Have your say on increasing flexibility and efficiency in NSW heritage protection laws

On 13 May 2021, the NSW Legislative Council’s Standing Committee on Social Issues commenced a review of the Heritage Act 1977 (NSW) (Heritage Act). The proposed changes are intended to walk the fine line of making it easier and less expensive to own heritage property while also improving heritage outcomes. A tiered system for heritage protection and additional enforcement options are some of the items for consideration. The Committee is accepting submissions until 27 June 2021.

Snapshot

• The NSW Government acknowledges a perception that owning heritage-listed property in NSW is expensive and undesirable, and the Act is no longer fit for purpose.
• In a discussion paper to be considered by the Committee, the Government proposes to introduce a tiered system of heritage protection, a set of additional investigative and enforcement options for the Heritage Council of NSW and a streamlined process to amend or remove listings on the State Heritage Register (Register).
• The discussion paper also explores options to incentivise private ownership of heritage property and to involve the community in identifying heritage objects and sites.
• The discussion paper invites comment on the protection of Aboriginal cultural heritage under the Heritage Act, but standalone Aboriginal cultural heritage legislation remains outside the Committee’s review while the Government consults with peak Aboriginal bodies on this topic.

Categorised approach to heritage listing

Currently, the Heritage Act generally imposes the same restrictions on all items and places subject to an interim heritage order or a listing on the Register. The Government has formed the view that this “one-size-fits-all” model is unnecessarily restrictive and unresponsive to the context of a given site.

To remedy this, the Government has proposed four categories of heritage listing. This is intended to facilitate the protection of heritage in a manner that reflects the significance of the heritage in question. The categories are as follows:

1. heritage of exceptional and iconic value (eg Brewarrina Fish Traps and Sydney Opera House), which would be subject to heightened regulatory controls;
2. State significant heritage landscapes (eg Bondi Beach and Myall Creek Massacre Site), whose regulation would be tailored so that landscape activities are not affected by the listing;
3. State significant heritage (standard residential properties), which would be subject to a generally consistent framework of regulation that could be modified to suit individual circumstances where appropriate; and
4. local heritage (items identified by local governments), which would be subject to the existing regulations for local heritage protection.

The discussion paper raises some high-level criteria for categorising a heritage item or place, but it remains to be seen what criteria will be adopted, how the criteria will be applied, and who will determine categorisation.

Financial incentives

In light of the perception that owning heritage-listed property is expensive and unattractive, the Government is exploring how to incentivise private entities to own, optimise and adapt heritage sites. The discussion paper notes how other jurisdictions have financially supported heritage protection through grants and programs to purchase, restore and sell threatened heritage properties. It also suggests providing further tax breaks for private owners of heritage property and donors to heritage protection programs.

Heritage compliance and enforcement

Currently, to enforce the Heritage Act, the Heritage Council’s powers are either very strong (eg prosecution) or weak (eg issuing warning letters). The Government proposes to give the Heritage Council intermediate enforcement and investigatory powers, such as issuing penalty notices and gathering evidence about a suspected offence. This broader range of powers seeks to achieve better compliance and avoid litigation unless it is necessary, bringing the Heritage Act into line with other NSW environmental legislation.

Streamlining heritage listing process

Under the Heritage Act, removing or amending a heritage listing requires the same steps to be taken as listing an item. The Government believes that this process is inappropriately arduous when a heritage item should clearly be removed (eg when the entire item has been destroyed). To remedy this, the Government has proposed a new process for amending or delisting a heritage listing that is simpler than listing an item.

The Government has also noted the tendency for heritage sites to only be identified when a development is proposed and the lack of clarity and consistency in the issuance of permits to allow interference with heritage. In response, the Government proposes to introduce a process by which the NSW community nominates items and sites that are suitable for inclusion on the Register, and to develop standard exemptions and applications for permits to allow works on heritage properties.

Aboriginal cultural heritage

Currently, the Heritage Act protects Aboriginal heritage places that are listed on the Register. While the discussion paper invites comment on how Aboriginal cultural heritage should be acknowledged and considered in the Heritage Act, the Government has not included consideration of standalone Aboriginal cultural heritage legislation in the terms of reference for this review.

This is because the Government is separately consulting with peak Aboriginal bodies on cultural heritage legislation “to ensure self-determination and custodianship is at the centre of any legislation that deals with Aboriginal cultural heritage”. The NSW Government’s position follows more than ten years of reviews of NSW Aboriginal heritage laws. More generally, the adequacy of Aboriginal heritage laws remains a contemporary focal point, including in the context of the Commonwealth Parliamentary Inquiry into Juukan Gorge incident and reform processes underway in Western Australia and South Australia.

The status of the NSW consultation is unclear, as is the interaction of any prospective standalone legislation with the proposed reforms of the Heritage Act. In December 2020, the NSW Aboriginal Land Council released a discussion paper to elicit public comments about changes to the Aboriginal Cultural Heritage Bill 2018 (NSW) (which was proposed but never introduced to Parliament). The Land Council’s discussion paper could indicate what sort of matters will be subject of consultation with the Government.

What do heritage property owners and developers need to do next?

Get in touch to discuss how the proposed reforms might impact your heritage property.

The Committee is receiving public submissions until 27 June 2021. A formal report from the Committee and potential law reform will follow.

You can access the Government’s discussion paper, make a submission and track the progress of the review here.

By Peter Briggs, Partner, Rebecca Davie, Senior Associate and Ganur Maynard, Solicitor.