New streamlining, new powers in the Heritage Act 2018 (WA) from 1 July 2019

On 1 July 2019, the Heritage Act 2018 (WA) came into effect, replacing the almost 20-year old Heritage of Western Australia Act 1990 (WA).

The previous heritage legislation was entirely repealed, and several new key features have been added.

Demolition by neglect and repair orders

Under previous legislation, although local councils could issue repair orders, this power was not available to the Minister for Heritage. The power has now been extended, allowing the Minister to require an owner to make their property secure, structurally sound and weather tight where the property is otherwise deteriorating.

There is a check on the power, as a repair order can only be issued after: a repair notice is issued by the Heritage Council; the Council has attempted to negotiate a voluntary solution; and, the Minister determines that the order will not impost undue hardship. Repair orders are subject to review by the State Administrative Tribunal.

No two-stage registration process

Under the previous heritage legislation, the Minister could direct that a place be registered on the State Register of Heritage Places as an interim registration, or on a permanent basis. If a place was entered on an interim registration, then it would also subsequently require permanent registration. This was costly (in both time and money).

There is no longer an interim registration process. Following consultation between the Council and the owner, the Council may recommend to the Minister that a place be entered on the Register. The Minister then directs the Council to make the entry.

Places that are interim registered under the old heritage legislation are taken to be temporarily registered for the purposes of the new heritage legislation. However, if they are not registered under the new legislation within two years of its commencement, they are no longer registered places.

Transparency and certainty

The new legislation gives owners greater certainty regarding various aspects of the assessment process when registering a place. For example, the Council must make a preliminary determination on whether a place warrants review of its entry onto the Register within 60 days of receiving the nomination, and the Minister must direct a place be entered on the Register within 30 days of receiving the Council's recommendation. In addition, both the Council's advice to the Minister, and the Minister's reasons must be published.

Development applications

Under the former legislation, pending or recently approved development applications would be cancelled when a place was permanently registered, and would automatically be suspended if there was an interim listing. Owners and developers would then be required to reapply for development approval, with little means of compensation.

Now, the Council has discretion to temporarily suspend applications or recent approvals for development approval while they are reassessed for places that have become state registered.

Additionally, certain development proposals for registered places comprising of certain works (which may broadly be described as minor works) are now exempt from referral to the Council. Exempt works are described in the Regulations.

Surveys

There was uncertainty across local governments regarding the purpose of preparing and regularly reviewing the Municipal Heritage Inventory. Now, existing inventories will transition to "local heritage surveys", which retain the substance, but is reworded to reflect its purpose as a survey of community heritage resources to assist local governments.

The benefit of local heritage surveys is that they will provide more flexibility to governments to include "places" of cultural significance, as opposed to "buildings" (as stated under the previous Act).

Heritage agreements

Heritage agreements are a contract entered into between an owner and the Council or another public authority on behalf of the State, where the owner commits to various undertakings to preserve and enhance cultural heritage significance of a place in exchange for incentives such as planning approval.

The agreements may provide for the carrying out of, or restriction on, specified works; restrictions on design, height, scale, siting, materials or colours; restrictions on the use of the land; inspections by the Council; contributions or indemnities; and, the provision of security for the performance of commitments.

Owners may apply to the State Administrative Tribunal to determine what provisions the agreement should contain if the owner cannot reach agreement with the Council, and on the application of any party to a heritage agreement, the Tribunal may make orders enforcing heritage agreements.

Land tax

Under the new legislation, in addition to properties subject to heritage agreements, properties that are entered in the Register are eligible to be re-valued for land-tax purposes to take into account any reduction in value caused by heritage constraints.

Conclusion

While streamlining the process, the new heritage legislation clearly provides both the Council and the Minister increased preservation powers.

Our experienced environment and planning team would be happy to discuss with you the preparation and negotiation of heritage agreements (including appearing before the State Administrative Tribunal) if your property is subject to heritage controls.