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TASMANIA
__________
HISTORIC CULTURAL HERITAGE AMENDMENT
BILL 2012
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 3A inserted
3A. Timing of actions
6. Section 5 amended (Establishment of Heritage Council)
7. Sections 8 and 9 substituted
8. Delegation by Minister
9. Delegation by Heritage Council
8. Sections 10A and 10B inserted
10A. Statements of expectation
10B. Statements of intent
9. Section 15 amended (Heritage Register)
10. Section 16 substituted
16. Entry of places in Heritage Register
11. Section 17 amended (Provisional entry in Register)
12. Section 18 amended (Procedure relating to provisional entry in
Register)
13. Section 19 amended (Objection to permanent entry in Register)
14. Section 20 amended (Submission relating to permanent entry in
Register)
[Bill 33]-III
15. Section 22 amended (Removal of place from Register)
16. Section 24 amended (Submission relating to removal from
Register)
17. Section 26 amended (Notice of entry in or removal from
Register)
18. Section 27 amended (Appeal against Heritage Council's
decision)
19. Section 29 amended (Declaration of heritage areas)
20. Section 30 amended (Effect of order)
21. Part 6 substituted
PART 6 - Heritage Works
32. Interpretation of Part
33. Application of Planning Act to heritage works is
subject to this Part
34. Legal status of heritage works if no certificate of
exemption, &c.
35. Heritage works require heritage approval
36. Discretionary permit application to be sent to and
considered by Heritage Council
37. Procedure if Heritage Council requires additional
information to consider discretionary permit
application
38. Procedure if Heritage Council has no interest in
discretionary permit application
39. Procedure if Heritage Council wishes to be involved
in determining discretionary permit application
40. Consideration, &c., of application under delegation
41. Correction and minor amendment of permits
42. Certificates of exemption for heritage works
43. Effect of certificates of exemption
44. Contravention of heritage works conditions
45. Appeals concerning applications
46. Limitation on power of Heritage Council to agree to
heritage works
22. Section 47 amended (Heritage agreement)
23. Section 49 amended (Variation or termination of heritage
agreement)
24. Section 50 amended (Notification to Recorder of Titles)
25. Section 53 amended (Enforcement order)
2
26. Section 56 amended (Non-application of other laws)
27. Section 57 amended (Stopwork order)
28. Section 61 amended (Appeal against notice)
29. Section 69 amended (Protected zone)
30. Section 74 amended (Order prohibiting works)
31. Section 75 amended (Lodgment of orders with Recorder of
Titles)
32. Section 78 amended (Application for certificate for unregistered
place)
33. Section 80 amended (Issue of certificate for unregistered place)
34. Section 82 amended (Submission relating to certificate for
unregistered place)
35. Section 86 amended (Application for certificate for affected
place)
36. Section 87 amended (Issue of certificate for affected place)
37. Section 90 amended (Matters to take into account)
38. Section 90A inserted
90A. Guidelines
39. Section 91 substituted
91. Immunity from liability
40. Section 94 substituted
94. Amendment of Register
41. Section 96 amended (Regulations)
42. Section 98 repealed
43. Section 100 substituted
100. Validity of certain entries in Register
44. Repeal of Act
3
4
HISTORIC CULTURAL HERITAGE AMENDMENT
BILL 2012
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
25 September 2012
(Brought in by the Minister for Environment, Parks and
Heritage, the Honourable Brian Neal Wightman)
A BILL FOR
An Act to amend the Historic Cultural Heritage Act 1995
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Historic Cultural
Heritage Amendment Act 2012.
2. Commencement
This Act commences on a day to be proclaimed.
3. Principal Act
In this Act, the Historic Cultural Heritage Act
1995* is referred to as the Principal Act.
*No. 117 of 1995
[Bill 33] 5
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 4
4. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by inserting the following definitions
after the definition of Fund:
GDA means -
(a) the Geocentric Datum of
Australia (also known as
"the GDA" or "GDA94")
as defined in the
Commonwealth Gazette
No. GN 35,
6 September 1995, as
amended from time to
time; or
(b) another geodetic reference
system substituted for the
Geocentric Datum of
Australia referred to in
paragraph (a) by the
Intergovernmental
Committee on Surveying
and Mapping (established
in 1988), as amended
from time to time;
guidelines means guidelines issued
and in force under section 90A;
(b) by omitting the definition of historic
cultural heritage significance and
substituting the following definition:
6
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 4
historic cultural heritage
significance, of a place, means its
significance in terms of the
registration criteria;
(c) by inserting the following definition after
the definition of law:
local public notice, in relation to any
process affecting any place,
means a notice published -
(a) in a daily newspaper
published in the State and
circulating generally in
the region in which the
place is located; and
(b) by one or more of the
following means also:
(i) in the Gazette;
(ii) any electronic
means the
Heritage Council
considers
appropriate in the
circumstances;
(d) by omitting "National Trust of Australia
(Tasmania) Act 1975;" from the
definition of National Trust and
substituting "National Trust Act 2006;";
(e) by inserting the following definition after
the definition of National Trust:
7
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 4
notify means give notice in writing;
(f) by inserting the following definition after
the definition of place:
Planning Act means the Land Use
Planning and Approvals Act
1993;
(g) by inserting the following definition after
the definition of protected zone:
registered means entered in the
Heritage Register;
(h) by omitting the definitions of registered
place and registered shipwreck;
(i) by omitting the definition of required
criteria and substituting the following
definitions:
registration criteria means the criteria
set out in section 16(2);
responsibilities means powers,
functions and duties;
(j) by inserting the following definition after
the definition of shipwreck:
statutory rule means a statutory rule
for the purposes of the Rules
Publication Act 1953;
(k) by omitting the definition of use and
substituting the following definition:
8
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 5
use has the same meaning as in the
Planning Act;
(l) by omitting paragraph (d) from the
definition of works;
(m) by omitting the definition of works
application and substituting the
following definition:
works guidelines - see
section 90A(1)(b).
5. Section 3A inserted
After section 3 of the Principal Act, the
following section is inserted in Part 1:
3A. Timing of actions
Where a provision of this Act requires or
directs a person to take an action
consequent on making a decision or
another occurrence, then, unless the
contrary intention appears, the provision
is to be taken as requiring or directing the
person to take the action as soon as
practicable after making the decision or
as soon as practicable after the other
occurrence.
6. Section 5 amended (Establishment of Heritage
Council)
Section 5(2) of the Principal Act is amended by
omitting "Schedule 1 to the Land Use Planning
9
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 7
and Approvals Act 1993." and substituting
"Schedule 1 to the Planning Act.".
7. Sections 8 and 9 substituted
Sections 8 and 9 of the Principal Act are
repealed and the following sections are
substituted:
8. Delegation by Minister
The Minister may delegate to the
chairperson or any other person any of
the Minister's functions or powers under
this Act, other than -
(a) this power of delegation; and
(b) a function or power under
section 10A.
9. Delegation by Heritage Council
The Heritage Council may delegate to a
planning authority or any other person
any of its functions or powers other
than -
(a) this power of delegation; and
(b) a function or power under
section 10B.
8. Sections 10A and 10B inserted
After section 10 of the Principal Act, the
following sections are inserted in Part 2:
10
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 8
10A. Statements of expectation
(1) The Minister is to issue the Heritage
Council with triennial statements of
expectation and the Heritage Council is
to discharge its responsibilities
consistently with those statements.
(2) A statement of expectation is to set out
the Minister's aims for the Heritage
Council for the relevant triennium but
not so as to purport to -
(a) enlarge or diminish its
responsibilities; or
(b) interfere with, or impede, the
discharge of its responsibilities.
(3) The Minister, on his or her own motion
or at the request of the Heritage Council,
may at any time -
(a) amend a statement of expectation;
or
(b) revoke a statement of
expectation.
(4) In preparing a statement of expectation
or any amendment to a statement of
expectation, the Minister -
(a) is to consult the Heritage
Council; and
(b) may consult any planning
authorities or other persons.
11
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 8
(5) A statement of expectation or any
amendment to a statement of expectation
is to be in writing and signed by the
Minister.
(6) A statement of expectation or any
amendment to a statement of expectation
takes effect on such day, following its
day of issue, as it specifies.
(7) The Heritage Council is to ensure that the
public has reasonable access to all
statements of expectation, including
those that have been superseded.
(8) Without limiting the generality of
subsection (7), the Heritage Council is to
ensure that any person presenting at any
of its offices during normal business
hours may -
(a) inspect any statement of
expectation without charge; and
(b) obtain a copy of any statement of
expectation.
10B. Statements of intent
(1) On being issued with a statement of
expectation under section 10A, the
Heritage Council is to give the Minister a
statement of intent in response.
(2) The statement of intent is to indicate in
general terms how the Heritage Council
12
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 9
proposes to realise the ministerial aims
set out in the statement of expectation.
(3) The statement of intent is to be -
(a) in writing; and
(b) signed by the chairperson; and
(c) given to the Minister within 3
months after the Heritage Council
is issued with the statement of
expectation.
(4) The Heritage Council is to ensure that the
public has reasonable access to all
statements of intent, including those that
have been superseded.
(5) Without limiting the generality of
subsection (4), the Heritage Council is to
ensure that any person presenting at any
of its offices during normal business
hours may -
(a) inspect any statement of intent
without charge; and
(b) obtain a copy of any statement of
intent.
9. Section 15 amended (Heritage Register)
Section 15 of the Principal Act is amended as
follows:
13
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 9
(a) by inserting the following subsections
after subsection (1):
(1A) The purpose of the Heritage
Register is to ensure that
Tasmania -
(a) keeps an inventory of
places of State historic
cultural heritage
significance; and
(b) accords those places
status and recognition;
and
(c) has a basis for protecting
that historic cultural
heritage significance.
(1B) Subsection (1A) does not apply in
respect of places whose historic
cultural heritage significance
derives solely from their cultural
value to the Aboriginal people of
Tasmania.
(b) by omitting paragraphs (a) and (b) from
subsection (4) and substituting the
following paragraphs:
(a) identify the place by reference to
any, or any combination of, the
following:
(i) its address;
14
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 10
(ii) its title particulars;
(iii) its GDA coordinates; and
(b) define the boundaries of the place
by reference to either or both of
the following:
(i) its title;
(ii) a plan in the Central Plan
Register; and
(c) by omitting paragraph (d) from
subsection (4) and substituting the
following paragraph:
(d) state the historic cultural heritage
significance of the place,
including -
(i) the registration citeria on
which the entry is based;
and
(ii) the way in which the
place meets those
registration criteria.
(d) by omitting subsection (6).
10. Section 16 substituted
Section 16 of the Principal Act is repealed and
the following section is substituted:
15
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 10
16. Entry of places in Heritage Register
(1) The Heritage Council may enter a place
in the Heritage Register if it is satisfied
that the place has historic cultural
heritage significance.
(2) For the purposes of subsection (1), the
Heritage Council may determine that a
place has historic cultural heritage
significance if it is satisfied that the place
meets one or more of the following
criteria:
(a) the place is important to the
course or pattern of Tasmania's
history;
(b) the place possesses uncommon or
rare aspects of Tasmania's
history;
(c) the place has the potential to yield
information that will contribute to
an understanding of Tasmania's
history;
(d) the place is important in
demonstrating the principal
characteristics of a class of place
in Tasmania's history;
(e) the place is important in
demonstrating a high degree of
creative or technical
achievement;
16
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 11
(f) the place has a strong or special
association with a particular
community or cultural group for
social or spiritual reasons;
(g) the place has a special association
with the life or works of a person,
or group of persons, of
importance in Tasmania's
history;
(h) the place is important in
exhibiting particular aesthetic
characteristics.
11. Section 17 amended (Provisional entry in Register)
Section 17(1) of the Principal Act is amended by
omitting "required criteria." and substituting
"registration criteria.".
12. Section 18 amended (Procedure relating to
provisional entry in Register)
Section 18 of the Principal Act is amended as
follows:
(a) by omitting from subsection (3)(a)(ii)
"reasons and the required criteria" and
substituting "registration criteria";
(b) by omitting from subsection (3)(b) "in a
daily newspaper circulating in the area in
which the place is situated a notice" and
substituting "a local public notice";
17
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 13
(c) by omitting from subsection (4)(b)
"notice" and substituting "local public
notice";
(d) by inserting the following subsection
after subsection (4):
(4A) The Heritage Council may give
such other notice of a decision to
provisionally enter a place in the
Heritage Register as it considers
appropriate.
13. Section 19 amended (Objection to permanent entry
in Register)
Section 19 of the Principal Act is amended by
omitting subsection (3) and substituting the
following subsection:
(3) An objection may be made only on the
basis that the place does not satisfy any
of the registration criteria on which the
entry is intended to be based.
14. Section 20 amended (Submission relating to
permanent entry in Register)
Section 20(2)(a) of the Principal Act is amended
by omitting "a notice was" and substituting "the
relevant local public notice is".
18
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 15
15. Section 22 amended (Removal of place from
Register)
Section 22 of the Principal Act is amended as
follows:
(a) by omitting subsection (2) and
substituting the following subsections:
(1A) However, the Heritage Council
may only make a decision under
subsection (1) in respect of a
place if it is satisfied that -
(a) the place has been
destroyed; or
(b) because of new
information or for some
other reason, the place
does not meet, or no
longer meets, any of the
registration criteria; or
(c) the entry duplicates or
substantially duplicates an
existing entry; or
(d) the removal is required by
law.
(2) A person who applies to have a
place removed from the Heritage
Register is to give any
information the Heritage Council
requires to enable it to deal with
the application.
19
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 16
(b) by omitting from subsection (4)
"required criteria" and substituting
"registration criteria";
(c) by omitting from subsection (5)(b)
"publish in a daily newspaper circulating
in the area in which the place is situated a
notice -" and substituting "unless
subsection (1A)(a), (c) or (d) applies,
publish a local public notice -";
(d) by omitting from subsection (6)(b) "a
notice" and substituting "the relevant
local public notice";
(e) by inserting the following subsection
after subsection (6):
(7) The Heritage Council may give
such other notice of a prospective
removal of a place from the
Heritage Register as it considers
appropriate.
16. Section 24 amended (Submission relating to
removal from Register)
Section 24(2)(a) of the Principal Act is amended
by omitting "a notice was" and substituting "the
relevant local public notice is".
17. Section 26 amended (Notice of entry in or removal
from Register)
Section 26 of the Principal Act is amended as
follows:
20
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 18
(a) by omitting from paragraph (b) "by
notice published in a daily newspaper
circulating in the area in which the place
is situated; and" and substituting "by a
local public notice.";
(b) by omitting paragraph (c).
18. Section 27 amended (Appeal against Heritage
Council's decision)
Section 27 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2) "must"
and substituting "is to";
(b) by omitting from subsection (3)
"required criteria" and substituting
"registration criteria".
19. Section 29 amended (Declaration of heritage areas)
Section 29 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(b) "daily
newspaper circulating in the area" and
substituting "local public notice (other
than in the Gazette)";
(b) by omitting subsection (5) and
substituting the following subsection:
(5) An order under this section is not
a statutory rule but section 47 of
21
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 20
the Acts Interpretation Act 1931
applies to such an order as if it
were a regulation.
20. Section 30 amended (Effect of order)
Section 30(2) of the Principal Act is amended by
omitting "Part 3 of the Land Use Planning and
Approvals Act 1993" and substituting "Part 3 of
the Planning Act".
21. Part 6 substituted
Part 6 of the Principal Act is repealed and the
following Part is substituted:
PART 6 - HERITAGE WORKS
32. Interpretation of Part
(1) In this Part -
application day, in relation to any
heritage works, means the day on
which the relevant planning
authority receives a valid
application for a discretionary
permit to carry out the heritage
works;
certificate of exemption means a
certificate under section 42;
22
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
discretionary permit means a permit
under section 57 of the Planning
Act;
discretionary permit application
means an application for a
discretionary permit to carry out
heritage works;
exemption certificate application
means an application for a
certificate of exemption made
under section 42(1);
heritage works means works, as
defined in section 3, when carried
out to or in relation to a registered
place or heritage area;
relevant planning authority, in
relation to any heritage works,
means the planning authority of
the municipal area in which the
heritage works are carried out or,
if applicable, proposed to be
carried out;
relevant planning scheme, in relation
to any heritage works, means the
planning scheme in force in the
place where the heritage works
are carried out or, if applicable,
proposed to be carried out;
relevant special planning order, in
relation to any heritage works,
means the special planning order,
23
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
if any, in force in the place where
the heritage works are carried out
or, if applicable, proposed to be
carried out.
(2) Unless the contrary intention appears in
this Part, expressions that are defined in
the Planning Act and used in this Part
have, apart from the expression "works",
the same meaning in this Part as they
have in that Act.
33. Application of Planning Act to heritage
works is subject to this Part
The provisions of this Part prevail, to the
extent of any inconsistency, over the
provisions of the Planning Act and any
planning scheme or special planning
order or planning directive in force under
that Act.
34. Legal status of heritage works if no
certificate of exemption, &c.
(1) This section applies to heritage works for
which a certificate of exemption has not
been issued.
(2) For all purposes -
(a) the heritage works are taken to be
a development under the Planning
Act; and
24
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
(b) the relevant planning scheme or
relevant special planning order, if
it does not do so, is taken to
require a permit for that
development; and
(c) the relevant planning scheme or
relevant special planning order, if
it does not do so, is taken to
specify that development as being
of a kind which a planning
authority has a discretion to
refuse or permit.
35. Heritage works require heritage approval
(1) A person must not carry out any heritage
works unless those heritage works have
heritage approval.
Penalty: Fine not exceeding -
(a) 10 000 penalty units for a
body corporate; or
(b) 5 000 penalty units for an
individual.
(2) For the purposes of subsection (1),
heritage works are taken to have heritage
approval if, and only if -
(a) in a case where a certificate of
exemption has been issued, the
heritage works are carried out in
accordance with -
25
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
(i) that certificate of
exemption; and
(ii) if a discretionary permit
or other permit is required
for the heritage works
under the Planning Act,
that discretionary permit
or other permit; or
(b) in a case where a certificate of
exemption has not been issued,
the heritage works are carried out
in accordance with a
discretionary permit.
(3) It is a defence in proceedings for an
offence under subsection (1) if the
defendant establishes that -
(a) the heritage works were carried
out in response to an emergency;
and
(b) the heritage works were, both as
to nature and extent, reasonably
necessary for the purposes of
responding to the emergency; and
(c) in the circumstances, it was not
practicable to seek a certificate of
exemption.
(4) Subsection (1) does not apply to -
(a) heritage works that solely involve
forest practices, as defined in the
26
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
Forest Practices Act 1985,
carried out under and in
accordance with another law of
the State; or
(b) heritage works that solely involve
mining, as defined in the Mineral
Resources Development Act
1995, carried out under and in
accordance with another law of
the State; or
(c) heritage works to a registered
place of worship that are required
solely for liturgical purposes.
(5) In this section -
emergency means an event that -
(a) endangers, destroys or
threatens to endanger or
destroy human life,
property or the
environment; or
(b) causes or threatens to
cause injury to persons.
36. Discretionary permit application to be sent
to and considered by Heritage Council
(1) This section applies if a person makes a
discretionary permit application.
(2) The relevant planning authority must
give a copy of the discretionary permit
27
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
application to the Heritage Council as
soon as practicable (and in any event
within 5 days) after the application day.
(3) Within 7 days after receiving a copy of a
discretionary permit application, the
Heritage Council is to consider the
discretionary permit application and
notify the relevant planning authority
that -
(a) the Heritage Council has no
interest in the discretionary
permit application; or
(b) the Heritage Council wishes to be
involved in determining the
discretionary permit application.
(4) If the Heritage Council notifies the
relevant planning authority that it wishes
to be involved in determining a
discretionary permit application, it may
state in the notification that, to further
consider the discretionary permit
application under section 39, it requires
additional information as specified in the
notification.
37. Procedure if Heritage Council requires
additional information to consider
discretionary permit application
(1) This section applies if, in respect of a
discretionary permit application, the
Heritage Council gives the relevant
28
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
planning authority a notification referred
to in section 36(3)(b) that states that the
Heritage Council requires additional
information as specified in the
notification.
(2) As soon as practicable after receiving the
notification referred to in subsection (1),
the relevant planning authority must, as if
it were exercising its power under section
54 of the Planning Act, require the
applicant to provide it with the additional
information required by the notification.
(3) As soon as practicable after receiving the
additional information, the relevant
planning authority must give it to the
Heritage Council.
(4) As soon as practicable after receiving the
additional information from the relevant
planning authority (and in any event
within the period specified in section
54(3) of the Planning Act), the Heritage
Council must notify the relevant planning
authority as to whether or not it is
satisfied that the additional information
answers the requirement in the
notification referred to in subsection (1).
(5) For the purposes of section 54 of the
Planning Act, the relevant planning
authority is satisfied that the additional
information answers the requirement in
the notification referred to in
subsection (1) when, and only when,
29
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
notified by the Heritage Council that it is
so satisfied.
38. Procedure if Heritage Council has no
interest in discretionary permit application
(1) This section applies if, in respect of a
discretionary permit application -
(a) the Heritage Council gives the
relevant planning authority the
notification referred to in
section 36(3)(a); or
(b) the Heritage Council fails to give
the relevant planning authority a
notification of any kind under
section 36(3) within the time that
section requires.
(2) The relevant planning authority may
determine the discretionary permit
application without further reference to
the Heritage Council.
(3) The Heritage Council is not entitled to -
(a) make representations under the
Planning Act in relation to the
discretionary permit application;
or
(b) take any other action in relation
to the discretionary permit
application or the relevant works.
30
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
(4) Once it has determined the discretionary
permit application, the relevant planning
authority is to notify the Heritage
Council of its determination.
39. Procedure if Heritage Council wishes to be
involved in determining discretionary permit
application
(1) This section applies if, in respect of a
discretionary permit application, the
Heritage Council gives the relevant
planning authority the notification
referred to in section 36(3)(b).
(2) The Heritage Council is to further
consider the discretionary permit
application and in so doing -
(a) is to have regard to the likely
impact of the proposed heritage
works on the historic cultural
heritage significance of the
relevant registered place or
heritage area; and
(b) may have regard to any
representations made in respect of
the application; and
(c) is to have regard to any matters
prescribed by the regulations for
the purposes of this subsection;
and
31
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
(d) is to have regard to any relevant
works guidelines; and
(e) may liaise with the relevant
planning authority.
(3) As soon as practicable after the
application day, the Heritage Council
may notify the relevant planning
authority that it requires an extra 14 days
to consider the discretionary permit
application, in which case the relevant
planning authority is to notify the
applicant of the Heritage Council's
requirement.
(4) As soon as practicable after receiving a
representation in relation to the
discretionary permit application, the
relevant planning authority must give a
copy of the representation to the Heritage
Council.
(5) As soon as practicable after an extension
of the period within which the relevant
planning authority must grant or refuse to
grant the discretionary permit application
is agreed under section 57(6)(b)(i)or (ii)
or section 57(6A) of the Planning Act,
the relevant planning authority must
notify the Heritage Council of the
extension.
(6) Before the prescribed period expires, the
Heritage Council is to notify the relevant
planning authority that -
32
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
(a) the Heritage Council consents to
the discretionary permit being
granted; or
(b) the Heritage Council consents to
the discretionary permit being
granted subject to the conditions
specified in the notification; or
(c) the discretionary permit should be
refused.
(7) For the purposes of subsection (6)(b), the
Heritage Council may, without limiting
its discretion, specify conditions that -
(a) set standards by which the
heritage works are to be carried
out; and
(b) require that suitably qualified
persons be engaged to supervise,
manage or do the heritage works
or any part or stage of the
heritage works; and
(c) require that arrangements be
made for the curation and storage
of items removed from the
registered place or heritage area;
and
(d) require that a photographic or
other record be made of the
heritage works or any part or
stage of the heritage works.
33
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Act No. of
s. 21
(8) If subsection (6)(a) applies or the
Heritage Council fails to give the
relevant planning authority a notification
of any kind under subsection (6) within
the prescribed period -
(a) the relevant planning authority
may determine the discretionary
permit application without further
reference to the Heritage Council;
and
(b) the Heritage Council is not
entitled to take any further action
in relation to the discretionary
permit application or the relevant
heritage works; and
(c) once it has determined the
discretionary permit application,
the relevant planning authority is
to notify the Heritage Council of
its determination.
(9) If subsection (6)(b) applies and the
relevant planning authority grants the
discretionary permit -
(a) it must do so subject to (at least)
the conditions required by the
Heritage Council; and
(b) it must not make the discretionary
permit subject to a condition that
conflicts with any condition
required by the Heritage Council.
34
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Act No. of
s. 21
(10) If subsection (6)(c) applies, the relevant
planning authority must refuse to grant
the discretionary permit.
(11) If the relevant planning authority grants
the discretionary permit, it must give a
copy of the discretionary permit to the
Heritage Council.
(12) In this section -
prescribed period means -
(a) in a case where the
Heritage Council has not
given the relevant
planning authority
notification under
subsection (3) that it
requires an extra 14 days
to consider the
discretionary permit
application, the period of
35 days after the
application day; or
(b) in a case where the
Heritage Council has
given the relevant
planning authority
notification under
subsection (3) that it
requires an extra 14 days
to consider the
discretionary permit
application, the period of
35
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
49 days after the
application day.
40. Consideration, &c., of application under
delegation
(1) This section applies if the responsibilities
of the Heritage Council under section 36
are discharged by a delegate of the
Heritage Council.
(2) The delegate is to keep the Heritage
Council informed of all decisions taken
by the delegate, under and in relation to
this Part, regarding the relevant
application.
41. Correction and minor amendment of
permits
(1) This section applies if, pursuant to
section 55 or 56 of the Planning Act, a
planning authority intends to make any
correction or minor amendment of a
discretionary permit in respect of which
it has been given a notification by the
Heritage Council under section 39(6)(a)
or (b).
(2) Before making the correction or minor
amendment, the planning authority
must -
(a) consult the Heritage Council; and
36
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
(b) have regard to any submissions
made by the Heritage Council
pursuant to that consultation.
(3) However, the planning authority is not
obliged to comply with subsection (2) if
it reasonably determines that the
correction or minor amendment will have
no impact on -
(a) historic cultural heritage
significance; or
(b) any permit condition required by
the Heritage Council under
section 39(6)(b).
42. Certificates of exemption for heritage works
(1) A person may apply to the Heritage
Council for a certificate of exemption for
heritage works.
(2) The exemption certificate application -
(a) is to be in a form provided or
approved by the Heritage
Council; and
(b) is to be supported by such
information as the Heritage
Council requires, either at the
time of lodgment or
subsequently.
(3) The Heritage Council may -
37
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Act No. of
s. 21
(a) approve the exemption certificate
application; or
(b) refuse the exemption certificate
application.
(4) Without limiting its discretion, the
Heritage Council may approve the
exemption certificate application if it is
reasonably satisfied that the heritage
works -
(a) are identified in the works
guidelines as works that will have
no impact or only negligible
impact on the historic cultural
heritage significance of the
relevant registered place or
heritage area; and
(b) are capable of being carried out in
accordance with the works
guidelines.
(5) If subsection (3)(b) applies, the Heritage
Council is to notify the applicant of -
(a) the refusal; and
(b) the reasons for the refusal.
(6) If subsection (3)(a) applies, the Heritage
Council is to -
(a) issue the applicant with the
certificate of exemption; and
38
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Act No. of
s. 21
(b) immediately give the relevant
planning authority a copy of the
certificate of exemption.
(7) If issued, the certificate of exemption
may be in such form and contain such
information as the Heritage Council
determines but it must clearly identify -
(a) the heritage works for which it is
issued; and
(b) the registered place or heritage
area in relation to which those
heritage works may be carried
out.
(8) In this section -
heritage works means -
(a) specific heritage works;
or
(b) a series of heritage works.
43. Effect of certificates of exemption
(1) Subject to subsection (2), a certificate of
exemption allows the heritage works
identified in the certificate to be carried
out in relation to the registered place or
heritage area identified in the certificate.
(2) If the carrying out of the heritage works
identified in a certificate of exemption, or
any part of those heritage works, requires
39
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Act No. of
s. 21
a discretionary permit or other permit
under the Planning Act, the certificate of
exemption does not annul, qualify or
displace that requirement.
44. Contravention of heritage works conditions
A person must not contravene a
condition of a discretionary permit for
heritage works.
Penalty: Fine not exceeding -
(a) 2 000 penalty units for a
body corporate; or
(b) 1 000 penalty units for an
individual.
45. Appeals concerning applications
(1) Where, in respect of a discretionary
permit application, the Heritage Council
gives the relevant planning authority the
notification under section 36(4) and the
applicant consequently lodges an appeal
under section 61(3) of the Planning Act,
the Heritage Council is joined as a
respondent to the appeal.
(2) Where, in respect of a discretionary
permit application, the Heritage Council
gives the relevant planning authority the
notification under section 39(6)(a) or (b),
the Heritage Council is joined as a
respondent to any appeal under section
40
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
61(4) or (5) of the Planning Act in
respect of the discretionary permit.
(3) Where, in respect of a discretionary
permit application, the Heritage Council
gives the relevant planning authority the
notification under section 39(6)(c) and
the permit is refused partly on the
grounds of that notification and partly on
other grounds, the Heritage Council is,
for the purposes of section 61(4) of the
Planning Act, joined as a respondent to
any appeal in respect of the refusal.
(4) Where, in respect of a discretionary
permit application, the Heritage Council
gives the relevant planning authority the
notification under section 39(6)(c) and
the permit is refused solely because of
that notification, the Heritage Council is,
for the purposes of section 61(4) of the
Planning Act, the respondent to any
appeal in respect of the refusal and the
relevant planning authority is not joined
as a respondent.
(5) Where, in respect of a discretionary
permit application, the Heritage Council
gives the relevant planning authority the
notification under section 36(3) and the
applicant applies under section 59(3) of
the Planning Act to the Appeal Tribunal,
within the meaning of that Act, the
Heritage Council is, for the purposes of
that Act, joined as a respondent to the
application.
41
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 21
46. Limitation on power of Heritage Council to
agree to heritage works
(1) Under this Part, the Heritage Council
may only agree to heritage works which
are likely to destroy or reduce the historic
cultural heritage significance of a
registered place, heritage area or place
within a heritage area if satisfied that
there is no prudent and feasible
alternative to those works.
(2) For the purposes of subsection (1), the
Heritage Council agrees to heritage
works if, in relation to those works, it -
(a) notifies the relevant planning
authority under section 36(3)(a)
that it has no interest in the
relevant discretionary permit
application; or
(b) notifies the relevant planning
authority under section 39(6)(a)
that it consents to a discretionary
permit being granted; or
(c) notifies the relevant planning
authority under section 39(6)(b)
that it consents to a discretionary
permit being granted subject to
conditions specified in the
notification; or
(d) issues a certificate of exemption.
42
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 22
22. Section 47 amended (Heritage agreement)
Section 47 of the Principal Act is amended as
follows:
(a) by omitting paragraph (b) from
subsection (1);
(b) by omitting from subsection (2) "or the
National Trust".
23. Section 49 amended (Variation or termination of
heritage agreement)
Section 49 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "the
National Trust with the Minister's
approval";
(b) by omitting from subsection (2) ", the
National Trust".
24. Section 50 amended (Notification to Recorder of
Titles)
Section 50(1) of the Principal Act is amended by
omitting ", the National Trust".
25. Section 53 amended (Enforcement order)
Section 53 of the Principal Act is amended as
follows:
43
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 26
(a) by omitting from subsection (2) "section
64 of the Land Use Planning and
Approvals Act 1993" and substituting
"section 64 of the Planning Act";
(b) by omitting from subsection (3)(a) "as
soon as practicable".
26. Section 56 amended (Non-application of other laws)
Section 56 of the Principal Act is amended by
inserting after subsection (2) the following
subsection:
(3) An order in respect of a place is not a
statutory rule.
27. Section 57 amended (Stopwork order)
Section 57(5)(a) of the Principal Act is amended
by omitting "as soon as practicable".
28. Section 61 amended (Appeal against notice)
Section 61(2) of the Principal Act is amended by
omitting "must" and substituting "is to".
29. Section 69 amended (Protected zone)
Section 69 of the Principal Act is amended by
inserting after subsection (4) the following
subsection:
(5) A notice under subsection (1) is not a
statutory rule.
44
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 30
30. Section 74 amended (Order prohibiting works)
Section 74 of the Principal Act is amended by
inserting after subsection (4) the following
subsection:
(5) An order is not a statutory rule.
31. Section 75 amended (Lodgment of orders with
Recorder of Titles)
Section 75(2)(a) of the Principal Act is amended
by omitting "as soon as practicable".
32. Section 78 amended (Application for certificate for
unregistered place)
Section 78(2)(c) of the Principal Act is amended
by inserting ", if any" after "fee".
33. Section 80 amended (Issue of certificate for
unregistered place)
Section 80 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(b)
"required criteria" and substituting
"registration criteria";
(b) by inserting in subsection (2)(a)
"relevant" after "give the";
(c) by omitting from subsection (2)(b) "in a
daily newspaper circulating in the area in
45
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 34
which the place is situated a notice" and
substituting "a local public notice";
(d) by inserting the following subsection
after subsection (2):
(2A) The Heritage Council may give
such other notices for the
purposes of this section as it
considers appropriate.
(e) by omitting from subsection (3)(b)
"advise the applicant, by notice in
writing" and substituting "notify the
applicant".
34. Section 82 amended (Submission relating to
certificate for unregistered place)
Section 82(2)(a) of the Principal Act is amended
by omitting "a notice was" and substituting "the
relevant local public notice is".
35. Section 86 amended (Application for certificate for
affected place)
Section 86(2)(c) of the Principal Act is amended
by inserting ", if any" after "fee".
36. Section 87 amended (Issue of certificate for affected
place)
Section 87(2)(b) of the Principal Act is amended
by omitting "advise the applicant, by notice in
writing," and substituting "notify the applicant".
46
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 37
37. Section 90 amended (Matters to take into account)
Section 90(b) of the Principal Act is amended by
omitting "Schedule 1 to the Land Use Planning
and Approvals Act 1993" and substituting
"Schedule 1 to the Planning Act".
38. Section 90A inserted
After section 90 of the Principal Act, the
following section is inserted in Part 12:
90A. Guidelines
(1) The Heritage Council may issue -
(a) guidelines on registration
procedures and other matters
relating to the registration of
places under this Act
(registration guidelines); and
(b) guidelines for the purposes of
Part 6 (works guidelines); and
(c) guidelines on other matters
prescribed by the regulations.
(2) The Heritage Council may amend or
revoke any guidelines.
(3) Guidelines -
(a) are to be written in plain
language; and
47
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Act No. of
s. 38
(b) may be made so as to apply
differently according to such
factors as are specified in them;
and
(c) may adopt, either wholly or in
part and with or without
modification, and either
specifically or by reference, any
standards, codes or other
documents (whether published or
issued before or after the
commencement of this Act); and
(d) may not contain provisions that
are repugnant to this Act, the
regulations or a ministerial
direction or statement of
expectation under this Act; and
(e) may not purport to impose
penalties or sanctions of any
kind; and
(f) are binding on the Heritage
Council itself; and
(g) are not statutory rules.
(4) The Acts Interpretation Act 1931 applies
to the interpretation of guidelines as if
they were by-laws.
(5) The Heritage Council is to -
48
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 39
(a) give public notice of the issue,
amendment or revocation of any
guidelines; and
(b) ensure that the public has
reasonable access to guidelines.
(6) Without limiting the generality of
subsection (5)(b), the Heritage Council is
to ensure that any person presenting at
any of its offices during normal working
hours can -
(a) inspect any guidelines without
charge; and
(b) obtain a copy of any guidelines.
(7) Subject to the requirements of this
section, the Heritage Council may
publish any guidelines as it considers
necessary or expedient having regard to
their intended application.
39. Section 91 substituted
Section 91 of the Principal Act is repealed and
the following section is substituted:
91. Immunity from liability
(1) A member or person acting under any
direction of the Heritage Council is not
personally liable for an honest act done
or omission made in the exercise or
purported exercise of a power or the
49
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 40
performance or purported performance of
a function under this or any other Act.
(2) A liability that would, but for
subsection (1), lie against a member or
person acting under a direction of the
Heritage Council lies against the Crown.
40. Section 94 substituted
Section 94 of the Principal Act is repealed and
the following section is substituted:
94. Amendment of Register
(1) The Heritage Council may amend an
entry in the Heritage Register -
(a) to update the entry; or
(b) to correct an error in or relating to
the entry; or
(c) to give effect to any decision of
the Appeal Tribunal under Part 4;
or
(d) to reflect physical events or legal
or planning changes relating to
the entry; or
(e) to accommodate changes in the
form of the Heritage Register; or
(f) for any other reasonable cause.
50
Historic Cultural Heritage Amendment Act 2012
Act No. of
s. 41
(2) On amending an entry in the Heritage
Register, the Heritage Council -
(a) is to notify the owner of each
registered place affected by the
amendment; and
(b) may give such other notice of the
amendment as it considers
appropriate.
(3) Subsection (2)(a) does not apply if the
amendment is of a minor clerical or
purely technical kind, not affecting the
substantive entries in the Heritage
Register in a material way.
41. Section 96 amended (Regulations)
Section 96 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)
"Regulations made under this section"
and substituting "The regulations";
(b) by omitting from subsection (3)
"Regulations" and substituting "The
regulations";
(c) by inserting the following subsection
after subsection (3):
(3A) The regulations may authorise
any matter to be from time to
time determined, applied,
51
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Act No. of
s. 42
approved or regulated by the
Minister or the Heritage Council.
(d) by omitting from subsection (4)
"Regulations made under this section"
and substituting "The regulations".
42. Section 98 repealed
Section 98 of the Principal Act is repealed.
43. Section 100 substituted
Section 100 of the Principal Act is repealed and
the following section is substituted:
100. Validity of certain entries in Register
No entry made in the Heritage Register
before the commencement of the Historic
Cultural Heritage Amendment Act 2012
is to be taken to be invalid or defective
by reason only that it does not comply or
fully comply with section 15(4) as in
force either before or after that
commencement.
44. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which it
commences.
52 Government Printer, Tasmania