The Heritage Act has remained fundamentally unchanged for nearly 20 years. Whilst there are some simple reforms of the Act that have been awaiting a review for some time, most are of an administrative nature to remove duplications in process and clarify procedural matters. The idea of broader reform and of tackling some of the key principles that have created the most controversy has not been widely entertained in recent times.

The current review is overdue, and responds to the current government’s 2014 election pledge. The review was flagged in Keeping it Liveable, Labor’s Plan for Your Community where Labour said it will review the Heritage Act “to protect our built heritage.”

The greatest deficiencies in the current Act in our view are:

• Requirement for consideration that impact of refusal of a permit will have on the “reasonable or economic use” of a place. This is frequently called-up by commercial developers to justify otherwise poor heritage outcomes
• Lack of third-party appeals under the Act
• Poor relationship in decision-making to local heritage issues and integration to local heritage planning.

The discussion document released on 21 June by the Minister Wynne flags a lot of administrative changes but few substantive changes to the Act. It highlights the following possible changes:

• streamlining heritage listings into one simple process
• introducing the concept of State significant heritage precincts and cultural landscapes
• including a significance threshold test for including sites in the Heritage Inventory of archaeological places
• ensuring that the views of local government are considered on permit decisions
• increasing penalties for unauthorised works
• making Heritage Victoria a statutory referral authority for subdivisions under the Planning & Environment Act
• removing the financial hardship clause from considerations of permit applications

In our view the substantive proposed changes are:

1. Activating the Heritage Register for broadacre landscape and urban precincts protection

This issue has been difficult to deal with under the current Act, although not beyond its powers. The difficulty of dealing with large number of owners has been the major hurdle. The Heritage Council will provide revised assessment criteria and definitions. This is a welcome reform allowing expansion of the viable scope of listing on the Register.

2. Provide a greater role for local government

The consideration of the views of local government has been a vexed matter, resulting in frustration at the local level for decisions made at the state level failing to take account of local heritage issues. The changes will require Heritage Victoria to consider the views of local government and its heritage advisers.

3. Heritage Victoria to be a statutory referral authority for subdivisions under the Planning & Environment Act

This was a recommendation in the final report of the Review of Heritage Provisions in Planing Schemes (2007). A number of recommendations from that Committee have been implemented over the years but progress has been slow. This proposed reform is perhaps the most radical of all the suggested changes to the Act. It removes duplication of permits under the Heritage Act and Planning & Environment Act and makes Heritage Victoria a statutory referral authority with determining powers – i.e. if Heritage Victoria wants the permit refused on heritage grounds by the local authority, it must be refused.

This is a model for dealing with heritage approvals for state-listed places in the future. If adopted, it will be very closely scrutinised for its workability and success, and could lead to a further broadening of matters handled in this way. We believe it has great merit, because Heritage Victoria officers would make considered judgements and submissions about heritage impacts alone, without the need to consider the ‘reasonable economic use’ clause currently in the Act. All the balancing of competing issues would be undertaken by the Council, which would take into consideration their own local policies as well as the statutory heritage referral response. It will also open the process of review up to appeals at VCAT. One of the biggest deficiencies of the current Act is that it has no third party rights of appeal.

The Trust had flagged such a reform in the 2014 state election, and whilst only dealing with subdivisions, which are not that numerous compared to normal development and works permits under the Act, it will be a valuable testing ground for future reform, and is therefore very welcome.

Removal of financial hardship clause from consideration of permits

This is not as radical as it sounds, as the benefit derived from the clause is primarily aimed at homeowners and that class of owners, generally speaking, do not raise the most contentious types of development under the Heritage Act. The financial hardship clause is infrequently invoked, with the most controversial permit applications instead being made by developers or commercial owners seeking reliance on the accompanying ‘reasonable or economic use’ provision. Large developments impacting heritage places frequently call-up the impact refusal of a permit would have on ‘reasonable or economic use’ of the place. Nonetheless removal of financial hardship clause is certainly an improvement in securing better heritage-driven outcomes, and its removal may pave the way for greater reform later.

Heritage Victoria is convening its own consultation sessions and the community may make submissions into the Review at the Heritage Victoria website. The National Trust will make its own submission following the convening of a workshop for professionals and experts in July.