Part 6 Other measures for the conservation of the environmental heritage
In this Part:corporation means the corporation constituted by section 102.
Fund means the Heritage Conservation Fund established under section 103.
102 Minister to be corporation sole for certain purposes
(1) The Minister is, for the purpose of exercising those functions expressed to be conferred or imposed on the corporation under this Part, hereby incorporated as a corporation sole with the corporate name “Minister administering the Heritage Act 1977”.(2) The corporation:(a) has perpetual succession,(b) shall have an official seal,(c) may take proceedings, and be proceeded against, in its corporate name,(d) may do and suffer all other things that a body corporate generally may, by law, do and suffer and that are necessary for or incidental to the purposes for which the corporation is constituted, and(e) is, for the purpose of any Act, a statutory body representing the Crown.(3) The seal of the corporation shall not be affixed to any instrument or document except in the presence of the Minister, or a person authorised by the Minister, who shall attest by his or her signature the fact and date of the affixing of the seal.(4) All courts and persons acting judicially:(a) shall take judicial notice of the seal of the corporation that has been affixed to any instrument or document, and(b) shall, until the contrary is proved, presume that the seal was properly affixed.(5) Financial statements need not be prepared for the Heritage Office in respect of any matters that the financial statements of the corporation contain or provide for.
103 Heritage Conservation Fund
There shall be established in the Special Deposits Account in the Treasury a Heritage Conservation Fund.
(1) There shall be paid into the Fund:(a) any money appropriated by Parliament for the purposes of the Fund,(b) money borrowed by the corporation,(c) all money received in respect of:(i) fees and charges under this Act or the regulations,(ii) penalties recovered pursuant to this Act or the regulations, and(iii) policies of insurance under which money is paid to the corporation with respect to any property in the custody or under the control of the corporation,(d) any money acquired by the corporation pursuant to section 115,(e) any money received by the corporation pursuant to section 116, and(f) any other money received in connection with the administration of this Act, other than money received in such circumstances as may be prescribed.(2) Where any money acquired by the corporation pursuant to section 115 is subject to any condition to which it has agreed, the money shall be carried to a separate account in the Fund and shall be applied in accordance with the condition.(3) Any money referred to in subsection (2) may, pending application in accordance with the condition so referred to, be invested by the corporation with the Treasurer or in any manner in which trustees are for the time being authorised to invest trust funds.
(1) There may be paid out of the Fund:(a) all charges, costs and expenses incurred by the Minister and the corporation in exercising functions under this Act,(b) the remuneration payable to the members of the Heritage Council under this Act,(c) money required:(i) to repay money borrowed under this Division,(ii) to pay interest on money so borrowed, and(iii) to pay the expenses of the corporation in borrowing money under this Division,(d) the cost of acquiring land under Division 3,(e) the cost of conserving any item of the environmental heritage vested in the corporation,(f) grants or loans for the purpose of promoting and assisting the conservation of items of the environmental heritage,(g) money required for the purpose of discharging any liability of the corporation under a guarantee given by the corporation,(h) all money which the Minister directs shall be set aside to provide a reserve for insurance, and(i) all costs incurred under sections 115 and 116.(2) Any money set aside, as referred to in subsection (1) (h), may be invested by the corporation with the Treasurer or in any manner in which trustees are for the time being authorised to invest trust funds.(3) Where:(a) any lands are purchased under section 112 out of money wholly or partly appropriated by Parliament for the purposes of the Fund, and(b) those lands, or any part of those lands, are sold under section 116,there shall be paid from the Fund to the Treasurer, out of the proceeds of sale referred to in paragraph (b), such amounts as the Treasurer may determine.
(1) There is to be a Fund called the Heritage Incentive Fund, which is to be administered by the Minister.(2) There is to be paid into the Heritage Incentive Fund any money appropriated by Parliament for the purposes of that Fund.(3) There may be paid out of the Heritage Incentive Fund money required to pay for the financial assistance provided or arranged by the Minister under section 45 (Financial and other assistance).
106 Making of loans and grants by the corporation
(1) The corporation may, on the recommendation of the Heritage Council, make a grant or loan for the purpose of promoting and assisting the conservation of an item of the environmental heritage.(2) Subject to section 107, the corporation may, in making a grant or loan, impose such conditions as, in its opinion, are appropriate to promote and assist the conservation of the item of the environmental heritage in respect of which the grant or loan is made.
107 Rates of interest on loans, and rental etc on leases by corporation
(1) A loan made by the corporation shall be:(a) at the rate of interest for the time being fixed by the Treasurer generally for the purposes of this Act, or(b) if the Treasurer so approves:(i) at such rate of interest as may be fixed by the Treasurer in respect of that loan, or(ii) without interest.(2) The rental or other consideration to be received by the corporation in respect of a lease of property acquired for the purposes of this Act shall be fixed by the corporation so as to produce an amount not less than such percentage as the Treasurer may direct, in respect of that lease, or of leases of the class to which that lease belongs, of the fair market value of the property leased.
(1) The corporation may, with the concurrence of the Treasurer and subject to this section, execute a guarantee, either alone or jointly with some other person, in favour of a bank, building society, credit union or other person for the repayment of any money expended or to be expended on any one or more of the following:(a) the acquisition of an item of the environmental heritage,(b) the conservation of an item of the environmental heritage, or(c) the acquisition of personal property:(i) which is associated with and contributes to the significance of an item of the environmental heritage as such an item, or(ii) which is required for the purpose of furnishing or decorating an item of the environmental heritage.(2) The corporation may, in agreeing to execute a guarantee, impose such conditions as, in the opinion of the corporation, are appropriate.(3) A guarantee executed by the corporation is not enforceable against the corporation until the creditor has exercised all his or her rights and remedies under all other securities held by or for the creditor in respect of the debt guaranteed, other than the guarantee.(4) The corporation may, as a condition of a guarantee, require the creditor to obtain, take and hold, or retain and hold, such securities for the payment of the principal debt and interest thereon as the corporation requires.(5) The corporation may execute a guarantee notwithstanding that it includes any interest (including compound interest), charges and expenses chargeable by the creditor against the principal debtor and the expenses of enforcing or obtaining or endeavouring to enforce or obtain payment of the debt guaranteed, that interest and those charges and expenses.(6) Where the corporation executes a guarantee, any assignment or encumbrance of the guarantee by the creditor without the consent of the corporation has no force or effect.(7) The corporation shall not execute a guarantee:(a) if the amount guaranteed would exceed 90 per centum of the estimated cost, ascertained as directed by the corporation, of:(i) the acquisition of the item of the environmental heritage,(ii) the conservation of the item of the environmental heritage, or(iii) the acquisition of the personal property,as the case may be, or(b) if the amount guaranteed would, together with the amounts of all other guarantees executed by the corporation and then in force, or agreed to by the corporation but not then executed, exceed such amount as may be determined from time to time by the Treasurer and notified to the corporation.(8) The execution by the corporation of a guarantee referred to in this section is, in favour of the creditor, conclusive evidence that the requirements of this section with respect to the guarantee have been complied with.
Division 3 Acquisition and disposal of property
(1) The corporation may, for the purposes of this Act, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.(2) For the purposes of the Public Works Act 1912, any such acquisition of land is taken to be for an authorised work and the corporation is, in relation to that authorised work, taken to be the Constructing Authority.(3) Sections 34, 35, 36 and 37 of the Public Works Act 1912 do not apply in respect of works constructed under this Act.
114 Acquisition of personal property by corporation
The corporation may, in respect of an item of the environmental heritage vested in it, acquire, by lease, purchase or exchange, personal property:(a) which is associated with and contributes to the significance of that item as an item of the environmental heritage, or(b) which is required for the purpose of restoring, enhancing, furnishing or decorating that item.
115 Power of corporation to accept gifts etc
(1) The corporation may acquire, by gift inter vivos, devise or bequest, any property for the purposes of this Act and may agree to the condition of any such gift, devise or bequest.(2) The rule of law against remoteness of vesting shall not apply to any such condition to which the corporation has agreed.(3) Where the corporation acquires property under subsection (1):(a) neither an instrument that effects the acquisition nor any agreement pursuant to which the property is acquired is chargeable with duty under the Stamp Duties Act 1920, and(b) the property, or the value of the property, shall not be included in the dutiable estate of the donor or testator for the purposes of assessing death duty under that Act.
116 Disposal of lands, gifts etc
(1) The corporation, except where it has otherwise agreed, may, in such manner and subject to such terms and conditions as in the opinion of the corporation are appropriate, sell, lease, exchange or otherwise deal with or dispose of any property that has been acquired by the corporation under this Division and grant easements or rights-of-way over any land or any part thereof that has been so acquired by the corporation.(2) The functions of the corporation under subsection (1) shall not be exercised in respect of an item of the environmental heritage except upon the recommendation of the Heritage Council.
117 (Repealed)
Division 5 Maintenance and repair
118 Minimum standards of maintenance and repair
The regulations may impose minimum standards with respect to the maintenance and repair of a building, work or relic that is listed or within a precinct that is listed on the State Heritage Register, but those standards can only relate to the following matters:(a) the protection of the building, work or relic from damage or deterioration due to weather (including such matters as the weatherproofing of roof, doors and windows),(b) the prevention of and the protection of the building, work or relic from damage or destruction by fire,(c) security (including fencing and surveillance measures to prevent vandalism),(d) essential maintenance and repair (being maintenance and repair necessary to prevent serious or irreparable damage or deterioration).
119 Offence of not maintaining and repairing in accordance with minimum standards
(1) The owner of a building, work or relic listed or within a precinct listed on the State Heritage Register must ensure that the building, work or relic is maintained and repaired to standards that are not less than the minimum standards imposed by the regulations.(2) Proceedings for an offence against this Act in respect of a contravention of this section cannot be instituted without the written consent of the Minister.
120 Orders to remedy failure to maintain or repair
(1) If the Heritage Council is satisfied that a building, work or relic listed or within a precinct listed on the State Heritage Register is not being maintained and repaired to standards that are at least the minimum standards imposed by the regulations, the Heritage Council may give the owner of the building, work or relic an order to do or refrain from doing such things as are specified in the order so as to ensure that the building, work or relic is maintained and repaired to those standards.(2) Before such an order is given, the procedures set out in this Division must be complied with. Compliance with those procedures is taken to be compliance with the rules of natural justice (the rules of procedural fairness).(3) An order can be given under this Division whether or not the owner of the building, work or relic has been prosecuted for or convicted of an offence in respect of the failure to maintain or repair concerned.
120A Notice to be given of proposed order
(1) Before giving an order, the Heritage Council must give notice to the person to whom the order is proposed to be given of the intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.(2) The notice must also indicate that the person to whom the order is proposed to be given may make written representations to the Heritage Council as to why the order should not be given or as to the terms of or period for compliance with the order.(3) The notice may provide that the representations are to be made to the Heritage Council on or before a specified date.
120B Making of representations
(1) A person given notice of a proposed order may, in accordance with the notice, make representations concerning the proposed order.(2) The Heritage Council is required to consider any representations so made.
120C Procedure after consideration of representations
(1) After considering any representations made concerning the proposed order, the Heritage Council may determine:(a) to give an order in accordance with the proposed order, or(b) to give an order in accordance with modifications made to the proposed order, or(c) not to give an order.(2) If the determination is to give an order in accordance with modifications made to the proposed order, notice under this Division of the proposed order as so modified is not required to be given.
120D Reasons for orders to be given
(1) The Heritage Council must give the person to whom the order is directed the reasons for the order.(2) The reasons may be given in the order or in a separate instrument.(3) The reasons must be given when the order is given, except in the case of an emergency (in which case the reasons may be given the next working day).
120E Period for compliance with order
(1) An order must specify a reasonable period within which the terms of the order are to be complied with, subject to this section.(2) An order may require immediate compliance with its terms in circumstances that the Heritage Council believes constitute a serious risk to the building, work or relic concerned.
120F Notice of right to appeal against order
Notice of the giving of an order must:(a) state that the owner of the building, work or relic may appeal to the Court against the order or a specified part of the order, and(b) specify the period within which an appeal may be made.
120G Giving and taking effect of orders
(1) An order is given by serving a copy of the order on the person to whom it is addressed. The order takes effect from the time of service or a later time specified in the order.(2) If a building, work or relic is owned by more than one person:(a) an order in respect of the building, work or relic is not invalid merely because it was not given to all of the owners, and(b) any of the owners may comply with such an order without affecting the liability of the other owners to pay for or contribute towards the cost of complying with the order.(3) This Division does not affect the right of an owner to recover from any other person all or any of the expenses incurred by the owner in complying with an order under this Division.(4) This Division does not entitle a person to recover from the Heritage Council any of the expenses incurred by the owner in complying with an order under this Division.
120H Order binds successors in title
An order given to a person binds any person claiming through or under or in trust for or in succession to the person or who is a subsequent owner to the person, as if the order had been given to that person.
120I Occupier of land may be required to permit owner to carry out work
(1) The Heritage Council may order the occupier of any land to permit the owner of a building, work or relic to carry out such work on the building, work or relic as is specified in the order (being work that is, in the owner’s opinion, necessary to enable the requirements of an order given to the owner to be complied with).(2) An occupier of land on whom such an order is served must, within 2 days after the order is served, permit the owner to carry out the work specified in the order.(3) The owner of the building, work or relic is not guilty of an offence arising from his or her failure to comply with the requirements of an order given to the owner if, while an order under this section is in force, the occupier of the land refuses to permit the owner to carry out the work specified in the order. This subsection applies only if the owner of the building, work or relic satisfies the Court that the owner has, in good faith, tried to comply with the requirements concerned.
120J Modification and revocation of orders
(1) The Heritage Council may, at any time, modify an order it has given to a person (including a modification of the period specified for compliance with the order) if the person to whom the order is given agrees to that modification.(2) An order may be revoked by the Heritage Council at any time.
120K Failure to comply with order—carrying out of work by Heritage Council
(1) If a person fails to comply with the terms of an order given to the person under this Division, the Heritage Council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.(2) Any expenses incurred under this section by the Heritage Council together with all associated costs may be recovered by the Heritage Council in any court of competent jurisdiction as a debt due to the Heritage Council by the person required to comply with the order.(3) This section does not affect the owner’s right to recover any amount from any lessee or other person liable for the expenses of repairs.(4) A reference in this section to costs is a reference to costs incurred by the Heritage Council in seeking to recover the expenses otherwise than by proceedings in a court, but this section does not prevent the Heritage Council from receiving costs as between party and party in respect of those proceedings.(5) The Heritage Council may exercise its functions under this section irrespective of whether the person required to comply with the order has been prosecuted for an offence against this Act.
120L Appeals concerning orders
(1) A person on whom an order is served may appeal against the order to the Court.(2) The appeal must be made within 28 days after the service of the order on the person.(3) On hearing an appeal, the Court may:(a) revoke the order, or(b) modify the order, or(c) substitute for the order any other order that the Heritage Council could have made, or(d) find that the order is sufficiently complied with, or(e) make such order with respect to compliance with the order as the Court thinks fit, or(f) make any other order with respect to the order as the Court thinks fit.(4) An appeal to the Court against an order does not operate to stay the order.(5) This Division does not limit a power of the Court under the Land and Environment Court Act 1979.
(1) A person may apply to the Heritage Council for a certificate as to whether there are:(a) any outstanding notices of intention to give an order under this Division in respect of a particular building, work or relic, and(b) any orders in force under this Division in respect of a particular building, work or relic.(2) The application must be in the form determined by the Heritage Council and must be accompanied by the fee determined by the Heritage Council.(3) The Heritage Council is to issue a certificate to the applicant stating:(a) whether or not a notice is outstanding or an order is in force in respect of the building, work or relic as at the date of the certificate and, if so, the terms of any such notice or order, and(b) any action proposed to be taken or that may be taken by the Heritage Council or any other person in relation to any such notice or order.(4) The production of the certificate is taken for all purposes to be conclusive proof of the existence or otherwise of any outstanding notices and any orders in force.
120N Chairperson to have Heritage Council functions
(1) The Chairperson has the same functions as the Heritage Council under this Division and for that purpose a reference in this Division to the Heritage Council includes a reference to the Chairperson.(2) It is permissible for the Chairperson and the Heritage Council to share functions under this Division in respect of any particular building, work or relic, so as to enable the Chairperson to exercise some functions and the Heritage Council to exercise others in respect of that building, work or relic.
121 Failure to comply with order
(1) Where an owner on whom an order under section 120 is served fails to comply with that order within the period specified in that order or any extension, granted by the Heritage Council on application of that owner, of that period:(a) the corporation may, in pursuance of section 113, resume or appropriate the land on which the building or work the subject of that order is situated, or(b) the Minister may, by order published in the Gazette, direct that no development or use of that land, other than the conservation of that building or work, shall be carried out or made during such period, not exceeding 10 years, as is specified in the order, or(c) the Minister may, by order published in the Gazette, direct that no development or use of that land is to be carried out other than development or use of the building envelope (that is, the three dimensional space) occupied by the building or work at the time that the order under section 120 was served.(2) In determining the amount of compensation payable in respect of a resumption or an appropriation of land by the corporation under subsection (1) (a), the value of that land shall be:(a) the value determined in accordance with section 147, or(b) the value determined on the assumption that no approval may be given under this Act in respect of the building or work situated on that land other than to restore that building or work to a reasonable state of repair,whichever is the lesser.(3) The Minister may, by order published in the Gazette, at any time at which an order made by the Minister under subsection (1) (b) or (c) remains in force, revoke, alter or vary that order.(4) An order made by the Minister under subsection (1) (b) or (c) or (3) shall take effect on and from the date of publication of that order in the Gazette.(5) The Minister shall cause notice of an order made by the Minister under subsection (1) (b) or (c) or (3) to be served, as soon as practicable after the date of publication of that order in the Gazette, on:(a) the owner or occupier of the land subject to that order,(b) the Heritage Council,(c) the Director-General, and(d) the council of the area, if any, in which that land is situated.
122 Failure to comply with order under section 121 (1) (b) or (c)
A person shall not fail to comply with an order made by the Minister under section 121 (1) (b) or (c), or that order as altered or varied by the Minister under section 121 (3), while that order is in force.
In this Division:heritage valuation, in relation to land, means a valuation of that land obtained by adding to or by deducting from a valuation for rating or taxing purposes of that land any allowance determined as a consequence of making the following assumptions with respect to that land, namely:
(a) that that land may be used only for the purpose, if any, for which it was used at the relevant date,(b) that all improvements on that land as at the relevant date may be continued and maintained in order that the use of that land as referred to in paragraph (a) may be continued,(b1) that all improvements referred to in paragraph (b) on that land are new (without any deduction being made because of their actual condition),(c) that no improvements, other than those referred to in paragraph (b), may be made to or on that land.land includes stratum within the meaning of the Valuation of Land Act 1916.
rating or taxing authority means:
(a) a council,(b) a county council established under the Local Government Act 1993,(c) the Sydney Water Corporation referred to in the Water Board (Corporatisation) Act 1994,(d) the Hunter Water Corporation referred to in the Hunter Water Board (Corporatisation) Act 1991,(e) a water supply authority within the meaning of the Water Management Act 2000,(f) the Commissioner of Land Tax.relevant date, in relation to a heritage valuation, means:
(a) where that heritage valuation is made pursuant to a request made by the Minister under section 124 (1)—the date determined in accordance with section 124 (1) (a) or (b), or(b) where that heritage valuation is made pursuant to section 125—the date on which that heritage valuation is made.valuation for rating or taxing purposes, in relation to land, means a valuation of that land made under a valuing law and which is the valuation on which a rate is made and levied or a tax is levied in respect of that land by a rating or taxing authority.
valuing law means the Valuation of Land Act 1916.
124 Request to make heritage valuations
(1) As soon as practicable after the date on which a listing on the State Heritage Register takes effect with respect to land, the Minister shall, by instrument in writing, request each person by whom a valuation for rating or taxing purposes of that land has been made or caused to be made to make or cause to be made a heritage valuation or heritage valuations of that land as at:(a) except as provided by paragraph (b)—the date on which that listing on the State Heritage Register took effect with respect to that land, or(b) where, immediately before that date, that land was subject to an interim heritage order—the date on which that interim heritage order took effect with respect to that land.(2) Where, immediately before the date on which a listing on the State Heritage Register took effect with respect to land the subject of a request by the Minister under subsection (1) that land was subject to an interim heritage order, the Minister shall notify the person to whom that request is made that that land was subject to an interim heritage order and of the date on which that interim heritage order took effect with respect to that land.(3) A person to whom a request under subsection (1) is made shall comply with that request as soon as practicable after its receipt.
125 Making of heritage valuations with other valuations
Whenever, pursuant to a valuing law, a person makes or causes to be made a valuation for rating or taxing purposes of land, the person shall, in addition, where that land is subject to a listing on the State Heritage Register, make or cause to be made a heritage valuation or heritage valuations of that land.
126 Application of valuing laws to heritage valuations
Except to the extent of any inconsistency with this Division:(a) the Valuation of Land Act 1916, applies to a heritage valuation derived from a valuation for rating or taxing purposes made under that Act in the same way as it applies to that valuation for rating or taxing purposes,(b), (c) (Repealed)(d) the Water Board (Corporatisation) Act 1994, applies to a heritage valuation derived from a valuation for rating or taxing purposes made under that Act in the same way as it applies to that valuation for rating or taxing purposes,(e) (Repealed)(f) the Broken Hill Water and Sewerage Act 1938, applies to a heritage valuation derived from a valuation for rating or taxing purposes made under that Act in the same way as it applies to that valuation for rating or taxing purposes, and(g) the Land Tax Management Act 1956, applies to a heritage valuation derived from a valuation for rating or taxing purposes made under that Act in the same way as it applies to that valuation for rating or taxing purposes.
127 Payment of rates and taxes
(1) Where land is subject to a listing on the State Heritage Register, a rating or taxing authority which would, but for this Act, make and levy a rate or levy a tax on a valuation for rating or taxing purposes of that land shall make and levy that rate or levy that tax on the heritage valuation of that land derived from that valuation for rating or taxing purposes.(2) Where a heritage valuation is made with respect to land pursuant to a request made by the Minister under section 124 (1), the amount of any rates or taxes payable in respect of that land shall be redetermined on the basis of that heritage valuation as from the date determined in accordance with section 124 (1) (a) or (b), as the case may be, of that heritage valuation and any amount paid in excess shall be refunded and any amount short-paid shall be recoverable as arrears.(3) Where land ceases to be subject to a listing on the State Heritage Register, the amount of any rates or taxes levied in respect of that land shall, as from the date on which that land ceases to be subject to that listing on the State Heritage Register, be redetermined on the basis of the valuation for rating or taxing purposes of that land and any amount paid in excess shall be refunded and any amount short-paid shall be recoverable as arrears.
(1) Notwithstanding the Land Tax Management Act 1956, where a person is the owner, within the meaning of that Act, of two or more parcels of land, one or more of which is subject to a listing on the State Heritage Register, the amount of land tax, within the meaning of that Act, payable by that person shall, in respect only of such land as is subject to a listing on the State Heritage Register, be:(a) calculated separately in respect of each parcel of that land that is not exempt from taxation, and(b) so calculated in the case of each such parcel as if it were the only land owned by that person.(2) This section applies only in respect of land that was subject to a permanent conservation order immediately before the commencement of this subsection (as inserted by the Heritage Amendment Act 1998). This section does not apply to the calculation of land tax payable for any land tax year after the 2003 land tax year.
Division 7 Curtailment or modification of laws affecting the environmental heritage
129 Making of orders to curtail or modify other laws
(1) In this section, instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.(2) Where the conservation of an item to which an interim heritage order made by the Minister or listing on the State Heritage Register applies is regulated, restricted or prohibited by an instrument, the Minister, if he or she is of the opinion that the conservation of that item is so necessary as to warrant it, may, by order published in the Gazette, declare that the instrument or such part of that instrument as is specified in the order shall not apply to or in respect of that item or shall apply to or in respect of that item subject to such modifications as are so specified in such circumstances, if any, as are so specified.(3) Where a Minister is responsible for the administration of an instrument referred to in subsection (2), the Minister shall not make an order with respect to that instrument under that subsection except with the prior concurrence in writing of the first-mentioned Minister.(4) The Minister may, by order published in the Gazette, at any time at which an order made by the Minister under subsection (2) remains in force, revoke that order in whole or in part.(5) An order made by the Minister under subsection (2) or (4) shall take effect on and from the date of publication of that order in the Gazette.
Division 8 Controlling and restricting harm to buildings, works, relics and places not subject to interim heritage orders or State Heritage Register listing
136 Order restricting harm to buildings etc
(1) Where the Minister or the Chairperson of the Heritage Council is of the opinion that a building, work, relic or place (not being a building, work, relic or place the subject of an interim heritage order or listing on the State Heritage Register) is being or is about to be harmed, he or she may order that any work being carried out with respect to that building, work, relic or place shall cease and that no work, other than such work as may be specified in his or her order, shall be carried out with respect to that building, work, relic or place within a period of 40 days after the date of his or her order.(2) An order made by the Minister or the Chairperson of the Heritage Council under subsection (1) shall take effect on and from the date on which a copy of that order is affixed to the building, work, relic or place the subject of that order.(3) Where the Minister makes an order under subsection (1), the Minister shall immediately request the Heritage Council to furnish to him or her, within the period of 40 days after the date of that order, advice with respect to the making of an interim heritage order in respect of the building, work, relic or place the subject of his or her order.(4) The Heritage Council shall comply with the Minister’s request.(5) Where the Chairperson of the Heritage Council makes an order under subsection (1), he or she shall take all such steps as are necessary to enable the Heritage Council to furnish to the Minister, within the period of 40 days after the date of that order, advice with respect to the making of an interim heritage order in respect of the building, work, relic or place the subject of his or her order.(6) The Minister may revoke an order made under subsection (1) at any time after the Minister has received the advice or recommendation of the Heritage Council under subsection (3) or (5) but only during the period of 40 days after the date of that order.
A person shall not, while an order made by the Minister or the Chairperson of the Heritage Council under section 136 (1) 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 or place the subject of that order.
(1) If an interim heritage order or order under section 136 (1) is in force in relation to a building, work, relic or place, a notice or order (whether made or issued before or after the interim heritage order or order under section 136 (1)) under any other Act which requires or permits the building, work, relic or place to be harmed, other than:(a) an order of the kind referred to in Order No 6 in the Table to section 121B of the Environmental Planning and Assessment Act 1979, or(b) a notice or order which is prescribed for the purposes of this section,is void.(2) On and from the date on which an interim heritage order ceases to have effect in relation to a building, work, relic or place, whether by lapsing, revocation or otherwise, any notice or order that is void under subsection (1) because of the interim heritage order comes back into force in relation to that building, work, relic or place.(3) On and from the date on which an approval is granted by an approval body under Division 3 of Part 4 in relation to a building, work, relic or place to which an interim heritage order applies, any notice or order that is void under subsection (1) because of the interim heritage order comes back into force in relation to that building, work, relic or place, but only to the extent to which it is consistent with the terms of the approval.
Division 9 Protection of certain relics
In this Division:excavation permit means an excavation permit referred to in section 139.
historic shipwreck has the same meaning as it has in Part 3C.
historic shipwrecks permit means a historic shipwrecks permit referred to in section 51.
permit means an excavation permit or historic shipwrecks permit.
relic includes a historic shipwreck.
139 Excavation permit required in certain circumstances
(1) A person must not disturb or excavate any land knowing or having reasonable cause to suspect that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed unless the disturbance or excavation is carried out in accordance with an excavation permit.(2) A person must not disturb or excavate any land on which the person has discovered or exposed a relic except in accordance with an excavation permit.(3) This section does not apply to a relic that is subject to an interim heritage order made by the Minister or a listing on the State Heritage Register.(4) The Heritage Council may by order published in the Gazette create exceptions to this section, either unconditionally or subject to conditions, in respect of any of the following:(a) any relic of a specified kind or description,(b) any disturbance or excavation of a specified kind or description,(c) any disturbance or excavation of land in a specified location or having specified features or attributes,(d) any disturbance or excavation of land in respect of which an archaeological assessment approved by the Heritage Council indicates that there is little likelihood of there being any relics in the land.(5) This section does not prevent a person from disturbing or excavating land in which a historic shipwreck is situated in accordance with a historic shipwrecks permit in force in respect of that shipwreck.
(1) A person may make an application to the Heritage Council for the issue to the person of a permit.(2) The application shall be in the approved form and shall be accompanied by such fee as may be prescribed.
141 Determination of application
(1) The Heritage Council may determine an application for a permit:(a) by issuing a permit, either unconditionally or subject to such conditions as it thinks proper to impose, or(b) by refusing to issue a permit.(2) Where the Heritage Council fails to determine an application for a permit within 21 days after the date of that application, it shall, for the purpose only of section 142, be deemed to have determined that application by refusing to issue a permit.
142 Appeals arising from applications for permits
An applicant dissatisfied with a determination of the Heritage Council with respect to his or her application for a permit may appeal to the Minister.
(1) The Minister may, with respect to an appeal made under section 142:(a) dismiss the appeal,(b) allow the appeal, either unconditionally or subject to such conditions as the Minister thinks proper to impose, or(c) where the appeal is against the imposition of conditions, refuse to approve the application for a permit from the determination of which the appeal has been made.(2) The decision of the Minister under subsection (1) shall be final and shall have effect as if it were a determination of the Heritage Council.
144 Variation or revocation of permit
The Heritage Council may, by notice in writing to the holder of a permit:(a) where that permit has been issued unconditionally, impose conditions to which that permit shall be subject,(b) where that permit has been issued subject to conditions, vary the conditions of that permit, or(c) revoke that permit.
145 Appeals arising from variation or revocation of permits
(1) The holder of a permit dissatisfied with the variation or revocation of that permit may appeal to the Minister.(2) Section 143, section 143 (1) (c) excepted, applies in respect of an appeal made under subsection (1) in the same way as it applies in respect of an appeal made under section 142.
146 Notification of discovery of relic
A person who is aware or believes that he or she has discovered or located a relic (in any circumstances, and whether or not the person has been issued with a permit) must:(a) within a reasonable time after he or she first becomes aware or believes that he or she has discovered or located that relic, notify the Heritage Council of the location of the relic, unless he or she believes on reasonable grounds that the Heritage Council is aware of the location of the relic, and(b) within the period required by the Heritage Council, furnish the Heritage Council with such information concerning the relic as the Heritage Council may reasonably require.
146A Disposition of certain relics
(1) As soon as practicable after a relic is obtained from an excavation carried out by the holder of a permit, the holder shall notify the Minister of the existence of the relic.(2) The holder shall furnish the Minister with such information concerning the relic as the Minister may reasonably require.
146B Minister may direct that relic be given to museum or other conservation body
(1) The Minister may, by notice in writing, direct any person:(a) who is or has been the holder of a permit, or(b) who, in the Minister’s opinion, has obtained a historic shipwreck as a consequence of having removed the relic without a historic shipwrecks permit, in contravention of section 51, or(c) who, in the Minister’s opinion, has obtained a relic as a consequence of having excavated land without an excavation permit, in contravention of section 139,to deliver the relic to a specified person or body (such as a museum) who in the opinion of the Minister has the facilities and expertise to conserve the relic.(2) Such a direction may be given on the ground that the person has obtained the relic as a consequence of:(a) having removed the relic without a historic shipwrecks permit, in contravention of section 51, or(b) having excavated land without an excavation permit, in contravention of section 139,whether or not the person has been prosecuted or convicted of an offence in respect of the alleged contravention.
146C Forfeiture of certain relics
(1) A relic the subject of a direction under section 146B shall be forfeited to the Crown.(2) No compensation is payable to any person as a consequence of the forfeiture of a relic under this section.