made.
35. Submissions to be reported to Minister
25 If submissions have been made in support of, or objecting to,
making an interim entry in the Register permanent the Council
is to ensure that a report on the submissions accompanies the
Council's recommendation to the Minister.
page 24
Heritage Bill 1999
Heritage Register Part 6
Entry in the Register Division 2
s. 36
36. No objection to permanent entry
(1) This section applies if --
(a) no submission has been made in relation to making an
interim entry in the Register permanent; or
5 (b) the only submissions that have been made are in support
of making an interim entry in the Register permanent.
(2) After having regard to the Council's recommendation and report
about an interim entry in the Register, the Minister may
direct --
10 (a) that the entry be made permanent; or
(b) that the entry be removed from the Register.
(3) The Minister is not to direct that an entry be made permanent
unless the Minister is of the opinion that it is appropriate for the
place or area that is the subject of the entry to have the
15 protection afforded by this Act.
(4) The Council is to give effect to the Minister's direction and do
the things that it is required to do under Division 4.
37. Heritage Council to take certain action if objection to
permanent entry
20 (1) This section applies if a submission has been made objecting to
making an interim entry in the Register permanent.
(2) The Council may invite --
(a) further written or oral communication with the person
who made the objection; or
25 (b) written or oral communication with any other person
who has a special knowledge of, or interest in, the place
or area.
page 25
Heritage Bill 1999
Part 6 Heritage Register
Division 2 Entry in the Register
s. 38
(3) The Council may reconsider the interim entry in the Register
having regard to any further submissions and decide whether or
not to recommend to the Minister to make the entry permanent.
(4) If the Council decides that making the interim entry in the
5 Register permanent is not warranted, it is to remove the entry as
soon as practicable.
(5) If the Council decides that making the interim entry in the
Register permanent is warranted, it is to make a
recommendation to that effect to the Minister.
10 38. Minister to take certain action if objection to permanent
entry
(1) This section applies if --
(a) a submission has been made objecting to making an
interim entry in the Register permanent;
15 (b) the objection has not been withdrawn after action taken
by the Council under section 37(2); and
(c) the Council has recommended that the entry be made
permanent.
(2) The Minister must, as soon as practicable after receiving the
20 Council's recommendation and report about the interim entry in
the Register, refer the matter to be dealt with under section 32 of
the Planning Appeals Act 1999.
(3) After having regard to the recommendation and report of the
Council and the recommendation given under the Planning
25 Appeals Act 1999 about the interim entry in the Register, the
Minister may direct --
(a) that the entry be made permanent; or
(b) that the entry be removed from the Register.
page 26
Heritage Bill 1999
Heritage Register Part 6
Changing or removing an entry in the Register Division 3
s. 39
(4) The Minister is not to direct that an entry be made permanent
unless the Minister is of the opinion that it is appropriate for the
place or area that is the subject of the entry to have the
protection afforded by this Act.
5 (5) The Council is to give effect to the Minister's direction and do
the things that it is required to do under Division 4.
39. When an entry in the Register has effect
An entry in the Register has effect on and from the day that the
relevant notice is published in the Gazette.
10 40. Time limit for making entry in the Register permanent
If, within 12 months of a place or area being entered in the
Register on an interim basis --
(a) the entry has not been made permanent; or
(b) there has not been obtained from each owner of the
15 place or each owner of each place comprising the area
written consent to the extension of the interim entry
beyond 12 months,
the Council must remove the entry forthwith.
Division 3 -- Changing or removing an entry in the Register
20 41. Updating or correcting an entry in the Register
The Council may change an entry in the Register --
(a) to update any details in the entry; or
(b) to correct any error in the entry.
page 27
Heritage Bill 1999
Part 6 Heritage Register
Division 3 Changing or removing an entry in the Register
s. 42
42. Changing the area of a registered place or State heritage
area
(1) The Council may change a permanent entry in relation to a
registered place or a State heritage area to increase or decrease
5 the area of the place or area but only if --
(a) written consent is obtained from --
(i) each owner of the place or each owner of each
place comprising the area; and
(ii) the Minister;
10 or
(b) the procedures set out in sections 34, 35, 36, 37, 38 and
47 are complied with as if the references in those
sections to making an interim entry in the Register
permanent include a reference to changing a permanent
15 entry to increase or decrease the area of a registered
place or State heritage area.
(2) Sections 34(c), 36(2)(b), 37(4) and 38(3)(b) do not apply for the
purposes of subsection (1).
43. Special Ministerial direction to remove an interim entry
20 from the Register
(1) The Minister may direct the removal of an interim entry from
the Register at any time.
(2) If, under subsection (1), the Minister directs the removal of an
interim entry from the Register, the Minister must give notice of
25 the direction and the reasons for the direction to both Houses of
Parliament within 21 days of giving the direction.
(3) Nothing in this section affects the Minister's power under
section 36(2)(b) or 38(3)(b) to direct the removal from the
Register of an interim entry.
page 28
Heritage Bill 1999
Heritage Register Part 6
Notification and information Division 4
s. 44
44. Removing a permanent entry from the Register
(1) The Council may remove a permanent entry from the Register
but only if the procedures set out in sections 34, 35, 36, 37, 38
and 47 are complied with as if the references in those sections to
5 making an interim entry in the Register permanent include a
reference to removing a permanent entry from the Register.
(2) Section 34(c) does not apply for the purposes of subsection (1).
45. When a change to, or removal of, an entry has effect
A change to an entry in the Register and a removal of an entry
10 from the Register has effect on and from the day that the
relevant notice is published in the Gazette.
46. Certain places not to be considered for re-entry in the
Register for 5 years
If an entry for a registered place is removed from the Register
15 the place to which the entry applied must not be considered for
re-entry in the Register for 5 years from the day the removal has
effect.
Division 4 -- Notification and information
47. Public notice and notification of interested persons
20 (1) This section applies to the following events --
(a) an interim entry in the Register;
(b) an entry in the Register being made permanent;
(c) a change to an entry in the Register to increase or
decrease the area of the registered place or State heritage
25 area to which the entry applies;
(d) the removal of an entry from the Register.
page 29
Heritage Bill 1999
Part 6 Heritage Register
Division 4 Notification and information
s. 47
(2) If an event to which this section applies occurs the Council --
(a) is to give public notice of the event within 14 days of the
event occurring; and
(b) within 14 days of the publication in the Gazette, is to
5 give the documents set out in subsection (3) --
(i) to each owner of the place, or each owner of
each place within the State heritage area, to
which the entry applies;
(ii) to each lessee of the place, or each lessee of each
10 place within the State heritage area, to which the
entry applies, whose lease --
(I) is registered under the Transfer of Land
Act 1893; or
(II) is one for which the approval of the
15 Western Australian Planning
Commission is required under
section 20 of the Town Planning and
Development Act 1928;
(iii) to the local government of the district in which
20 the place or area to which the entry applies is
located;
(iv) to the Western Australian Planning Commission;
(v) to any other relevant planning authority; and
(vi) if relevant, to the Director General of Mines as
25 defined in the Mining Act 1978.
(3) The documents to be given under subsection (2)(b) are --
(a) written notice of the Council's action;
(b) a copy of the entry or change to the entry, if relevant;
and
30 (c) a copy of the text of the public notice.
page 30
Heritage Bill 1999
Heritage Register Part 6
Notification and information Division 4
s. 48
(4) If, in the Council's opinion, it is not practicable to comply with
subsection (2)(b)(i) in respect of each owner of the registered
place or each owner of each of the places within the State
heritage area to which the entry applies, the Council must
5 instead cause the text of the public notice to be posted up in a
prominent location on or near the place or area.
48. Notifications on title
(1) If a notification is deposited under section 34(c) --
(a) the Registrar of Titles is to endorse each certificate of
10 title in relation to the affected land to that effect; or
(b) the Registrar of Deeds is to endorse each memorial or
record in relation to the affected land to that effect,
as the case requires.
(2) Subsection (3) applies if --
15 (a) an entry is removed from the Register; or
(b) there has been a change to an entry in the Register to
increase or decrease the area of a registered place or a
State heritage area.
(3) The Council must, as soon as practicable after the removal or
20 change, request the Registrar of Titles or the Registrar of Deeds,
as the case requires --
(a) to remove the endorsements made under subsection (1)
in relation to the land; or
(b) to change the endorsements made under subsection (1)
25 in relation to the land to accord with the change,
as the case requires.
(4) A request is to be in a form approved by the relevant Registrar.
page 31
Heritage Bill 1999
Part 6 Heritage Register
Division 4 Notification and information
s. 49
49. Informing public authorities
(1) The Council, so far as is practicable, is to assist local
governments, the Western Australian Planning Commission and
any other relevant planning authorities to be aware of, and have
5 ready access to, the entries in the Register.
(2) Nothing in subsection (1) affects any requirement under
section 47(2)(b) for the Council to provide documents to a local
government, the Commission or other relevant planning
authority.
10 (3) The Council is to ensure that the Valuer-General is notified of
the entry of a place in, or the removal of a place from, the
Register or the increase or decrease in the area of a registered
place.
50. Certificates
15 The Council, on receipt of an application to do so, is to provide
a certificate to the effect that under section 46, a place cannot be
considered for re-entry in the Register until the date set out in
the certificate.
page 32
Heritage Bill 1999
Public authorities Part 7
Heritage inventories Division 1
s. 51
Part 7 -- Public authorities
Division 1 -- Heritage inventories
51. Local government heritage inventories
(1) A local government is to establish and maintain an inventory of
5 places and areas that --
(a) are in the local government's district; and
(b) are, or might be, of cultural heritage significance, for the
State or for the local government's district.
(2) The purposes of a local government heritage inventory
10 include --
(a) to assist the maintenance of the Heritage Register;
(b) to provide information about heritage in the local
government district that may be required under a town
planning scheme for that district; and
15 (c) to assist in achieving the heritage conservation
objectives of town planning in the State.
52. Heritage inventories of other public authorities
(1) This section applies to a public authority other than a local
government that is in possession of, or controls, a place or area
20 that --
(a) is a registered place or a State heritage area;
(b) is entered in a local government heritage inventory;
(c) is the subject of a National Trust recommendation or a
list or record compiled by the National Trust; or
25 (d) to the authority's knowledge, has been identified by
assessment or survey as being of cultural heritage
significance.
page 33
Heritage Bill 1999
Part 7 Public authorities
Division 1 Heritage inventories
s. 53
(2) A public authority to which this section applies is to establish
and maintain an inventory of the places and areas referred to in
subsection (1)(a) to (d) that are in its possession or under its
control.
5 (3) The purposes of the heritage inventory of a public authority to
which this section applies are --
(a) to provide information about heritage in the possession
or control of the public authority;
(b) to assist in the management of assets; and
10 (c) to assist in achieving the heritage conservation
objectives of town planning in the State.
53. Consultation for local government heritage inventories
A local government must ensure that its heritage inventory is
established only after consultation with --
15 (a) each owner of a place that is the subject of a proposed
entry in the inventory;
(b) each owner of each place within an area that is the
subject of a proposed entry in the inventory; and
(c) with the general public.
20 54. Heritage Council involvement with heritage inventories
(1) A public authority must ensure that its heritage inventory is
established --
(a) having regard to any assessment criteria published by
the Heritage Council; and
25 (b) to the satisfaction of the Heritage Council.
(2) A public authority is to provide the Heritage Council with a
copy of its completed heritage inventory as soon as practicable
after the completion.
page 34
Heritage Bill 1999
Public authorities Part 7
Heritage inventories Division 1
s. 55
55. Time in which heritage inventories to be completed
(1) A local government must ensure that its heritage inventory is
completed within 12 months after the day on which this Act
commences.
5 (2) A public authority other than a local government must ensure
that its heritage inventory is completed within 4 years after the
day on which this Act commences.
56. Review and revision of heritage inventories
(1) Subject to subsection (2), a public authority may review and
10 revise its heritage inventory as often as it considers it
appropriate to do so.
(2) A public authority must ensure that its heritage inventory is
reviewed and revised at least every 4 years.
(3) A local government must ensure that a new entry in its
15 inventory is made only after consultation with --
(a) each owner of a place that is the subject of the new
entry;
(b) each owner of each place within an area that is the
subject of the new entry; and
20 (c) the general public.
(4) A public authority must ensure that each review and revision of
its heritage inventory is done to the satisfaction of the Heritage
Council.
(5) A public authority is to provide the Heritage Council with a
25 copy of its revised heritage inventory as soon as practicable
after the revision is completed.
page 35
Heritage Bill 1999
Part 7 Public authorities
Division 2 Other matters concerning public authorities
s. 57
57. Heritage Council may establish or revise heritage
inventories in certain cases
(1) If a public authority --
(a) has not completed the establishment of its heritage
5 inventory within the period referred to in section 55(1)
or (2), as is relevant to the case, or to the satisfaction of
the Heritage Council; or
(b) has not reviewed and revised its heritage inventory
within the period referred to in section 56(2) or to the
10 satisfaction of the Heritage Council,
the Heritage Council may establish, or review and revise, the
public authority's heritage inventory, as the case requires.
(2) Any costs incurred by the Heritage Council under subsection (1)
may be recovered from the public authority as a debt in a court
15 of competent jurisdiction.
Division 2 -- Other matters concerning public authorities
58. Public authorities to cooperate with Heritage Council
(1) A public authority is to --
(a) give the Council such assistance in the performance of
20 the Council's functions as is reasonably practicable; and
(b) comply with all reasonable requests by the Council for
information.
(2) Nothing in subsection (1) exempts the Council from a
requirement to pay fees or charges applicable to its requests.
25 (3) Where the Council is of the opinion that a public authority has
not complied with subsection (1) or section 68 the Minister of
the Crown having responsibility for that public authority may,
on the request of the Council and after consultation with the
page 36
Heritage Bill 1999
Public authorities Part 7
Other matters concerning public authorities Division 2
s. 58
Commissioner for Public Sector Standards, direct that authority
to provide the assistance to the Council, and any such direction
may require that the services of any person employed or
engaged by that authority are to be made available for that
5 purpose.
page 37
Heritage Bill 1999
Part 8 Approvals and advice of Heritage Council as to works
s. 59
Part 8 -- Approvals and advice of Heritage Council as
to works
59. Works to be approved
(1) A person must not carry out, or cause to be carried out, works to
5 a registered place or a place within a State heritage area
unless --
(a) the Council has approved the works on an application
under section 61 and the works are done in accordance
with the approval; or
10 (b) the Council has granted an exemption under section 60.
Penalty: $50 000 and imprisonment for 2 years.
Daily penalty: $5 000.
(2) It is a defence to a charge of an offence under subsection (1)
that the works (other than demolition or partial demolition) are
15 to a place of worship and --
(a) an owner of the place has given the Council 42 days'
notice of the proposed works; and
(b) the notice includes a declaration by an officer of the
place of worship, who is authorized for that purpose,
20 that the works are required for public worship or for
purposes directly connected with public worship.
60. Exemptions
(1) The Council may exempt specified works or specified classes of
works from the requirement under section 59 for approval and
25 may revoke an exemption for any reason it considers
appropriate.
(2) An exemption or revocation under subsection (1) must be
published in the Gazette before it can take effect.
page 38
Heritage Bill 1999
Approvals and advice of Heritage Council as to works Part 8
s. 61
(3) In subsection (1) --
"specified" means specified in the exemption notice.
61. Application for approval
(1) A person who wishes to obtain the Council's approval to carry
5 out works to a registered place or a place within a State heritage
area must apply to the Council.
(2) An application must be in a form and manner approved by the
Council and include the information required by the Council.
62. Works of significant public interest
10 (1) The Council must give public notice of proposed works that are
the subject of an application under section 61 if the Council is
of the opinion that the proposed works are a matter of
significant public interest.
(2) A public notice under subsection (1) must--
15 (a) specify the place at which particulars of the proposed
works can be inspected; and
(b) invite written submissions to be made to the Council
within 21 days of the publication of the notice in the
Gazette.
20 63. Matters to be considered in deciding applications
In deciding an application under section 61 the Council must
have regard to --
(a) the extent to which the proposed works, if carried out,
are likely to affect the cultural heritage significance of
25 the registered place or State heritage area;
(b) whether there is any feasible and prudent alternative to
the proposed works;
page 39
Heritage Bill 1999
Part 8 Approvals and advice of Heritage Council as to works
s. 64
(c) the submissions made in relation to the proposed works;
and
(d) any other matter which in the Council's opinion is
relevant to the application.
5 64. Time limit for deciding applications
The Council must either approve or refuse an application under
section 61 --
(a) within 60 days of receiving the application;
(b) if public submissions have been invited in relation to the
10 application, within 60 days of the closing date for the
making of submissions; or
(c) within such longer period as is agreed in writing
between the applicant and the Council.
65. Conditions etc.
15 The Council may approve an application under section 61 --
(a) subject to such conditions as are set out in writing; and
(b) for a period of time specified in writing.
66. Notification when application decided
Within 7 days of deciding an application under section 61 the
20 Council must notify --
(a) the applicant;
(b) the local government of the district in which the
registered place or State heritage area that is the subject
of the application is located;
25 (c) any other relevant planning authority; and
(d) each person who made a submission in relation to the
application.
page 40
Heritage Bill 1999
Approvals and advice of Heritage Council as to works Part 8
s. 67
67. Appeals from decisions on applications
An applicant who is aggrieved by a decision of the Council on
an application under section 61 may, within 60 days of the day
on which the applicant is notified of the decision, appeal under
5 the Planning Appeals Act 1999.
68. Planning authorities to seek advice of Heritage Council as to
works on land adjacent to registered places
If, under a planning law, a planning authority receives an
application to carry out works on, or in respect of, land that is
10 adjacent to a registered place which, if carried out, are likely to
affect the cultural heritage significance of the place, the
planning authority must seek the advice of the Heritage Council
before making a decision in relation to the application.
69. Relationship to other laws
15 (1) Nothing in this Part affects a requirement of any other written
law to obtain an approval, authority, consent or permission to
carry out works that are the subject of an application under
section 61.
(2) If there is inconsistency between an approval, or a condition of
20 an approval, of the Council under this Part and an approval,
authority, consent or permission (or a condition thereto)
obtained under any other written law, the Council's approval or
condition prevails to the extent of the inconsistency.
page 41
Heritage Bill 1999
Part 9 Heritage agreements
s. 70
Part 9 -- Heritage agreements
70. Parties to, and effect of, heritage agreements
(1) A heritage agreement may be entered into --
(a) by the Council; or
5 (b) subject to section 72 --
(i) by the State of Western Australia; or
(ii) by a body corporate (including a public authority
that is a body corporate),
with an owner or occupier of land in so far as the interest of the
10 owner or occupier permits.
(2) A heritage agreement attaches to the land and is, to the extent
specified in the agreement, binding on each current owner or
occupier of the land whether or not that owner or occupier was
the person with whom the agreement was made.
15 71. Places to which heritage agreements can apply
(1) A heritage agreement may be entered into in respect of any land
where the land comprises the whole or part of --
(a) a registered place or a place in a State heritage area;
(b) a place, or a place in a heritage area, entered in a local
20 government heritage inventory or a public authority
heritage inventory;
(c) a place entered in a heritage list, or a place in a heritage
area designated, under a town planning scheme; or
(d) a place entered in a heritage inventory or list prepared
25 for the purposes of the East Perth Redevelopment
Act 1991 or the Subiaco Redevelopment Act 1994.
page 42
Heritage Bill 1999
Heritage agreements Part 9
s. 72
(2) A heritage agreement may be entered into in respect of any land
where the land is adjacent to or otherwise associated with a
place referred to in subsection (1) whether or not the land is of
cultural heritage significance.
5 (3) For the purposes of subsection (2), land may be said to be
associated with a place if town planning development rights or
requirements, or other planning considerations or other interests
in or affecting the land or the place might be affected as an
incentive to, or for the purpose of effecting, the conservation of
10 the place.
72. Approval of Heritage Council required
A heritage agreement or a variation or termination of a heritage
agreement has no effect unless the Council is a party to, or has
approved, the agreement, variation or termination.
15 73. When heritage agreements have effect
A heritage agreement or a variation or termination of a heritage
agreement has effect from --
(a) the day the Council becomes a party to, or approves, the
agreement, variation or termination; or
20 (b) the day specified in the agreement, variation or
termination,
whichever is the later.
74. Subject matter of heritage agreements
(1) A heritage agreement may contain provisions promoting the
25 conservation of a place referred to in section 71(1).
(2) A heritage agreement may, by covenant or otherwise --
(a) restrict the use of land to which it applies;
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Heritage Bill 1999
Part 9 Heritage agreements
s. 75
(b) require specified work or work of a specified kind to be
done in accordance with specified standards on the land
(but the specified standards, if not in accordance with a law
that is for the time being in force, must be in accordance
5 with an order under section 83(1));
(c) restrict the nature of works that can be carried out on the
land;
(d) provide for financial, technical or other professional
advice or assistance to an owner or occupier with
10 respect to the maintenance or conservation of the land or
the place that is a subject of the agreement;
(e) provide for the management of the land or a place that is
a subject of the agreement, in accordance with a
particular management plan or in accordance with
15 management plans to be agreed from time to time
between the parties to the agreement; or
(f) if the relevant planning authorities and other public
authorities are parties to the agreement, provide, subject
to an order under section 83(1), for --
20 (i) matters relating to the title, development and
planning in respect of the land, including the
transfer of town planning development rights;
(ii) payment of money; or
(iii) safety, maintenance, inspection or licensing
25 requirements.
75. Notifications on title
(1) The Council must, as soon as practicable after a heritage
agreement has effect, cause a notification of the agreement to be
prepared in a form approved by the Registrar of Titles or the
30 Registrar of Deeds, as the case requires, and deposited at the
Department within the meaning of the Transfer of Land Act 1893.
page 44
Heritage Bill 1999
Heritage agreements Part 9
s. 76
(2) If a notification is deposited under subsection (1) --
(a) the Registrar of Titles is to endorse each certificate of
title in relation to the affected land to that effect; or
(b) the Registrar of Deeds is to endorse each memorial or
5 record in relation to the affected land to that effect,
as the case requires.
(3) The Council must, as soon as practicable after a variation to, or
termination of, a heritage agreement has effect, request the
Registrar of Titles or the Registrar of Deeds, as the case
10 requires --
(a) to change the endorsements made under subsection (2)
in relation to the land to accord with the variation; or
(b) to remove the endorsements made under subsection (2)
in relation to the land to accord with the termination,
15 as the case requires.
(4) A request is to be in a form approved by the relevant Registrar.
76. Notification to interested persons
(1) The Council is to take such steps as are reasonable to ensure
that all persons who appear from public records to have an
20 interest in land or a mining tenement in respect of land that is
the subject of a heritage agreement are informed of the
existence and effect of the agreement.
(2) The Council is to ensure that the Valuer-General is notified of
the approval by the Council of a heritage agreement or the
25 variation or termination of a heritage agreement.
77. Other rights of action not affected
A right of action for damages or payment of money that arose
before the endorsements referred to in section 75(2) were made
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Heritage Bill 1999
Part 9 Heritage agreements
s. 78
in relation to the land to which a heritage agreement relates is
not affected by the agreement unless the agreement provides
otherwise.
78. Damages for breach of heritage agreements
5 (1) Damages for contravention of a heritage agreement may be
awarded to a party to the agreement who has suffered loss as a
result of the contravention unless the person who contravened
the agreement shows that the contravention occurred without
the person's consent or connivance and that the person
10 exercised all reasonable care to prevent it.
(2) In assessing damages for contravention of a heritage agreement
by an owner or occupier of land to which the agreement relates,
a court may, in addition to any actual loss suffered, take into
account --
15 (a) any detriment to the public interest resulting from the
contravention; and
(b) any financial or other benefit sought to be gained by the
contravention.
(3) A court referred to in subsection (2) is to have regard to the
20 following principles when assessing damages --
(a) the damages are not only to compensate for loss but to
ensure that no person benefits from the contravention;
(b) the land should be restored to the extent of the damage
or deterioration caused by the contravention; and
25 (c) subsequent or similar contraventions should be deterred.
79. Records of heritage agreements
(1) The Council is to cause to be kept a copy of each heritage
agreement and the terms of each variation or termination of a
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Heritage Bill 1999
Heritage agreements Part 9
s. 79
heritage agreement to which the Council is a party, or that has
been approved by the Council.
(2) The Council is to ensure that the entry in the Register for each
registered place or State heritage area that is affected by a heritage
5 agreement or variation or termination of a heritage agreement is
noted in respect of the agreement, variation or termination.
(3) Any person may, without charge, inspect and copy extracts from
the records kept under subsection (1).
page 47
Heritage Bill 1999
Part 10 Conservation incentives
s. 80
Part 10 -- Conservation incentives
80. Heritage Council may provide assistance or incentives
(1) The Council may, subject to subsection (2), provide or facilitate
financial, technical or other assistance for the identification,
5 assessment, conservation or interpretation of places and areas that
are, or might be, of cultural heritage significance, whether or not a
place is a registered place or an area is a State heritage area.
(2) For the purposes of this Act, but subject to the Minister's
approval, the Council may offer financial assistance or
10 incentives with or without a requirement for the giving of
security and either free of interest or at such rates of interest as
the Council determines.
81. Remission of taxes, rates and charges
(1) The Minister may provide special assistance to an owner of a
15 registered place or a place that is the subject of a heritage
agreement --
(a) to conserve the place; or
(b) if the use of the place is not economically feasible
without the special assistance.
20 (2) If the Minister decides to provide special assistance under
subsection (1) the Minister may, subject to subsection (3) and
(4), by order published in the Gazette, remit the whole or part of
one or more of the following --
(a) the tax payable by an owner under the Land Tax
25 Act 1976 that is attributable to the place or the land
where the place is situated;
(b) the Metropolitan Region Improvement Tax payable by
an owner in respect of the place under section 41 of the
Metropolitan Region Town Planning Scheme Act 1959;
30 and
page 48
Heritage Bill 1999
Conservation incentives Part 10
s. 81
(c) any relevant rates or charges payable under any written
law in respect of the place or a building on the land
where the place is situated.
(3) The Minister cannot make an order under subsection (2) unless
5 the Council --
(a) has consulted with the public authority principally
assisting the relevant Minister in the administration of
the written law under which the tax, rate or charge is
payable;
10 (b) has reported to the first-mentioned Minister on the
results of the consultation; and
(c) has recommended that the special assistance be
provided.
(4) The Minister cannot make an order under subsection (2)(c) --
15 (a) in respect of local government rates or service charges
unless the relevant local government consents to the
remission of the rates or charges; or
(b) in respect of charges for water supply, sewerage,
drainage or irrigation services (including headworks)
20 unless the order specifies a monetary limit to the
remission of the charges.
(5) An order under subsection (2) may, subject to subsections (3)
and (4) --
(a) specify terms and conditions; and
25 (b) be varied or revoked.
(6) An order under subsection (2) and any variation or revocation of
the order has effect according to its tenor and is to be complied
with despite any other provision of a written law.
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Heritage Bill 1999
Part 10 Conservation incentives
s. 82
(7) Section 42 of the Interpretation Act 1984 applies to an order
under subsection (2) and an order varying or revoking such an
order as if the order were regulations within the meaning of that
Act.
5 (8) No interest can be imposed and no interest accrues under a
written law in respect of a tax, rate or charge the payment of
which is remitted under an order under subsection (2) unless the
order provides otherwise.
(9) The Council is not liable to fund a tax, rate or charge, or any
10 part of a tax, rate or charge, that is remitted under this section.
82. Payment of remitted taxes, rates and charges
(1) This section applies where the payment of a tax, rate or charge
is remitted under an order under section 81(2) in respect of a
registered place or a place that is the subject of a heritage
15 agreement and --
(a) the order is varied or revoked;
(b) works are carried out at the place contrary to a provision
of this Act or a heritage agreement; or
(c) on the application or request of an owner, the place
20 ceases to be a registered place or the subject of a
heritage agreement.
(2) The Minister may make an order requiring the immediate
payment of any tax, rate or charge that was remitted under the
order under section 81(2) in the 5 years preceding the event
25 referred to in subsection (1)(a), (b) or (c).
(3) The Minister cannot make an order under subsection (2)
unless --
(a) the Minister has consulted with the Council and the
Council has recommended that the order be made;
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Heritage Bill 1999
Conservation incentives Part 10
s. 83
(b) the person against whom the order is to be made --
(i) has been notified of the proposed order and the
reasons for it; and
(ii) has been given 21 days to show cause why the
5 order should not be made;
and
(c) the recommendation of the Council is consistent with
any relevant determination under the Planning Appeals
Act 1999.
10 (4) A person who is aggrieved by a notice under
subsection (3)(b)(i) may, within 14 days of the day on which the
person received the notice, refer the matter to be dealt with
under section 33 of the Planning Appeals Act 1999.
(5) An order under subsection (2) has effect according to its tenor
15 against the person in whose favour the tax, rate or charge was
remitted or any successor in title of that person in accordance
with the terms of the order.
(6) A public authority to which moneys are required to be paid
under an order under subsection (2) may recover the moneys in
20 a court of competent jurisdiction as a debt due to the public
authority.
83. Modification or non-application of laws impeding
conservation
(1) The Minister may, subject to subsections (2) and (3), by order
25 published in the Gazette, declare that a written law or any
portion of a written law --
(a) does not apply; or
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Heritage Bill 1999
Part 10 Conservation incentives
s. 83
(b) is modified in the manner specified in the order,
in respect of a registered place, a place in a State heritage area, a
State heritage area or a place that is the subject of a heritage
agreement.
5 (2) The Minister cannot make an order under subsection (1)
unless --
(a) the Minister is of the opinion that --
(i) the written law prohibits or impedes the
conservation of the place or area; and
10 (ii) the order is necessary for the conservation of the
place or area;
(b) the Minister to whom the administration of the written
law is committed gives written consent to the making of
the order;
15 (c) the Council has recommended that the order be made;
and
(d) a report by the Council on the submissions received
under subsection (3) in support of, or objecting to, the
proposed order accompanies the Council's
20 recommendation to the Minister.
(3) If an order is proposed to be made under subsection (1) the
Council must --
(a) give public notice of the proposed order and invite
written submissions to be made to the Council --
25 (i) within 14 days of publication in the Gazette or
such longer period as specified in the notice;
(ii) in support of, or objecting to, the proposed order;
and
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Heritage Bill 1999
Conservation incentives Part 10
s. 84
(b) provide a copy of the proposed order to each owner of
the place, the local government and any other public
authority or other person who or which, in the Council's
opinion, is likely to be affected by the order if it is made.
5 (4) The Council may amend the proposed order after having regard
to submissions received under subsection (3) but that subsection
does not apply to the proposed order as amended.
(5) An order under subsection (1) may, subject to subsections (2)
and (3) be varied or revoked.
10 (6) An order under subsection (1) and any variation or revocation of
the order has effect according to its tenor.
(7) Section 42 of the Interpretation Act 1984 applies to an order
under subsection (2) and an order varying or revoking such an
order as if the order were regulations within the meaning of that
15 Act.
84. Heritage Council approvals override certain decisions of
local governments
(1) This section applies where a local government has refused
approval or consent for any works that would contribute to the
20 conservation of a registered place or a State heritage area.
(2) If the Council is of the opinion that --
(a) the cultural heritage significance of the registered place
or State heritage area is likely to be adversely affected
because the approval or consent for the works has been
25 refused;
(b) the refusal was made under the Local Government
(Miscellaneous Provisions) Act 1960; and
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Heritage Bill 1999
Part 10 Conservation incentives
s. 85
(c) it is in the interests of conservation of cultural heritage
that the works be carried out,
the Council may approve, or consent to, the works as if it were
the local government.
5 (3) Despite the provisions of the Local Government (Miscellaneous
Provisions) Act 1960 it is lawful to act or to carry out the works
in accordance with the approval or consent of the Council given
under this section.
(4) The Council may approve, or consent to, the works on an
10 application of an owner of a registered place or a place within a
State heritage area or on its own volition.
(5) The Council must consult with the local government before
giving its approval or consent under this section to carry out
works.
15 85. Revaluations
(1) This section applies where the Valuer-General has received
notice --
(a) under section 49(3) of the entry of a place in, or the
removal of a place from, the Register or the increase or
20 decrease in the area of a registered place; or
(b) under section 76(2) of the approval by the Council of a
heritage agreement or the variation or termination of a
heritage agreement.
(2) The Valuer-General must, as soon as practicable, revalue the
25 land affected by a matter referred to in subsection (1)(a) or (b),
taking into account any restrictions on the use of the affected
land.
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Heritage Bill 1999
Conservation incentives Part 10
s. 85
(3) For the purposes of a revaluation under this section the
Valuer-General is to assume that --
(a) all the improvements to or on the land at the date of
revaluation are to be conserved and are not to be
5 demolished; and
(b) no improvements are to be made to or on the land after
the date of revaluation.
(4) Nothing in subsection (3) prevents the Valuer-General from
taking into account, in future valuations, the effect of any actual
10 demolition or construction on the land that occurs after the date
of revaluation under that subsection.
page 55
Heritage Bill 1999
Part 11 Protection and conservation orders
Division 1 Protection orders
s. 86
Part 11 -- Protection and conservation orders
Division 1 -- Protection orders
86. Protection orders for unregistered places
(1) The Minister may, on the recommendation of the Council or the
5 chief executive officer, make an order to protect a place from
imminent damage (a "protection order").
(2) A protection order may be made in relation to a place that is, or
might be, of cultural heritage significance but cannot be made in
relation to a registered place or a State heritage area.
10 (3) A protection order may prohibit or restrict any activity which, in
the opinion of the Minister, is likely to adversely affect the
cultural heritage significance of a place and for that purpose
may prohibit or restrict --
(a) the commencement or continuation of any works at,
15 damage to, or removal of fabric from, the place;
(b) the entry of persons other than an owner or occupier on
to the place;
(c) the bringing of vehicles, machinery or equipment,
livestock, materials or substances of any kind or kind
20 specified in the order on to the place; or
(d) anything which, in the opinion of the Minister, is likely
to cause disturbance to the land or any vegetation at the
place.
(4) A protection order may be subject to such conditions as are
25 specified in the order or to the exercise of a discretionary
authority vested by the order in the Minister or other specified
person.
(5) The Council is to serve a protection order either personally or
by affixing the order in a prominent position at the place.
page 56
Heritage Bill 1999
Protection and conservation orders Part 11
Protection orders Division 1
s. 87
(6) The Minister may, on the recommendation of the Council,
revoke a protection order.
(7) If --
(a) a protection order is revoked; or
5 (b) the period of time in which a protection order has effect
is extended on a request under section 88,
the Council is to serve notice of the decision in accordance with
subsection (5).
(8) The Council is to --
10 (a) give public notice of each protection order, revocation
of a protection order or determination extending the
period of time in which a protection order has effect as
soon as is practicable after the order, revocation or
determination takes effect; and
15 (b) cause a copy of the order, revocation or determination to
be served --
(i) if each owner or occupier of the place has not
already been served, on those persons if
practicable to do so;
20 (ii) if a person carrying out works at the place has
not already been served, on that person if
practicable to do so; and
(iii) on the local government of the district in which
the place is located.
25 87. Effect of protection orders
(1) A protection order --
(a) takes effect from the time of service; and
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Heritage Bill 1999
Part 11 Protection and conservation orders
Division 1 Protection orders
s. 88
(b) has effect, subject to earlier revocation --
(i) for 60 days from the time of service or a shorter
period stated in the order;
(ii) for the period of time specified under the
5 Planning Appeals Act 1999 for the purposes of
section 88 or 90; or
(iii) until the place becomes a registered place or a
State heritage area or a place in a State heritage
area.
10 (2) A protection order cannot be made in relation to any place --
(a) that was affected by a protection order in relation to a
similar matter within the preceding 12 months; or
(b) which is a place to which section 46 applies for the time
being.
15 88. Extension of protection orders
(1) The Minister may, while a protection order has effect, make a
request to extend the time in which the protection order has effect.
(2) A request under subsection (1) is to be dealt with under
section 34 of the Planning Appeals Act 1999.
20 89. Contravention of protection orders
A person must not contravene a protection order or cause any
other person to contravene a protection order.
Penalty: $50 000 and imprisonment for 2 years.
Daily penalty: $5 000.
25 90. Appeals as to protection orders
A person who is aggrieved by a protection order may, while the
protection order has effect, appeal under the Planning Appeals
Act 1999.
page 58
Heritage Bill 1999
Protection and conservation orders Part 11
Conservation orders Division 2
s. 91
Division 2 -- Conservation orders
91. Conservation orders for registered places and State heritage
areas
(1) The Minister may, on the recommendation of the Council or the
5 chief executive officer, make an order (a "conservation
order") to conserve the cultural heritage characteristics of a
registered place or a State heritage area.
(2) A conservation order may require an owner or occupier of a
registered place or a place within a State heritage area --
10 (a) to take specified action to repair any damage or to do
repair works;
(b) to commence or complete any specified works; or
(c) to cease any specified action.
(3) A conservation order must state the period within which
15 anything specified in the order is to be done which must be
more than 30 days starting on the day the order is served.
(4) A conservation order may be served personally or by affixing it
in a prominent position at the registered place or a place within
the State heritage area.
20 92. Compliance with conservation orders
A person must comply with a conservation order and must not
cause any other person to contravene a conservation order.
Penalty: $50 000 and imprisonment for 2 years.
Daily penalty: $5 000.
25 93. Appeals as to conservation orders
A person who is aggrieved by a conservation order may, within
30 days of the day on which the order was served, appeal under
the Planning Appeals Act 1999.
page 59
Heritage Bill 1999
Part 11 Protection and conservation orders
Division 2 Conservation orders
s. 94
94. Heritage Council may give effect to conservation orders
(1) If an owner or occupier of a registered place or a place within a
State heritage area --
(a) does not comply with a conservation order and has not
5 lodged an appeal against the order within the required
period; or
(b) does not comply with a determination on an appeal
under section 93,
the Council may enter the place or any land where the place is
10 situated and --
(c) take any action specified in the order;
(d) commence or complete any works specified in the order;
or
(e) if any specified action was required by the order to
15 cease, cause the action to cease.
(2) Subject to subsection (4), the Council may charge a person who
has been served with a conservation order for any costs incurred
in doing anything under subsection (1) in relation to the order.
(3) A charge under subsection (2) is a debt due to the Council and is
20 recoverable in a court of competent jurisdiction.
(4) If, on an appeal under section 93, a determination is made to the
effect that the requirements of a conservation order be set aside
solely on the ground of financial hardship the Council may, at
its own expense, enter the place or any land where the place is
25 situated and --
(a) take any action specified in the order;
(b) commence or complete any works specified in the order;
or
(c) if any specified action was required by the order to
30 cease, cause the action to cease.
page 60
Heritage Bill 1999
Compensation as to approvals and protection orders Part 12
s. 95
Part 12 -- Compensation as to approvals and
protection orders
95. Definition
In this Part --
5 "compensable determination" means --
(a) a determination on an appeal from a decision of the
Heritage Council on an application to approve works
to a registered place or a place within a State heritage
area (section 67); or
10 (b) a determination on an appeal about a protection order
(section 90).
96. Compensation
(1) An owner of a registered place or a place within a State heritage
area may seek compensation under this Part if the owner has
15 incurred loss because an effect of a compensable determination
is to --
(a) revoke or modify an approval, authority, consent or
permission that has been given under a planning law in
relation to the place; or
20 (b) suspend or delay the operation of an approval, authority,
consent or permission that has been given under a
planning law in relation to the place.
(2) Subsection (1) applies only if the approval, authority, consent or
permission was given before --
25 (a) the place became a registered place or part of a State
heritage area; or
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Heritage Bill 1999
Part 12 Compensation as to approvals and protection orders
s. 97
(b) the protection order was made in relation to the place,
as is applicable to the case.
97. Losses that can be compensated
Compensation is payable under this Part only if the loss
5 incurred by an owner of the place --
(a) is directly attributable to the revocation, modification,
suspension or delay referred to in section 96(1);
(b) is expenditure reasonably incurred in carrying out work
which the compensable determination rendered abortive;
10 (c) is capable of being assessed as a liquidated amount;
(d) arises out of a contractual or statutory obligation
incurred before --
(i) the place became a registered place or part of a
State heritage area; or
15 (ii) the protection order was made in relation to the
place,
as is applicable to the case;
(e) does not include any element of capital costs or
depreciation;
20 (f) takes into account any opportunity for recovery of taxes
or tax liabilities; and
(g) is not capable of recovery or mitigation other than under
this Part.
98. Assessment of compensation
25 (1) Compensation payable under this Part is to be assessed having
regard to the following --
(a) any incentive provided under this Act that mitigates the
loss incurred;
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Heritage Bill 1999
Compensation as to approvals and protection orders Part 12
s. 99
(b) any expenditure incurred --
(i) for the preparation of plans for the purposes of
any work; or
(ii) in other necessary matters preparatory to the
5 work;
(c) the cost of, and the circumstances relating to, the
acquisition of the land by the owner; and
(d) any sum payable in respect of a breach of contract by
the owner directly attributable to the compensable
10 determination,
but no account is to be taken of the prospective use of the land
other than for the conservation of a place of cultural heritage
significance.
(2) In determining whether expenditure was reasonably incurred in
15 carrying out work which the compensable determination
rendered abortive where --
(a) the place affected was included in a publicly available
list of places of cultural heritage significance (other than
the Register); or
20 (b) the owner had received, or ought to have taken, notice of
the cultural heritage significance of the place,
regard is to be had to that fact and the consequential possibility
that this Act was likely to affect the place such that a reasonable
person would have been likely to proceed with caution and to
25 consult with the Council before incurring the expenditure.
99. Commercial Arbitration Act 1985 to apply
(1) The matters of whether compensation is payable, and the
amount of compensation payable, under this Part are, in default
of agreement between the parties, to be determined by means of
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Heritage Bill 1999
Part 12 Compensation as to approvals and protection orders
s. 100
a reference to an arbitrator under and in accordance with the
provisions of the Commercial Arbitration Act 1985.
(2) The parties to the arbitration are to be the Council and the
owner of a place who seeks compensation under this Part.
5 (3) Despite section 20(1) of the Commercial Arbitration Act 1985,
each party may be represented before the arbitrator by a duly
qualified legal practitioner or other representative.
100. Payment of compensation
All compensation awarded and costs to be paid by the Council
10 for the purposes of this Part are to be charged to the
Consolidated Fund and this section appropriates the
Consolidated Fund accordingly.
page 64
Heritage Bill 1999
Enforcement and legal proceedings Part 13
Inspectors Division 1
s. 101
Part 13 -- Enforcement and legal proceedings
Division 1 -- Inspectors
101. Appointment of inspectors
(1) The chief executive officer is an inspector under this Act.
5 (2) The chief executive officer may appoint --
(a) any member of the Council or a committee of the
Council; or
(b) any member of staff of the Council or an officer or
employee referred to in section 19(1)(a), (b) or (c),
10 to be an inspector under this Act.
(3) When appointing an inspector, the chief executive officer may
limit the inspector's powers to those powers of an inspector
under this Act that are specified in the instrument of
appointment.
15 102. Identity cards
(1) The chief executive officer is to ensure that each inspector is
issued with an identity card certifying that the holder is an
inspector under this Act and stating the limitations, if any, of the
inspector's powers.
20 (2) An inspector must, at the request of a person in relation to
whom the inspector intends to exercise a power under this Act,
produce the inspector's identity card for the person's inspection.
(3) A person who possesses an identity card issued under this
section and who is not, or ceases to be, an inspector must cause
25 the card to be returned to the chief executive officer as soon as
practicable.
Penalty applicable to subsection (3): $500.
page 65
Heritage Bill 1999
Part 13 Enforcement and legal proceedings
Division 1 Inspectors
s. 103
103. Powers of inspectors
(1) An inspector may enter any land (including a building) with the
consent of an owner of the land and make such investigation
and inquiry and seek such information as the inspector considers
5 necessary or desirable to ascertain whether there has been
compliance with --
(a) the provisions of this Act or any approval, order, notice,
or other requirement given under the Act; or
(b) a determination under the Planning Appeals Act 1999
10 relating to an appeal or referral of a matter under this
Act.
(2) An inspector may require a person --
(a) to tell the inspector the person's name and address; and
(b) to produce any document the person is carrying that
15 contains the person's name and address,
if the inspector reasonably believes that person has committed,
is committing or is about to commit an offence under this Act.
(3) An inspector may require a person who appears to the inspector
to be carrying out, or about to carry out, any action that might
20 result in a contravention of this Act to furnish, within the period
specified in the notice, either orally or in writing the name and
address of any person who, on the date specified in the notice,
was --
(a) an owner of the land concerned;
25 (b) an occupier of the land concerned; or
(c) in control of any equipment, works or activity appearing
to relate to the land concerned.
(4) An inspector may require a person who the inspector reasonably
believes has committed, is committing or is about to commit an
30 offence under this Act to immediately leave the land concerned.
page 66
Heritage Bill 1999
Enforcement and legal proceedings Part 13
Inspectors Division 1
s. 104
(5) In exercising a power under this Act an inspector may be
accompanied by another person whose assistance the inspector
considers necessary, and the person may do the things that are
necessary to assist the inspector in the performance of the
5 inspector's functions, and anything so done is to be taken to
have been done by the inspector.
104. Warrants for entry onto premises
(1) A justice may issue a warrant authorizing an inspector or any
other person named in the warrant to enter any land (including a
10 building) for the purposes of this Act if the justice is satisfied
that --
(a) the inspector requested entry to the land for the purposes
of this Act but was refused; or
(b) the land is unoccupied.
15 (2) A warrant has effect until --
(a) the purpose for which it was issued has been satisfied; or
(b) the day and time specified in the warrant,
whichever is the earlier.
105. Police assistance
20 Members of the police force must assist an inspector at the
request of the inspector in the performance of the inspector's
functions if it is practicable to do so.
106. Offences in relation to inspectors
A person --
25 (a) must comply with a requirement lawfully made by an
inspector;
page 67
Heritage Bill 1999
Part 13 Enforcement and legal proceedings
Division 2 Legal proceedings
s. 107
(b) must not knowingly furnish to an inspector information
that is false or misleading;
(c) must not, without reasonable excuse, hinder or obstruct
an inspector in the exercise of a power under this Part;
5 or
(d) must not pretend to be an inspector.
Penalty: $10 000.
Division 2 -- Legal proceedings
107. Time limit for proceedings
10 Despite section 51 of the Justices Act 1902, proceedings for an
offence under this Act must be commenced within 3 years after
the offence was committed.
108. Who may institute proceedings
(1) Proceedings in respect of a contravention of this Act may be
15 instituted --
(a) by any person whose rights have been infringed by, or
as a consequence of, the contravention; or
(b) by the Council and if instituted in the name of the Council,
may be conducted by an inspector or a member of the staff
20 of the Council authorized by the Council to do so.
(2) In any proceedings no proof is required of the authorization of a
person under subsection (1)(b) and an averment in a complaint
that the person is so authorized is to be taken to be proved in the
absence of evidence to the contrary.
25 109. Committal for trial on indictment
If a court of summary jurisdiction hearing a complaint for an
offence against this Act is, for any reason, of the opinion that
the charge should be dealt with by way of prosecution on
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Heritage Bill 1999
Enforcement and legal proceedings Part 13
Legal proceedings Division 2
s. 110
indictment, the court may abstain from dealing with the charge
and commit the defendant to trial on indictment.
110. Evidentiary provision
In any proceedings a certificate purporting to be signed by the
5 chief executive officer certifying as to a matter relating to --
(a) the terms of a heritage agreement or a variation or
termination of a heritage agreement to which the
Council is a party, or that has been approved by the
Council;
10 (b) the approval of a heritage agreement to which the
Council is not a party or a variation or termination of
such a heritage agreement;
(c) the service of a document on behalf of the Council or
the Minister;
15 (d) the contents of the Register at a specified time; or
(e) the contents of a protection or conservation order,
constitutes proof, in the absence of evidence to the contrary, of
the matter so certified.
111. Defences in certain proceedings
20 It is a defence in proceedings for a contravention of --
(a) section 59(1) (carrying out works to a registered place or
place within a State heritage area without, or not in
accordance with, approval);
(b) section 89 (contravening a protection order); or
25 (c) section 118 (damaging or despoiling a registered place),
to show that the action taken was urgently necessary --
(d) to avoid an imminent danger to life or health; or
(e) for the prevention of impending damage to a place or its
neighbouring property.
page 69
Heritage Bill 1999
Part 13 Enforcement and legal proceedings
Division 2 Legal proceedings
s. 112
112. Offences by bodies corporate
(1) If a body corporate commits an offence under this Act any
person who is concerned or takes part in the management of the
body corporate who was in any way, by act or omission, directly
5 or indirectly knowingly concerned in, or party to, the
commission of the offence also commits the offence.
(2) A person referred to in subsection (1) may be proceeded against
and convicted of an offence under this Act whether or not the
body corporate has been proceeded against and convicted of the
10 offence.
113. Court orders in respect of convictions for certain offences
(1) In this section --
"specified offence" means an offence under --
(a) section 59(1) (carrying out works to a registered
15 place or a place within a State heritage area without,
or not in accordance with, approval);
(b) section 89 (contravening a protection order);
(c) section 92 (failure to comply with a conservation
order); or
20 (d) section 118 (damaging or despoiling a registered
place).
(2) If a person is convicted of a specified offence the court before
which the person is convicted may, instead of or in addition to
any other sentence imposed, order that --
25 (a) the person take the action specified in the order to make
good damage or disrepair that is the subject of the
offence, including the reconstruction of a demolished
building;
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Heritage Bill 1999
Enforcement and legal proceedings Part 13
Legal proceedings Division 2
s. 114
(b) the person pay to a person specified in the order an
amount determined by the court as appropriate to enable
the action to be taken, including an amount payable by
way of a bond; or
5 (c) no works be undertaken in respect of the place that is the
subject of the offence for a period specified in the order
not exceeding 10 years, except for action required to
make good damage or disrepair.
(3) Part 16 Division 1 of the Sentencing Act 1995 applies to an
10 order made under subsection (2) as if the order were a
reparation order within the meaning of that Part.
(4) Nothing in this section prevents a court from making a
reparation order within the meaning of Part 16 of the Sentencing
Act 1995.
15 114. Enforcement of court orders under section 113(2)
(1) Section 119 of the Sentencing Act 1995 applies if an amount
payable under an order made under section 113(2)(b) is not paid
within 28 days after the date of the order as if the order were a
compensation order made under Part 16 of that Act.
20 (2) Section 122 of the Sentencing Act 1995 applies to a person who
does not comply with an order made under section 113(2)(a) or
(c) as if the order were a restitution order made under Part 16 of
that Act.
page 71
Heritage Bill 1999
Part 14 Acquiring land
s. 115
Part 14 -- Acquiring land
115. Interests in land may be taken under Land Administration
Act 1997 for conservation purposes
(1) The Minister or the Council may undertake the conservation of
5 a registered place or a place within a State heritage area and the
conservation is to be treated as a public work for the purposes of
Parts 9 and 10 of the Land Administration Act 1997.
(2) Subsection (1) does not apply to a place or area that has been
entered in the Register on an interim basis and the entry has not
10 been made permanent.
(3) Nothing in subsection (1) prevents an interest in land being
taken under Part 9 of the Land Administration Act 1997 for
purposes other than the conservation of a place or area entered
in the Register on a permanent basis.
15 116. Compensation for land taken
(1) Despite section 241 of the Land Administration Act 1997, in
determining the compensation (if any) to be offered, paid or
awarded for an interest in land taken under Part 9 of that Act
(whether or not by agreement) for the conservation of a place or
20 a place within an area entered in the Register on a permanent
basis, regard may also be had to --
(a) whether a building at the place has been deliberately
allowed to fall into disrepair for the purpose of
justifying its demolition and redevelopment or the
25 redevelopment of the site together with any adjoining
land; or
(b) whether the land was acquired with the intention of
demolishing a building at the place.
page 72
Heritage Bill 1999
Acquiring land Part 14
s. 117
(2) In a case referred to in subsection (1)(a) or (b) the value of the
land is to be assessed --
(a) having regard to the actual state of the place and of any
building at the place;
5 (b) on the assumption that approval would not be given
under any written law for the demolition of a building
referred to in subsection (1)(a) or (b) or for any
development other than restoration and conservation;
and
10 (c) without regard to any amount which a particular
purchaser might be prepared to offer.
117. Request for land to be taken
(1) An owner of any interest in land who claims that --
(a) the land has become incapable of reasonably beneficial
15 use; and
(b) the carrying out of any reasonable development could
not render the land capable of reasonably beneficial use,
because of the operation of this Act may, by notice in writing,
request the Minister or Council to take that interest, or cause it
20 to be taken, as if section 115 applied to the taking of the interest
in the land.
(2) If an owner of an interest in land has made a claim for
compensation under Part 12 no compensation is payable in
respect of a claim made under subsection (1) in respect of the
25 same interest.
page 73
Heritage Bill 1999
Part 15 Miscellaneous
s. 118
Part 15 -- Miscellaneous
118. Damaging or despoiling registered places
(1) A person must not damage or despoil a registered place or any
part of a registered place.
5 Penalty: $5 000.
(2) Subsection (1) does not apply to an action that has the approval
of the Council under Part 8, a heritage agreement or a
conservation order.
119. Notice of intention to sell land
10 (1) If a certificate of title, or memorial or record, in relation to land
has been endorsed following a notification under --
(a) section 34(c) (entry in the Register); or
(b) section 75(1) (heritage agreements),
the Registrar of Titles or the Registrar of Deeds, as the case
15 requires, is not to register or note a transfer of the ownership of
that land unless the Registrar is satisfied that the Council has
been notified of the intention to transfer the land.
(2) Nothing in subsection (1) affects the transfer of land even
though that subsection has not been complied with.
20 120. Service of documents
If it is impracticable to effect service of a document in the
manner referred to in section 76 of the Interpretation Act 1984,
a Supreme or District Court Judge in chambers may make an
order for substituted service or dispensing with the requirement
25 for service.
page 74
Heritage Bill 1999
Miscellaneous Part 15
s. 121
121. Protection from liability for wrongdoing
(1) An action in tort does not lie against a person other than the
Council for anything that the person has, in good faith, done in
the performance or purported performance of a function under
5 this Act.
(2) The protection given by subsection (1) applies even though the
thing done as described in that subsection may have been
capable of being done whether or not this Act had been enacted.
(3) Despite subsection (1), neither the Council nor the Crown is
10 relieved of any liability that it might have for another person
having done anything as described in that subsection.
(4) In this section a reference to the doing of anything includes a
reference to the omission to do anything.
122. Limit on actions
15 No action lies, and no claim for compensation other than such
as is provided for in this Act, arises by reason only of --
(a) the entry of a place or area in the Register; or
(b) the operation of this Act, otherwise.
123. Confidentiality
20 (1) This section applies to a person who is or has been --
(a) a member of the Council or a committee of the Council;
(b) the chief executive officer; or
(c) a member of staff of the Council or an officer or
employee referred to in section 19(1)(a), (b) or (c).
25 (2) A person to whom this section applies must not, directly or
indirectly, record, disclose or make use of any information
obtained in the course of duty except --
(a) for the purpose of performing a function under this Act;
page 75
Heritage Bill 1999
Part 15 Miscellaneous
s. 124
(b) as required or allowed by this Act or under another
written law;
(c) with the written consent of the person to whom the
information relates; or
5 (d) in prescribed circumstances.
Penalty: $10 000 and imprisonment for 12 months.
124. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
10 necessary or convenient to be prescribed, for carrying out or
giving effect to the purposes of this Act.
(2) Without limiting subsection (1), regulations may provide for the
following --
(a) fees for applications under this Act;
15 (b) fees or charges in relation to registered places or places
in State heritage areas owned or maintained by the
Council, or maintained on behalf of the Council;
(c) fees or charges in relation to activities, matters or things
promoted, arranged or controlled by, or on behalf of, the
20 Council.
125. Repeal
(1) The Heritage of Western Australia Act 1990 is repealed.
(2) The Heritage of Western Australia Regulations 1991 are
repealed.
25 126. Transitional and savings
Schedule 2 has effect.
page 76
Heritage Bill 1999
Miscellaneous Part 15
s. 127
127. Review of Act
(1) The Minister is to carry out a review of the operation and
effectiveness of this Act as soon as is practicable after the
expiry of 5 years from its commencement.
5 (2) In the course of that review the Minister is to consider and have
regard to --
(a) the effectiveness of the operations of the Council;
(b) the need for the continuation of the functions of the
Council; and
10 (c) any other matters that appear to the Minister to be
relevant to the operation and effectiveness of this Act.
(3) The Minister is to prepare a report based on the review and, as
soon as is practicable after the report is prepared, is to cause the
report to be laid before each House of Parliament.
page 77
Heritage Bill 1999
Schedule 1 Constitution and proceedings of the Heritage Council
Schedule 1 -- Constitution and proceedings of the
Heritage Council
[s. 9]
Division 1 -- Constitution and proceedings of the Heritage Council
5 1. Chairperson unable to act
(1) The Minister is to appoint a Council member (in and by the
instrument of appointment or in and by another instrument executed
by the Minister) as deputy chairperson of the Council.
(2) The Minister may remove a person from the office of deputy
10 chairperson of the Council at any time.
(3) A person holding office as deputy chairperson of the Council vacates
that office if that person --
(a) is removed from that office by the Minister;
(b) resigns that office by instrument in writing addressed to the
15 Minister; or
(c) ceases to be a Council member.
(4) When the chairperson is unable to act because of illness, absence or
other cause, or during any vacancy in that office, the deputy
chairperson is to perform the functions of the chairperson.
20 2. Term of office
(1) Subject to clause 3, a Council member holds office for such period
(being at least one year but not exceeding 5 years) as is specified in the
member's instrument of appointment, and is eligible (if otherwise
qualified) for reappointment.
25 (2) An appointed member whose term of office expires by the passage of
time continues in office until that member is reappointed or the
successor of that member comes into office.
page 78
Heritage Bill 1999
Constitution and proceedings of the Heritage Council Schedule 1
3. Resignation, removal etc.
(1) The office of a Council member becomes vacant if the member --
(a) resigns the office by written notice addressed to the Minister;
(b) is an insolvent under administration, as that term is defined in
5 the Corporations Law; or
(c) is removed from office by the Minister under subclause (2).
(2) The Minister may remove a Council member from office if the Minister
is satisfied that the member --
(a) has neglected the member's duty;
10 (b) has misbehaved;
(c) is incompetent; or
(d) is suffering from mental or physical incapacity impairing the
performance of the member's functions under this Act.
4. Leave of absence
15 The Council may grant leave of absence to a Council member on such
terms and conditions as it thinks fit.
5. Council member unable to act
(1) The Minister may appoint a person to act temporarily in the place of a
Council member (other than the chairperson) when the Council
20 member is unable to act because of illness, absence or other cause.
(2) While acting according to the tenor of the appointment, the person
appointed to act in the place of a Council member is to be treated as a
Council member.
(3) The appointment of a person to act in the place of a Council member
25 may be terminated at any time by the Minister.
6. Saving
No act or omission of a person acting in place of another under
clause 1or 5 is to be questioned on the ground that the occasion for the
person's appointment or acting had not arisen or had ceased.
page 79
Heritage Bill 1999
Schedule 1 Constitution and proceedings of the Heritage Council
7. Member not a public service officer by virtue of appointment as
member
Part 3 of the Public Sector Management Act 1994 does not apply in
relation to the appointment of a Council member.
5 8. Co-opted Council members
(1) The Council may appoint any person having specialized experience,
skills or qualifications as would enable the person to make a
contribution to the work of the Council to be a co-opted member for
such period, or in relation to such matters, as specified in the
10 instrument of appointment.
(2) A co-opted member is not entitled to vote but while acting according
to the tenor of the appointment, the member--
(a) may take part in the deliberations of the Council; and
(b) is to be treated as a Council member.
15 (3) Nothing in this clause prevents the Council from arranging for any
other person to participate in Council meetings in a consultative
capacity.
9. Committees of the Council
(1) The Council may appoint committees to assist it in the performance of
20 its functions, and may discharge or alter any committee so appointed.
(2) Persons who are not Council members may be members of a
committee but the chairperson of a committee must be a Council
member.
(3) The procedure for calling committee meetings and for the conduct of
25 business at those meetings is to be as determined --
(a) subject to this Act, by the Council; or
(b) subject to this Act, by the committee in accordance with any
determination of the Council, or in accordance with the terms
of any delegation.
page 80
Heritage Bill 1999
Constitution and proceedings of the Heritage Council Schedule 1
10. General procedure
The procedure for the calling of Council meetings and for the conduct
of business at those meetings is, subject to this Act, to be determined by
the Council.
5 11. Presiding member
(1) The chairperson of the Council is to preside at all Council meetings at
which the chairperson is present.
(2) If both the chairperson and the deputy chairperson of the Council are
absent from a Council meeting the members present are to appoint one
10 of their number to preside.
12. Quorum
The quorum for a Council meeting is 6 members.
13. Voting
(1) At any Council meeting each member present has a deliberative vote.
15 (2) The person presiding at any Council meeting has a deliberative vote
and, in the event of an equality of votes, has a second or casting vote.
(3) A decision supported by a majority of the votes cast at a Council
meeting at which a quorum is present is the decision of the Council.
14. Minutes
20 The Council is to --
(a) cause accurate minutes to be kept of the proceedings at each
of its meetings; and
(b) give a copy of those minutes to the Minister as soon as
possible after each meeting.
25 15. Decisions may be made without meeting
A decision in writing signed or assented to by at least 6 Council
members by letter, facsimile transmission or other written means has
effect as if it had been passed at a Council meeting.
page 81
Heritage Bill 1999
Schedule 1 Constitution and proceedings of the Heritage Council
16. Telephone or video meetings
Despite anything in this Schedule, a communication between Council
members constituting a quorum by telephone, audio-visual or other
electronic means is a valid Council meeting, but only if each
5 participating member is able to communicate with every other
participating member instantaneously at all times while participating in
the proceedings.
Division 2 -- Disclosure of interests, etc.
17. Disclosure of interests
10 (1) A Council member who has a material personal interest in a matter
being considered or about to be considered by the Council must, as
soon as possible after the relevant facts have come to the member's
knowledge, disclose the nature of the interest at a Council meeting.
Penalty: $10 000.
15 (2) A disclosure under subclause (1) is to be recorded in the minutes of
the Council meeting.
18. Voting by interested members
A Council member who has a material personal interest in a matter that
is being considered by the Council --
20 (a) must not vote whether at a meeting or otherwise --
(i) on the matter; or
(ii) on a proposed resolution under clause 19 in respect of
the matter, whether relating to that member or a
different member;
25 and
(b) must not be present while --
(i) the matter; or
(ii) a proposed resolution of the kind referred to in
paragraph (a)(ii),
30 is being considered at a meeting.
page 82
Heritage Bill 1999
Constitution and proceedings of the Heritage Council Schedule 1
19. Clause 18 may be declared inapplicable
Clause 18 does not apply if the Council has at any time passed a
resolution that --
(a) specifies the member, the interest and the matter; and
5 (b) states that the members voting for the resolution are satisfied
that the interest should not disqualify the member from
considering or voting on the matter.
20. Quorum where clause 18 applies
(1) Despite clause 12, if a member of the Council is disqualified under
10 clause 18 in relation to a matter, a quorum is present during the
consideration of the matter if at least 3 members are present who are
entitled to vote on any motion that may be moved at the meeting in
relation to the matter.
(2) The Minister may deal with a matter in so far as the Council cannot
15 deal with it because of subclause (1).
21. Minister may declare clauses 18 and 20 inapplicable
(1) The Minister may by writing declare that clause 18 or 20 or both of
them do not apply in relation to a specified matter either generally or in
voting on particular resolutions.
20 (2) The Minister must within 14 days after a declaration under
subclause (1) is made cause a copy of the declaration to be laid before
each House of Parliament.
page 83
Heritage Bill 1999
Schedule 2 Transitional and savings
Schedule 2 -- Transitional and savings
[s. 126]
1. Interpretation
(1) In this Schedule --
5 "commencement" means the commencement of this Act;
"former Council" means the Heritage Council of Western Australia
established under section 5 of the repealed Act;
"new Council" means the Heritage Council of Western Australia
established under section 7 of this Act;
10 "repealed Act" means the Heritage of Western Australia Act 1990
repealed by section 125(1).
(2) The provisions of this Schedule do not prejudice or affect the
application of the Interpretation Act 1984 to and in relation to the
repeal effected by section 125(1).
15 2. Former Council members
A person who, immediately before the commencement, was a
member of the former Council, ceases to hold office on the
commencement.
3. Staff
20 (1) A person who, immediately before the commencement, was a public
service officer as defined in the Public Sector Management Act 1994
working for the former Council is to be taken on and after the
commencement to be an employee of the new Council.
(2) Except as otherwise agreed by an employee, the remuneration,
25 existing or accrued rights, rights under a superannuation scheme or
continuity of service of the employee are not affected, prejudiced or
interrupted by the operation of subclause (1) or the abolition of the
former Council.
page 84
Heritage Bill 1999
Transitional and savings Schedule 2
(3) A person referred to in subclause (1) is to be regarded as an employee
of an organization for the purposes of Part 6 of the Public Sector
Management Act 1994.
(4) Subclause (3) ceases to apply in relation to the new Council at the
5 expiration of 12 months after the commencement.
(5) A person referred to in subclause (1) is to be regarded as having been
engaged under section 18 of this Act.
4. Assets and liabilities of former Council to vest in new Council
(1) On the commencement the property of the former Council is, by force
10 of this clause, transferred to the new Council without the need for any
conveyance or assignment.
(2) On and after the commencement the liabilities of the former Council
are, by force of this clause, the liabilities of the new Council.
5. Stamp duty
15 (1) Stamp duty under the Stamp Act 1921 is not chargeable on the transfer
of property effected by the operation of clause 4.
(2) The Minister may certify in writing that specified property was
transferred by operation of clause 4, and such a certificate is
conclusive evidence of that fact, unless the contrary is shown.
20 6. Proceedings and remedies
On and after the commencement --
(a) the new Council is a party to any proceedings that were
begun before the commencement by or against the former
Council; and
25 (b) any proceedings or remedy that, but for the repeal effected by
section 125(1), might have been commenced by, or available
against or to, the former Council may be commenced by, and
are available against or to, the new Council.
page 85
Heritage Bill 1999
Schedule 2 Transitional and savings
7. Heritage Fund
(1) The Heritage Fund established under section 14 of the repealed Act is,
on and after the commencement, to be taken to be the Heritage Fund
as defined by this Act.
5 (2) The Heritage Fund as defined by this Act is charged with any
liabilities of the Heritage Fund established under section 14 of the
repealed Act which arose before the commencement.
8. Records
On the commencement the new Council becomes the owner of all
10 registers, papers, documents, minutes, books of account and other
records (however compiled, recorded or stored) relating to the former
Council and the performance of its functions and of any tape, disc or
other device or medium relating to those records.
9. Financial reporting of former Council
15 Despite section 54 of the Financial Administration and Audit
Act 1985, the accountable authority of the new Council is to be the
accountable authority of the former Council for the purposes of the
report required by section 66 of that Act with respect to the period
from 1 July in a financial year to a day that --
20 (a) occurs in the same financial year; and
(b) immediately precedes the commencement,
and Division 14 of Part II of that Act applies to that person as the
accountable authority of the former Council as if that period were a
full financial year.
25 10. The Register
The Register of Heritage Places compiled under section 46 of the
repealed Act, as it was immediately before the commencement, is to
be taken on and after the commencement to be the Western Australian
Heritage Register referred to in section 28 of this Act.
page 86
Heritage Bill 1999
Transitional and savings Schedule 2
11. Local government heritage inventories
An inventory compiled by a local government under section 45 of the
repealed Act, as it was immediately before the commencement, is to
be taken on and after the commencement to be the local government's
5 heritage inventory required under section 51 of this Act.
12. Procedures in relation to entry in the Register or changing or
removing an entry
If procedures in relation to an entry in the Register as defined by the
repealed Act, or the amendment or removal of an entry in that
10 Register have been started but not finished before the commencement
a procedural step that has been completed may be taken to be the
corresponding procedural step for the purposes of Part 6 of this Act,
but otherwise the procedures are to be governed by this Act.
13. Heritage agreements
15 A Heritage Agreement that was entered into under section 29 of the
repealed Act that had effect immediately before the commencement
has effect, subject to clause 14, on and after the commencement as if
it had been entered into under this Act.
14. References to the former Council in agreements and instruments
20 (1) On and after the commencement agreements and instruments that had
effect immediately before the commencement --
(a) to which the former Council was a party; or
(b) which contain a reference to the former Council,
have effect, by force of this section, as if --
25 (c) the new Council were substituted for the former Council as a
party to the agreement or instrument; and
(d) any reference to the former Council were, unless the context
otherwise requires, a reference to the new Council.
(2) Subclause (1) is subject to clause 15.
page 87
Heritage Bill 1999
Schedule 2 Transitional and savings
15. Conservation and restoration orders
(1) A Conservation Order as defined in the repealed Act, other than a
Stop Work Order as defined in that Act, that had effect immediately
before the commencement ceases to have effect on the
5 commencement.
(2) A Stop Work Order as defined in the repealed Act or an order made
under section 62(1) of that Act that had effect immediately before the
commencement continues to have effect on and after the
commencement --
10 (a) subject to paragraph (b), as if the repeal had not been effected
by section 125(1); and
(b) as if a reference in the order to the former Council were a
reference to the new Council.
16. Overriding certain decisions of local governments
15 An order made under section 34 of the repealed Act that had effect
immediately before the commencement is, on and after the
commencement, to be taken to be an approval or consent given by the
Council under section 84 of this Act to carry out the work that is the
subject of the order.
20 17. Payments remitted under repealed Act
An order made under section 36(2) of the repealed Act that had effect
immediately before the commencement is, on and after the
commencement, to be taken to have been made under section 81(2) of
this Act.
25 18. Ministerial orders as to written laws affecting the conservation of
registered places
An order made under section 38 of the repealed Act that had effect
immediately before the commencement is, on and after the
commencement, to be taken to be an order made under section 83 of
30 this Act.
page 88
Heritage Bill 1999
Transitional and savings Schedule 2
19. Certain places not entered in Register not to be proposed for
registration for 5 years
(1) If section 55 of the repealed Act applied to a place immediately before
the commencement, section 46 of this Act applies in respect of the
5 place even though the event referred to in section 55(a), (b) or (c) of
the repealed Act, as is applicable to the case, occurred before the
commencement.
(2) The 5 year period referred to in section 46 of this Act is to be
calculated in respect of a place referred to in subclause (1) from the
10 time of the event referred to in that subclause.
page 89
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