Part 7 Implementation and enforcement
147 Value of land compulsorily acquired
(1) Where land the subject of an interim heritage order or listing on the State Heritage Register is:(a) resumed or appropriated under this Act, or(b) resumed or appropriated under any other Act for a public purpose,the value of that land shall be determined as if that land were not the subject of that interim heritage order or listing on the State Heritage Register.(2) (Repealed)
(1) Subject to subsection (2) the Minister may authorise a person to carry out inspections, for the purposes of this Act, of buildings, works, relics, moveable objects and places and a person so authorised shall be provided by the Minister with a certificate of his or her authority in the prescribed form.(2) Where a person authorised under subsection (1) believes on reasonable grounds that a building, work, relic, moveable object or place, is or contains an item of the environmental heritage, the person may:(a) at any reasonable time after giving reasonable notice of his or her intention to do so to the person apparently in charge of or having the custody of that building, work, relic, moveable object or place, or(b) at any time with the consent of the person referred to in paragraph (a),carry out an inspection of that building, work, relic, moveable object or place.(3) A person authorised under subsection (1), in exercising his or her functions under this section in respect of a building, work, relic, moveable object or place, shall, if so required by a person apparently in charge of that building, work, relic, moveable object or place, produce the certificate of his or her authority to that person.
149 Obstruction of authorised person
A person shall not obstruct, hinder, prevent or interfere with a person authorised under section 148 (1) in the exercise of his or her functions under section 148.
(1) Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served:(a) in the case of an individual:(i) by delivering it to the person, or(ii) by sending it by prepaid post addressed to the person at the address, if any, specified by the person for the giving of notices or service of documents under this Act, or, where no such address is specified, at his or her usual or last known place of abode or his or her last known place of business, or(b) in the case of a person not being an individual:(i) by leaving it at that person’s place of business, or, if that person is a corporation, at the registered office of that corporation, with a person apparently not less than 16 years of age and apparently in the service of the person to whom the notice or other document is required to be given or on whom the notice or other document is required to be served, or(ii) by sending it by prepaid post addressed to that person at the address, if any, specified by that person for the giving of notices or service of documents under this Act, or, where no such address is specified, at that person’s last known place of business.(2) A notice or other document shall, in respect of a notice or other document sent by prepaid post in accordance with subsection (1) (a) (ii) or (b) (ii), be deemed to have been given or served at the time at which the notice or other document would be delivered in the ordinary course of post.(3) A notice or other document required to be given to or served upon any person by the Heritage Council may be given or served by the Secretary of the Heritage Council.(4) A notice or other document required to be given to or served upon the Heritage Council may be given to or served upon the Secretary of the Heritage Council.
(1) A document purporting to be an interim heritage order is admissible in evidence in any legal proceedings and is prima facie evidence of the due making of that order and the contents thereof if it purports to be printed by the Government Printer or by the authority of the Government.(1A) The Heritage Council may issue a certificate certifying that a particular item or particular land is or is not the subject of a listing on the State Heritage Register, or was or was not the subject of a listing on the State Heritage Register on a particular date or during a particular period. Such a certificate is prima facie evidence of the matters certified. A certificate purporting to have been issued by the Heritage Council under this section is presumed, unless the contrary is established, to have been so issued.(2) A document purporting to be a copy or extract of any document, map or plan embodied, incorporated or referred to in an interim heritage order or a listing on the State Heritage Register is admissible in evidence in any legal proceedings if:(a) it purports to be printed by the Government Printer or by the authority of the Government, or(b) it purports to be certified, where the original document, map or plan is in the custody of the Department of Planning, under the hand of an officer of that Department.(3) Where the original document, map or plan is in the custody of the Department of Planning, the Department of Planning shall furnish the certified copy or extract to the person applying for it upon payment of such fee as is determined by the Department of Planning.(4) For the purposes of this section, a copy or extract of a map or plan may be to the same scale as the original or may be an enlarged or reduced copy.
Division 2 Orders of the Court
In this Division:(a) a reference to a breach of this Act is a reference to:(i) a contravention of or failure to comply with this Act, and(ii) a threatened or an apprehended contravention of or a threatened or an apprehended failure to comply with this Act, and(b) a reference to this Act includes a reference to an approval given under this Act and a condition of any such approval.
153 Restraint etc of breaches of this Act
(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been infringed by or as a consequence of that breach.(2) Proceedings brought under subsection (1) shall be brought in accordance with the rules of Court.
(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may:(a) where the breach of this Act comprises a use of a building or work or of land—restrain that use, or(b) where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of the building or work, or(c) where the breach of this Act has the effect of altering the appearance of a building or work or the state of land—require the restoration of the building or work or the reinstatement, so far as is practicable, of the land to the condition the building, work or land was in immediately before the breach was committed, or(d) where the breach of this Act comprises the demolition of the whole or part of a building—require the rebuilding of the building, as it was immediately before the breach was committed, in accordance with plans and specifications approved by the Heritage Council.(3) (Repealed)
The functions of the Court under this Division are in addition to and not in derogation from any other function of the Court.
156 Offences against this Act and the regulations
(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Heritage Council or any other person or body is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.(2) Where any matter or thing is by or under the regulations directed or forbidden to be done, or where the Minister, the Heritage Council or any other person or body is authorised by the regulations to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against the regulations.(3) Nothing in subsection (1) or (2) applies in respect of a direction given under this Act by the Minister to the Heritage Council.
(1) A person guilty of an offence against this Act shall be liable to a penalty not exceeding 10,000 penalty units or imprisonment for a period not exceeding 6 months, or both.(2) A person guilty of an offence against the regulations shall be liable to a penalty not exceeding 50 penalty units.
(1) Proceedings for an offence against this Act may be taken before the Local Court or before the Court in its summary jurisdiction.(2) Proceedings for an offence against the regulations may be taken before the Local Court.(3) Proceedings for an offence against this Act shall not be instituted in the Court in its summary jurisdiction without the written consent of the Minister or of such prescribed person or person of a class or description of persons prescribed for the purposes of this section.(4) If proceedings for an offence against this Act are brought in the Local Court, the maximum penalty that the court may impose is, notwithstanding any other provision of this Act, 200 penalty units or imprisonment for a period not exceeding 3 months, or both.(5) If proceedings for an offence against this Act are brought in the Court in its summary jurisdiction, the maximum penalty that the Court may impose is 10,000 penalty units or imprisonment for a period not exceeding 6 months, or both.(6) (Repealed)
158A Time within which proceedings for offences to be brought
(1) Proceedings for an offence against this Act or the regulations may be commenced within, but not later than, 12 months after the date of the alleged commission of the offence.(2) Proceedings for an offence against this Act or the regulations may also be commenced within, but not later than, 12 months after the date on which evidence of the alleged offence first came to the attention of an authorised person.(3) If subsection (2) is relied on for the purpose of commencing proceedings for an offence, the information must contain particulars of the date on which evidence of the alleged offence first came to the attention of an authorised person and need not contain particulars of the date on which the offence was committed.(4) The date on which evidence first came to the attention of an authorised person is the date specified in the information, unless the contrary is established.(5) This section applies despite anything in the Justices Act 1902 or any other Act.(6) In this section:authorised person means a person authorised to exercise functions under section 148 (1).
evidence of an offence means evidence of any act or omission constituting the offence.
159 Liability of directors etc for offences by corporation—accessory to the commission of the offences
(1) For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation.(2) A person commits an offence against this section if:(a) a corporation commits a corporate offence, and(b) the person is:(i) a director of the corporation, or(ii) an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and(c) the person:(i) aids, abets, counsels or procures the commission of the corporate offence, or(ii) induces, whether by threats or promises or otherwise, the commission of the corporate offence, or(iii) conspires with others to effect the commission of the corporate offence, or(iv) is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.Maximum penalty: The maximum penalty for the corporate offence if committed by an individual.
(3) The prosecution bears the legal burden of proving the elements of the offence against this section.(4) The offence against this section can only be prosecuted by a person who can bring a prosecution for the corporate offence.(5) This section does not affect the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence.(6) This section does not affect the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.
160 Notices to show cause why certain restrictions on development etc should not be imposed
(1) If the owner of an item is convicted of an offence against this Act involving the demolition, damaging or despoliation of that item, the Minister may serve written notice on that owner requiring the owner to show cause, within 21 days after the date of that notice, why the Minister should not make one of the following orders (without the need to specify which order is contemplated):(a) an order directing that no development or use of the land on which that item is or was situated, or, where that item is a place, that place, is to be carried out during such period, not exceeding 10 years, as is specified in the notice other than development or use of that land or place for the purpose of restoring that item to the condition it was in before the demolition, damaging or despoliation took place,(b) an order directing that no development or use of the land on which that item is or was situated is to be carried out other than development or use of the building envelope (that is, the three dimensional space) occupied by the item before the demolition, damaging or despoliation took place.(2) A notice referred to in subsection (1) shall inform an owner on whom it is served of the provisions of sections 161 and 162.
161 Orders restricting development etc
(1) If an owner of an item on whom a notice is served under section 160 (1) with respect to that item fails to show cause as referred to in section 160 (1), the Minister may, by order published in the Gazette, direct either of the following:(a) that no development or use of the land on which that item is or was situated, or, where that item is a place, that place, is to be carried out during such period, not exceeding 10 years, as is specified in the order other than development or use of that land or place for the purpose of restoring that item to the condition it was in before the demolition, damaging or despoliation took place,(b) that no development or use of the land on which that item is or was situated is to be carried out other than development or use of the building envelope (that is, the three dimensional space) occupied by the item before the demolition, damaging or despoliation took place.(2) An order made by the Minister under subsection (1) shall take effect on and from the date of publication of that order in the Gazette.
162 Notice of order under sec 161 (1)
The Minister shall, as soon as practicable after the date of publication in the Gazette of an order made under section 161 (1), cause notice of that order to be served on:(a) the owner of the land or place the subject of that order, and(b) the Heritage Council.
163 Revocation of order under sec 161 (1)
(1) The Minister may, at any time during which an order made under section 161 (1) remains in force, revoke that order by notice of revocation.(2) A notice of revocation shall take effect on the date of publication of that notice in the Gazette.(3) The Minister shall, as soon as practicable after the date of publication in the Gazette of a notice of revocation of an order made under section 161 (1), cause notice of the revocation to be given to the persons referred to in section 162 (a) and (b).
164 Failure to comply with order under sec 161 (1)
A person shall not fail to comply with an order made by the Minister under section 161 (1) while that order is in force.
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) A regulation may be made so as to apply differently according to such factors as may be specified in the regulation.(3) A regulation may be made so as to authorise any matter or thing to be from time to time determined, applied or regulated by any person or body specified in the regulation.