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Focus: Planning – November 2007

New heritage protection laws for Queensland

In brief: The Queensland Parliament has passed the Queensland Heritage and Other Legislation Amendment Act 2007, which will amend the Queensland Heritage Act 1992. This is the first major review of the heritage legislation in its 15-year life and will modify Queensland's heritage framework for the listing of places on the register and the approval of their redevelopment. The amending Act will commence on a date to be fixed by proclamation. Senior Associate Rosanne Meurling (view CV) and Law Graduate Nikki O'Leary look at the changes. 

How does it affect you?

  • The changes made by the Queensland Heritage and Other Legislation Amendment Act 2007 will impact on:
    • the responsibilities of owners of heritage properties;
    • the rights of persons, whose properties are nominated for listing, to object and appeal; and
    • developers of heritage properties, who will now need to deal with the chief executive of the Environmental Protection Agency, rather than the Queensland Heritage Council.

Major changes

The Queensland Heritage and Other Legislation Amendment Act 2007 (the amending Act):

  • introduces a streamlined process for the listing of state heritage places in, and the removal of state heritage places from, the Queensland heritage register (the register);
  • transfers the responsibility for assessing and deciding development applications on heritage places from the Queensland Heritage Council (QHC) to the chief executive of the Environmental Protection Agency (EPA);
  • gives the EPA chief executive the power to require heritage place owners to do maintenance and repair work; and
  • introduces local heritage registers.

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Listing and removal of places from the register

The administrative responsibilities associated with an application to list a place on, or remove a place from, the register rests with the EPA chief executive. The chief executive receives the application for listing or removal, advertises the application, receives submissions and makes a recommendation to the QHC about whether the site should be entered in, or removed from, the register. The QHC makes a decision based on the chief executive's recommendation. The chief executive is then responsible for notifying relevant parties and the public of the QHC's decision.

The timeframes for each step in the process are specified in the amending Act. From receipt of the application to the making of the recommendation, the time period is no longer than four months, with the ability for this period to be extended to six months. The timeframe for the QHC to make a decision is no longer than three months after receiving the recommendation, and this period may be extended to five months, with the consent of the owner of the site. There are deeming provisions if the QHC fails to make a decision within the relevant periods.

During the process, there are opportunities for the making of submissions and for oral representations to be made to the QHC. The owner of the site also has appeal rights to the Queensland Planning and Environment Court.

Under the previous provisions, a place did not satisfy the criteria for entry in the register if there was no prospect of the cultural heritage significance of the place being conserved. The amending Act removes the 'no prospect' argument and, instead, allows the QHC, in making its decision, to have regard to whether the physical condition or structural integrity of the place may prevent its cultural heritage significance being preserved. This creates a lower threshold test for entry into the register.

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Interim protection orders

The practice of provisionally listing sites on the register has been removed. Instead, interim protection orders will be used where there is a current application to list a place, and the chief executive is satisfied that the place is likely to satisfy the criteria for listing and the order is necessary to conserve the cultural heritage significance of the place because of development that may be carried out on the place. The effect of the order is that the place is taken to be a heritage place while the order has effect. The order has effect for, at most, 60 business days.

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Developing heritage places

Various obligations are imposed on an owner of a place that is subject to an undecided application for listing in the register. The owner must, at least 10 business days before a development application is made, give the chief executive notice of the application. If the owner knows, or ought reasonably to have known, that a person had a development approval for development on the place, the owner must advise the chief executive of the development approval within a specified period. Similarly, if the owner knew, or ought reasonably to have known, that an application for a development approval had been made, but had not been decided, the owner must advise the chief executive of the development application within a stated time.

Currently, the QHC is either an assessment manager or concurrence agency for development of a heritage place. The EPA chief executive will assume this role under the amending Act. The chief executive may refer a matter relating to a development application to the QHC to obtain their advice prior to making a decision.

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Local heritage protection

Local governments that have satisfactorily provided for the conservation of places of cultural heritage significance in their area can be excluded from the local heritage protection provisions.

Those local governments not excluded are required to keep a local heritage register. The chief executive can recommend that places be entered in the local heritage register and the local government must propose the recommended entry. The local government can also, of its own initiative, propose that places be entered in, or removed from, the local heritage register. The owner of the place is notified and public notice of the proposal must also be given. Once a decision is made regarding the entry or removal, the owner is again notified and public notice is given of the decision.

The local government can apply, adopt or incorporate its local heritage register as part of its planning scheme.

An owner is entitled to claim compensation for the entry of a place in the local heritage register in the same way as an owner is entitled to claim compensation under the planning legislation for a change to the planning scheme.

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Maintenance and repair work

The amending Act gives the chief executive the power to give the owner of a state heritage place a notice requiring the owner to carry out essential maintenance work where urgent work is required to protect the place from serious or irreparable damage or deterioration caused by either weather, fire or vandalism. The notice must only be issued after the chief executive takes reasonable steps to consult with the owner. It is an offence not to comply with the notice.

Essential management work is defined to mean work of a minor nature that, if carried out, would help to prevent serious or irreparable damage to, or deterioration of, the place. Examples are given of re-fixing loose roofs or wall boards and boarding up insecure openings in an unoccupied building.

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Exemption certificates

Exemption certificates may still be issued by the chief executive of the EPA to permit development on registered places where it is permitted under a heritage agreement or where development will not detrimentally impact on the cultural heritage significance of a place. The chief executive can issue an exemption certificate without an application being made and can also give a general exemption certificate in relation to all registered places or a class of registered places. The latter may be given by publishing the certificate on the EPA's website.

Heritage agreements will continue under the new regime. The Minister is, however, no longer a party to a heritage agreement. The agreement is made by the chief executive with the owner of the place or, with the owner's consent, another person or entity who has an interest in the place.

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Concluding comments

The streamlining of the listing process and the transfer of power over development applications to the chief executive of the EPA are improvements to the existing heritage regime. The power of the chief executive to issue maintenance notices, if exercised reasonably, will not be unduly onerous. Local heritage registers, for those local government areas without adequate local heritage protection in their planning schemes, should not result in duplication.

The overhaul of the existing heritage regime would have been an appropriate opportunity to also give some legislative recognition to transferable site areas or development rights, which currently only exist by virtue of provisions in planning scheme. As they increase in value, land owners will increasingly be seeking some more permanent status for these rights.

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