Heritage Legislation Amendment Bill 2013: Summary statement

Following the first five years’ operation of the Heritage Act 2004 (the Act) a review has been undertaken into the Act’s efficiency and effectiveness. The review, undertaken by an independent consultant, involved wide ranging consultation that has been integrated into the review’s recommendations and the Government’s subsequent forward approach for heritage.

It is appropriate that the ACT’s heritage be managed through contemporary best practice approaches. To this end, the ACT Government has considered each of the 111 recommendations in the Heritage Act Review Report. In May 2013 a draft Amendment Bill was tabled in the Legislative Assembly and subsequently released for further public consultation.

As a direct consequence of submissions received during the period of public consultation, some further Government Amendments were made to the original Bill.

On 25 September 2014 the Bill, with further amendments, was debated and passed in the Assembly. The amendments came into effect immediately.

The amendments, as passed:

  • remove the introduction of Ministerial call-in powers as proposed in the Bill’s original drafting;
  • retain the full independence and statutory decision-making powers of the ACT Heritage Council in relation to all registration decisions;
  • create consistency with the significance assessment criteria of other jurisdictions;
  • provides better integration of heritage legislation with the Nature Conservation Act 1980 and the Tree Protection Act 2005;
  • streamline processes for early investigative works at sites earmarked for development through the introduction of excavation permits and Statements of Heritage Effect;
  • create a simplified, open and transparent process for registering and protecting the ACT’s heritage places and objects;
  • remove appeal provisions where there is no natural justice argument for their retention, and achieves consistency with other jurisdictions and comparable legislation in the ACT; and
  • ensure public authorities lead by example in managing heritage assets.

This brochure explains the key areas of legislative amendment and reform.

To complement the legislative reforms, a five year Heritage Strategy and accompanying communications strategy will be developed to guide a strategic and proactive approach for the recognition, conservation and promotion of the ACT’s heritage into the future.

Why has the Government decided to remove the Ministerial call-in provisions, as proposed in the original drafting of the Bill?

In developing the Government’s Policy Position in relation to the recommendations of the Review Report, three options were explored for amending the approach by which heritage listing decisions are made, including the relative roles of the Heritage Council (the Council) and the Minister. The options included keeping the status quo; providing a Ministerial call-in provision; or enabling the Minister to have responsibility for all registration decisions.

While decisions of the Council are made in the interests of the community – to protect and conserve their heritage – it was initially thought that there are instances where it may beneficial for the Minister to have a stronger role where he or she believes that a greater benefit for the community, government or business might be achieved through the Minister stepping in at the time of a registration decision.

Following the presentation of the draft Bill to the Assembly in May 2013, a four week period of public consultation ensued. 23 submissions were received, many of which raised significant concern with the proposed introduction of Ministerial call-in provisions.

Former Minister with responsibility for heritage, Mr Simon Corbell MLA, and I, have considered these concerns in detail. Many submissions made strong arguments for retaining the clear independence of the Council as the sole body with responsibility for all decisions affecting the registration of heritage places and objects in the ACT.

I have also spoken with colleagues in the Legislative Assembly, and have reached the conclusion that the Council is best placed to make all registration decisions. They are a body of nine appointed community representatives and experts in heritage related fields, and two ex-officio public office holders within ACT Government.

On further consideration of all the issues raised, I believe that the most appropriate role for the Minister is to ensure that all matters have been appropriately considered prior to the Council making a final decision on whether or not the place or object has heritage significance. To achieve this, existing provisions already contained in the Heritage Act 2004, requiring the Council to report to the Minister after a period of public consultation and ahead of a decision on final registration, and scope for the Minister to direct Council to further consider matters before proceeding with their final decision, remain.

Therefore, the preferred option, adopted through Government Amendments to the Bill, is to retain the original composition and independence of the Council who now remains the key body with responsibility for administering the provisions of heritage legislation in the ACT.

Why have changes been made to the wording of the HERCON criteria?

The Heritage Convention (HERCON) criteria were agreed to by all States and Territories through the Environment Protection and Council in 1998. The criteria are intended to provide a national standard for guiding heritage significance assessment.

The overall coverage of the HERCON criteria is the same as the original criteria of the Heritage Act, but the HERCON criteria are more succinct.

Most jurisdictions have now adopted the HERCON criteria into heritage legislation. Nearly all jurisdictions have made minor amendments to the wording of the criteria to best suit individual circumstances.

Amendments to the heritage legislation introduce the HERCON criteria into the ACT’s heritage legislation as the basis for significance assessment of ACT heritage places and objects.

The ACT has made minor amendments to the wording to best suit our circumstances, including reflecting our unique position whereby local and state significance are, effectively, one and the same, given our geographical and population size.

To include a level of ‘local’ significance within the ACT Heritage Register which is more narrowly defined than ‘the ACT’ would be at odds with other jurisdictions. The Heritage Register only has validity because it establishes that a level of significance exists that is above the ordinary. The Council will revise its existing ‘Heritage Assessment Policy’ to assist in understanding the threshold levels that apply in the ACT.

In applying the HERCON criteria in the ACT context, consideration has been given to previous determinations of the ACT Civil and Administrative Tribunal (ACAT) in interpreting the heritage significance criteria. For example, ACAT has previously determined that ‘the community’ means ‘the ACT community’. This has been clarified in the wording of the HERCON criteria in the ACT’s amended heritage legislation, to ensure openness and transparency.

The HERCON criteria now adopted in the ACT are:

  1. importance to the course or pattern of the ACT’s cultural or natural history;
  2. has uncommon, rare or endangered aspects of the ACT’s cultural or natural history;
  3. potential to yield information that will contribute to an understanding of the ACT’s cultural or natural history;
  4. importance in demonstrating the principal characteristics of a class of cultural or natural places or objects;
  5. importance in exhibiting particular aesthetic characteristics valued by the ACT community or a cultural group in the ACT;
  6. importance in demonstrating a high degree of creative or technical achievement for a particular period;
  7. has a strong or special association with the ACT community, or a cultural group in the ACT for social, cultural or spiritual reasons (for example, a place or object that has a strong or special association for Aboriginal people in the ACT because it is part of their continuing or developing cultural tradition); and
  8. has a special association with the life or work of a person, or people, important to the history of the ACT.

Why don’t the criteria for registration include consideration of economic factors?

The inclusion of economic considerations as part of the assessment process in determining whether or not a place or object has heritage significance is not considered best practice heritage management. The nationally accepted principle of separating the identification and registration of heritage places from decisions about their conservation and maintenance is appropriate in the ACT.

Economic factors are more appropriately considered during the planning and development stages of any proposed works or development.

Several provisions of the legislation enable this, including provision for impact to heritage significance where it is not reasonably practicable to undertake works or development in any other way. Heritage Guidelines include clauses that allow for demolition where a place is beyond reasonable economic repair or where a place poses a health and safety risk.

The heritage legislation enables the Council to accept development proposals which may result in adverse effects for heritage significance where there are no prudent or feasible alternatives, and where all measures that can reasonably be taken to minimise the adverse effects are taken.

Planning legislation enables the Chief Planning Executive and the Minister for Planning to consider a broad range of matters in deciding a development application, including heritage issues and the Council’s assessment of impacts to heritage significance, as well as other social and economic factors.

This approach provides the best balance between respecting the principles of the Burra Charter – a nationally accepted standard for best practice in the conservation of heritage places and objects – retaining the independence of the Council, and ensuring a balanced approach to planning and development in the ACT.

Ministerial call-in provisions for development applications under the Planning and Development Act 2007 remain unaffected by the amendments to heritage legislation.

How will places and objects of natural heritage significance be recognised and protected?

The ACT’s amended Heritage Act reduces duplication between heritage and nature conservation legislation. In particular, the Council is no longer be able to register a place only for natural heritage significance where a declaration may be in force under the Nature Conservation Act 1980.

In the main, recognition and protection for natural heritage places is best addressed under the Nature Conservation Act. Where the Nature Conservation Act does not provide recognition and protection for certain types of natural heritage values – such as geological formations – the Heritage Act will continue to provide recognition and protection for such places.

The aim of heritage legislation is not to be comprehensive at the expense of all else, but to ensure appropriate recognition, protection and conservation for places and objects of heritage significance. Where such protection is provided through other legislation, it is considered inefficient and inappropriate to register the same place under a different piece of legislation. In particular, the consequences of a declaration under nature conservation legislation are higher in that it requires an Action Plan and any development would require an Environmental Impact Statement.

The Government believes that a natural heritage value is not culturally derived. It is based on scientific criteria related to aspects of biodiversity and nature conservation. New definitions for natural heritage significance in the amended legislation clarify this.

The Government recognises that there may be some instances where cultural values exist for natural places – maybe strong social attachments have been formed, or maybe an important aspect of history has occurred at the place. In these instances, the place may be registered for cultural heritage significance.

The Council is considered best placed to continue to assess and determine cultural heritage values, including where these might relate to natural places. However, scientific matters are best assessed and determined by the Flora and Fauna Committee with a significant body of appropriate skills and qualifications in this area.

The Council will continue to seek expertise in the assessment of natural nominations, as required, to ensure that values are appropriately identified.

The composition of Council provides for members with expertise in nature conservation, and must include the Conservator of Flora and Fauna as an ex-officio member.

In relation to natural heritage, new provisions within the Act:

  • ensure that the Council undertakes formal consultation with the Flora and Fauna Committee prior to any decisions about provisional registration or cancellation which affect places with natural heritage values;
  • ensure that the Council must consult with the Flora and Fauna Committee about any management decisions affecting a place or object with natural heritage values; and
  • ensure that the Council cannot register flora or fauna, or a species, community or process for which a declaration may be made under the Nature Conservation Act. (However, this provision is not to prevent the registration of a place or object where flora or fauna, or a species, community or process forms part of the broader heritage significance of a place or object and is interlinked with Aboriginal and/or historic heritage values).

How does the Amendment Bill protect Aboriginal heritage?

Legislative amendments strengthen the recognition and protection of Aboriginal places and objects in the ACT.

The definitions of Aboriginal places and objects are broadened to ensure that it is clear that all Aboriginal places and objects are protected under the Act, regardless of whether or not they are registered.

Amendments to provisions about Heritage Guidelines ensure that Guidelines may be made for Aboriginal places and objects, as well as registered heritage places and objects.

Consultation provisions have been expanded, to ensure that Representative Aboriginal Organisations (RAOs) remain closely involved in all aspects of decision making about their heritage places and objects.

The Environment and Planning Directorate (EPD) has already initiated the preparation of policy documents for Council endorsement which will better clarify the roles and responsibilities of RAOs and archaeological consultants, and will outline standardised methodologies for archaeological works to ensure consistency in approach. The Aboriginal community will continue to be involved in the development of these policy documents.

Will the public still be consulted about heritage registrations?

Yes. Following any decisions about registration, the Council must consult with interested persons including the owner or lessee, and it must publish a notice on the Government’s legislative webpage and in The Canberra Times. Following a decision to provisionally register a place or object, anyone may make comment to the Council within 4 weeks.

The Council continues to be required to consider the results of any submissions received during the public consultation period, and continues to be required to provide a report to the Minister about the results of public consultation, with continued opportunity for the Minister to be able to direct the Council to further consider any relevant matters in detail before reaching a final decision about registration..

Under the amended legislation, the Council is much better positioned to inform interested persons of registration decisions than they previously were. Previously, privacy provisions prevent the Council from obtaining contact details for property owners, which may mean that owners were not properly notified of decisions affecting them, despite the best attempts of the Council to do so. New provisions now ensure that the Council can obtain contact details from the Commissioner of Revenue to notify owners of important decisions which affect them.

The range of interested persons to whom Council must notify registration decisions has been broadened to also include landscape architects, designers of objects, artists, anyone who requested an urgent decision on provisional registration, anyone who requested a registration amendment, and anyone who requested a registration cancellation, as well as anyone who nominated the place or object.

Why aren’t community and interest groups such as the National Trust an interested person for the purposes of notification and appeal rights?

The Heritage Act 2004 previously provided definitions for interested persons for the purposes of notification of decisions, and for review rights. The amended legislation clarifies these definitions, and extends the list of persons who must be notified about a decision of the Council to include landscape architects, the maker or designer of objects and a range of people who have been involved with initiating the request for the registration matter.

The Council intends to continue its current practice of notifying groups such as the National Trust as a matter of courtesy about registration decisions. It will also continue to publicly notify all decisions on the Legislative Webpage and The Canberra Times.

Any person may become an interested person for the purpose of review rights for a reviewable decision by providing a submission during the period of public consultation. This provision is contained in the original heritage legislation and remains with the amended legislation.

The ACT Government considers that only those parties with a real and vested interest in a heritage place should be considered an ‘interested person’ in terms of appeal provisions.

What implications does the Bill have for planning and development approvals for archaeological heritage?

New provisions enabling the Council to issue excavation permits, and approve Statements of Heritage Effect help to streamline and improve early investigative works at sites earmarked for development. In particular, this achieves greater clarity for Greenfield sites, enabling archaeological and other investigations early in the development process.

The amended approval mechanisms provide a staged approach, in accordance with best practice heritage management, and with community expectations.

Under the amended legislation, there are now four key approvals which may apply to enable ground disturbance works to occur at sites which may have archaeological significance including Aboriginal heritage places:

  • an Excavation Permit issued by the Council;
  • a Statement of Heritage Effect approved by the Council;
  • Development Approval under the Planning and Development Act 2007; and
  • a Conservation Management Plan approved by the Council.

Application forms for an excavation permit, approval of a Statement of Heritage Effect (SHE) and approval of a Conservation Management Plan (CMP) are available on the ACT Heritage website. Development approval will continue to be obtained through the ACT planning and land authority.

The Council must consider an application for approval of a SHE or CMP, and for issuing an excavation permit as soon as practicable after receiving the application.

What implications does the Bill have for planning and development approvals for built heritage?

The planning and development approvals process for built heritage places continues to operate in much the same way as previously. The ACT planning and land authority remains the single approval authority, seeking the advice of the Council on places and objects registered under the heritage legislation.

New provisions ensure that the Council may advise on a development application affecting a nominated place only if there is a reasonable likelihood that the place has heritage significance and will eventually be registered. This reduces the likelihood of the Council providing advice on nominated places and objects that do not eventuate to provisional registration and reduces requirements for these property owners.

New provisions ensure more rigorous and thorough processes for making Heritage Guidelines, including a requirement that Council must consider any submissions provided during the public consultation period and report to the Minister. The Minister may request further consideration of any relevant matters. Heritage Guidelines will continue to be tabled in the Legislative Assembly as Disallowable Instruments. Guidelines are beneficial in providing clarity and certainty to heritage property owners.

Additional new provisions also ensure that the Council and/or Representative Aboriginal Organisations become involved in providing advice to the Conservator on applications for tree damaging activities, or for tree management plans under the Tree Protection Act 2005 where a heritage or Aboriginal tree is affected. This requirement is waived where there is a threat to public safety.

Under the amended legislation, Heritage Directions may be issued by the Council rather than the Minister. The pervious process, whereby Council makes recommendation to the Minister to issue a Heritage Direction, was lengthy, thereby defeating the purpose of a Direction which is to provide for immediate protection for a place or object under serious and imminent threat. The expediency of issuing Heritage Directions is critical. The vesting of this authority with Council will help to achieve this.

What are the key administrative and technical amendments of the Bill?

It is critical that previous administrative difficulties be amended to eliminate deficiencies with the Act and ensure appropriate protection of heritage places and objects within the ACT. As such, the following timeframes around the registration process are amended in the legislation to ensure they are achievable:

  • timeframes for publishing a notifiable instrument for a registration decision are amended from three days to five days, and for advising interested persons from ten days to fifteen days;
  • a provision is included where a provisional registration automatically reverts back to its nominated status should the five month provisional registration period lapse;
  • provisions ensure the easy updating of information contained in a heritage registration where it doesn’t affect the heritage significance, boundary or intrinsic features of a place or object. Where a proposed change affects these aspects of registration, a thorough process will need to be undertaken, similar to the provisional registration and public consultation process. Where this occurs, the existing registration details will not be opened up to a new round of public consultation.;
  • a provisional registration timeframe for a period of nine months for a heritage precinct is included to allow for appropriate assessment of each place within the precinct. Additionally, the timeframe for an urgent provisional registration decision on a nomination is increased from 20 days to 60 days where it relates to a heritage precinct;
  • a provision is now included that allows the Council to extend the five month provisional registration period, with the Minister able to overturn this decision within ten working days; and
  • should the Minister request the Council to consider further issues after the Council provides its report on public consultation in relation to the provisional registration of a place or object, there is an automatic extension of the provisional registration period for three months to ensure proper consideration of any issues.

How will the Amendment Bill help to address the backlog of nominations?

Addressing the backlog of nominations to the Heritage Register will continue to be afforded the highest priority to ensure that decisions are made to give certainty to the heritage status of nominated places and objects.

The ACT Government will not place an annual limit on the number of nominations which may be made, nor a statutory timeframe for the consideration of nominations; it will instead place a greater emphasis on strategic assessment of heritage places within thematic and geographic priorities. This will provide for greater comparative analyses of places and objects.

The removal of appeal provisions against decisions not to provisionally register limits the community’s ability to voice concerns about heritage places and objects important to the community. How is this appropriate?

Under the original ACT heritage legislation, the right to seek review of heritage decisions, and the range of interested parties who may appeal a decision, was far wider reaching than any heritage legislation in other jurisdictions, or comparable legislation in the ACT such as the Planning and Development Act 2007, the Tree Protection Act 2005 and the Nature Conservation Act 1980.

As such, reviewable decisions are now brought in-line with other jurisdictions and comparable legislation in the ACT.

The only jurisdiction with an appeal right against a decision not to provisionally register was the ACT.

A decision by the Council not to provisionally register a place or object does not affect a person’s rights. Nor does such a decision have any consequence for the future use of a place, which is a management decision for the owner and/or occupier of the place.

By contrast, a decision of the Council to register a place or object affects rights in so much as future works and development are subject to certain constraints and the advice of the Council in relation to any impacts on heritage significance. Importantly, a property owner will continue to be able to apply to ACAT to request review of such decision to register their place or object.

The vast majority of appeal provisions in the heritage legislation are retained.

The provision to appeal against a decision of the Council not to provisionally register a place or object has only been used on four occasions in the eight years since the commencement of the Heritage Act 2004. To give this some context, in 2012-13 the Council made 41 decisions not to provisionally register. In 2011-12 the Council made 13 decisions not to provisionally register a place or object.

Three of the four appeals resulted in ACAT hearings. In all of the three cases, ACAT ruled in favour of the Council’s decision not to provisionally register.

The limited exercise of this provision since the commencement of the Act suggests that its removal will not result in considerable consequences.

There will remain an onus on nominators to provide all relevant information to the Council at the time of nomination, and an onus on the Council to consider all relevant aspects of a place or object’s heritage significance prior to making a decision about provisional registration.

The amendment ensures that decisions on provisional registration will be able to be determined relatively quickly and with a measure of finality and certainty. Incorporation of the ACAT process into these matters risks potential delay in the decision making process with possible costs to the parties involved as well as uncertainty pending the ACAT decision. For example, there may be a cost to the owner of a property who is prevented from undertaking development pending the outcome of an ACAT review of a decision to refuse provisional registration.

The limitation also seeks to ensure an efficient and appropriate use of ACT Government and Council resources by ensuring that these finite resources are not impacted by the need to respond to applications for review of provisional registration.

Other avenues remain for a person to seek review of decision. It remains possible for interested parties to appeal the decision to the Supreme Court under the Administrative Decisions (Judicial Review) Act 1977.

What implications does the Bill have for Government Agencies?

A range of provisions are included at Part 16 of the Act to assist public authorities in managing heritage assets under their care and ownership.

Importantly, the previous requirement for public authorities to report annually on their heritage assets is now changed to every three years. This reflects the practicalities of resources required to prepare the reports. The Council is now required to report back to authorities, and to the Minister, noting any comments or recommendations in relation to the reports provided. Public authorities are required to report on any actions taken, or reasons for actions not taken, in response to these comments, in their annual report.

EPD will work with agencies to prepare a policy document which will assist government agencies with their important task of managing heritage assets under the care of the ACT Government.

How will the Bill achieve better protection and enforcement/compliance mechanisms for Heritage Precincts?

Heritage Guidelines remain the key mechanism for determining appropriate conservation and management of Heritage Precincts in the ACT. Guidelines directly affect the advice given by the Council to the planning and land authority about the impact of development applications on heritage significance, particularly in relation to ways of avoiding or minimising the effect of a development on the heritage significance of a place or object.

It should be noted that only those features which form part of the significance of a place can be covered by protective guidelines. The ACT Government notes that protecting internal features in private residential houses may place an unfair burden on owners and is difficult to regulate.

Heritage Guidelines can have an impact on the community and property owners. Because of this, Guidelines are made under a disallowable instrument which ensures they can be assessed and their provisions scrutinised by members of the Legislative Assembly and community members particularly affected by them.

The ACT Government will endeavour – where resources allow – to periodically review the Heritage Guidelines to assess their effectiveness and amend if deemed necessary. The development of a five year Heritage Strategy will explore opportunities for such review.

There are no changes to compliance and enforcement mechanisms in the legislation. The existing offence provisions of the Heritage Act 2004 are considered suitable and effective.

The Act will continue to be used as the primary mechanism to achieve compliance and enforcement related to heritage places and objects. However the planning and land authority is the decision maker on Development Approvals (DAs) and enforcement body who ensures that works are undertaken in accordance with a DA. This role is set out under the Planning and Development Act 2007.

How does the Amendment Bill affect places on national and designated land?

Places on designated Territory and national land may continue to be registered by the Council. However, places already protected on other heritage registers will not form a priority for registration by the Council.

The ACT Government supports the continuing work of the Council to comment and provide advice on general heritage matters irrespective of jurisdiction.

There is currently an understanding between the National Capital Authority and the ACT Government that the Council will be consulted regarding proposals affecting heritage places on Territory land within designated areas, where they are on the ACT Heritage Register. This agreement will continue.

What consultation has there been throughout the process of the review and development of the Amendment Bill?

39 submissions from government and non government sectors were received in response to the Government’s 2010 Discussion Paper for the Review of the Act.

Subsequently, the review by independent consultant Mr Duncan Marshall involved a wide range of consultations through 36 individual personal meetings and workshops facilitated by him.

The outcomes of consultation have been integrated into the recommendations contained in the Review Report.

Key agencies including (former) Department of Territory and Municipal Services (TAMS), ACT Planning and Land Authority (ACTPLA), Department of Land and Property Services (LAPS), Chief Ministers Department (CMD) and the Department of Treasury (DT) were part of an Interdepartmental Advisory Committee (IDAC) whose role was to review the ACT Government’s discussion paper and provide input into the Review.

The Cabinet Submission Exposure Draft provided further opportunity for agency comment prior to circulation to Cabinet. Agency comments were incorporated into a revised final Cabinet Submission, as appropriate.

The EPD has liaised closely with Directorates responsible for tree protection and nature conservation legislation throughout the drafting of the Bill.

Following presentation of the draft Bill to the Assembly in May 2013, a four week period of public consultation was held, calling for further comments from the community and stakeholders. 23 submissions were received, and these comments have been considered by the Government. Further Government amendments have been made, as a direct result of the public consultation process.