Part 4 Effect of interim heritage orders and listing on State Heritage Register
In this Part:approval body means:
(a) in respect of an interim heritage order made by the Minister or listing on the State Heritage Register—the Heritage Council, or(b) in respect of an interim heritage order made by a council—the council that made the order.integrated development has the same meaning as in section 91 of the Environmental Planning and Assessment Act 1979.
prescribed application means an application for the approval of a consent authority under any of the following:
(a) the Environmental Planning and Assessment Act 1979, not being an application under Part 3A or Part 5.1 or an application relating to State significant development or integrated development,(b) Part 1 of Chapter 7 of the Local Government Act 1993,(c) any prescribed provision of the Local Government Act 1993 or any prescribed provision of any instrument made under that Act,(d) Division 4 of Part 2 of the Strata Schemes (Freehold Development) Act 1973,(e) Division 7 of Part 2 of the Strata Schemes (Leasehold Development) Act 1986,in respect of the doing or carrying out of an act, matter or thing the doing or carrying out of which requires an approval of the Heritage Council under Subdivision 1 of Division 3 of this Part.
Division 2 Controlled activities
57 Effect of interim heritage orders and listing on State Heritage Register
(1) When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3:(a) demolish the building or work,(b) damage or despoil the place, precinct or land, or any part of the place, precinct or land,(c) move, damage or destroy the relic or moveable object,(d) excavate any land for the purpose of exposing or moving the relic,(e) carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct,(f) alter the building, work, relic or moveable object,(g) display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct,(h) damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land.(1A) In the case of an interim heritage order made by a council, subsection (1) does not apply to:(a) State significant development within the meaning of the Environmental Planning and Assessment Act 1979, or(b) development, or demolition of a building or work, carried out by or on behalf of the Crown (with Crown including the persons prescribed for the purposes of Division 4 of Part 4 of the Environmental Planning and Assessment Act 1979 as referred to in section 88 (2) (a) of that Act).(1B) Subsection (1) does not apply to anything that is exempted from the operation of this Part by a heritage agreement.(1C) Subsection (1) (d) does not apply in the case of a relic to which an interim heritage order made by a council applies.(1D) Subsection (1) does not apply to anything that is exempted from the operation of this Part by a conservation management plan (within the meaning of section 38A) endorsed by the Heritage Council.(2) The Minister, on the recommendation of the Heritage Council, may, by order published in the Gazette, grant an exemption from subsection (1) or such of the provisions of that subsection as are specified in the order in respect of the engaging in or carrying out of such activity or class of activities by such person or class of persons in such circumstances as may be so specified. The Minister’s power under this subsection extends to apply in respect of interim heritage orders made by councils.(3) A council may, by order published in the Gazette, grant an exemption from subsection (1) or such of the provisions of that subsection as are specified in the order in respect of the engaging in or carrying out of such activity or class of activities by such person or class of persons in such circumstances as may be so specified. Such an exemption has effect only in respect of an interim heritage order made by the council concerned.
Division 3 Applications for approval
Subdivision 1 Applications generally
(1) This Subdivision applies to an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57 (1).(2) This Subdivision applies in addition to, and not in derogation from, the provisions of any other Act or statutory instrument under which an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57 (1) is required to be made.
An application for approval may be made by:(a) the owner of the item or land the subject of the application, or(b) any person with the consent in writing of that owner, or(c) if the item or land is situated on or comprises Crown land as defined in the Crown Lands Act 1989, the lawful occupier of the Crown land.
An application for approval shall be made to the approval body in the approved form and shall be accompanied by such fee as may be prescribed.
61 Public notice of certain applications
(1) Where an application for approval is made in respect of an item of the environmental heritage and that application, if approved, would, in the opinion of the approval body, materially affect the significance of that item as an item of the environmental heritage, the approval body shall cause public notice of that application to be given in a daily newspaper circulating throughout the State.(1A) Public notice is not to be given under this section of an application for approval in respect of integrated development of which public notice has been given under the Environmental Planning and Assessment Act 1979.(2) A notice referred to in subsection (1) shall contain a statement to the effect that the application for approval referred to in that notice and any plans, specifications or similar documents lodged in connection with that application and in the custody of the approval body may be inspected at the office of the approval body by any person during ordinary office hours within a period of 21 days after the day on which that notice is published in the newspaper in accordance with subsection (1).(3) During the period specified in subsection (2), any person may inspect the application and any documents referred to in that subsection which have been lodged in connection with that application at the office of the approval body during ordinary office hours and make representations in writing to the approval body with respect to that application.(4) The approval body shall not determine the application until the expiration of the period specified in subsection (2).
In determining an application for approval in respect of an item or land, the approval body shall take into consideration:(a) the extent to which that application, if approved, would affect the significance of any item as an item of the environmental heritage,(b) the representations, if any, made with respect to that application under section 61 (3),(c) such matters relating to the conservation of that item or land as to it seem relevant, and(c1) any applicable conservation management plan (within the meaning of section 38A) endorsed by the Heritage Council, and(d) such other matters as to it seem relevant.
63 Determination of application
(1) Except as provided by subsection (2), the approval body may determine an application for approval by granting approval to that application, either unconditionally or subject to conditions, or by refusing approval.(1A) The determination of an application for approval in relation to integrated development is subject to Division 5 of Part 4 of the Environmental Planning and Assessment Act 1979.(2) Where:(a) an application for approval is made to demolish the whole of a building or work, or(b) an application for approval is made which would, if it were approved, necessitate the demolition of the whole of a building or work,the approval body shall determine that application by refusing approval.(3) Nothing in subsection (2) prevents the approval body from approving an application referred to in that subsection if:(a) it is of the opinion that the building or work constitutes a danger to the users or occupiers of that building or work, the public or a section of the public, or(b) it is a condition of the approval that the building or work be relocated on other land, or(c) the building or work is situated (whether wholly or partly) in a place or precinct that is an item of State heritage significance, but is not itself such an item, and the approval body is of the opinion that the demolition of the whole of the building or work will not have a materially detrimental effect on the heritage significance of the place or precinct.(4) Without limiting or restricting the power of the approval body to impose conditions under subsection (1), it may, in granting approval to an application for approval, impose, as a condition of its approval, a condition:(a) that the applicant give security in such form and such amount as is determined by the approval body having regard to the nature and extent of the work referred to in the approval to ensure the satisfactory completion of that work, and(b) that where the approval is to the demolition, in whole or in part, of a building or work, such measures as are specified in the approval be taken in the interests of public safety and convenience with respect to the demolition.
63A Deferred commencement approvals
(1) An approval may be granted subject to a condition that it is not to operate until the applicant for the approval satisfies the approval body as to any matter specified in the condition (a deferred commencement approval).(2) Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.(3) A deferred commencement approval must be clearly identified as a deferred commencement approval (whether by the use of that expression or by reference to this section or otherwise).(4) A deferred commencement approval must clearly distinguish conditions concerning matters as to which the approval body must be satisfied before the approval can operate from any other conditions.(5) An approval body may specify the period within which the applicant must produce evidence to the approval body sufficient enough to enable it to be satisfied as to those matters.(6) The applicant may produce evidence to the approval body sufficient to enable it to be satisfied as to those matters and, if the approval body has specified a period for the purpose, the evidence must be produced within that period.(7) If the applicant produces evidence in accordance with this section, the approval body must notify the applicant whether or not it is satisfied as to the relevant matters.(8) If the approval body has not notified the applicant within the period of 28 days after the applicant’s evidence is produced to it, the approval body is, for the purposes only of sections 70 and 70A, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.
63B Partial and conditional approvals
(1) An approval may be granted:(a) for the doing or carrying out of the act, matter or thing for which the approval is sought, or(b) for the doing or carrying out of that act, matter or thing, except for a specified part or aspect of that act, matter or thing, or(c) for the doing or carrying out of a specified part or aspect of that act, matter or thing.(2) An approval referred to in subsection (1) may be granted subject to a condition that:(a) the act, matter or thing for which the approval is sought, or(b) the specified part or aspect of that act, matter or thing, or(c) any thing associated with that act, matter or thing or the doing or carrying out of that act, matter or thing,must be the subject of another approval.
(1) The approval body shall give notice in writing of its determination of an application for approval to the applicant.(2) Where the approval body determines an application for approval by granting approval subject to conditions or by refusing approval, the notice shall:(a) indicate the reasons for the determination, and(b) except in relation to the determination of an application referred to in section 63 (2) which is required to be determined by refusing approval, notify the applicant that he or she has a right of appeal under this Act against the determination.
65 Effect of failure to make determination
(1) Where the approval body has not determined an application for approval (other than an application for approval in respect of integrated development) within a period of 40 days, or, where public notice of that application has been given under section 61, within a period of 60 days, after service of that application on it, it shall, for the purposes only of section 70, be deemed to have determined that application by refusing approval.(2) Nothing in subsection (1) prevents the approval body from determining an application after the expiration of the period referred to in subsection (1) in relation to that application.(3) The determination of an application as referred to in subsection (2) shall not, where an appeal in respect of that application has been made under section 70, prejudice or affect the making, continuance or determination of that appeal.
(1) On application in the approved form by any person entitled to act on an approval, the approval body may modify the approval:(a) so as to vary any aspect of the original approval, but only if it is satisfied that the act, matter or thing authorised by the modified approval is substantially the same as the act, matter or thing authorised by the original approval, or(b) so as to correct a minor error, misdescription or miscalculation.(2) The provisions of sections 61, 62, 64 and 65 apply to an application under subsection (1) (a) in the same way as they apply to an application for an approval, but do not apply to or in respect of an application under subsection (1) (b).(3) For the purposes of this section:(a) the Minister is taken to be the approval body in relation to an approval granted by the Minister as a result of an appeal under Division 4, and(b) the Court is taken to be the approval body in relation to an approval granted by the Court as a result of an appeal under Division 4,but, in either case, the application for modification of the approval is to be lodged not with the Minister or Court but with the approval body to whom the application for original approval was made.(4) Modification of an approval under this section is not to be construed as the granting of an approval, but a reference in this or any other Act to an approval includes a reference to the modified approval.
Subdivision 2 Prescribed applications
This Subdivision prevails the extent of any inconsistency between this Subdivision and the Environmental Planning and Assessment Act 1979 (Part 3A, the provisions relating to State significant development or integrated development and Part 5.1 excepted), any environmental planning instrument in force under that Act, the Local Government Act 1993, any instrument made under that Act, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986.
67 Order of giving of approvals
An approval given by a consent authority to a prescribed application before the Heritage Council’s determination of the application has been notified to the consent authority is void.
An approval given by a consent authority to a prescribed application is, to the extent of any inconsistency with the Heritage Council’s determination of the application, void.
69 Liability of consent authorities
Nothing in this Subdivision affects the liability of a consent authority in respect of an approval granted by it.
Subdivision 1 Appeals in respect of applications other than prescribed applications
70 Appeals against certain determinations of the Heritage Council
(1) An applicant dissatisfied with a determination of the Heritage Council with respect to an application for approval, or application for modification of an approval, made under Subdivision 1 of Division 3, not being the determination of an application referred to in section 63 (2) or 65A (1) (b), may appeal to the Minister or, in the case of the determination of an application for approval, or application for modification of an approval, in respect of integrated development, to the Court:(a) within 12 months after the date on which the applicant received notice of that determination,(b) within 12 months after the expiration of the period of 40 days or the period of 60 days, as the case may require, referred to in section 65 (1), or(c) within such longer period as the Minister or the Court may in special circumstances allow.(2) An applicant who is dissatisfied with a decision by the Heritage Council to the effect that it is not satisfied as to a matter as to which it must be satisfied before a deferred commencement approval can operate may appeal to the Minister or, in the case of a decision concerning an approval in respect of integrated development, to the Court within 12 months after the Heritage Council notifies the applicant of its decision.
70A Appeal to the Court against certain council determinations
(1) An applicant dissatisfied with a determination of a council with respect to an application for approval, or application for modification of an approval, made under Subdivision 1 of Division 3, not being the determination of an application referred to in section 63 (2) or 65A (1) (b), may appeal to the Court:(a) within 12 months after the date on which the applicant received notice of that determination, or(b) within 12 months after the expiration of the period of 40 days or the period of 60 days, as the case may require, referred to in section 65 (1), or(c) within such longer period as the Court may in special circumstances allow.(2) An applicant who is dissatisfied with a decision by a council to the effect that it is not satisfied as to a matter as to which it must be satisfied before a deferred commencement approval can operate may appeal to the Court within 12 months after the council notifies the applicant of its decision.
71 Planning Assessment Commission reports
Where an appeal is made to the Minister under section 70, the Minister may request the Planning Assessment Commission to furnish a report to the Minister with respect to that appeal containing:(a) a recommendation as to whether that appeal should, in the opinion of the Commission, be dismissed or allowed either unconditionally or subject to such conditions as may be specified in the report, and(b) the reasons for that recommendation.
Before making a report under section 71, the Planning Assessment Commission shall, if either the appellant, the Heritage Council or a person who has made representations to the Heritage Council under section 61 (3) with respect to the application for approval from the determination of which the appeal has been made so desires, afford the appellant, the Heritage Council or the person an opportunity of appearing personally or, unless otherwise provided by the regulations, by an Australian legal practitioner or agent.
(1) The Minister, after considering such report as may be furnished to the Minister pursuant to section 71, may:(a) dismiss the appeal,(b) allow the approval either unconditionally or subject to such conditions as he or she thinks proper to impose,(c) where the appeal is against the imposition of conditions, refuse to approve the application for approval from the determination of which the appeal has been made, or(d) return the report to the Planning Assessment Commission and request further consideration of the report.(2) Where a report is returned under subsection (1), sections 71 and 72 and subsection (1) apply in respect of the further consideration of the report in the same way as they apply in respect of the furnishing of the report.
74 Effect of the Minister’s decision
The decision of the Minister under section 73 (1), other than a decision under section 73 (1) (d), shall be final and shall have effect as if it were a determination of the Heritage Council.
Subdivision 2 Appeals in respect of prescribed applications
In this Subdivision, appeal includes objection or reference.
76 Appeal to Minister in respect of prescribed applications
If, under the Environmental Planning and Assessment Act 1979, any environmental planning instrument in force under that Act, the Local Government Act 1993, any instrument made under that Act, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, an applicant has a right of appeal arising from the making of a prescribed application, that right is to be exercised by making that appeal to the Minister, despite those Acts or any such instrument.
77 Manner of determining appeal
(1) Where an appeal is made to the Minister under section 76:(a) if the Minister is of the opinion that the matter the subject of the appeal has special significance for the conservation of an item of the environmental heritage, he or she shall determine that appeal, or(b) if the Minister is not of that opinion, he or she shall remit that appeal for hearing and determination by the Court.(2) The Minister shall cause notice of his or her decision under subsection (1) to be given to the person making the appeal.
78 Planning Assessment Commission reports
If the Minister, pursuant to section 77 (1) (a), decides to determine an appeal, the Minister may request the Planning Assessment Commission to furnish a report to the Minister with respect to the appeal containing:(a) a recommendation as to whether the appeal should, in the opinion of the Commission, be dismissed or allowed either unconditionally or subject to such conditions as may be specified in the report, and(b) the reasons for the recommendation.
Before making a report under section 78, the Planning Assessment Commission must, if a party, being:(a) the appellant, or(b) the Heritage Council, or(c) a person who has made representations to the Heritage Council under section 61 (3) with respect to the application for approval from the determination of which the appeal has been made, or(d) the consent authority from whose determination, or neglect or delay to make a determination, the appeal is made,so desires, afford the party an opportunity of appearing personally or, unless otherwise provided by the regulations, by an Australian legal practitioner or agent.
(1) The Minister, after considering such report as may be furnished to the Minister under section 78, may:(a) dismiss the appeal, or(b) allow the appeal either unconditionally or subject to such conditions as the Minister thinks proper to impose, or(c) if the appeal is against the imposition of conditions, refuse to approve the application for approval from the determination of which the appeal has been made, or(d) return the report to the Planning Assessment Commission and request further consideration of the report.(2) If a report is returned under subsection (1), sections 78 and 79 and subsection (1) apply in respect of the further consideration of the report in the same way as they apply in respect of the furnishing of the report.
79B Effect of the Minister’s decision
The decision of the Minister under section 79A (1), other than a decision under section 79A (1) (d), is final and has effect as if it were a decision of the consent authority from whose determination, or neglect or delay to make a determination, the appeal is made.
79C Order restricting harm to heritage items
(1) The Minister or the Chairperson may make a stop work order if the Minister or Chairperson is of the opinion that a building, work, relic, moveable object or place the subject of an interim heritage order or listing on the State Heritage Register is being or is about to be harmed.(2) A stop work order is an order that:(a) work being carried out on a building, work, relic, moveable object or place cease, and(b) no work, other than work specified in the order, be carried out on the building, work, relic, moveable object or place within a period of 40 days after the date of the order.(3) A stop work order takes effect on and from the date that a copy of the order is affixed to the building, work, relic, moveable object or place the subject of the order.(4) A person must not, while an order under this section is in force, carry out any work, other than such work as may be specified in that order, with respect to the building, work, relic, moveable object or place the subject of that order.(5) The Minister or Chairperson:(a) may only make a stop work order in relation to work for which approval is required under this Part, and(b) must not make a stop work order in relation to work for which an approval is in force under this Part.(6) More than one stop work order may not be made in relation to the same work.(7) Nothing in this section prevents a person from seeking, or the Court from granting, an order under section 154 in relation to work.(8) A stop work order ceases to have effect if an order is made in relation to the work concerned under section 154 or the work is approved under this Part.(9) Section 137A applies in respect of a building, work, relic, moveable object or place subject to a stop work order in the same way as it applies to a building, work, relic, moveable object or place subject to an order under section 136 (1).