September  2001

• Recent Developments in Heritage Legislation and Procedures

• Heritage Council Hearings

This NEWSLETTER has been prepared by a number of individuals within our firm. If any of our clients would like further information about any matter raised in this NEWSLETTER, we can quickly direct their call to the appropriate person.

Recent Developments in Heritage Legislation and Procedures
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Recent amendments to the Heritage Act 1995 are only the tip of the iceberg of interesting heritage developments.

Legislative Changes

Notification

After a place or object has been nominated for registration, the Executive Director must give a statement indicating either that the place or object should or should not be included in the Heritage Register. At this stage, the owner has new obligations.

The owner must advise the Executive Director within 30 days after his statement is given of:

* any works that are being carried out in relation to the place or object at the time the statement is given;

* any application for a planning permit or a building permit or for an amendment to a planning permit that has been made in relation to the place, but not determined at the time the statement is given; and

* any other activities that are being carried out or are proposed to be carried out in relation to the place or object at the time the statement is given.

After the Executive Director gives his statement, the matter goes before the Heritage Council for a final decision.

During the period before the Heritage Council makes a decision, if an application is made or a permit granted or amended subsequently, advice of that must be given within 10 days. Similarly, the Executive Director must be notified within 10 days of any activities carried out or proposed to be carried out that could adversely affect the place or object.

If a proposal is made to dispose of the whole or any part of the place or object, the Executive Director must be given notice at least 10 days before entering into the contract. Prior to entering into the contract, the purchaser must be given a copy of the Executive Director’s statement.

Altered decision-making

All registration decisions are now made by the Heritage Council following a statement of recommendation by the Executive Director. The Executive Director can now make a "recommendation" not to register, rather than a"decision" not to register a place or object.

Permit Applications

In determining a permit application, the Executive Director can now consider heritage matters beyond the registered place itself including:

* the extent to which the application, if approved, would affect the cultural heritage significance of any adjacent or neighbouring property that is:

- subject to a heritage requirement or control in the relevant planning scheme; or

- included in the Heritage Register; and

* any other relevant matter.

Enforcement

An inspector may now obtain a search warrant and powers of inspection now include taking photographs, video recordings, making sketches and copying documents.

Heritage Council Hearings
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New Protocols for Written Submissions and Hearings

A Heritage Council hearing is conducted differently from a VCAT or Panel hearing. Far greater attention is needed to the pre-hearing written documentation. Hearings will generally be much shorter.

There are new protocols prescribing timelines for filing of a written submission and expert reports.

The hearing will be conducted on the basis that the Heritage Council Committee conducting the hearing and all the parties will have read the written submissions and replies circulated prior to the hearing. The substance of the case for each party should be contained in the written submissions.

The time allocated for making presentations is pre-determined by the Committee and notified to the parties prior to the hearing. Time allocation is usually in the range of 30-90 minutes per presentation including witnesses and oral submissions.

Reasons for decisions

The Heritage Council always provides reasons for its decisions following each hearing.

The parties to each hearing receive them and they are available to members of the public upon enquiry. They are available by reference to address. The Council is not a Court and is not bound by the law of precedent. Parties should address the particular issues of the heritage place in issue rather than seeking to rely upon or distinguish earlier decisions.

PLEASE NOTE: We suggest that our clients do not act only on the basis of material in our NEWSLETTER because the items are of the nature of general comment only and may be liable to misrepresentation in a particular circumstance. Also, changes in legislation and case law occur quickly, we therefore recommend that our advice should be sought before acting in any matters of this kind.

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