In this alert partner David Nicholls discusses key aspects of the Queensland Heritage and Other Legislation Amendment Act 2014 (Amendment Act) which was passed by the Queensland Parliament on 29 October 2014. The Amendment Act amends the Queensland Heritage Act 1992 (QHA) in several respects and makes significant changes to the law relating to the conservation of places having local heritage significance, while in a number of respects removing duplication and improving the rigour and transparency of the State heritage listing process. Key points The amendments increase the level of information that must accompany an application for inclusion in, or removal from, the State register so as to improve the rigour and transparency of the process. However those changes do not apply to local heritage listings. The powers and duties of local governments with respect to the protection of local cultural heritage have been substantially enhanced, but without commensurate checks and balances in relation to the rigour of heritage assessment processes nor protection of the rights of affected land owners. The QHA does not specify any criteria for local cultural heritage listing. No appeal rights are afforded in respect of local heritage listing. Certificates of immunity have been abolished and replaced with a process allowing the owner of a property to apply for the exclusion of a property from registration. It is unclear whether appeal rights apply to exclusion decisions. Local governments may enter into heritage agreements. The Minister’s powers to issue stop orders have been strengthened. The QHA’s provisions about repair and maintenance notices have been strengthened and now also apply to specified local governments. Local cultural heritage The Amendment Act amends the object of the QHA to add (amongst other things): “Providing for the identification and management of places of local cultural heritage significance by local governments”. The Amendment Act omits the whole of Part 11, Division 1, of the QHA and inserts a new Division dealing with identification of places of local heritage significance, in summary, as follows: an obligation to identify local heritage places either in the local government’s planning scheme or in a local heritage register. This applies despite section 88(1)(a) of the Sustainable Planning Act 2009 (SPA) which places requirements on the Planning Minister and the local government about the contents of planning schemes; giving the Chief Executive of the Department of Environment and Heritage Protection (DEHP) the power to recommend a local government take action to conserve the local cultural heritage significance of a place; although stated to be a recommendation, once the notice is given by the Chief Executive, if the local government has a heritage register, the local government must take steps to include the place in the register; a local government may keep a heritage register in the form it considers appropriate;© HopgoodGanim November 2014 Page 3 Planning and Development Paper in considering whether to include a place in a local heritage register a local government must consider any notice given to it by the Chief Executive about the place; and the power to prescribe a code for the integrated development assessment system applies only to development of a place that is on a local heritage register (if the planning scheme avenue is used by local government there would be a code in the planning scheme to deal with development applications). It should be noted, in this context, that under the State Planning Policy of July 2014 (SPP) the State has an interest in conservation of the cultural heritage significance of places and areas for the benefit of the community and future generations. Planning schemes are required by the SPP to appropriately integrate the State interest by, amongst other things: “(4) identifying heritage places of local cultural heritage significance and heritage areas; and (5) facilitating the conservation and adaptive re-use of heritage places of local cultural heritage significance and heritage areas so that the cultural heritage significance of the place or area is retained; and (6) including requirements that development on or in heritage places of local heritage significance or heritage areas: (a) avoids, or otherwise minimises, adverse effects on the cultural heritage significance of the place or areas, and (b) does not compromise the cultural heritage significance of the place or area”. 1 The Amendment Act provides an alternative to the requirements of the SPP by allowing local governments to utilise a local heritage register rather than amend a planning scheme. The SPP recognises that the Burra Charter2 provides the guiding principles for the conservation of cultural heritage at the local level, in addition to the State and Commonwealth levels. Under the Burra Charter cultural significance relates to aesthetic, historic, scientific, social or spiritual values of a place. Those values may differ at each of the government levels by reference to the extent and interests of the communities served. However one or more of the requisite values must be identified and their significance determined as the first step in the conservation process. It follows that identification and recording of places cultural heritage significance is not a planning exercise. It is a heritage conservation exercise which should be carried out in accordance with recognised protocols and professional standards which, once completed, may have a variety of planning consequences through the heritage listing operating as a “trigger” for the application of particular provisions of a planning scheme. Absence of criteria for local heritage listing It is a matter of some concern for property owners that local heritage listing occurs in Queensland on an entirely different basis to State heritage listings. This is so notwithstanding that the underpinning foundation for heritage conservation is the same for all levels of government. There is no requirement upon local governments when determining that a place should be listed in its planning scheme as having cultural heritage significance to consider any specified criteria, nor to include a statement of significance for the place in the planning scheme, or in a separate heritage register. A consequence of the absence of a coherent legislative framework for local heritage assessment and listing is the potential for wide variations between local government areas in terms of the professionalism and rigour applied to the assessment of heritage places and with respect to the rights of land owners. The author made a submission to the Queensland Parliament’s Transport Housing and Local Government Committee about this issue and attended the committee and gave evidence. The submission can be viewed here and the committee’s report dealing with the submission can be viewed here. 1State Planning Policy page 29 2 Australia ICOMOS Charter for Places of Cultural Significance 2013© HopgoodGanim November 2014 Page 4 Planning and Development Paper The committee’s report, whilst acknowledging the force of the submission, concluded that local governments should be encouraged to follow a guideline published by the DEHP, and voluntarily choose criteria modelled on the eight criteria contained in section 35 of the QHA. The rationale for not mandating local cultural heritage listing criteria lacks cogency. The Minister’s first and second reading speeches, the committee’s report on the Bill and the government’s response report all emphasise the rigour of the evaluative process applied to listing at the State level, but on the other hand defer to local governments to devise their own processes. There is no logical reason for not applying the same rigour and professionalism at both government levels given that under the Amendment Act listing at each level will have similar consequences. Appeals to court about heritage listings Section 161 of the QHA currently confers a right of appeal to the Planning and Environment Court on the owner of place who is given notice of a decision of the Queensland Heritage Council about inclusion in or removal of a place from the register, or changing a listing, and also about a deemed refusal of an application for removal of a place from the register. Section 161 has been amended to limit appeal rights where there is an addition to or reduction of an existing listing, so that the appeal only applies to the part added to, or removed from, the listing. Appeal rights for local heritage listings The parliamentary committee noted that the owners of a place entered in the State heritage register have appeal and compensation rights under the QHA. However the committee was concerned that while owners of places entered into a local government heritage register or planning scheme have compensation rights they do not have the equivalent right to appeal. The committee went on to note that it was concerned about the inequity between the State and local government heritage listing appeal rights and believed that the issue deserved further consideration. It recommended that the Minister for Environment and Heritage Protection consult with the Minister for State Development Infrastructure and Planning and the Minister for Local Government, Community Recovery and Resilience to investigate options for introducing appeal rights regarding a decision to enter a place into a local government heritage register or planning scheme. Such appeal rights are essential, in the author’s respectful opinion, in the interests of fairness and equity. This is more fully explained in the author’s submission and evidence given to the parliamentary committee. The listing process is triggered by anonymous submissions against which there is no legal right of redress, which, for obvious reasons is plainly unjust. Applications for inclusion in/or removal from the heritage register A place may be included in the State heritage register if it satisfies one or more of the eight criteria contained in section 35 of the QHA. Conversely a place may be removed from the register if it doesn’t satisfy any of the listing criteria. The Amendment Act increases the level of information that must accompany an application for inclusion in, or removal of all or part of a place from, the register. The purpose of the amendments is to ensure that applications are well researched and supported by evidence. This is intended to improve the transparency of the process and eliminate inadequately documented applications from consideration. However this same rigour will not necessarily apply to local heritage listing unless a similar process is voluntarily adopted by individual local governments. Certificates of immunity Section 57 of the QHA, which gave the owner of a place the right to apply for immunity from registration of the place for a period of five years after the Queensland Heritage Council decided not to list it, has been repealed. Instead, the QHA now provides that once an application for registration has been rejected a new application for registration cannot be made for five years. This is an increase of four years on the existing moratorium period of one year, and renders the certificate of immunity provisions redundant. The only exception to the five year moratorium is where substantial new information comes to light about the heritage significance of a place and development threatens to destroy that significance. In those circumstances the Minister, solely, has the discretion to issue a stop work order and initiate a new listing application. However the Minister’s stop work powers cannot be exercised where the place is an “excluded place”, as discussed below. The five year extended moratorium also applies where an application for removal of a place from the © HopgoodGanim November 2014 Page 5 Planning and Development Paper register is rejected. The amendments are not retrospective and only apply with respect to decisions made after the amendments take effect. Excluded places A new division 5A is included in Part 4 of the QHA about “excluded places”. An owner may apply to the Chief Executive to have a place excluded from entry in the register. The application is processed as if the place were a State heritage place and the application were an application under section 36 of the QHA to have the place removed from the register. Section 56B in effect deems other relevant provisions of the QHA to be modified so as to apply to an application for exclusion. The DCHP has expressed the view that section 56B has the effect of conferring appeal rights in respect of a decision not to exclude a place from registration.3 Refusal of an application for a certificate of immunity did not previously attract appeal rights. Section 56B states that it applies to Part 4 of the QHA whereas appeals are dealt with in sections 161 and 162, in Part 13 of the QHA. The persons afforded appeal rights under section 161 are those who are given information notices under sections 54(3), 56(2) and 67(3). The deeming provisions in section 56B(2) are stated to apply to “this part” of the Act, namely Part 4. There is no reference to Part 13 of the QHA where the appeal rights reside. To afford appeal rights in this situation it will be necessary to read section 161(1) of the QHA as if it applies to an “entry decision” under section 56B. The existence of a right of appeal in these circumstances is not as clear as it should be. There is an argument that failure to include in section 56B a reference to Part 13 of the Act means that Parliament did not intend to extend appeal rights to decisions under the section. Heritage agreements The provisions of the QHA relating to heritage agreements have been amended to allow local governments to enter into agreements with respect to “local heritage places”. These are places identified either under a planning scheme or a local heritage register. The permitted content of such agreement for both State and local heritage places is very broadly described. “The Amendment Act extends the Planning and Environment Court’s powers to enforce heritage agreements to include local heritage agreements.” Ministerial stop orders The existing provisions of the QHA have been removed and replaced with new strengthened provisos allowing the Minster to make an order requiring a person to stop stated work or an activity or prohibiting a person from starting stated work or an activity at a place that is not a State heritage place. To do so the Minister has to be satisfied on reasonable grounds that: the place is likely to satisfy one or more of the criteria for listing as a State place; and the work or activity would destroy or substantially reduce the cultural heritage significance of the place. If there is no current entry application for the place the Chief Executive must make an application to enter the place in the register. Where a place is listed in the State Heritage Register the Minister may make a stop order if the Minister is satisfied on the reasonable grounds that: the work or activity is not authorised by a development approval; and the work or activity would destroy or substantially reduce the cultural heritage significance of the place. 3 Personal communication from the Department to the author© HopgoodGanim November 2014 Page 6 Planning and Development Paper The Minister cannot make a stop order in relation to an “excluded place” within the five year moratorium period. The new provisions set out the form, content and duration of stop orders. Notices about essential repair and maintenance The Amendment Act removes Part 8 of the QHA relating to interim protection orders and notices about maintaining State heritage places and inserts a new Part 8 which relates to both State heritage places and local heritage places. In relation to the latter it applies to a local government prescribed by regulation. The Minister may recommend to the Governor-in-Council the making of a regulation prescribing a local government only if the Minister is satisfied the local government has appropriate procedures in place for exercising a power under the new section 84. In section 84 the term “Decision–Maker” is defined to mean “for a State heritage place - the Chief Executive or for a local heritage place – the Chief Executive Officer of the relevant local government”. Where the decision-maker reasonably believes: that it is necessary to carry out essential repair or maintenance work on a place; and the work is required to be carried out to protect the place from damage or deterioration caused by weather, fire, vandalism or insects, the decision-maker may give the owner of the place a notice called a Repair and Maintenance Notice requiring the owner to carry out the essential repair or maintenance work stated in the notice. The decision-maker is required to take reasonable steps to consult with the owner of the place about essential repair or maintenance work the decision-maker believes is necessary. The notice must state a number of things, namely: a description of the work to be carried out; a statement that the decision-maker believes the work is necessary to prevent damage to, or deterioration of, the place; the reasons for the decision-maker’s belief; that the owner of the place must carry out the stated work within a stated reasonable period; and that it is an offence to fail to comply with the notice unless the owner has a reasonable excuse. The minimum reasonable period for the notice is 20 business days after the owner receives it. The maximum penalties for failing to comply with such notices by individuals and corporations is 25% higher when the notice is given by the Chief Executive than it is for a notice given by the Chief Executive Officer of a local government. The maximum penalties for a corporation are: notice by local government: $85,387.50 notice by Department: $113,850.00 It should be noted that the definition of essential repair or maintenance work in relation to a heritage place means work of a “minor nature” that if carried out on the place would help prevent damage to, or deterioration of the place. The examples given in the definition include the following: repairing wall or roof frames;© HopgoodGanim November 2014 Page 7 Planning and Development Paper refixing loose wall or roofboards; removing potential fire hazards; maintaining existing fire management systems; putting locks on doors and windows; boarding up insecure openings in an unoccupied building; shutting down electricity or gas services to an unoccupied building; taking steps for managing or eradicating termites or other insects; and cleaning and repairing gutters and downpipes. There is no right to appeal against the giving of such notices. Development in Queensland heritage places There are no substantial amendments to section 68 of the QHA which requires the Chief Executive as an assessment manager or a referral agency for a development application for development on a State heritage place, to assess the application against the object of the QHA. Where the Chief Executive is satisfied the effect of approving the development would be to destroy or substantially reduce the cultural heritage significance of the place, the Chief Executive must, unless satisfied there is no prudent and feasible alternative to carrying out the development, refuse the application or tell the assessment manager to refuse the application. Whether there is a prudent and feasible alternative to carrying out the development involves having regard to safety, health and economic considerations, and any other matters the Chief Executive considers to be relevant. Conclusion Overall the reforms to the QHA are positive and will improve the operability of the legislation. However the disparity between State and local heritage listing processes, and the absence of appeal rights in relation to the latter, remain unresolved and await the outcome of consultation with the Department of State Development, Infrastructure and Planning. The contents of this paper are not intended to be a complete statement of the law on any subject and should not be used as a substitute for legal advice in specific fact situations. HopgoodGanim cannot accept any liability or responsibility for loss occurring as a result of anyone acting or refraining from acting in reliance on any material contained in this paper.