New South Wales to modernise heritage protection legislation

Introduction

The New South Wales Government has announced that the State’s heritage legislation, the Heritage Act 1977 (NSW) (Heritage Act), is being referred to a Parliamentary Committee for review. Somewhat paradoxically, the aim of the review is to modernise the legislation and ensure that it is in-step with current trends in heritage conservation, land use and planning. The Minister responsible for overseeing the Heritage Act, the Hon. Don Harwin MLC, has stated that the aim of the review is to make it easier, more affordable and more desirable to own a heritage property.

To kick off public consultation on this process, Heritage NSW has recently released a Discussion Paper titled “Review of NSW Heritage Legislation”, which sets out a number of key reform proposals for consideration.

Why is a review of the Heritage Act needed?

The Heritage Act was first introduced in 1977 in response to public concern about overdevelopment, with the Heritage Act being the vehicle to protect and defend against the loss of heritage.

The recently released Discussion Paper recognises that the NSW community looks vastly different to what it did in the 1970s when the Heritage Act was first introduced. Changing contexts, attitudes and world events (including the bushfires of 2019/2020, the COVID-19 pandemic and climate change) are factors which have reframed the focus of heritage in the community.

Given that the Heritage Act was last reviewed in 2007, with the last major reforms taking place in 1999, a review of the Heritage Act is now widely considered overdue.

Concerns the proposed reform will address:

• The objectives of the Heritage Act do not align with present trends in heritage conservation and land use planning and development
• There are disincentives to owning a State heritage item
• The process of heritage listing is expensive and protracted, and leads heritage owners, developers and administrators to face uncertainty, expense, duplication and delays throughout the process.

Five key reform proposals

The Discussion Paper sets out the following five key reform proposals for consideration:

1. Reform ProposalState Heritage Register categories to provide tailored protections

It is proposed to expand the current “one-size fits all” approach to heritage listing, recognising that different circumstances may require tailored approaches. As such, four distinct categories are proposed, each of which will have a different set of protections. These categories are:

• Category 1 – Heritage of exceptional and iconic value
• Category 2 – State-significant heritage landscapes
• Category 3 – State-significant heritage
• Category 4 – Local heritage

2. Reform Proposal 2: Improving the listing process

The Discussion Paper identifies that the heritage listing procedure can be lengthy, and doesn’t easily engage the broader community. The introduction of a community-driven nomination process has been proposed and would include:

• Community-based ‘early-round nominations’ being submitted to the Heritage Council; and
• The Heritage Council subsequently inviting more detailed nominations from promising applications.

3. Reform Proposal 3: Amending existing listings on the State Heritage Register

The current process for listing an item on the State heritage register is static, and there is no process to update the listing to reflect changing circumstances. It is proposed that a process to update listings be introduced, which would provide for a listing to be periodically reviewed and amended to address site changes.

4. Reform Proposal 4: The heritage permit process

Recognising that a heritage listing should not stop all changes, or “freeze a place in time”, the Heritage Act should introduce a streamlined process to permit changes to listed items, where appropriate.

The proposal is that the Minister responsible for heritage could be responsible for determining, in consultation with the Heritage Council, the regulatory threshold for standard exemptions, fast-track applications and standard applications for permits under the Heritage Act to carry out works on a listed item.

5. Reform Proposal 5: Compliance and enforcement

Finally, the Discussion Paper identifies that the Heritage Act currently has two extremes in terms of enforcement, prosecution at one end and warning letters at the other. There is no intermediate step, such as an infringement notice. It is proposed to introduce a series of intermediate enforcement powers to allow heritage regulators to take a stepped (and proportionate) response to non-compliance.

The review process and how to get involved

The NSW Legislative Council Standing Committee on Social Issues will undertake a public inquiry and present its findings later this year. Stakeholders, including members of the community will have an opportunity to comment on the inquiry.

A series of focus questions, along with the reform proposals, have been considered in light of the proposed review and can be found in the discussion paper. This paper and more information about the inquiry, including how to get involved is available at https://www.heritage.nsw.gov.au/what-we-do/nsw-heritage-act-review/.

Further inquiries

Please contact Anneliese Korber, Partner in our Environment and Planning team if you would like further information about how the proposed legislative review might impact your particular situation.

The author would like to acknowledge the contributions of Krista MacPherson and Zachary Salter in preparing this update