Fact Sheet 6
Heritage Law in the Australian Capital Territory

This Fact Sheet provides a brief overview of Heritage legislation applying in the ACT, including National Heritage Law.

Index

Introduction

What is Heritage?

National Heritage Law

Heritage Act 2004 (ACT)

Other ACT Heritage Law

Further Information and Contacts

Introduction

Many sites and places in the ACT are renowned for their heritage status and cultural significance. Such sites may exhibit a range of heritage values such as aesthetic, spiritual and historic values.

Laws both nationally and within the ACT provide a framework for the management of places and objects of heritage significance to ensure that they are protected for appreciation by future generations.

What is heritage?

Heritage includes those unique places and objects that are valued by a community or cultural group that possess historic, religious, spiritual, cultural, ecological or evolutionary values.

National Heritage Law

The Commonwealth Environment Protection and Biodiversity Conservation Act 1999 provides protection for the following types of heritage places and items:

• World Heritage;
• National Heritage; and
• Commonwealth Heritage.

The Australian Heritage Council Act 2003 provides for the listing of natural and cultural heritage places on the register of the National Estate.

Note that the Australian Heritage Commission, established by the Australian Heritage Commission Act 1975 was abolished on 31 December 2003. Amendments to the EPBC Act, in the form of the Environment and Heritage Legislation Amendment Act (No. 1) 2006 were enacted in December 2006, further altering the Commonwealth heritage regime. The EPBC Act has been amended by repealing section 391A which required that the Minister must consider information in the Register of the National Estate in making decisions relating to heritage listings. Further, the Register of the National Estate will cease to operate as a statutory heritage list five years from the commencement of the provisions of Environment and Heritage Legislation Amendment Act 2006. [See: Explanatory Memorandum, Environment and Heritage Legislation Amendment Bill (No. 1) 2006, p. 79].

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 provides protection for indigenous heritage items and places in certain circumstances.

World Heritage

The Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention) provides for the establishment of an international list of places of ‘outstanding universal natural or cultural heritage value’.

The Environment Protection and Biodiversity Conservation Act 1999 provides for the Australian-wide implementation of the World Heritage Convention in Australia.

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National Heritage

The Environment Protection and Biodiversity Conservation Act provides for the listing and protection of places on the National Heritage List.

The National Heritage List is intended to include natural, indigenous and historic places with outstanding heritage value. The list may include important places outside Australia (such as Gallipoli). In order to be included on the list, a place must satisfy at least one of the National Heritage criteria set out in the Environment Protection and Biodiversity Conservation Regulations 2000.

Criteria for inclusion on the National Heritage List include:

• importance in the course of Australia's natural or cultural history;
• possession of uncommon or endangered aspects of Australia's natural or cultural history;
• potential to contribute to an understanding of Australia's natural or cultural history;
• importance in demonstrating the key characteristics of a class of natural or cultural places;
• importance in exhibiting aesthetic characteristics valued by a community or cultural group;
• importance in demonstrating creative or technical achievement at a particular period;
• special association with a particular community for social, cultural or spiritual reasons;
• special association with the life or works of persons of importance in Australia's history; and
• importance as part of indigenous tradition.
  

National Heritage Listing

Any person may nominate a place for inclusion on the National Heritage List. If a person nominates a place for inclusion on the list, the Minister must refer the nomination to the Australian Heritage Council to assess whether the place meets the National Heritage criteria. The Minister may require further information from the person who made the nomination.

After the Heritage Council has made its assessment, the Minister may, but does not have to, invite comments on the proposal to include the place in the List. The Minister then makes the final decision on whether to list the place, but must take into consideration the Heritage Council’s assessment and any comments received (if the Minister has invited comments).

Emergency Listing

There are provisions for emergency listing if the Minister believes that the heritage values of a place are under threat. The Minister can list the place before referring it to the Heritage Council and must take reasonable steps to advise any owners or occupiers of the place. Any person may nominate a place for emergency listing and, if the Minister does not list the place within ten business days after receiving the request, the Minister must:

• publish notice of that on the internet; and
• provide to the person who made the nomination and anyone else who requests them, reasons why the Minister has not listed the place.
  

Protection of National Heritage

National Heritage is protected under the Environment Protection and Biodiversity Conservation Act as a ‘matter of national environmental significance.

For National Heritage places that are entirely within Commonwealth lands, the Commonwealth must prepare and implement management plans consistent with the management principles set out in the Environment Protection and Biodiversity Conservation Regulations.

For properties on the National Heritage List that are not entirely within Commonwealth lands, the Commonwealth must try to prepare and implement management plans in co-operation with the relevant States and Territories.

Commonwealth agencies must use all reasonable steps to perform their functions in accordance with these management plans and the National Heritage management principles set out in the Environment Protection and Biodiversity Conservation Regulations.

To view a current version of the National Heritage List, visit the Department of Environment and Heritage website: www.deh.gov.au.

The list contains places such as the Budj Bim National Heritage Landscape, the Royal Exhibition Building and Carlton Gardens, the Dinosaur Stampede National Monument, the Kurnell Peninsula and the Eureka Stockade Gardens.

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Commonwealth Heritage List

The Commonwealth Heritage List records natural, indigenous and historic places that:

• have significant, rather than outstanding, heritage value; and
• are in Commonwealth areas or owned or leased by the Commonwealth Government.

In order to be listed, a place must satisfy at least one of the Commonwealth Heritage criteria set out in the Environment Protection and Biodiversity Conservation Regulations. These criteria are identical to the criteria for the National Heritage List set out above, except that they refer to the place having significant heritage value rather than outstanding heritage value. However, this distinction is not defined under the Act or the Regulations, nor has it been tested in the courts.

The list may include places outside Australia that are owned or leased by the Commonwealth Government.

Commonwealth Heritage Listing

The nomination and listing process is the same as for the National Heritage List.

Protection of Commonwealth Heritage

Actions which are likely to have a significant impact on the environment on Commonwealth land require federal approval under the Environment Protection and Biodiversity Conservation Act. The definition of the environment includes the heritage values of places. Commonwealth agencies that own or control the land must prepare management plans and ensure that the heritage values of the place are protected.

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The National Estate

The Australian Heritage Council has been established to promote the appreciation, identification and care of the National Estate. The Register of the National Estate identifies places (including buildings) which have aesthetic, historic, scientific, or social significance or other special value for future generations as well as for the present community. There are more than 13,000 places listed on the register of the National Estate, including over 9,800 historic places, 2,000 natural places and 900 Aboriginal places.

National Estate Listing

Any part of the natural or cultural environment is eligible for listing. Examples of the reasons that a place or building may be considered to have 'special value' include its importance to Australia's natural or cultural history, rare and endangered species that might live there, or a strong association with a particular community for social, cultural or spiritual reasons.

Any person may nominate a place to be registered. State and local governments and voluntary organisations can also make nominations. The Heritage Council must consult with the owner or occupier of the place, the state or territory and local government authority and, if the place has indigenous heritage value – each person who has indigenous rights or interests in the place.

If the Heritage Council decides to register the place, it must provide public notice of the listing and provide a statement of reasons if requested. The register must be available to the public on the internet.

Protection of the National Estate

Under the Environment Protection and Biodiversity Conservation Act, the Minister must have regard to information in the Register of the National Estate in making any decision under the Act to which the information is relevant. In other words, listing does not provide protection as such.

Any actions taken by Commonwealth agencies, or any actions which are likely to have a significant impact on the environment on Commonwealth land, requires the approval of the Minister.

The definition of the environment includes the heritage values of places. Therefore any places on the National Estate that are on Commonwealth land or that may be affected by actions taken by Commonwealth agencies are afforded a certain degree of procedural protection under the Act.

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Indigenous Heritage

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 is intended to provide additional protection from injury or desecration of artefacts and areas which are of particular significance to the Aboriginal peoples and traditions.

The Commonwealth Act protects 'significant Aboriginal areas' and 'significant Aboriginal objects'. A 'significant' area or object is one of particular significance to indigenous people in accordance with Aboriginal or Torres Strait Islander tradition.

An application for protection of a specified area or object under threat can be made orally or in writing by an Aboriginal person or Torres Strait Islander.

Protection of Indigenous Heritage

The Minister for Indigenous Affairs can make declarations to protect areas and objects if the area or object is under threat of injury or desecration (used, treated or affected in a manner inconsistent with Aboriginal tradition) and state law does not effectively protect the area.

The Minister may make emergency declarations or long-term declarations. Emergency declarations last for thirty days, but may be extended for a further thirty days. Long-term declarations may only be made following consultation with the relevant State Minister. These declarations may “contain provisions for and in relation to the protection and preservation of the area from injury or desecration.”

Authorised officers may also make emergency declarations, lasting up to 48 hours in relation to indigenous heritage areas and objects.

Indigenous Heritage and Native Title Rights

The Native Title Act 1993 provides a legislative framework for the recognition and protection of common law native title rights.

In certain circumstances, registered native title holders and claimants have a right to negotiate in relation to the protection and management of heritage areas or sites within the lands and waters covered by their native title claim. Native title rights will operate where they have not been extinguished by other rights.

For example, where a consent authority proposes to allow mining or mineral exploration, native title holders or claimants are to be consulted. If no agreement is reached, the parties may seek a determination by the National Native Title Tribunal (or accredited state body). The criteria to be considered in making the determination include the cultural significance of the place.

For further information on native title and cultural heritage protection, visit the National Native Title Tribunal website: www.nntt.gov.au.

[ Note on Sources: This section has been based on material written by EDO NSW. Further information can be found at the website of the Legal Services Commission of South Australia. ]

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Territory Heritage Law: the Heritage Act 2004 (ACT)

The Heritage Act 2004 (“the Act”) protects immoveable (land) and moveable heritage in the ACT. Prior to this, heritage protection was principally covered by the Land (Planning and Environment) Act 1991 (ACT) and the Heritage Objects Act 1991 (ACT).

The purpose of the Act is to provide for the recognition, registration and conservation of places and objects of natural and cultural significance.

The Act establishes the Heritage Council which plays a key role in administering the processes and components within the Act. The following diagram illustrates the primary components of the Act.

Primary Components of the Heritage Act 2004

Heritage Council

The Heritage Council is comprised of a panel of heritage experts, and is central to many of the processes established by the Act. The Heritage Council is composed of the Conservator of Flora and Fauna (see Fact Sheet 6); the chief planning executive (see Fact Sheet 2); and 9 members appointed by the Minister as public representatives (3) and as experts (6). The three members who comprise the public representative segment of the Council must each adequately represent the following groups:

• property ownership, management and development sector;
• Aboriginal community; and
• the general community;

The formal functions of the Heritage Council are as follows:

• assessment of nominations for listing on the Heritage Register;
• facilitation of public consultation as part of the registration process;
• provision of advice to the ACT Planning and land Authority regarding the potential disturbance of heritage sites;
• making recommendations to the Minister to issue Heritage Directions where there is a threat to the heritage significance of a place or object;
• applying to the Supreme Court for Heritage Orders to prevent material harm to the heritage significance of a place or object; and
• provide comments on variations to the Territory Plan.
  

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The Registration Process

What is the Heritage Register

Heritage protection under the Act is founded upon a listing of heritage places and objects in the ACT with natural and cultural heritage significance - the Heritage Register.

The Register is established by the Act and is maintained by the Heritage Council. The Register contains the following information:

• identification of each registered heritage place or object by name and location or address;
• a description of the heritage item, including its extent or boundary;
• the conservation guidelines associated with the item;
• a statement about the items heritage significance, including reasons for the registration and assessment of it against the heritage significance criteria;
• whether the item is registered or provisionally registered, and the date of registration;
• where the item is provisionally registered – the period of provisional registration;
• each Heritage direction empowering the Minister to intervene in situations where the Heritage value of places or objects is at risk; and
• each enforcement order enabling authorised officers to enforce the Act.

How are heritage items registered?

Nominations for the registration of heritage items are submitted to the Heritage Council. The Heritage Council assesses nominations against heritage significance criteria and makes a determination on whether the nominated item should be registered. If successful the heritage item is placed on a provisional register.

Following the provisional registration, public consultation is undertaken and a report is provided to the Minister including the Heritage Council’s recommendations for listing. Once it is determined that the item has heritage significance, the item is listed on the Heritage Register.

Who can apply for Heritage Listing?

Any person can apply to the Heritage Council to list an item on the Register. The nomination must be in writing and given to the Heritage Council.

What items may be nominated for Heritage Listing?

Either a place or object can be nominated for listing. A ‘place’ is defined in the Act to include the following:

• a site, precinct or parcel of land;
• an item at the place;
• a building or structure, or part of a building or structure, at the place;
• an object at the place that could be registered separately;
• an item historically or physically associated with the place, if the primary importance of the item derives, completely or partly, from that association; and
• equipment, furniture, fittings and articles at, or historically or physically associated with, the place.

An ‘object’ may be anything natural or manufactured (including an Aboriginal object) that is not a ‘place’.

An item does not have to be tangible (it may be a myth or a song), but must be of a nature that is capable of demonstrating heritage significance to the Heritage Council.

Only items that are found within the ACT on Territory Land may be nominated under the Act. Places and objects located outside of the ACT or on National Land may be listed under the National Heritage List or the listing of other jurisdictions.

Indigenous Heritage
Indigenous heritage is registered in exactly the same way as other heritage items. A person discovering a place which they think may be an unregistered Aboriginal heritage place must report the discovery to the Minister within 7 days. The Minister refers the matter to the Heritage Council to determine whether heritage listing is necessary.

Heritage Trees
Individual trees located in built-up urban areas can not be registered on the Heritage Listing. Trees of heritage significance are protected under the Tree Protection Act 2005 and are registered under the ACT Tree Register.

Existing Heritage Items
All heritage items that were entered on the following listings have been added to the new Heritage Register.

• Heritage Places Register (at Appendix V of the Territory Plan);
• Heritage Objects Register; and
• Interim Heritage Register. Any places or objects nominated to the Interim Heritage Places Register were considered to be nominations for provisional registration under the new Act.

How are nominated items assessed?

In order for a nominated item to be listed, it must be demonstrated that it satisfies one or more of the following criteria:

1. a high degree of technical or creative achievement (or both), by showing qualities of innovation, discovery, invention or an exceptionally fine level of application of existing techniques or approaches;
2. it exhibits outstanding design or aesthetic qualities valued by the community or a cultural group;
3. it is important as evidence of a distinctive way of life, taste, tradition, religion, land use, custom, process, design or function that is no longer practised, is in danger of being lost or is of exceptional interest;
4. it is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations;
5. it is significant to the ACT because of its importance as part of local Aboriginal tradition;
6. it is a rare or unique example of its kind, or is rare or unique in its comparative intactness;
7. it is a notable example of a kind of place or object and demonstrates the main characteristics of that kind;
8. it has strong or special associations with a person, group, event, development or cultural phase in local or national history;
9. it is significant for understanding the evolution of natural landscapes, including significant geological features, landforms, biota or natural processes;
10. it has provided, or is likely to provide, information that will contribute significantly to a wider understanding of the natural or cultural history of the ACT because of its use or potential use as a research site or object, teaching site or object, type locality or benchmark site;
11. for a place—it exhibits unusual richness, diversity or significant transitions of flora, fauna or natural landscapes and their elements; and
12. for a place—it is a significant ecological community, habitat or locality for any of the following:
    1. the life cycle of native species;
    2. rare, threatened or uncommon species;
    3. species at the limits of their natural range;
    4. distinct occurrences of species.

Criteria (a), (b) and (f) are discussed further below.

Indigenous Heritage
Consultation with Representative Aboriginal Organisations is additionally required during the assessment of aboriginal places and objects.

What protection does provisional registration provide?

Provisional registration provides immediate protection under the Act. Interim registration provides a means of protecting items while further steps in the registration process, such as public consultation are being carried out.

Provisional registration lasts 5 months unless an extension is granted by the Minister. An extension may be granted where consultation has not been completed or where an appeal has been made against the Heritage Council’s decision not to register a nominated item.

What public consultation is required by the Act?

The Heritage Council is required to notify interested persons of its decision to provisionally register an item. A notice must be published in a daily newspaper and the Heritage Council must attempt to give a copy of the notice to each interested person.

An interested persons is defined in s.13. This includes the nominator, owner, occupier or lessee of land on which the heritage item is located. The definition is relatively narrow. It only requires notification to some government bodies and persons with a property-related interest in the item. It is important to note that appeal rights are limited to those people who are interested persons as defined by the Act.

What is the Effect of Listing?

Inclusion of a heritage place or object on the Heritage Register provides the item with legal protection under the Act.

With regard to development, the effect of registering a heritage item is that a development application is subject to more extensive evaluation by the Heritage Council and Planning Authority. Where the Heritage Council is of the opinion that the development will affect the heritage significance of a site then they may wish to impose development conditions.

Decisions about what development can take place is determined by the item’s values. These values are detailed in the Statement of Significance, forming part of the entry in the Heritage Register. For instance, if the significance values are in relation to the architecture of a building then the integrity/values of the building may be affected by building another development too close to the heritage item. A certain area around the item is seen as part of the listing to protect the building’s curtilage and facadism.

Heritage Guidelines formulated by the Heritage Council determine how the significance of Heritage listings are to be conserved and provides some protection against adverse development.

Emergency situations
Listed heritage items are not afforded protection in circumstances where emergency services (eg. fire brigade, rural fire service, police) are required to undertake work to protect life or property, or to control, extinguish or prevent the spread of fire.

Can a registration be cancelled?

Items already listed on the Heritage Register can be removed where there has been a loss of heritage significance. The process for cancellation of a listed item is similar to that for registration.

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Development & Heritage

How does the Act interact with the development process?

The ordinary definition of ‘development’ under the Land Act is broadened where the land to be developed is in an urban lease area and it is registered or nominated for registration under the Heritage Register. In this circumstance any works that would affect the landscape of the land are considered to be ‘development’ and therefore must follow the development process.

For development for which an Environmental Impact Assessment (EIA) is required, consideration must be given to the heritage significance of the land including the surrounding land.

Development applications that have potential to damage heritage items listed on the Heritage Register are sent from ACT Planning and land Authority to the Heritage Council for advice.

Where ACT Planning & Land Authority seeks to vary the Territory Plan, consultation with the Heritage Council is also required.

The Heritage Council considers proposed developments in conjunction with the Heritage Guidelines to assess the impact of the development on the heritage significance of the place or object.

The Heritage Council provides advice to the ACT Planning and Land Authority (ACTPLA) about the assessed impact and measures that may be taken to mitigate the impact. This advice may include recommendations of conditions that may be placed on any consent in order to conserve the heritage significance of the place or object.

When considering whether to grant development consent, the ACT Planning and Land Authority (ACTPLA) must take into account the advice of the Heritage Council (within 15 days). A decision inconsistent with advice provided by the Heritage Council may only be made where:

• all applicable heritage guidelines have been considered;
• all reasonable development options and design solutions have been considered;
• any prudent and feasible alternative to the proposed development, or relevant aspects of it have been considered;
• as far as practicable, the decision avoids or minimises any adverse impact on the heritage significance of the place; and
• the decision is consistent with the objects of the territory plan.

Once a decision on a development application has been made, the Heritage Council must be notified of the decision, and provided with a copy of the decision.

Indigenous Heritage
It must be noted that restrictions may be imposed on the publication of information about Aboriginal heritage places in accordance with Aboriginal traditions. There are over 400 Aboriginal heritage sites in the ACT on the old heritage list. However, existing Aboriginal heritage places are rarely indicated with signage. Therefore it is important to seek approval for any development in the ACT.

Where a proposed development may affect an Aboriginal place or object either listed or nominated for listing under the Heritage Register, ACT Planning & Land Authority must consult representative Aboriginal organisations and consider further comments from the Heritage Council about the development.

Government development
The Commonwealth government must not take action that adversely affects an ACT listed place unless there is a prudent and feasible alternative and all measures to minimise the effect are taken.

Minister call-in powers under the Land Act
The Minister may direct the ACT Planning and land Authority to refer a development application to the Minister.

Where the Minister decides to consider an application, the Minister must have in his possession the advice of the Heritage Council in relation to the development application.

What are the Heritage Guidelines?

The Heritage Guidelines are prepared by the Heritage Council. They detail how development is to take place in areas where heritage significance may be adversely affected.

Development that may be addressed in the guidelines include:

• demolition of registered structures;
• alterations and additions to registered buildings;
• works affecting Aboriginal heritage places and objects;
• new buildings in heritage precincts; and
• developing heritage places.

Is public consultation required during the preparation of the guidelines?

Prior to the preparation of Heritage Guidelines the Heritage Council is required to consult the public by way of publication in a daily newspaper.

Where the proposed guidelines relate to an Aboriginal place or object, the council must give a copy of the consultation notice to each representative Aboriginal organisation in relation to the proposed guidelines.

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Enforcement

The enforcement of heritage protection is achieved with offence provisions and proactive measures.

Offences

It is an offence to diminish the heritage significance of a place or object whether the act is committed recklessly, negligently or without intent to diminish.

Further in relation to Aboriginal heritage items, the Act makes it an offence to damage an Aboriginal place or object, whether recklessly, negligently or without intent to damage.

It is an offence to intentionally contravene a Heritage Direction.

What can be done about an offence that is about to be committed?

Where there exists a threat of material harm to the heritage significance of a place or object, an application may be made by the Heritage Council or a person with leave to the Supreme Court for a Heritage Order.

Heritage orders can only be given in circumstances where an offence provision under the Act has been contravened or is likely to be contravened

The Supreme Court may make an order to restrain the offender from contravening the offence provision and anything else the court considers appropriate for giving effect to the order.

Are there more flexible enforcement options?

Where there exists a threat to the heritage significance of a place or object (regardless of whether it is listed or not), the Heritage Council may advise the Minister to issue a Heritage Direction to an owner or occupier of land.

Heritage Directions can only be made where:

1. there is a serious and imminent threat to the heritage significance of the place or object; and
2. there is a recommendation from the Heritage Council; and
3. the directions are consistent with any Heritage Guidelines.

A Heritage Direction may direct the owner or occupier to do any of the following:

• undertake essential maintenance on a place;
• not to adversely affect a significant feature of a heritage place;
• not to undertake a development affecting the heritage significance of a place without development approval under the Land (Planning and Environment) Act, Part 6.

What can I do to ensure the heritage significance of a place is maintained in the future?

Heritage Agreements provide a flexible, voluntary means of enforcing active conservation of a heritage item both now and in the future.

The Heritage Council may advise the Minister to enter into a Heritage Agreement with the owner of the land, or with another person if the owner consents.

The place or object does not have to be listed on the Heritage Register and the Minister and the owner may specify the details of the agreement such as:
• how conservation work is to be carried out;
• standards to which the work is to be carried out;
• duration of the agreement;
• how the agreement may be varied.

The Heritage Agreement is lodged with the Registrar General and is therefore binding on all current and future owners of the land for the duration of the agreement.

The Heritage Agreement can be enforced by way of enforcement order issued by the Supreme Court.

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Appeals & Review of Decisions

Decisions made under the Act may be reviewed by the Administrative Appeals Tribunal. Only interested persons may apply for review under the Act. The definition of ‘interested person’ is not expansive and limits those who may appeal, to persons with a direct property-related interest in the heritage item.

Generally, an interested person is defined according to the nature of the heritage item:

• Heritage Place:
  • an owner;
  • an occupier;
  • a lessee or sublessee;
  • an architect or designer of a building or structure at the place; and
  • if the place was nominated for registration - the nominator.
    
• Heritage object:
• an owner;
• a person in possession of the object;
• a maker;
• if the object wasnominated for registration - the nominator
  
• Aboriginal place or object:
  • a representative Aboriginal organisation;
  • if the discovery of the place or object was reported – the person who reported the discovery.

In addition to this, the following table outlines the additional persons who may seek review of a decision.

If appealing or seeking review of a decision, it is of assistance to consider the objects of the Act. The Act requires any decision made under the Act to be exercised to:

• preserve the heritage significance of places and objects; and
• to achieve the greatest sustainable benefit to the community from places and objects consistent with the conservation of their heritage significance.

Furthermore, if a decision is made that would involve conduct that would adversely affect the heritage significance of a place or object, the conduct may only be engaged in where:

• there is no feasible or prudent alternative; and
• all measures that can reasonably be taken to minimise the adverse effect are taken.

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Heritage Listing Criteria (Annotated)

The following section details the way in which the courts have interpreted the heritage listing criteria of heritage legislation with similar or identical criteria to the current Act.

Criteria (a)
A high degree of technical or creative achievement (or both), by showing qualities of innovation, discovery, invention or an exceptionally fine level of application of existing techniques or approaches.

Two cases that interpret criteria similar in terms to this criteria are Pashalidis and ACT Heritage Council & Ors [2003] ACTAAT 53 (18 December 2003) and Wagner & Fuary and ACT Heritage Council & Ors [2003] ACTAAT 54 (18 December 2003). In order to satisfy this criterion, the item must:

• possess qualities of innovation or departure or represent new achievement of the time; or
• demonstrate a high degree of creatie achivement.

The Tribunal also held that the fact that a house is a good example of the style or that an appreciation of the style requires an assessment of more than one example of it and that there is now only a limited number of good examples of that style is not sufficient to satisfy the criterion.

Criteria (b)
It exhibits outstanding design or aesthetic qualities valued by the community or a cultural group.

A criterion identical in terms to this criteria was explored in ACT Chapter of Royal Australian Institute of Architects and ACT Heritage Council & Anor [2003] ACTAAT 18 (11 APRIL 2003). The Tribunal made clear that widespread community support may satisfy the test more readily than support which is only limited.

The tribunal also adressed the question of whether the value placed on an item by a group of architects is of assistance in determining whether the item is valued by the community. The tribunal held that although a building is valued by architects it does not automatically follow that it is also valued by the community. A number of architects sufficiently related could be regarded as a cultural group, although the Tribunal placed emphasis on the relation between the architects for them to be properly described as a group.

In Pashalidis and ACT Heritage Council & Ors [2003] ACTAAT 53 (18 December 2003) and Wagner & Fuary and ACT Heritage Council & Ors [2003] ACTAAT 54 (18 December 2003) the Tribunal clarified that the criterion is not to be interpreted as having two independent parts. It is one criterion, which requires both that the place exhibit outstanding design or aesthetic qualities and that the design or those qualities are valued by either the community or some identifiable cultural group.

Criteria (f)
It is a rare or unique example of its kind, or is rare or unique in its comparative intactness.

In Pashalidis and ACT Heritage Council & Ors [2003] ACTAAT 53 (18 December 2003) and Wagner & Fuary and ACT Heritage Council & Ors [2003] ACTAAT 54 (18 December 2003) the Tribunal found that the word “type” (congruous to “kind”) is a reference to the qualities and characteristics that inhere in a place, as distinct from the designer or creator of any building on it. In this case the Tribunal was interpreting a criterion more stringent than the criteria in the current Act.

Generally it is important to note that the item need only satisfy one of the criteria for it to be determined to be worthy of registration (ACT Chapter of Royal Australian Institute of Architects and ACT Heritage Council & Anor [2003] ACTAAT 18 (11 APRIL 2003))

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Heritage under other ACT law

Land (Planning and Environment) Act 1991 - Reserved Heritage Areas

Under the Land (Planning and Environment) Act 1991 areas of public land with heritage values may also be reserved under the Territory Plan as a public reserve for the purpose of a heritage area.

Other Heritage Listings

A number of other organisations also maintain heritage registers including professional organisations such as the Royal Australian Institute of Architects and the Institution of Engineers, and specialist groups such as DOCOMOMO (DOcumentation and COnservation of buildings, sites and neighborhoods of the MOdern Movement). The National Trust also has a list of heritage items.

These lists offer no direct protection, but can help indirectly when a decision-maker is deciding whether a development proposal will impact on the heritage. If the item is listed on many lists, it is firmly established the heritage is valuable to the community, and therefore may receive greater protection. Each organisation will have their own criteria defining what makes an item significant for them.

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Further Information and Contacts

ACT Administrative Appeals Tribunal
4 Knowles Place
Canberra ACT 2602
Post: GPO Box 370 Canberra City ACT 2601
Ph: (02) 6217 4261 or (02) 6217 4279
Fax: (02) 6217 4505
www.courts.act.gov.au/magistrates/index.html

Commonwealth Department of Environment and Heritage
John Gorton Building
King Edward Terrace
Parkes ACT 2600
GPO Box 787
Canberra ACT 2601
Ph: (02) 6274-1111
Fax: (02) 6274-1666
www.deh.gov.au

Conservation Council of South-East Region and Canberra
Childers St
Canberra ACT 2600
Ph: 6247 7808
www.ecoaction.net.au/ccserac

ACT Heritage Council
GPO Box 158
Canberra City ACT 2600
Ph: 13 22 81
www.environment.act.gov.au/heritage/heritagecouncil

Heritage Unit of Territory and Municipal Services (formerly Environment ACT)
Level 2, MacArthur House
12 Wattle Street
Lyneham ACT 2602
Ph: (02) 13 22 81
www.environment.act.gov.au

National Trust of Australia
1st Floor, North Building Civic Offices, Civic Square
Canberra
PO Box 1144
Civic Square ACT 2608
Ph: (02) 6230 0533
Fax: (02) 6230 0544
www.act.nationaltrust.org.au

Office of the Commissioner for the Environment (ACT)
(The Commissioner investigates complaints from the community regarding the management of the Territory’s environment by the ACT Government or its agencies.)
PO Box 356
Dickson ACT 2602
Ph: (02) 6207 2626
Fax: (02) 62072630
http://www.environmentcommissioner.act.gov.au/

ACT Ombudsman
GPO Box 442
Canberra ACT 2601
Ph: 1300 362 072
Fax: (02) 6249 7829
www.ombudsman.act.gov.au

Important Information

The law described in this Fact Sheet is current at September 2006.

This fact sheet was compiled by Donald Cheong with the assistance of James Prest, Glen Harris and Sue Berger.

Disclaimer

The ACT EDO Fact Sheets have been designed to give readers plain English background knowledge of planning and environmental decision making in the ACT. The ACT EDO Fact Sheets cannot replace the need for professional legal advice in individual cases.

The information contained in this publication is for general reference only. If you are contemplating legal action, you should seek legal advice on the specific facts of your case as soon as possible.

Duplication and reproduction of the information provided in any ACT EDO Fact Sheet is permitted with acknowledgment of the ACT EDO as source.

The ACT EDO Fact Sheets Project was carried out with the assistance of funds made available by the ACT Government under the ACT Environment Grants Program.

Important: Readers are advised to seek professional legal advice in relation to specific legal questions.
These fact sheets provide a summary of the law and are not intended to be comprehensive or to cover the specifics of any given situation. While every effort has been made to ensure the content is as accurate as possible, the EDO does not accept any responsibility for any loss or disadvantage resulting from reliance or use of this work

Other Fact Sheet Titles

Note: Some EDO fact sheet titles are unavailable at this time as they are being updated following legislative amendments and administrative changes. These fact sheets will be added as soon as possible.

Fact Sheet 1 Environmental and Planning Law in the ACT

Fact Sheet 2 National Capital Plan and the Territory Plan

Fact Sheet 3 The Development Approval Process

Fact Sheet 4 EIA Law in the ACT

Fact Sheet 5 Management of Public Lands

Fact Sheet 6 Heritage Law

Fact Sheet 7 Biodiversity Protection Law in the ACT

Fact Sheet 8 Tree Protection

Fact Sheet 9 Investigating Decision Making about the Environment

Fact Sheet 10 Challenging Decision Making about the Environment

Fact Sheet 11 Pollution Control Law in the ACT

Fact Sheet 12 Noise Pollution Control in the ACT

Fact Sheet 13 Freedom of Information Law in the ACT

Fact Sheet 14 Freedom of Information Law (Commonwealth)

Fact Sheet 15 Incorporating an Environmental Group in the ACT

For information about State environmental legislation, follow the links from the national EDO website.

Important: These fact sheets provide a summary of the law and are not intended to be comprehensive or to cover the specifics of any given situation. While every effort has been made to ensure the content is as accurate as possible, the EDO does not accept any responsibility for any loss or disadvantage resulting from reliance or use of this work. Readers are advised to seek professional legal advice in relation to specific legal questions.

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