Western Australian Consolidated Acts Western Australian Consolidated Acts (1) A Heritage
Agreement may, subject to the approval of the Minister as signified by a
certificate under section 32, be entered into on behalf of the Crown
by —
(a) the
Council;
(b) a
public authority; or
(c) a
body corporate,
with an owner or
occupier of land or a building, for the purpose of binding the land or
affecting the use of the land or building in so far as the interest of that
owner or occupier permits, and may be expressed to relate to a specified
period or to be of permanent effect, in accordance with the tenor of the
Agreement.
(2) A Heritage
Agreement may be entered into in respect of any land, or a building on any
land, where the land constitutes the whole, or any part of, or is contiguous
to or otherwise associated with —
(a) a
registered place;
(b) a
place that the Council advises should be entered in the Register, the
Agreement being conditional upon that registration being effected; or
(c) a
place which the Minister directs should be made the subject of an Agreement by
reason of —
(i)
special interest, not necessarily amounting to
significance, relevant to the cultural heritage which that place possesses;
(ii)
the relationship of that place to a registered place; or
(iii)
the nature of, or the potential relationship of the place
to and its effect or potential effect upon, a particular environment meriting
conservation,
but any contiguous or
associated land shall be made subject to the Heritage Agreement only in so
far, and to such depth below the natural surface, as may be reasonably
necessary for the purposes of conservation.
(3) For the purposes
of this Act land may be taken to be associated with a place where development
rights or requirements, or planning considerations, or other interests in or
affecting that land or that place will or may be transferred, taken into
account, foregone, utilised or altered as an incentive to, or for the purposes
of effecting, the conservation of that place in accordance with this Act.
(4) A Heritage
Agreement shall not be entered into, varied or terminated unless or until the
Minister —
(a) is
satisfied that a reasonable opportunity has been afforded to the Council to
make inquiries and consider any submissions as to the terms of the proposed
Agreement;
(b) has
considered any advice given by the Council in relation to the proposed
Agreement; and
(c) in a
case to which subsection (5) applies, has approved the proposed covenant,
variation of covenant, or termination of the covenant.
(5) Where an Agreement
is to include a covenant of the kind referred to in subsection (10), the
Minister may as a condition of the giving of approval require that the
Council —
(a) by
public advertisement —
(i)
gives details of the covenant proposed to be entered
into, varied or terminated and a description of the land or building affected
sufficient to identify it; and
(ii)
invites submissions to be made to the Council within a
period and in a manner specified in the advertisement;
and
(b)
after that period has elapsed, furnishes to the Minister its recommendations,
and a report on any submissions made to the Council.
(6) The chief
executive officer of the department principally assisting in the
administration of the Land Administration Act 1997 , the Registrar of
Titles or the Registrar of Deeds and Transfers (as the case may be) and the
Director General of Mines, on being advised by way of memorial lodged by or
for the Council on behalf of the Crown that a Heritage Agreement has come into
force and on a copy of the Agreement as certified under section 32(1)
being deposited for reference by the Council with the memorial so lodged,
shall —
(a)
enter a memorial on the title to any land affected, or take such other steps
as may be necessary for the purpose of bringing the Agreement to the attention
of persons seeking information as to the title to that land or as to any
mining tenement granted under the Mining Act 1978 in respect of that
land; and
(b)
advise the Council of the names and any known address of each of the persons
appearing (from an inspection of the register books, or a search of memorials
registered, under the relevant Acts) to hold an estate or interest in the land
or a mining tenement in respect of that land,
whereupon the Council
shall take such steps as may be reasonable to ensure that notice has been, or
is then, given to all such persons that the Heritage Agreement has come into
force and as to its effect.
(7) A Heritage
Agreement is deemed to be a contract binding on the Crown and, subject to
section 8(3), enforceable by the Council on behalf of the Crown against
any owner or occupier of any land or building affected by the Agreement who
was, or is the successor in title to, a party to the Agreement.
(8) Where a Heritage
Agreement comes into force in relation to any land, on a memorial relating to
that Agreement being entered on the title or notice pursuant to
subsection (6) otherwise having been given, the rights and obligations of
the Crown and any persons who entered into the Agreement pass to and are
binding on and enforceable against or by their respective successors in title,
and all such persons shall be deemed to have notice of the Agreement.
(9) A reference in
this section to a successor in title to any person in relation to any land
includes a reference to a person who is a mortgagee or the proprietor of an
encumbrance in possession of the land pursuant to a mortgage or encumbrance,
notwithstanding that the mortgage or encumbrance was entered into before a
memorial was entered on the title pursuant to subsection (6) or notice of
the Agreement was otherwise given.
(10) A Heritage
Agreement may include a covenant, intended to run with the land, relating to
the development or use of the land or any part of the land or the conservation
or care of any building, natural feature or other object and any such covenant
shall be enforceable by the Council on behalf of the Crown (notwithstanding
that the covenant may not be of a negative character or requires the
performance of a positive act) in the like manner and to the like extent as if
the Crown were possessed of or entitled to or interested in adjacent land and
as if the covenant had been, and had been expressed to be, entered into for
the benefit of, and did benefit, adjacent land.
(11) Where any
covenant of the kind referred to in subsection (10) is entered into
pursuant to a Heritage Agreement —
(a) in
the case of land under the Transfer of Land Act 1893 , the provisions of
Division 3A of Part IV of that Act apply to and in relation to the
registration, extinguishment, discharge, modification and dealing with that
covenant and any restriction arising therefrom; and
(b) in
the case of land other than land under the Transfer of Land Act 1893
—
(i)
the provisions of sections 129B and 129C of that Act
apply to and in relation to the discharge, extinguishment, modification and
dealing with that covenant and any restriction arising therefrom as if the
land were land under that Act and as if provisions to the like effect with the
necessary modifications to apply to the land in question had been enacted in
this Act; and
(ii)
the Registrar of Deeds and Transfers under the
Registration of Deeds Act 1856 shall, upon the production of the memorial
as to the agreement or judgment in question required under that Act, give due
effect to any agreement duly made of the kind referred to in section 129B
of the Transfer of Land Act 1893 or to any order of a judge of the kind
referred to in section 129C of that Act as applied by
subparagraph (i).
(12) Unless a contrary
intention is expressed in that Agreement sections 47, 48, 50, 51 and 52
of the Property Law Act 1969 apply to and in relation to the provisions
of a Heritage Agreement as they apply to and in relation to a covenant.
(13) Without prejudice
to the generality of this section, a Heritage Agreement may —
(a) by
covenants binding on the owner or occupier of, and any successor in title to,
land or a building thereby affected —
(i)
restrict the use of the land or any building;
(ii)
require persons to refrain from any activity that
adversely affects the cultural heritage characteristics of any place or
building or from any activity of a specified kind that in the opinion of the
Council might tend to have that effect, or impose conditions in relation to
the carrying on of any such activity;
(iii)
provide for the inspection of the land and require that
facilities be provided for that inspection;
(iv)
require works to be carried out, or that the Council be
permitted to carry out works or to cause works to be carried out, for the
conservation of cultural heritage characteristics;
(v)
require that an indemnity be furnished to the Council in
respect of, or that a contribution be made towards, costs incurred by or on
behalf of the Council in carrying out any such works;
(vi)
stipulate the manner in which moneys provided by or at
the behest of the Council shall be applied by the owner or occupier; or
(vii)
require the repayment of any moneys provided by or at the
behest of the Council or which have been remitted pursuant to section 36,
if a specified breach of the Agreement occurs;
(b) make
provision, on behalf of the Crown or otherwise, for financial or other
assistance, for professional or technical advice, or for any other matter
relevant to the conservation of the cultural heritage characteristics to which
the Agreement relates including —
(i)
the exchange, acceptance, administration, or control
pending its transfer to a suitable custodian, of any land, work, building or
other thing (whether or not associated with or connected with any particular
place) of cultural heritage significance;
(ii)
the delivery of any work or other thing into the custody
or control of any local government, museum, gallery, library, or other person,
for any purpose; or
(iii)
the management of any business or other property;
(c) make
provision for the making of charges or the imposition of fees in relation to
places for the time being maintained or activities promoted, arranged or
controlled by or at the behest of the Council, including securing facilities
for public access, on payment or otherwise;
(d)
subject to an Order being made under section 38, require that any
buildings preserved and any alterations or restorations to those buildings
shall comply with the provisions of the law as the law existed at the time of
the original construction of those buildings, or at some other specified time,
rather than such provisions as are for the time being in force;
(e)
prohibit, restrict, or permit the construction or erection of buildings or
structures or the execution of other works above or below ground within the
area of land to which the Agreement relates, or the alteration or extension of
any such buildings, structures or works in such manner as materially to affect
their external appearance or their relationship to the place or a building to
which the Agreement relates;
(f)
require that any works be executed in accordance with a specified standard or
specified requirement, or to the satisfaction of a specified body;
(g) in
conjunction, where necessary, with an Order made under section 38 make
provision in or by reference to the Agreement, for —
(i)
the grant, giving up, alteration, exchange, or transfer
to other land of rights, consents, facilities, easements, planning ratios,
development rights, setback requirements, density scales, vehicle parking,
zoning or other matters as may in the public interest be appropriate to the
implementation of the objects of the Agreement, including arrangements whereby
rights, requirements or obligations may be dealt in or with separately from
the land to which they would otherwise relate;
(ii)
payment of money;
(iii)
the requirements as to the safety, maintenance,
inspection, or licensing of premises to which other written laws would, but
for an Order under section 38, otherwise apply;
(iv)
the registration, control or notification of other
interests and matters in relation to the title to the land or to development
rights or requirements and planning considerations, whether accrued, foregone
or transferred,
and, where the consent
of a planning body or other public authority is required to give effect to any
proposal, for that authority to become a party to the Agreement;
(h)
subject to this Act and to the consent of the Minister, generally make
whatever provision the Council considers to be necessary or expedient for the
purposes of conservation or in order to stimulate interest in places of
cultural heritage significance or to make them accessible to the public.
(14) The terms on
which a Heritage Agreement is entered into may make provision limiting the
application of the Agreement to the depth below the natural surface of the
land, or by reference to some other measure or constraint, specified in that
Agreement.
(15) A Heritage
Agreement —
(a)
comes into force on a day specified, or on the happening of an event
specified, in the Agreement; and
(b) may,
subject to subsection (4), be varied or terminated —
(i)
where approved by the Minister, by a subsequent agreement
entered into between the parties to the Agreement or their successors in
title; or
(ii)
otherwise, in a manner or in circumstances provided for
in the Agreement.
(16) In
subsections (10) and (13) a reference to the Council may, in relation to
any Heritage Agreement to which the Council is not a party, be construed as
including a reference to the party which entered into that Agreement on behalf
of the Crown.
[Section 29 amended by No. 14 of 1996
s. 4; No. 60 of 2006 s. 136.]