Implications for Owners
In NSW there are two types of statutory listings. A property is heritage listed if it is:
- listed in a Council’s Local Environmental Plan (LEP), or
- listed on the State Heritage Register (under the Heritage Act, 1977).
It is important when reading this section that it is understood that the greater majority of private houses that are listed in NSW are only locally listed and not state listed.
Heritage Act 1977.
The main legislation applying in New South Wales is the Heritage Act 1977. This Act protects heritage items (places, buildings, works, relics, moveable objects or precincts) against damage and demolition by enabling one or both of the following actions to be taken in relation to an item of State or local heritage significance –
(a) the making of an interim heritage order,
(b) listing on the State Heritage Register kept by the Heritage Council of New South Wales.
Effect of interim heritage orders and listing on State Heritage Register
If a heritage item is the subject of an interim heritage order or is listed on the State Heritage Register, the Act prevents a person from undertaking any of the following works in relation to the heritage item, unless the necessary approval has been obtained –
(a) demolishing the item,
(b) damaging or despoiling the item,
(c) moving, damaging or destroying the item,
(d) excavating any land for the purpose of exposing or moving the item,
(e) carrying out any development in relation to the land on which the item is situated,
(f) altering the item,
(g) displaying any notice or advertisement on or in the item,
(h) damaging or destroying any tree or other vegetation on or remove any tree or other vegetation from the item (if a place, precinct or land).
In the case of an interim heritage order made by the Minister, or where the heritage item is listed on the State Heritage Register, the necessary approval must be obtained from the Heritage Council. Otherwise, the approval must be obtained from the local municipal council.
A person who undertakes work in respect of a heritage item without the necessary approval is guilty of an offence punishable by a fine or imprisonment or both.
Application forms for approval to undertake work on a heritage item are available from the Heritage Council.
Minimum standards for the protection of items listed on the State Heritage Register
Following amendments to the Act in 1998, minimum standards now exist for the protection of heritage items listed on the State Heritage Register.
If a listed heritage item is not protected in accordance with those standards, the Heritage Council may issue an order requiring that the owner do, or refrain from doing, such things as are required to ensure that the standards are met. Failure to comply with such an order is an offence punishable by a fine or imprisonment or both.
In addition, the Heritage Council may carry out any work required to be undertaken and recover its costs and expenses from the owner of the land.
The minimum standards for the protection of listed heritage items are set out in part 3 of the Heritage regulation 1999 and apply to –
- periodic inspection of heritage items
- weather protection
- fire protection
- additional fire protection for unoccupied buildings
- additional security measures for unoccupied buildings
- essential maintenance and repair.
Local Heritage Listing
Most local municipal councils have prepared Local Environment Plans (LEPs) which guide planning decisions for local government areas. Through zoning and development controls, they allow councils and other consent authorities to manage the ways in which land is used.
The LEPs contain heritage schedules. If an item is listed on a heritage schedule, heritage matters will be considered when the council considers any application for permission to demolish or alter a building or its usage.
Local councils can also list Heritage Conservation Areas (HCA), with individual sites within that area specifically identified as being contributory, neutral or detracting. The implications of owning a site within an HCA depend largely on the assessed contribution of that particular site to the significance of the area. Conservation areas generally recognise that many buildings have significant heritage value and are expected to be retained. Other buildings that may be of little or no heritage value may not be expected to be retained. HCAs generally focus on the facades of buildings, gardens and other structures in an effort to maintain the streets-cape. Any Development Application lodged for a property within an HCA must consider the impact the proposed development would have on the heritage significance of the Area, and local councils typically recommend a pre-DA lodgement meeting to ensure the development is sympathetic with the Heritage Conservation Area.
The Standard Instrument LEP (SI LEP) Program was initiated in 2006 to create a common format and content for LEPs. The Program was designed to simplify the plan making system in NSW, as previously there was no standard approach. Plans were difficult to understand and used diverse approaches, resulting in an increasingly complex local planning system. Many LEPs pre-dated the introduction of the Environmental Planning and Assessment Act 1979 and were in serious need of review. The Standard instrument template has allocated Schedule 5 for heritage items, with standard format for all local government areas. Heritage Conservation Areas and the contributory significance of individual items within are shown on the heritage maps contained within the relevant council’s LEP.
As at 14 November 2013, 82 % of Councils had completed an SI LEP. For further information refer to the NSW Government website.
Local listing does not prevent alterations or additions to a heritage item provided they do not detract from the heritage significance of an item.
Local listing does not exclude the adaptive re-use of a heritage item (where permissible), which often is a sensible means to ensure the conservation and on-going maintenance of a heritage item.
The routine maintenance of a locally listed heritage item does not normally require the approval of Council.
Owners of locally listed properties cannot be forced or even requested to undertake restoration works.
The majority of locally listed items are private homes and there is no expectation that the owners of Council listed properties could be asked to show their homes to the public.
Other Heritage listings
Some community groups, professional bodies and other government bodies also compile lists of heritage items. These lists have no legal standing but play an important role in alerting the Heritage Council and local municipal councils to the potential heritage value of an item. In New South Wales such lists include the National Trust register, the Register of the National Estate and the register complied by the Royal Australian Institute of Architects.
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