Under construction: Planning Minister launches review of the Victorian Heritage Act

In brief

This week the Victorian Planning Minister kickstarted a review into the Heritage Act 1995 (Vic) by launching a discussion paper outlining Heritage Victoria's suggestions for reform. Developers and heritage-listed property owners should consider the proposed changes to prepare for a public consultation period taking place in July and August. Managing Associate Meg Lee and Lawyer Emily Johnstone report.

Background

Planning Minister Richard Wynne launched a state-wide review into Victorian heritage protection this week by releasing a discussion paper on the 20-year-old Heritage Act 1995 (Vic). The paper sets out a range of opportunities identified by Heritage Victoria to strengthen the operation of the Act, including simplifying the registration process for nominated heritage places, and providing a new mechanism to recognise large-scale cultural landscapes and urban precincts.¹

Minister Wynne noted that the review is evidence of the Government implementing its election promise to enhance protection for the more than 2300 places currently listed on the Victorian Heritage Register.²

Key changes contemplated by the review include streamlining heritage registration processes, simplifying the requirements for obtaining heritage permits and consents, and strengthening compliance and enforcement measures in the Act.

Simplifying heritage nomination and registration processes

One key area for reform identified in the paper concerns moves to simplify processes for registering heritage places. Firstly, Heritage Victoria has identified opportunities to streamline the heritage registration process by consolidating the four existing registration mechanisms under the Act into a single heritage registration process.³

Under the proposed model, the Executive Director of Heritage Victoria will recommend a place or object to the Heritage Council for inclusion in the Register. The Heritage Council will then invite public submissions on the recommendation, with a process for submitters to be heard by the Heritage Council before a decision is made. It will hold a hearing on the issue, if necessary, before making a determination about whether to include the place or object on the Register. It is intended that this process will improve transparency, with reasonable timeframes enforced to ensure registrations are finalised in a timely manner.

The paper also suggests reforming the heritage nomination process.⁴ In a bid to curb the large number of unsuccessful nominations received, Heritage Victoria suggests granting the Executive Director a discretion to reject a nomination which has no reasonable prospect for inclusion in the Register. This could include the power to declare that places and objects cannot be re-nominated for five years following a rejection of a nomination, or a decision by the Heritage Council not to register a place or object. Further, nominations will lapse after 30 days if a nominator has failed to provide further information when requested by Heritage Victoria.

While these proposals are all designed to ease the regulatory burden on Heritage Victoria and to improve nomination processing times, the paper also suggests introducing an appeal process for a nominator whose nomination is rejected by the Executive Director, with the option of an appeal hearing before a committee of one or two members of the Heritage Council.⁵

It is further proposed that the processes for amending or removing a place or object from the Register be streamlined. Where the Executive Director makes a recommendation to the Heritage Council, the Council could:⁶

• remove the registration of the place or object as part of issuing a permit for the total demolition of a place (once all conditions of the permit have been satisfied);
• amend a registration in accordance with a subdivision permit where no heritage fabric remains for the place once the permit has been executed, and the proposed development is unlikely to negatively impact on the heritage values of any remaining heritage registered land; or
• remove a registration where a place or object has been totally destroyed (accidentally or by a natural event) and where the identified heritage values of the place can no longer be appreciated.

These proposed changes would help to ensure that the Heritage Register accurately reflects the heritage values that the Register is designed to protect, and to protect land from being encumbered by the requirements associated with registration where a heritage place ceases to exist.⁷

Finally, Heritage Victoria also recommends introducing a state-level 'significance threshold' for the Register, providing greater clarity about the types of places and objects that are suitable for inclusion.⁸

New concept: Registration of large-scale heritage areas

Under the current Act, there is no mechanism to recognise large-scale cultural landscapes or urban precincts as worthy of heritage protection, other than to individually list each property (although there is such an ability through the planning scheme heritage overlay controls).

The discussion paper therefore recommends amending the Act to introduce the concept of a 'heritage area', with a directive from the Heritage Council to publish criteria for assessment of an area's state-level heritage significance.⁹ Under the proposed mechanism, applicants could submit nominations for a heritage area, which will be considered by the Executive Director. The Executive Director will consider the submissions and submit a recommendation to the Heritage Council. Heritage Victoria suggests that the Heritage Council's final decision be referred to the relevant planning authority so that the potential for complementary planning scheme amendments can be considered. The paper states that this process won't increase the 'burden' on property owners, so this process needs more clarity in order to confirm the impact of such a listing and any obligations that would be imposed on property owners.

Simplifying heritage permit and consent processes

The second part of the discussion paper identifies a range of proposed changes designed to simplify permit and consent processes to reduce regulatory burden and to enhance protection for heritage places and objects. The key changes with the most significant implications for developers are discussed further below.

Increasing the role for local government in permit processes

The paper suggests increasing the currently limited role that local Councils play in the heritage permit process, by introducing a requirement that the Executive Director provides a copy of the permit application and any supporting information to the relevant local Council for comment within a prescribed timeframe.¹⁰ It is proposed that this referral be designated a 'stop the clock' event, to be reactivated once comments are received. It is further proposed that Heritage Victoria be required to consider any comments received from local Councils as part of this process, and to allow them to make submissions at permit appeal hearings.

The paper also suggests reform to the processes for subdivision applications in heritage places. Under the current regime, subdivisions of a heritage place require permits from both under the Planning Scheme and a separate approval under the Heritage Act. The discussion paper suggests instead that the Executive Director of Heritage Victoria be designated a determining referral authority for the subdivision permit application process under the Planning and Environment Act 1987 (Vic), which would simplify the process into one permit mechanism.¹¹

Re-phrasing the financial hardship considerations

In determining a permit application for demolition or development of a heritage place under the current Act, the Executive Director is required to consider (amongst other things) the extent to which the refusal of the permit would cause 'undue financial hardship' to the owner in relation to the heritage place or object.¹² Heritage Victoria suggests removing this consideration from the Act, because it is based on 'transient' information and is inconsistent with other legislation.¹³ However, the paper advocates for a similar consideration to be retained, which requires the Executive Director to consider the extent to which a permit refusal would affect the reasonable or economic use of a heritage place.¹⁴

In the event of an amendment to the Act, it is our view that the 'reasonable or economic use' consideration will still allow relevant financial hardship arguments to be raised.

Improving procedural requirements for permit applications and reviews

The paper also proposes a range of procedural changes to improve the permit application process. Firstly, it is suggested that the regulations prescribe information that must accompany a permit or consent application, and to set clear timeframes for the provision of that information to avoid numerous time extensions for applications.¹⁵ Further, Heritage Victoria suggests amending the Act to clearly state which works or activities are exempt from the need for a permit. In particular, it is proposed to only allow exemptions that have no 'detrimental impact' on the cultural heritage values of the place or object, a question to be determined by the Heritage Council.¹⁶

In relation to reviews, the paper suggests amending the Act to ensure that reviews are heard by VCAT members who have an in-depth and up-to-date knowledge of heritage legislation and practice.¹⁷ Further, reform is required to ensure that the matters for consideration by heritage bodies are consistent. Heritage Victoria suggests amending the Act so that the Heritage Council, the Minister for Planning and VCAT must all consider the same section 73 considerations when reviewing heritage permit decisions, and to provide for all review bodies to hold the same decision-making powers as the Executive Director in reviewing a permit decision.¹⁸

Finally, the paper suggests introducing fees for amending permits and for lodging applications for review of heritage permit decisions (with mechanisms for fee waiver), to deter the lodgement of 'vexatious or opportunistic' appeals and to move heritage permit operations towards a cost recovery model.¹⁹

Compliance and enforcement reform

The final section of the paper suggests a range of measures designed to strengthen the compliance and enforcement mechanisms in the Act. Key suggested changes include:

• increases to the maximum penalties for undertaking unauthorised works or failing to obtain permits before undertaking works;²⁰
• specifying minimum repair and maintenance obligations for a registered place through the issuing of directions by Heritage Victoria; and
• allowing heritage certificates to include orders made under Part 8 of the Act (Enforcement and Legal Proceedings), in addition to repair and Supreme Court orders already provided for by the Act.²¹

What will happen next?

The discussion paper includes a range of questions for further discussion, and notes that targeted discussions with stakeholders will be held during the public consultation period between July-August 2015. Public submissions are also invited and are due by 30 August 2015 to meet the timeframes for amending the Act.

While many of the proposed changes will be welcomed by the property development industry as changes that will make the process of dealing with heritage-protected properties more streamlined and better integrated with the planning system, the re-phrasing of the financial hardship test and the new concept of 'heritage areas' may be a concern for some and warrant a submission. Further, the proposal for an additional appeal right for applications for inclusion that are rejected as having 'no reasonable prospects' may lead to an additional delay for property developers.