NSW Heritage Act review report published

The NSW Legislative Council’s Standing Committee on Social Issues has published its report on its review of the Heritage Act 1977 (NSW). The report makes 26 recommendations and agrees with the key recommendations we made in our submission. The NSW Government will respond to the report by April 2022.

Snapshot

• The NSW Legislative Council’s Standing Committee on Social Issues (Standing Committee) has published its report on its review of the Heritage Act 1977 (NSW) (Heritage Act).
• The report made 26 recommendations. Many of these recommendations are informed by or consistent with the recommendations that we have made in our submission to the Standing Committee (see our previous blog post here).
• The recommendations will be considered by the NSW Government. The Government’s response is due on 22 April 2022.

Background

We set out the background of the Heritage Act review in our previous blog posts dated 4 June 2021 and 30 July 2021. During the public consultation period in the middle of this year, the Standing Committee received over 300 submissions on its Discussion Paper. In August and early September 2021, the Standing Committee held five public hearings and heard from 43 witnesses.

The Standing Committee has now published its report, available here.

The Standing Committee agrees with our key submissions

In our submission, we pointed out that the Heritage Act does not require wholesale repeal or revisiting but the approach to heritage in NSW could be improved in a number of ways.

The Standing Committee has made 26 recommendations. We are pleased to report that the Standing Committee agrees with our key recommendations. These include:

• The need to benchmark against other jurisdictions (HSF recommendation 1): That the NSW Government undertake a review and/or comparative analysis of approaches to the identification, management and protection of intangible cultural heritage in other jurisdictions in Australia and internationally (Standing Committee recommendation 3).
• Addressing Aboriginal cultural heritage (HSF recommendations 2 and 3): That, as a matter of priority, the Government progress the reform of Aboriginal cultural heritage legislation in tandem with the review of the Heritage Act (Standing Committee recommendation 16).
• Landscape protection (HSF recommendation 4): That the Heritage Act accommodate a more varied, inclusive and nuanced concept of what constitutes the State's heritage, especially beyond conventional understandings of heritage as buildings and structures (Standing Committee recommendation 2).

In making this recommendation, the Standing Committee quoted passages from our submissions that discussed the relative merits of site-based and landscape-scale approaches to heritage identification (at 23–4 [2.31]–[2.33]).

• Categorised listing system (HSF recommendation 13): That the Government further investigate the use of categories as a way to promote greater consistency in the heritage approvals process in order to help heritage owners understand the changes that might be possible to their properties (Standing Committee recommendation 8).

While the Standing Committee sees potential in the intent and rationale underpinning the proposed category system for listings on the State Heritage Register, it remained unconvinced of the specific form and expression in the Government’s discussion paper. This is broadly consistent with our position that whether to implement a categorised listed system needs to be further considered in light of potential risks such as diminishing the protection of listed items.

• Community involvement (HSF recommendations 5 and 6): That the Government introduce a trial community-driven process for nominating potential State Heritage Register nomination for preliminary consideration by the Heritage Council (Standing Committee recommendation 9).

In making this recommendation, the Standing Committee quoted our submission that a community-driven nomination process would better engage parts of the community who might otherwise not have an opportunity to have their say about heritage protection decisions (at 40 [2.94]).

• Amending/ removing heritage listings (HSF recommendations 7–10): That the Heritage Act provide an abridged delisting process for items whose significance has been significantly diminished, and that the Government design and implement a streamlined process for updating existing listings on the State Heritage Register (Standing Committee recommendations 11–12).
• Enforcement Powers (HSF recommendations 11–12): That the Heritage Act be amended to provide for intermediate enforcement powers (Standing Committee recommendation 14). In making this recommendation, the Standing Committee noted our support for this recommendation (at 62 [2.178]).

Next steps

The report will now be considered by the NSW Government. The Government’s response report is due on 22 April 2022.

We will provide further updates on the progress of this review.

By Peter Briggs, Partner, Rebecca Davie, Senior Associate and Zhongwei Wang, Solicitor

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