Previous Fact Sheet	Fact Sheet Home	Next Fact Sheet

The information contained in this fact sheet is current as at 23 April 2008

Topic 6 – Heritage

6.2. New South Wales Heritage Protection Law

The New South Wales Heritage Act 1977 provides protection for natural and cultural heritage by providing for the listing of heritage items or places on the State Heritage Register [1] and providing for the making of interim heritage orders for the protection of heritage items or places. [2]

The National Parks and Wildlife Act 1974 provides protection for Indigenous heritage in New South Wales . [3] Indigenous heritage items or places may also be listed for protection on the State Heritage Register.

Local councils play an important role in protecting local natural and cultural heritage as a product of their planning and development assessment functions under the Environmental Planning and Assessment Act 1979.

6.2.1 State Heritage

Certain 'items', defined to include buildings, relics, works, places, moveable objects or precincts, are protected in New South Wales, including built and natural environments, and archaeological remains. [4]

In New South Wales, the Heritage Council [5] makes recommendations to the Minister for Planning regarding protection of heritage items. [6] The Heritage Council is assisted by the Heritage Office with its technical and administrative tasks. [7]

Protection of State Heritage

If the Heritage Council believes that a heritage item needs to be conserved, it can make a recommendation to the Minister, who decides whether to place protection on that item. [8] In considering whether to make a recommendation the Heritage Council takes into account certain criteria, including aesthetic, cultural, historical and spiritual considerations. [9] There are two types of protection available:

• interim heritage orders; [10] and
• listing on the State Heritage Register. [11]

These forms of protection are 'binding directions', which means that the heritage item which is protected in one of these ways cannot be demolished, redeveloped or altered without permission from the Heritage Council. [12] Permission to demolish an item can only be granted in limited circumstances (for example, if the item poses a danger to the occupier or the public or if it will be relocated). [13]

If an application for permission to carry out an activity is made, the Heritage Council must consider whether the activity would materially affect the heritage values of the item. [14] If so, the Heritage Council advertises the proposal and accepts written submissions. [15] The Heritage Council then makes a final decision on whether to approve the activity, and can attach conditions. [16]

Interim Heritage Orders

An interim heritage order is a temporary form of protection that is made while further investigation of the heritage item is carried out. [17] It takes effect when published in the Government Gazette. [18] An interim heritage order lasts for up to one year. During this time, the order may be revoked, made permanent or simply allowed to lapse at the end of the year. [19]T he majority of interim heritage orders are made in response to community representations or concerns raised by local government.

State Heritage Register

Listing on the State Heritage Register provides permanent protection for listed heritage items. Before an item may be added to the State Heritage Register, the relevant local council and each owner or occupier must be notified of the proposed listing and given the opportunity to make submissions within a time specified in the notice, being at least fourteen days. [20] If a listing is to be removed from the State Heritage Register, the relevant parties must be notified and given an opportunity to make submissions. [21]

Emergency Orders

The Minister may make emergency orders to prevent any work being carried out which is harming, or is about to harm, a heritage item that is not the subject of an interim heritage order or listed on the State Heritage Register, other than as allowed in that order. [22] Emergency orders last for forty days. [23]

The Heritage Council must give the Minister advice about the making of an interim heritage order before the emergency order expires. [24] This is to give the Minister an opportunity to impose an interim heritage order while the emergency order is in place.

Archaeological Excavation

A permit from the Heritage Council is required to disturb or excavate land for the purpose of discovering, exposing or moving relics (deposits, objects or material evidence of non-Aboriginal settlement more than 50 years old) which are not already the subject of protection under the Heritage Act. [25] If relics are thought to have been found during excavation on land not previously identified as having heritage significance, the Heritage Office should be consulted as how best to continue with the excavation. [26] There are heavy penalties for offences under the Heritage Act , including fines of up to 10,000 penalty units or 6 months imprisonment, or both. [27]

Heritage and Conservation Registers

State government agencies have special obligations to conserve their assets on behalf of the community. They are required to prepare and maintain their own Heritage and Conservation Registers. [28] These are registers of environmental heritage items owned or occupied by government agencies. The Heritage and Conservation Registers must be made available for public inspection at the principal office of each relevant agency, or at the Heritage Council. [29]

Movable Heritage Items

Objects protected as movable heritage are objects assessed as being significant in describing our cultural heritage - for instance, by providing historical information about an important person, aspect of culture, or evidence of interaction with the environment. Objects protected may be Indigenous or non-Indigenous, natural or manufactured.

As far as possible, movable heritage objects should be identified and recorded and conserved in their place. Assistance in the conservation of these items is provided by the Heritage Office, the Ministry for the Arts, the NSW Museums and Galleries Foundation, the Australian Museum , and the NSW National Parks and Wildlife Service. The movable heritage principles that guide the Heritage Office in its conservation of movable heritage items are available online. [30]

6.2.2 Indigenous Heritage

The State heritage protection framework described above also applies to Indigenous heritage, except 'Aboriginal relics', which are specifically excluded from the Heritage Act 1977. [31]

Aboriginal 'objects', 'relics' and 'places' are protected under the National Parks and Wildlife Act 1974. [32] An 'Aboriginal object' is any deposit, object or material evidence relating to Indigenous habitation of New South Wales , and includes Aboriginal remains. [33] An 'Aboriginal place' is a place which, in the opinion of the Minister for the Environment, is or was of special significance for Aboriginal culture. [34]

Aboriginal objects are declared to be the property of the Crown. [35] The Department of Environment and Climate Chnage bears primary responsibility for the protection of Indigenous heritage. The Aboriginal Cultural Heritage Advisory Committee advises the Director General of the Department of Environment and Climate Change in relation to the preservation and control of relics and Aboriginal places. [36]

Protection of Indigenous Heritage

Four key mechanisms are available to protect Indigenous heritage in New South Wales :

• declaration of protected areas and Aboriginal reserves; [37]
• stop work orders; [38]
• interim protection orders; [39]
• criminal offences; [40] and
• conservation agreements. [41]

Declaration of Protected Areas

Land may be dedicated as an 'Aboriginal area' to preserve, protect and prevent damage to Aboriginal objects or Aboriginal places on that land. [42]The Director General has the care, control and management of all Aboriginal areas except where a board of management, which consists of mainly Aboriginal land owners, has been established . [43]

Stop Work Orders

The Director General may order that an action which is being, or is about to be, carried out that is likely to significantly affect an Aboriginal object or Aboriginal place cease to be carried out within a period of 40 days after the date of the order. [44] A stop work order may not be made in respect of an action being carried out in accordance with a development consent granted pursuant to the Environmental Planning and Assessment Act 1979 . [45] This also extends to activities under Part 5 and projects under Part 3A. See Topic 2.1 NSW Planning and Assessment Law..

Immediately after making a stop work order, the Director General must consult with the person carrying out, or proposing to perform the action to determine whether any modification of the action may be sufficient to protect the environment of any protected fauna or native species. [46]

If the Director General is of the opinion that the environment containing the Aboriginal object or Aboriginal place cannot be protected, the Director General must recommend the making of an interim protection order. [47] The Director General may extend a stop work order for a further period if he or she thinks that an extension is necessary. [48]

Interim Protection Orders

The Director General may recommend that the Minister for the Environment make interim protection orders to preserve areas of land that have natural, scientific or cultural significance, and this can include land with Aboriginal places or objects on it. [49] An interim protection order may contain provisions to stop any damaging or despoiling of the place, stop any development and any activity that may affect the preservation, protection or maintenance of any Aboriginal object or place on or within the land [50]. Interim protection orders can last for up to two years. [51] Failure to comply with an interim protection order is an offence. [52]

Criminal Offences

It is an offence under the National Parks and Wildlife Act to:

• disturb or excavate land to discover an Aboriginal object; [53]
• remove a relic from a national park or Aboriginal area; [54]
• knowingly destroy, deface or damage a relic or Aboriginal place without permission; [55]
• store or exhibit any relic in a national park or Aboriginal area without a permit; [56]
• fail to comply with the conditions of a permit relating to a relic; [57] or
• fail to notify the Director General of the location of a relic; [58]

Conservation Agreements

The Minister for the Environment may make conservation agreements with landowners to protect areas which contain relics or Aboriginal places of special significance.[59] A conservation agreement may contain terms binding on the owner . These include restrictions on the use of the area and requirements that the owner carry out certain activities to preserve the area.[60],

6.2.3 Local Heritage Protection

Local councils now have an increased role in heritage protection. The number of items listed on the State Heritage Register has substantially decreased in recent years, reflecting the government policy that local councils take more responsibility for local heritage protection.

Local Environmental Plans and Regional Environmental Plans can include special provisions to conserve buildings, landscapes, relics and sites, as well as larger areas like historic precincts. For more information on environmental planning, see Section 2.1.1 - Environmental Planning.

Items which require protection are ordinarily listed in schedules to the Environmental Planning Instrument and a Public Heritage Register. Every local council has a Heritage Officer who is usually available for information and advice on local heritage matters.

The NSW Heritage Office has prepared Local Government Guidelines for the preparation and maintenance of the local heritage registers. [61] The Heritage Office has Local Government Liaison Officers who provide advice to councils and the community on local heritage matters.

Many powers provided for in the Heritage Act may be delegated to councils including, for example, powers to make interim heritage orders [62] and consider applications for activities affecting protected heritage items. [63] The Heritage Council has the power to intervene in the forward planning and decision making processes of local government on heritage matters. [64]

Local Heritage and Environmental Planning

Local Environmental Plans usually list specific local heritage properties to which development restrictions apply (for example, individual heritage buildings), or designate areas for heritage protection with restrictions on development applying to all relevant properties in the area.

Regional Environmental Plans may also incorporate heritage provisions. For example, see Sydney Regional Environmental Plan No. 22 - Parramatta River and Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours.

Local councils must consider provisions contained in local and regional environmental plans, including relevant heritage provisions, when deciding development applications. [65] For more information on development assessment, see Section 2.1.2 - Development Assessment.

References

1. Heritage Act 1977 (NSW), ss. 31 and 32.
2. Heritage Act 1977 (NSW), ss. 24 and 25.
3. National Parks and Wildlife Act 1977 s71D
4. Heritage Act 1977 (NSW), s. 4.
5. For further information about the NSW Heritage Council visit http://www.heritage.nsw.gov.au/04_index.htm .
6. Heritage Act 1977 (NSW), s. 21.
7. For further information about the NSW Heritage Office refer to http://www.heritage.nsw.gov.au/01_index.htm .
8. Heritage Act 1977 (NSW), s. 21.
9. For a complete list of the criteria visit http://www.heritage.nsw.gov.au/docs/criteria.pdf
10. Heritage Act 1977 (NSW), Part 3.
11. Heritage Act 1977 (NSW), Part 3A.
12. Heritage Act 1977 (NSW), s. 57.
13. Heritage Act 1977 (NSW), s. 63(2), 63(3).
14. Heritage Act 1977 (NSW), s. 62.
15. Heritage Act 1977 (NSW), s. 61.
16. Heritage Act 1977 (NSW), ss. 57-65.
17. Heritage Act 1977 (NSW), s. 24.
18. Heritage Act 1977 (NSW), s. 28.
19. Heritage Act 1977, s. 29.
20. Heritage Act 1977 (NSW), s. 33(1)(a).
21. Heritage Act 1977 (NSW), s. 38.
22. Heritage Act 1977 (NSW), s. 136.
23. Heritage Act 1977 (NSW), s. 136(3).
24. Heritage Act 1977 (NSW), s. 24(2).
25. Heritage Act 1977 (NSW), ss. 139-141.
26. Heritage Act 1977 (NSW), s. 139.
27. Heritage Act 1977 (NSW), s. 157.
28. Heritage Act 1977 (NSW), s. 170.
29. Heritage Act 1977 (NSW), s. 170(7).
30. For more information about moveable heritage visit www.heritage.nsw.gov.au/ 06_subnav_04.htm
31. Heritage Act 1977 (NSW), s. 4.
32. National Parks and Wildlife Act 1974 (NSW), Part 6.
33. National Parks and Wildlife Act 1974 (NSW), s5.
34. National Parks and Wildlife Act 1974 (NSW), ss. 5 and 84.
35. National Parks and Wildlife Act 1974 (NSW), s. 83.
36. National Parks and Wildlife Act 1974 (NSW), s. 27; Schedule 9.
37. National Parks and Wildlife Act 1974 (NSW), Part 4, Division 10.
38. National Parks and Wildlife Act 1974 (NSW), Part 6A Division 1.
39. National Parks and Wildlife Act 1974 (NSW), Part 6A, Division 2.
40. National Parks and Wildlife Act 1974 (NSW), s 86.
41. National Parks and Wildlife Act 1974 (NSW), Part 4, Division 12.
42. National Parks and Wildlife Act 1974 (NSW), ss. 30K and 62
43. National Parks and Wildlife Act 1974 (NSW), s63
44. National Parks and Wildlife Act 1974 (NSW), s 91AA..
45. National Parks and Wildlife Act 1974 (NSW), s 91AA.(4).
46. National Parks and Wildlife Act 1974 (NSW), s 91EE(1).
47. National Parks and Wildlife Act 1974 (NSW), s 91EE(2).
48. National Parks and Wildlife Act 1974 (NSW), s 91DD.
49. National Parks and Wildlife Act 1974 (NSW), s 91A.
50. National Parks and Wildlife Regulations 2002 , s. 92.
51. National Parks and Wildlife Act 1974 (NSW), s 91D(1).
52. National Parks and Wildlife Act 1974 (NSW), s. 91G.
53. National Parks and Wildlife Act 1974 (NSW), s. 86(a).
54. National Parks and Wildlife Act 1974 (NSW), s. 86(c).
55. National Parks and Wildlife Act 1974 (NSW), s. 90.
56. National Parks and Wildlife Act 1974 (NSW), s. 86(e).
57. National Parks and Wildlife Act 1974 (NSW), ss. 87(3), 86.
58. National Parks and Wildlife Act 1974 (NSW), ss. 87(3), 91.
59. National Parks and Wildlife Act 1974 (NSW), s 69C(1)(d).
60. National Parks and Wildlife Act 1974 (NSW), s 69C(2)
61. See www.heritage.nsw.gov.au/08_index.htm.
62. Heritage Act 1977 (NSW), 2 25.
63. Environmental Planning and Assessment Act 1979 (NSW), s. 91 .
64. Heritage Act 1977 (NSW), Part 5 and Environmental Planning and Assessment Act 1979 (NSW) , s. 91.
65. Environmental Planning and Assessment Act 1979 (NSW), s. 79C(1).
    

	Previous Fact Sheet	Fact Sheet Home	Next Fact Sheet