Heritage Update: Increased protection and reduced regulation

On the 1 November 2017, the Heritage Act 2017 (the Act) came into operation.  The new Act replaced the Heritage Act 1995, with alterations designed to increase the level of protection provided for places and objects of cultural heritage significance, while reducing regulatory processes.

Some of the most significant changes are described below.

Improved process for heritage registration

The Act has introduced changes to the heritage registration process, including:

• The Executive Director, Heritage Victoria may now refuse a nomination that has 'no reasonable prospect of inclusion in the Heritage Register' (s 29(1)).  However, such a refusal may be reviewed by the nominator (s 30).   
• There are further procedural variations, including a new 90 day time limit for Heritage Council hearing determinations (s 49(2)). 

Simplified process for permits

The Act has introduced changes to the process for obtaining permits, including:

• There is a greater role for local heritage issues, by requiring consideration of local government submissions in determining applications (s 101(2)(c)) and in review (s 108(5)).  
• The Executive Director is no longer required to consider 'undue financial hardship' of refusal, however the requirement to consider reasonable and economic use of the place remains (s 101(2)(b)).    
• The Heritage Council has broader powers on review, and is now able to set aside a determination and make a substituted determination (108(7)(c)). 
• There is a streamlined process for subdivision, with an exemption for works which comply with a permit of subdivision under the Planning and Environment Act 1987, where the Executive Director was a referral authority (s 91).

Strengthened enforcement and compliance

The Act has also introduced stronger enforcement and compliance provisions, including:

• There has been a significant increase in penalties, including for works 'knowingly and recklessly' undertaken without a permit (s 87), as well as for negligently doing so (s 88) and a strict liability offence (s 89), which carries lesser penalties. 
• The Executive Director has broader tools to protect heritage in addition to repair orders (s 155), by issuing rectification orders (s 160) and stop orders (s 165). 

Other changes in the Act include changes to the composition and operation of the Heritage Council and to protection of archaeological heritage.  Overall, the changes provide a stronger and clearer framework for protecting Victoria's heritage.

Where can I go for more information?

For more information about the changes in the Act and the review process that lead to these changes, please click here to be directed to the Department of Environment, Land, Water and Planning website.

If you would like advice about the changes and their implications for your practice, please contact:

Natasha Maugueret
Managing Principal Solicitor
8684 0402

Annette Jones
Acting Managing Principal Solicitor
8684 0431

Mark Egan
Principal Solicitor
8684 0489