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

8 things you need to know now about changes to the Aboriginal Heritage Act 2006

The regime which regulates and protects Aboriginal heritage in Victoria is about to undergo a significant change. The Aboriginal Heritage Amendment Bill 2015, which was passed by parliament on 22 March 2016, introduces a suite of substantive and administrative changes to the Aboriginal Heritage Act 2006.

The general scheme of the Act remains in place. The Act will continue to provide a regime by which Aboriginal heritage may not be harmed, other than in accordance with cultural heritage management plans, particular types of agreements or permits granted under the Act (or other exception). The key bodies created or appointed under the Act, being the Victorian Aboriginal Heritage Council and Registered Aboriginal Parties (or RAPs), remain (albeit subject to some new rules and altered roles). The Victorian Aboriginal Heritage Register also remains, but is given some new work to do.

Within that same general scheme, the Amending Act makes significant changes to existing features and introduces some wholly new ones. We highlight just some of these changes, which may be of particular relevance to Victorian Government departments and agencies.
Who to apply to for a cultural heritage permit

The Bill provides that where there is a RAP for an area, applications for cultural heritage permits must be made to the RAP for the RAP to consider and determine. The Secretary to DPC remains responsible where there is no RAP for an area.

New agreements for managing public land

Public land managers will be able to use a new mechanism for managing Aboriginal cultural heritage, called Aboriginal cultural heritage land management agreements. The new agreements are intended to remove the need for public land managers to apply for a cultural heritage permit each time they wish to undertake low impact works which are likely to affect Aboriginal cultural heritage.
The agreements may be made between RAPs and public land managers. Public land managers include a committee of management, the Secretary of DELWP, Parks Victoria, VicRoads, VicTrack, a water authority or a local council. The agreements are only available where a cultural heritage management plan is not required.

When to execute a cultural heritage management plan

The Amending Act allows a person proposing an activity to prepare a preliminary Aboriginal heritage test to determine whether the activity requires a cultural heritage management plan. The test can be submitted to the Secretary, who must then certify the test or refuse to do so.

New rules for access to the Register

The Victorian Aboriginal Heritage Register is the repository of all known Aboriginal places and objects, as well as the repository of details of agreements made and other matters. Access to the Register is restricted to specified persons for specified purposes.
The Amending Act specifies that additional people may access the Register, including public servants responsible for planning permits and planning scheme amendments. At the same time, access to sensitive information will be more closely held, and it will be an offence to use information obtained from the Register for an unauthorised purpose. Finally, Traditional Owners, through RAPs and the Council, will be able to nominate particular information held on the Register to be classed as sensitive and subject to extra protection.

New regime for protecting cultural knowledge 

The Amending Act creates a new category of heritage called 'Aboriginal intangible heritage'. 'Aboriginal intangible heritage' includes any knowledge of Aboriginal tradition, other than cultural heritage or knowledge which is already widely known to the public. Aboriginal intangible heritage needs to be recorded on the Register to be protected.
In simplified terms, it will be an offence for Aboriginal intangible heritage to be used for commercial purposes without the agreement of the appropriate registered Aboriginal party. It will also be an offence to fail to adhere to any intangible heritage agreement once made (but intangible heritage will generally be excluded from the other offence provisions).

New Enforcement Powers

The Amending Act empowers authorised officers, previously known as inspectors, and Aboriginal heritage officers, who are employees of RAPs appointed by the Minister, to issue a 24-hour stop order to protect Aboriginal heritage from acts that harm it, or are likely to. It is an indictable offence to not comply with the stop order. Authorised officers will also be empowered to issue improvement orders, which require the person to remedy a contravention of the Act.

Altered offences

The Amending Act clarifies and alters the existing offences. It will be an offence to act, or omit to act, in a way that knowingly, recklessly or negligently harms Aboriginal heritage. The Bill also introduces a strict liability offence of harming Aboriginal heritage (which carries a lesser penalty than the offences with a mental element).
It also provides that officers of bodies corporate may be personally liable for acts by the body in prescribed circumstances.  With some exceptions, the new provisions may apply to officers of statutory bodies corporate, so it is important to be aware of these changes.

Aboriginal Ancestral Remains

The Amending Act establishes a new system for managing Aboriginal Ancestral Remains (Aboriginal skeletal material). First, it requires all institutions to report on any remains in their collections to the Victorian Aboriginal Heritage Council within two years of commencement of the Act. This requirement applies to all museums, hospitals and other state agencies and institutions.

Second, the Amending Act requires all remains to be returned to the Council for its management. If the Council, or relevant Traditional Owner, is not able to care for the remains, they are to be deposited at Museum Victoria for safe keeping.

For further information please contact:

Mark Egan
Principal Solicitor
8644 0489

Mary Scalzo
Managing Principal Solicitor
9947 1419

Running short on time? Seven key principles which guide decisions on planning permit extensions

There are seven key principles that guide Departmental responses to a request for an extension of time of a planning permit.  As outlined below, the Victorian Civil and Administrative Tribunal has recently applied these principles in Hotel Windsor Holdings Pty Ltd  v  Minister for Planning (Red Dot) [2014] VCAT 993.  The proponent of the redevelopment of the Hotel Windsor was refused a planning permit extension beyond 10 January 2015.  The permit allows part demolition of the existing hotel and construction of a new 26 storey tower and north wing extension.  If construction is not commenced by 10 January 2015, the developer will have to apply for another permit in circumstances where there have been changes to height controls in the Scheme.  This issue may arise for you or your agency if there has been, or will be, a significant change in planning policy.

The Tribunal in Hotel Windsor considered an application to review the failure by the Minister for Planning to grant an extension of time.  The Minister opposed the extension and submitted that the Tribunal should refuse the Hotel's application for a range of reasons.  One reason was that there had been a change in the planning policy since the permit was last extended.  The recent change to the planning controls specifically targeting the Bourke Hill precinct and the need to protect its low scale have resulted in the introduction of a mandatory height limit of 23 metres (well below the 93 metre development allowed by the permit).  This weighed against a decision to extend the permit and shifted the balance of planning considerations in favour of protection of Bourke Hill as a low scale precinct.

The Tribunal considered and applied the long-standing principles in Kantor v Murrindindi Shire Council (1997) 18 AATR 285 (Kantor principles).  The Tribunal noted that the implications for redevelopment of the Hotel Windsor were significant.  The Kantor principles are:

• whether there has been a change in planning policy;
• whether the landowner is seeking to warehouse the permit;
• intervening circumstances which bear on the grant or refusal of the extension requests;
• the total elapsed time;
• whether the time limit originally imposed was adequate;
• the economic burden imposed on the landowner by the permit; and
• the probability of a permit issuing should a fresh application be made.

The Kantor principles, while not definitive or exclusive, have been applied by the Tribunal consistently including recently in the case of Naroghid Wind Farm Pty Ltd v Minister for Planning [2012] VCAT 1203 (Naroghid).  In Naroghid, the change in planning policy was the introduction of the 2 kilometre rule.  This new rule requires wind farm proponents to obtain written consent from landowners within a 2 kilometre radius of a proposed turbine.  In Hotel Windsor, the change in planning policy specifically targeted the Bourke Hill precinct and the need to protect its low scale.  Balanced against the countervailing Kantor principles including no evidence of warehousing, intervening circumstances, the adequacy of the time limit and the implications of not granting an extension, the Deputy President found that the request for an extension of time to commence construction of the redevelopment of Windsor Hotel should be refused.

This decision and the Kantor principles may be relevant to you or your agency.  If there has been a change in planning policy, such that a permit may not be granted if it was applied for afresh, then potential requests from developers for extension of the time for the commencement of works are to be expected.  Accordingly, the seven Kantor principles are relevant considerations for agencies preparing  new or amended planning policies.

If you are in the Victorian Government and would like more information about this area of law, please contact:

Eliza Bergin
Principal Solicitor
T: 8684 0267
eliza.bergin@vgso.vic.gov.au

Juliette Halliday
Acting Managing Principal Solicitor
T: 8684 0299

juliette.halliday@vgso.vic.gov.au