Following a review of the Heritage Act 1995 undertaken in 2015 ( click here to read the National Trust submission), Planning Minister Richard Wynne has introduced a bill to Parliament proposing to overhaul the Act, which is due to be debated in Parliament this week. The Act is administered by Heritage Victoria in the Department of Environment, Land, Water and Planning, and is Victoria’s principal legislation for the identification and management of non-Indigenous heritage places and objects of State significance, historical archaeological sites and maritime heritage (but not locally significant places included in Heritage Overlays, which are managed under the Planning & Environment Act 1987).The proposed reforms constitute the biggest changes to the Act since it was gazetted in 1995.

The key changes in the Act promise to reduce the regulatory burden and provide clarity and certainty to owners and community stakeholders alike. The Bill also strengthens Heritage Victoria’s powers to enforce the provisions of the Act, including a provision for higher penalties for willful and negligent destruction. In a post-Carlton Inn climate, such a move will surely be welcomed by the community. You can click here to download a copy of Minister Wynne’s second reading of the Bill in Parliament which outlines the background to the review, and a summary of the proposed changes. But do these changes go far enough? Below is a summary of some of the key changes which will impact on property owners and community stakeholders, and our response to those changes.

Refusal of Nominations with No Reasonable Case for Inclusion

Under proposed changes to the Act (Clause 28), the Executive Director of Heritage Victoria will be able to reject a nomination which has no reasonable case for inclusion in the register, including any nomination that has been refused in the last 5 years, unless significant new information is provided. This time period has been extended from 12 months to 5 years under the proposed changes, reflecting the expectations that heritage values do not generally change considerably within a 12-month period. The nominator may request a review of the decision by the Heritage Council if it is refused. While these provisions will perhaps rule out some applications that have absolutely no prospect of success, this change may result in a number of ‘nomination appeal’ hearings that, where successful in the first instance, will mean that places may ultimately subject to two hearings considering largely the same information (ie a nomination hearing followed by a registration hearing, if the Executive Director recommends inclusion on the Register but the decision is appealed). This potentially impedes access to prompt and efficient administrative decision-making.

Referral of Nominations to Local Councils

Under the Bill (Clause 49), the Heritage Council may determine that a place that is not to be included in the Heritage Register (ie which doesn’t reach the threshold for State significance) should be referred to the local council. Essentially these provisions already exist in the Heritage Act, but they are worth mentioning as the subject of extensive submissions by the National Trust. Under the current provisions, if a place is not found to reach the threshold for State significance, a recommendation can be made to the local council to pursue protection under the Planning Scheme – but the recommendation is not binding. In recent years, in practice, this has allowed a number of locally significant places to ‘fall through the cracks’ of this two-tiered planning system, with local councils (particularly at Councillor level) often using a refusal from Heritage Victoria as an excuse to abandon the prospect of heritage listing. This confusing distinction between Heritage Victoria and local council processes appears to be poorly understood by the community, the media, Councillors, and sometimes even Council planners. The National Trust would like to see a provision in the Heritage Act for unsuccessful nominations to the Victorian Heritage Register that clearly demonstrate local significance to trigger interim local heritage controls, with a requirement for Councils to investigate permanent protection. With extensive research required for a nomination to Heritage Victoria to be accepted, most of the work has usually already been done. What is missing is a clear trigger for implementation.

Permit Exemptions

Proposed Clause 92(5) would require the Heritage Council and the Executive Director not to make a determination in relation to any works or activities if they consider those works or activities may harm the cultural heritage significance of a registered place or registered object. While a similar provision is included in the current Act, this has been amended to expressly prevent permit exemptions from being issued if the works or activities may harm a registered place or registered object. In practice, this could prevent a situation like the recent Cremorne Maltings Registration Hearing, supported by NTAV, which seeks to remove an anomalous permit exemption allowing the demolition of the 1962 concrete silos underneath the Nylex sign, despite the fact that these structures are recognised as being significant in the registration for the site.

Role of local government in permit processes

The relationship with local government and a local council’s heritage policies and practices has been one of the greatest failures under the current Act’s permit processes, due to a lack of consultation and engagement with councils in the decision-making process. Under the proposed Bill, the Executive Director would be required to give a copy of the permit application to the responsible authority (usually the municipal council) within 14 days of receiving it, with provisions made in the Act for the relevant authority to make a written submission after the permit is advertised. This change will provide councils with more time to assess applications and seek input from planners and heritage advisers. Local government authorities will also have the opportunity to be heard at permit reviews before the Heritage Council.

Option to extend permit advertising period

Long a cause of concern for residents and community groups, the Heritage Act currently only provides a period of 14 days for the advertisement of Permit Applications. In practice, this equates to 10 business days, and provides little time to come to grips with complex applications. Requirements for advertisement include publication in a major newspaper, the erection of signage in a conspicuous position at the subject site, and advertisement on Heritage Victoria’s website. But in a world where people increasingly get their news online rather than in the newspaper, unless community stakeholders are regularly checking Heritage Victoria’s website, they often remain unaware that permits are being advertised and miss the cut-off date for submissions. We have seen this playing out at places like Pentridge Prison, where community stakeholders have felt out of the loop on major permit applications – particularly with signage often overlooked in the context of a huge site. To address this, Bill has introduced a new provision which enables the Executive Director to extend the period of display with the agreement of the applicant the the owner. While in theory we support the ability for the period of advertisement to be extended, this should not be dependent upon the agreement of the applicant. After all, community objections to permit applications often frustrate development plans, so there is little incentive for applicants to voluntarily extend the exhibition period. More welcome is the additional provision requiring the period 24 December to 9 January to be removed from the advertisement period, hopefully putting an end to significant permit applications going unnoticed during the busy holiday period (just as the controversial application to demolish Pentridge’s H Division did in 2013, for which submissions were due on New Year’s Day 2014).

Removal of Financial Hardship Clause 

The removal of the Financial Hardship provisions from the Act (Clause 73(b)) is supported, given that the financial circumstances of an owner may change over time, and heritage places (complete with associated approved permits) may be on-sold to owners with different financial circumstances. The change however is not as radical as it sounds, with financial hardship provisions rarely invoked in practice. The most controversial permit applications instead often rely on the “reasonable or economic use” provisions, which will remain in the Act, and state that the Executive Director must consider “the extent to which the application, if refused, would affect the reasonable or economic use of the registered place or registered object”. A recent high profile example of this clause being invoked was the controversial decision to permit the demolition of the Princess Mary Club in Londsdale Street, as retaining the building would have required a multi million-dollar restoration effort to address concrete cancer.

Streamlining Subdivision Permits

In one of the most radical changes proposed, subdivision permits would be streamlined, with Heritage Victoria to be a a statutory referral authority for subdivisions under the Planning and Environment Act 1987. This would remove the duplication of permits which are currently required both under the Heritage Act and the Planning & Environment Act, providing Heritage Victoria with the power to refuse a permit application on heritage grounds. We believe this model may be appropriate for dealing with all heritage approvals for state-registered places in the future, with the duplication required for permit applications onerous and confusing for both property owners and objectors. The National Trust has previously flagged the need for such reform, and we look forward to seeing how future subdivision permit applications play out under these proposed changes.

Enforcement

One of the key changes in the proposed Bill would see fines for the reckless or negligent demolition of heritage places doubled to $746,208 (and/or 5 years imprisonment) for individuals, and $1,492,416 for corporations. In addition, the Bill proposes to provide Heritage Victoria with new powers to issue stop work and rectification orders. In the wake of the Carlton Inn demolition, the strengthening of penalty and enforcement provisions for unauthorised works will no doubt be welcomed by the community. And while we applaud these proposed changes, it’s important to remember that the Heritage Act only protects around 2,200 of our most significant places included on the Victorian Heritage Register. This is why we have also called on the State government to strengthen protections for the more than 20,000 places across Victoria—like the Carlton Inn/Corkman Irish Pub—protected by local heritage overlays.

What’s missing?

Despite the proposed changes to the Act, major deficiencies remain. In particular, a lack of third party appeal rights prevents community objectors or Councils from appealing permit decisions that adversely impact on heritage places, with appeal rights only provided to applicants. This exemption from review rights, such as those provided under the Planning & Environment Act 1987 which allow third parties to appeal decisions at VCAT, is anomalous, and regretfully remains unaddressed by the Heritage Act Review.

Do you have any concerns about the proposed changes? Share your thoughts with us below.