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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Heritage Bill 2000
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Definitions 2
4. Meaning of "owner" 6
5. Meaning of "place" 7
6. Act binds Crown and does not apply to Aboriginal
heritage or natural heritage 8
Part 2 -- The Heritage Council
7. Heritage Council established 9
8. Members 9
9. Constitution, proceedings etc. 10
10 . Remuneration of members 10
Part 3 -- Functions, powers and
accountability
11 . Heritage Council functions and powers 11
12 . Delegation by Minister 12
13 . Minister may give directions 13
14 . Minister to have access to information 14
15 . Delegation by Heritage Council 15
16 . Public referrals to Heritage Council 15
Part 4 -- Staff
17 . CEO 17
18 . Other staff 17
19 . Use of other government staff, etc. 17
page i
38--1
Heritage Bill 2000
Contents
Part 5 -- Finance
20 . Funds of Heritage Council 19
21 . Heritage Fund 19
22 . Borrowing from Treasurer 20
23 . Other borrowing 20
24 . Guarantee by Treasurer 20
25 . Effect of guarantee 21
26 . Charges for guarantees 21
27 . Application of Financial Administration and Audit
Act 1985 21
Part 6 -- Heritage Register
Division 1 -- The Register
28 . The Register 22
29 . Content and form of Register 22
30 . Public inspection 23
Division 2 -- Entry in the Register
31 . Grounds for entry in the Register 23
32 . Assessment criteria 23
33 . Interim entry 24
34 . Procedure following interim entry 25
35 . Submissions to be reported to Minister 25
36 . No objection to permanent entry 26
37 . Heritage Council to take certain action if objection to
permanent entry 27
38 . Minister to take certain action if objection to
permanent entry 28
39 . When an entry in the Register has effect 29
40 . Time limit for making entry in the Register permanent 29
41 . Extension of time limit for making entry in the
Register permanent 29
Division 3 -- Changing or removing an entry in the
Register
42 . Updating or correcting an entry in the Register 30
43 . Changing the area of a registered place or registered
precinct 30
44 . Special Ministerial direction to remove an interim
entry from the Register 31
page ii
Heritage Bill 2000
Contents
45 . Removing a permanent entry from the Register 31
46 . When a change to, or removal of, an entry has effect 31
47 . Certain places not to be considered for re-entry in the
Register for 5 years 32
Division 4 -- Notification and information
48 . Public notice and notification of interested persons 32
49 . Notifications on title 33
50 . Informing public authorities 34
51 . Certificates 34
Part 7 -- Public authorities
Division 1 -- Local government heritage inventories
52 . Local government heritage inventories 35
53 . Consultation for local government heritage
inventories 35
54 . Local government heritage inventories to be in
accordance with joint standards of Heritage Council
and WAMA 36
55 . Time in which local government heritage inventories
to be completed 36
56 . Review and revision of local government heritage
inventories 36
57 . Extension of time limit for local governments to
complete or revise and review their heritage
inventories 37
58 . Heritage Council may establish or revise local
government heritage inventories in certain cases 37
Division 2 -- Heritage inventories of public
authorities other than local governments
59 . Application of Division 38
60 . Heritage inventories of other public authorities 38
61 . Public authority inventories to be in accordance with
Heritage Council standards 39
62 . Time in which public authority heritage inventories to
be completed 39
63 . Review and revision of public authority heritage
inventories 39
64 . Heritage Council may establish or revise public
authority heritage inventories in certain cases 40
page iii
Heritage Bill 2000
Contents
Division 3 -- Other matters concerning public
authorities
65 . Public authorities to cooperate with Heritage Council 40
Part 8 -- Approvals and advice of Heritage
Council as to works
66 . Works to be approved 42
67 . Exemptions 42
68 . Application for approval 43
69 . Works of significant public interest 43
70 . Matters to be considered in deciding applications 43
71 . Time limit for deciding applications 44
72 . Conditions etc. 44
73 . Notification when application decided 44
74 . Appeals from decisions on applications 45
75 . Certain authorities to seek advice of Heritage Council
as to works adjacent to registered places 45
76 . Relationship to other laws 46
Part 9 -- Heritage agreements
77 . Parties to heritage agreements 47
78 . Places to which heritage agreements can apply 47
79 . When heritage agreements have effect 48
80 . Obligations and restrictions run with the land 48
81 . Subject matter of heritage agreements 48
82 . Notifications on title 49
83 . Notification to interested persons 50
84 . Other rights of action not affected 50
85 . Enforcement of heritage agreements 50
86 . Damages for breach of heritage agreements 51
87 . Records of heritage agreements 52
Part 10 -- Conservation incentives
88 . Heritage Council may provide assistance or incentives 53
89 . Remission of taxes, rates and charges 53
90 . Payment of remitted taxes, rates and charges 55
91 . Modification or non-application of laws impeding
conservation 56
page iv
Heritage Bill 2000
Contents
92 . Heritage Council approvals override certain decisions
of local governments 58
93 . Revaluations 59
Part 11 -- Protection and conservation
orders
Division 1 -- Protection orders
94 . Protection orders for unregistered places 60
95 . Effect of protection orders 61
96 . Extension of protection orders 62
97 . Contravention of protection orders 62
98 . Appeals as to protection orders 63
Division 2 -- Conservation orders
99 . Conservation orders for registered places and
registered precincts 63
100 . Notice of proposed conservation order 64
101 . Compliance with conservation orders 64
102 . Appeals as to conservation orders 65
103 . Heritage Council may give effect to conservation
orders 65
Part 12 -- Compensation as to approvals
and protection orders
104 . Definition 67
105 . Compensation 67
106 . Losses that can be compensated 68
107 . Assessment of compensation 68
108 . Commercial Arbitration Act 1985 to apply 69
109 . Payment of compensation 70
Part 13 -- Enforcement and legal
proceedings
Division 1 -- Inspectors
110 . Appointment of inspectors 71
111 . Identity cards 71
112 . Powers of inspectors 71
113 . Warrants for entry onto premises 73
page v
Heritage Bill 2000
Contents
114 . Police assistance 73
115 . Offences in relation to inspectors 73
Division 2 -- Legal proceedings
116 . Time limit for proceedings 74
117 . Who may institute proceedings 74
118 . Committal for trial on indictment 74
119 . Evidentiary provision 74
120 . Defences in certain proceedings 75
121 . Offences by bodies corporate 75
122 . Court orders in respect of convictions for certain
offences 76
123 . Enforcement of court orders under section 122(2) 77
Part 14 -- Acquiring land
124 . Interests in land may be taken under Land
Administration Act 1997 for conservation purposes 78
125 . Compensation for land taken 78
Part 15 -- Miscellaneous
126 . Execution of documents by Heritage Council 80
127 . Notice of intention to sell land 80
128 . Service of documents 81
129 . Protection from liability for wrongdoing 81
130 . Limit on actions 81
131 . Commissioner of Titles may take action to keep
Register accurate as to entries re heritage or heritage
agreements 82
132 . Regulations 82
133 . Repeal 82
134 . Transitional and savings 82
135 . Review of Act 83
Schedule 1 -- Constitution and proceedings
of the Heritage Council
Division 1 -- Constitution and proceedings of the
Heritage Council
1. Chairperson unable to act 84
2. Term of office 84
3. Resignation, removal etc. 84
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Heritage Bill 2000
Contents
4. Leave of absence 85
5. Council member unable to act 85
6. Saving 86
7. Member not a public service officer by virtue of
appointment as member 86
8. Coopted Council members 86
9. Committees of the Council 86
10 . General procedure 87
11 . Presiding member 87
12 . Quorum 87
13 . Voting 87
14 . Minutes 87
15 . Decisions may be made without meeting 88
16 . Telephone or video meetings 88
Division 2 -- Disclosure of interests, etc.
17 . Disclosure of interests 88
18 . Voting by interested members 88
19 . Clause 18 may be declared inapplicable 89
20 . Quorum where clause 18 applies 89
21 . Minister may declare clauses 18 and 20 inapplicable 89
Schedule 2 -- Transitional and savings
1. Interpretation 90
2. Former Council members 90
3. CEO 90
4. Staff 90
5. Assets and liabilities of former Council to vest in new
Council 91
6. Stamp duty 91
7. Proceedings and remedies 91
8. Heritage Fund 92
9. Records 92
10 . Financial reporting of former Council 92
11 . The Register 92
12 . Local government heritage inventories 93
13 . Procedures in relation to entry in the Register or
changing or removing an entry 93
14 . Heritage agreements 93
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Heritage Bill 2000
Contents
15 . References to the former Council in agreements and
instruments 93
16 . Conservation and restoration orders 94
17 . Overriding certain decisions of local governments 94
18 . Payments remitted under repealed Act 94
19 . Ministerial orders as to written laws affecting the
conservation of registered places 94
20 . Certain places not entered in Register not to be
proposed for registration for 5 years 95
Defined Terms
page viii
Western Australia
LEGISLATIVE ASSEMBLY
Heritage Bill 2000
A Bill for
An Act to provide for the conservation and protection of Western
Australia's cultural heritage, to repeal the Heritage of Western
Australia Act 1990 and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Heritage Bill 2000
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Heritage Act 2000.
2. Commencement
5 (1) Subject to subsection (2), this Act comes into operation on a day
fixed by proclamation.
(2) This Act is not to come into operation before the Planning
Appeals Act 2000 and the Hope Valley-Wattleup Redevelopment
Act 2000 have come into operation.
10 3. Definitions
In this Act, unless the contrary intention appears --
"building", in relation to land, includes any man-made
structure erected or placed on or in the land, and any part of
the building or structure;
15 "CEO" means the person appointed as the chief executive
officer for the purposes of section 17;
"conservation", in relation to a place or precinct, includes --
(a) the retention of the cultural heritage significance of
the place or precinct; and
20 (b) any maintenance, preservation, restoration,
reconstruction or adaptation of the place or precinct
for that purpose;
"conservation order" means an order referred to in
section 99(1);
25 "Council" means the Heritage Council of Western Australia
established under section 7;
"cultural heritage significance", in relation to a place or
precinct, means significance to any group or community
(including future generations) in relation to the aesthetic,
page 2
Heritage Bill 2000
Preliminary Part 1
s. 3
archaeological, architectural, cultural, historical, scientific,
social or technical value of the place or precinct;
"development" means the development or use of any land,
including any of the following --
5 (a) any demolition, erection, construction, alteration of
or addition to any building on the land;
(b) the carrying out on the land of any excavation or
other earthworks;
(c) the subdivision or amalgamation of land including
10 buildings or airspace,
but does not include any act or thing or class of act or thing
that is for the time being excluded from this definition by
the regulations;
"fabric", in relation to a place, means all the physical material
15 of the place;
"heritage agreement" means an agreement entered into under
section 77;
"Heritage Fund" means the account referred to in
section 21(1);
20 "land" includes --
(a) any interest in land; and
(b) any building on or in the land;
"National Trust" means the National Trust of Australia (W.A.)
established under the National Trust of Australia (W.A.)
25 Act 1964;
"occupier", in relation to land, means a person by whom or on
whose behalf the land is lawfully occupied, or if there is no
person in lawful occupation, a person entitled to possession
(which includes the receipt of income or the right to receive
30 income from the land);
"owner" has the meaning given by section 4;
"place" has the meaning given by section 5;
page 3
Heritage Bill 2000
Part 1 Preliminary
s. 3
"planning authority" means --
(a) the East Perth Redevelopment Authority;
(b) a local government administering a town planning
scheme;
5 (c) the Midland Redevelopment Authority;
(d) the Subiaco Redevelopment Authority;
(e) the Western Australian Land Authority; or
(f) the Western Australian Planning Commission;
"planning law" means any of --
10 (a) the East Perth Redevelopment Act 1991;
(b) the Hope Valley-Wattleup Redevelopment Act 2000;
(c) the Local Government (Miscellaneous Provisions)
Act 1960;
(d) the Metropolitan Region Town Planning Scheme
15 Act 1959;
(e) the Midland Redevelopment Act 1999;
(f) the Subiaco Redevelopment Act 1994;
(g) the Town Planning and Development Act 1928;
(h) the Western Australian Planning Commission
20 Act 1985;
"precinct" means a group of places;
"protection order" means an order referred to in section 94(1);
"public authority" means --
(a) a Minister;
25 (b) an agency as defined in the Public Sector
Management Act 1994; or
(c) a body, whether corporate or unincorporate, or the
holder of an office, post or position, being a body,
office, post or position that is established or continued
page 4
Heritage Bill 2000
Preliminary Part 1
s. 3
for a public purpose under a written law, including a
local government or regional local government;
"public notice" means bringing a matter to the notice of the
public by --
5 (a) publication of a notice in the Gazette; and
(b) a notice published in a daily newspaper circulating
throughout the State;
"Register" means the Western Australian Heritage Register
referred to in section 28;
10 "registered place" means a place entered in the Register under
section 31(1);
"registered precinct" means a precinct entered in the Register
under section 31(1);
"town planning" means city, town, suburban, or rural planning
15 and development, or any combination of those;
"town planning scheme" means a scheme that has been
approved by the Minister and published in the Gazette
under section 7 of the Town Planning and Development
Act 1928;
20 "WAMA" means the Western Australian Municipal
Association constituted under section 9.58 of the Local
Government Act 1995;
"works", in relation to a place or precinct, includes any of the
following --
25 (a) development of the place or precinct;
(b) any physical intervention or action which may result
in a change to the nature or appearance of the fabric
of the place or of the precinct;
(c) the removal, destruction or lopping of a tree from or
30 at the place or precinct;
(d) the removal from the place or precinct of any
equipment, furniture or other moveable items
page 5
Heritage Bill 2000
Part 1 Preliminary
s. 4
specified in the Register in relation to the place or
precinct as forming part of the place or the precinct;
(e) otherwise damaging or despoiling the place or
precinct.
5 4. Meaning of "owner"
(1) In this Act --
"owner" --
(a) in relation to unalienated land that, under a written
law other than the Land Administration Act 1997 --
10 (i) is vested in a person or body;
(ii) is dedicated to a purpose of a person or body;
or
(iii) is placed under the control of a person or
body,
15 means that person or body;
(b) in relation to unalienated land other than that referred
to in paragraph (a) means the State of Western
Australia and, if relevant --
(i) a management body, as defined in the Land
20 Administration Act 1997, for the land; or
(ii) a public authority that is in possession of, or
controls, the land;
(c) in relation to land that is under the operation of the
Transfer of Land Act 1893 means, subject to
25 subsection (2), a proprietor within the meaning of
that Act except a mortgagee who is not a mortgagee
in possession; or
(d) in relation to land that is subject to the Registration of
Deeds Act 1856, means the holder of an interest
30 registered by memorial under that Act except a
mortgagee who is not a mortgagee in possession.
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Heritage Bill 2000
Preliminary Part 1
s. 5
(2) If --
(a) the proprietor of land that is under the operation of the
Transfer of Land Act 1893 is the State of Western
Australia; and
5 (b) a public authority is in possession of, or controls, the
land,
the public authority is the owner of the land for the purposes of
this Act.
5. Meaning of "place"
10 (1) In this Act --
"place" means a defined or readily identifiable portion of land.
(2) For the purposes of the definition of "place" in subsection (1) --
(a) the portion of land may be comprised in separate titles
and in different ownership; and
15 (b) it is immaterial that water covers the land at any
particular time.
(3) Any of the following things at a place can be treated as forming
part of the place --
(a) an archaeological site;
20 (b) a building and such of the building's immediate
surrounds as may be required for its conservation;
(c) a structure that is historically or physically associated or
connected with the place if the primary importance of
the structure derives in part from its association with the
25 place;
(d) equipment, furniture, fittings or other items (whether
fixed or not) that are historically or physically associated
or connected with any building, or activity conducted, at
the place;
30 (e) a garden, man-made park or man-made landscape;
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Heritage Bill 2000
Part 1 Preliminary
s. 6
(f) a tree or group of trees (whether planted or naturally
occurring) in or adjacent to a man-made setting.
6. Act binds Crown and does not apply to Aboriginal heritage
or natural heritage
5 (1) This Act binds the Crown not only in right of the State but also,
so far as the legislative power of Parliament permits, the Crown
in all its other capacities.
(2) This Act does not apply to --
(a) an Aboriginal site; or
10 (b) Aboriginal cultural material,
as defined in the Aboriginal Heritage Act 1972, to the extent to
which that Act applies to the site or the material.
(3) Nothing in this Act affects the operation of the Aboriginal
Heritage Act 1972.
15 (4) This Act does not apply to a place that consists only of the
natural environment, except to the extent to which the place is
located within a place that is or might be of cultural heritage
significance.
page 8
Heritage Bill 2000
The Heritage Council Part 2
s. 7
Part 2 -- The Heritage Council
7. Heritage Council established
(1) A body called the Heritage Council of Western Australia is
established.
5 (2) The Council is a body corporate with perpetual succession.
(3) Proceedings may be taken by or against the Council in its
corporate name.
(4) The Council is an agent of the Crown and enjoys the status,
immunities and privileges of the Crown.
10 (5) In addition to the name mentioned in subsection (1) the Council
may use, and operate under, the name "Heritage WA".
8. Members
(1) The Council is to comprise 11 persons appointed by the
Minister who have such experience, skills, knowledge and
15 qualifications as are relevant to the functions of the Council.
(2) The Council members are to comprise --
(a) the chairperson;
(b) a person nominated by the National Trust;
(c) 2 persons chosen from 4 persons nominated by WAMA
20 of whom --
(i) one is to represent metropolitan interests; and
(ii) one is to represent non-metropolitan interests;
(d) a person representing the interests of owners, chosen
from persons nominated after public advertisement of
25 the position;
(e) a person representing organisations with interests
relevant to the conservation of places of cultural heritage
significance, chosen from persons nominated after
public advertisement of the position; and
page 9
Heritage Bill 2000
Part 2 The Heritage Council
s. 9
(f) 5 other persons chosen from persons nominated after
public advertisement of the positions, of whom --
(i) at least one is a registered architect as defined by
the Architects Act 1921; and
5 (ii) at least one other is a professional historian.
(3) The CEO is not to be appointed as a Council member.
(4) If, within 60 days of a request to do so, a body referred to in
subsection (2)(b) or (c) fails to nominate a person in accordance
with that request, the Minister may make such appointment for
10 the purpose of that provision as the Minister thinks fit.
(5) On the request of a body referred to in subsection (2)(b) or (c),
the Minister may extend the period of time referred to in
subsection (4) for nominations by the body.
9. Constitution, proceedings etc.
15 Schedule 1 has effect with respect to the Council and its
members.
10. Remuneration of members
(1) A member of the Council or a committee is to be paid such
remuneration and travelling and other allowances as are
20 determined in the member's case by the Minister on the
recommendation of the Minister for Public Sector Management.
(2) A Council member who is an employee (as defined in the
Public Sector Management Act 1994) is to be paid only such
travelling and subsistence allowances as are determined in the
25 member's case by the Minister on the recommendation of the
Minister for Public Sector Management.
page 10
Heritage Bill 2000
Functions, powers and accountability Part 3
s. 11
Part 3 -- Functions, powers and accountability
11. Heritage Council functions and powers
(1) It is a function of the Council --
(a) to identify and assess places within the State that are of
5 cultural heritage significance;
(b) to advise the Minister on the conservation and protection
of, and other matters relating to, places in Western
Australia that are, or might be, of cultural heritage
significance;
10 (c) to represent the Minister in negotiations relating to the
matters referred to in paragraph (b);
(d) to have regard to the recommendations of, and the lists
and records compiled by, the Australian Heritage
Commission, the National Trust, the Royal Western
15 Australian Historical Society (Inc.), local governments
and other persons that have made available information
relating to places that are, or might be, of cultural
heritage significance;
(e) to provide advice in relation to heritage agreements or
20 proposed heritage agreements and to conduct
negotiations in relation to such agreements;
(f) to protect places that are, or might be, of cultural
heritage significance from destruction, deterioration,
damage or injudicious treatment;
25 (g) where development of a registered place or registered
precinct or development adjacent to a registered place is
proposed, to ensure that the development does not
adversely affect the cultural heritage significance of the
place or precinct;
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Heritage Bill 2000
Part 3 Functions, powers and accountability
s. 12
(h) to advise and assist local governments in identifying and
conserving places that are, or might be, of cultural
heritage significance in relation to --
(i) local government heritage inventories under
5 Part 7; and
(ii) compiling information about heritage in a local
government district that may be required under a
town planning scheme;
(i) to promote public awareness and knowledge of issues
10 relevant to the conservation of Western Australia's
cultural heritage;
(j) to encourage or provide education or training in respect
of Western Australia's cultural heritage;
(k) to arrange or conduct research and investigations
15 relating to Western Australia's cultural heritage;
(l) to promote and assist in the proper management and
maintenance of registered places and registered precincts;
(m) to deliver any place or thing in the Council's possession
or control in relation to cultural heritage into the
20 possession or control of any person for the purpose of
making the place or thing accessible to the public or
available for study;
(n) to implement policies to give effect to its functions;
(o) to do anything else that it is required or authorised to do
25 under this Act or any other written law.
(2) The Council has power to do all things necessary or convenient
to be done for or in connection with the performance of its
functions under this Act.
12. Delegation by Minister
30 (1) The Minister may, by instrument, delegate to any person the
performance of any of the Minister's functions except --
(a) this power of delegation; and
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Heritage Bill 2000
Functions, powers and accountability Part 3
s. 13
(b) the Minister's powers under sections 13 and 14.
(2) A function performed by a delegate is to be taken as being
performed by the Minister.
(3) A delegate performing a function under this section is to be
5 taken to do so in accordance with the terms of the delegation
unless the contrary is shown.
13. Minister may give directions
(1) The Minister may give directions in writing to the Council with
respect to the performance of its functions, either generally or,
10 subject to subsection (2), in relation to a particular matter and
the Council is to give effect to any such direction.
(2) A direction may not be given under subsection (1) in respect of
any of the following --
(a) the content or effect of advice to be given by the
15 Council;
(b) an assessment of the cultural heritage significance of a
particular place or precinct;
(c) an interim entry in the Register under section 33;
(d) an approval or an exemption or revocation of an
20 exemption under Part 8.
(3) The Minister must cause the text of any direction given under
subsection (1) to be laid before each House of Parliament, or
dealt with under subsection (4), within 14 days after the
direction is given.
25 (4) If --
(a) at the commencement of the period referred to in
subsection (3) a House of Parliament is not sitting; and
(b) the Minister is of the opinion that that House will not sit
during that period,
30 the Minister is to transmit a copy of the direction to the Clerk of
that House.
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Heritage Bill 2000
Part 3 Functions, powers and accountability
s. 14
(5) A copy of a direction transmitted to the Clerk of a House is to
be regarded --
(a) as having been laid before that House; and
(b) as being a document published by order or under the
5 authority of that House.
(6) The laying of a copy of a direction that is regarded as having
occurred under subsection (5)(a) is to be recorded in the
Minutes, or Votes and Proceedings, of the House on the first
sitting day of the House after the Clerk received the copy.
10 (7) The text of a direction under subsection (1) is to be included in
the annual report submitted by the accountable authority of the
Council under section 66 of the Financial Administration and
Audit Act 1985.
14. Minister to have access to information
15 (1) The Minister is entitled --
(a) to have information in the possession of the Council;
and
(b) where the information is in or on a document, to have,
and make and retain copies of, that document.
20 (2) For the purposes of subsection (1) the Minister may --
(a) request the Council to furnish information to the
Minister;
(b) request the Council to give the Minister access to
information;
25 (c) for the purposes of paragraph (b) make use of the staff
of the Council to obtain the information and furnish it to
the Minister.
(3) The Council must comply with a request under subsection (2)
and make its staff and facilities available to the Minister for the
30 purposes of subsection (2)(c).
page 14
Heritage Bill 2000
Functions, powers and accountability Part 3
s. 15
(4) In this section --
"document" includes any tape, disc or other device or medium
on which information is recorded or stored;
"information" means information specified, or of a description
5 specified, by the Minister that relates to the functions of the
Council.
15. Delegation by Heritage Council
(1) The Council may, by instrument, delegate to any person the
performance of any of the Council's functions under this Act
10 except this power of delegation.
(2) A function performed by a delegate is to be taken as being
performed by the Council.
(3) A delegate performing a function under this section is to be
taken to do so in accordance with the terms of the delegation
15 unless the contrary is shown.
(4) Nothing in this section is to be read as limiting the ability of the
Council to act through its staff and agents in the normal course
of business.
16. Public referrals to Heritage Council
20 (1) Any person may refer in writing to the Council any matter
concerning the conservation or protection of a registered place,
a registered precinct or any other place or precinct which is, or
might be, of cultural heritage significance.
(2) On a referral under subsection (1), the Council --
25 (a) may request from the person referring the matter such
further information as is necessary for the Council to
decide how to deal with the matter;
(b) may deal with the matter as it thinks fit, including
reporting or making recommendations to a public
30 authority or other persons;
page 15
Heritage Bill 2000
Part 3 Functions, powers and accountability
s. 16
(c) as soon as practicable, is to inform the person referring
the matter about how the matter is dealt with; and
(d) is to deal with the referral expeditiously.
page 16
Heritage Bill 2000
Staff Part 4
s. 17
Part 4 -- Staff
17. CEO
(1) A chief executive officer of the Council is to be appointed under
Part 3 of the Public Sector Management Act 1994.
5 (2) Subject to the control of the Council, the CEO is to --
(a) provide advice and assistance to the Council and the
Minister in the administration of this Act; and
(b) administer the day to day operations of the Council.
18. Other staff
10 (1) The CEO may engage persons as staff of the Council.
(2) Persons referred to in subsection (1) are to be employed, subject
to any relevant industrial award, order or agreement, on such
terms and conditions as the CEO determines.
(3) Nothing in subsection (2) affects the operation of the Workplace
15 Agreements Act 1993.
(4) Part 3 Division 3 of the Public Sector Management Act 1994
does not apply to the Council but this section does not affect the
power of the CEO to engage a person under a contract for
services or appoint a person on a casual employment basis
20 under section 100 of that Act.
19. Use of other government staff, etc.
(1) The Council may by arrangement with the relevant employer
make use, either full-time or part-time, of the services of any
officer or employee --
25 (a) in the Public Service;
(b) in a State agency or instrumentality; or
(c) otherwise in the service of the Crown in right of the
State.
page 17
Heritage Bill 2000
Part 4 Staff
s. 19
(2) The Council may by arrangement with --
(a) a department of the Public Service; or
(b) a State agency or instrumentality,
make use of any facilities of the department, agency or
5 instrumentality.
(3) An arrangement under subsection (1) or (2) is to be made on
such terms as are agreed to by the parties.
page 18
Heritage Bill 2000
Finance Part 5
s. 20
Part 5 -- Finance
20. Funds of Heritage Council
The funds available for the purpose of enabling the Council to
perform its functions consist of --
5 (a) moneys from time to time appropriated by Parliament;
(b) moneys received by the Council in the performance of
its functions;
(c) moneys received by the Council by way of fees or
charges, or from the sale or rental of property owned by
10 the Council or from the management of property
administered by the Council;
(d) moneys borrowed by the Council under section 22
or 23;
(e) moneys from Commonwealth sources; and
15 (f) other moneys lawfully received by, made available to, or
payable to, the Council.
21. Heritage Fund
(1) The funds referred to in section 20 are to be credited to an
account to be called the "Heritage Fund" at the Treasury,
20 forming part of the Trust Fund constituted under section 9 of the
Financial Administration and Audit Act 1985.
(2) The Heritage Fund is to be charged with --
(a) the remuneration and allowances payable under
section 10;
25 (b) interest on and repayment of moneys borrowed by the
Council under section 22 or 23 and any other fees or
charges payable in respect of any such borrowing; and
(c) all other expenditure lawfully incurred by the Council in
the performance of its functions.
page 19
Heritage Bill 2000
Part 5 Finance
s. 22
22. Borrowing from Treasurer
(1) The Council may borrow from the Treasurer such amounts as
the Treasurer approves on such terms and conditions relating to
repayment and payment of interest as the Treasurer imposes.
5 (2) By force of this subsection the Heritage Fund and the assets of
the Council are charged with the due performance by the
Council of its obligations in respect of a loan under
subsection (1).
23. Other borrowing
10 (1) In addition to its powers under section 22, the Council may with
the prior written approval of the Treasurer and on such terms
and conditions as the Treasurer approves, borrow moneys for
the purpose of performing its functions.
(2) Any moneys borrowed by the Council under subsection (1) may
15 be raised --
(a) as one loan or as several loans; and
(b) in such manner as the Treasurer approves.
(3) The total amount of the moneys so borrowed in any one
financial year is not to exceed such amount as the Treasurer
20 approves.
24. Guarantee by Treasurer
(1) The Treasurer may, in the name and on behalf of the Crown in
right of the State, guarantee the payment of any moneys payable
by the Council in respect of moneys borrowed by the Council
25 under section 23.
(2) A guarantee is to be in such form and contain such terms and
conditions as the Treasurer determines.
page 20
Heritage Bill 2000
Finance Part 5
s. 25
(3) Before a guarantee is given, the Council is to --
(a) give to the Treasurer such security as the Treasurer
requires; and
(b) execute all instruments that are necessary for the
5 purpose.
25. Effect of guarantee
(1) The due payment of moneys payable by the Treasurer under a
guarantee under section 24 is guaranteed by the State.
(2) Any such payment is to be made by the Treasurer and charged
10 to the Consolidated Fund, and this subsection appropriates that
Fund accordingly.
(3) The Treasurer is to cause to be credited to the Consolidated
Fund any amounts received or recovered from the Council or
otherwise in respect of any payment made by the Treasurer
15 under a guarantee given under section 24.
26. Charges for guarantees
(1) The Treasurer may fix charges to be paid by the Council to the
Treasurer for the benefit of the Consolidated Fund in respect of
a guarantee given under section 24.
20 (2) Payment of any charges fixed under subsection (1) is to be made
at such time or times as the Treasurer determines.
27. Application of Financial Administration and Audit Act 1985
The provisions of the Financial Administration and Audit
Act 1985 regulating the financial administration, audit and
25 reporting of statutory authorities apply to and in respect of the
Council and its operations.
page 21
Heritage Bill 2000
Part 6 Heritage Register
Division 1 The Register
s. 28
Part 6 -- Heritage Register
Division 1 -- The Register
28. The Register
The Council is to establish and maintain the Western Australian
5 Heritage Register (the "Register").
29. Content and form of Register
(1) An entry in the Register in relation to a place or precinct must
contain --
(a) an adequate description to enable the place or precinct to
10 be identified;
(b) the date of interim entry, permanent entry and any
change to an entry;
(c) the name of the local government district in which the
place or precinct is located;
15 (d) a statement setting out how the place or precinct is of
cultural heritage significance;
(e) a list of the equipment, furniture or other moveable
items that form part of the place or the precinct; and
(f) such other matters as are prescribed by regulation.
20 (2) If an entry is removed from the Register, the Register must
contain --
(a) the date of the removal of the entry; and
(b) a statement as to why the entry was removed.
(3) The Register is to be in a form approved by the Council.
25 (4) The Register is to be a comprehensive register of places and
precincts of cultural heritage significance for the State, not merely
an index of examples, and a place or precinct is not to be left out of
the Register because similar examples are already entered.
page 22
Heritage Bill 2000
Heritage Register Part 6
Entry in the Register Division 2
s. 30
30. Public inspection
The Council is to ensure that the Register, or a copy of it, is
available for public inspection --
(a) at the office of the Council during ordinary business
5 hours; or
(b) by such other means as the Council determines.
Division 2 -- Entry in the Register
31. Grounds for entry in the Register
(1) A place or a precinct may be entered in the Register if, in the
10 opinion of the Council --
(a) the place or precinct is of cultural heritage significance
for the State; and
(b) the place or precinct meets one or more of the
assessment criteria determined by the Council under
15 section 32.
(2) A precinct may be entered in the Register even though each
place within the precinct may not itself satisfy the requirements
of subsection (1).
32. Assessment criteria
20 (1) The Council is to determine and publish the criteria to be used
in assessing the cultural heritage significance of places and
precincts.
(2) In determining the assessment criteria, the Council is to have
regard only to the following matters --
25 (a) the importance of a place or precinct in demonstrating
the evolution or pattern of Western Australian history;
(b) the importance of a place or precinct in demonstrating
rare, uncommon or endangered aspects of Western
Australia's heritage;
page 23
Heritage Bill 2000
Part 6 Heritage Register
Division 2 Entry in the Register
s. 33
(c) the potential of a place or precinct to yield information
that will contribute to an understanding of Western
Australia's history;
(d) the importance of a place or precinct in demonstrating
5 the characteristics of a broader class of places or
precincts;
(e) the importance of a place or precinct in demonstrating a
high degree of creative or technical achievement;
(f) the strong or special meaning that a place or precinct has
10 for any group or community because of social, cultural
or spiritual associations;
(g) the importance of a place or precinct in exhibiting
particular aesthetic characteristics valued by any group
or community;
15 (h) the special association that a place or precinct has with
the life or work of a person, group or organisation of
importance in Western Australia's history;
(i) any other matter that in the opinion of the Council is
relevant to the assessment of cultural heritage
20 significance.
33. Interim entry
(1) The Council, on its own initiative or on application to it by any
person, may enter a place or precinct in the Register on an
interim basis if in its opinion the place or precinct satisfies the
25 grounds for entry in the Register.
(2) Before entering a place or precinct in the Register on an interim
basis, the Council may invite written or oral submissions on any
matter relevant to the applicable assessment criteria published
under section 32(1) from any owner of the place or any owner
30 of any place within the precinct and any person with a special
knowledge of, or interest in, the place or precinct, and may have
regard to the submissions in making its decision.
page 24
Heritage Bill 2000
Heritage Register Part 6
Entry in the Register Division 2
s. 34
(3) Before entering a precinct in the Register on an interim basis,
the Council is to consult with the local government of the
district in which the precinct is located for the purpose of
agreeing a conservation management policy for the proposed
5 registered precinct.
(4) If the Council and the local government have not agreed on a
conservation management policy for the proposed registered
precinct within 90 days after the day on which the local
government was first consulted, the Council may register the
10 precinct on an interim basis without the policy.
34. Procedure following interim entry
If a place or precinct is entered in the Register on an interim
basis, the Council must --
(a) do the things that it is required to do under Division 4;
15 (b) in the public notice required under Division 4, invite
written submissions to be made to the Council, within
42 days of publication in the Gazette or such longer
period as specified in the notice, in support of, or
objecting to, making the interim entry in the Register
20 permanent;
(c) as soon as practicable after the interim entry is made,
cause a notification of the entry to be prepared in a form
approved by the Registrar of Titles or the Registrar of
Deeds, as the case requires, and deposited at the
25 Department within the meaning of the Transfer of Land
Act 1893; and
(d) notify the Minister as soon as practicable after the entry
is made.
35. Submissions to be reported to Minister
30 If submissions have been made in support of, or objecting to,
making an interim entry in the Register permanent the Council
page 25
Heritage Bill 2000
Part 6 Heritage Register
Division 2 Entry in the Register
s. 36
is to ensure that a report on the submissions accompanies the
Council's recommendation to the Minister.
36. No objection to permanent entry
(1) This section applies if --
5 (a) no submission has been made in relation to making an
interim entry in the Register permanent; or
(b) the only submissions that have been made are in support
of making an interim entry in the Register permanent.
(2) After having regard to the Council's recommendation and report
10 about an interim entry in the Register, the Minister may
direct --
(a) that the entry be made permanent; or
(b) that the entry be removed from the Register.
(3) The Minister is not to direct that an entry be made permanent
15 unless the Minister is of the opinion that it is appropriate for the
place or precinct that is the subject of the entry to have the
protection afforded by this Act and in deciding whether or not to
give a direction the Minister may take into account any of the
following --
20 (a) the applicable assessment criteria published under
section 32(1);
(b) the interests of any owner of the place, or any owner of
any place within the precinct, as is relevant to the case;
or
25 (c) any other matter that in the opinion of the Minister is
relevant to whether a direction should be given.
(4) The Council is to give effect to the Minister's direction and do
the things that it is required to do under Division 4.
page 26
Heritage Bill 2000
Heritage Register Part 6
Entry in the Register Division 2
s. 37
37. Heritage Council to take certain action if objection to
permanent entry
(1) This section applies if a submission has been made objecting to
making an interim entry in the Register permanent.
5 (2) The Council may invite --
(a) further written or oral communication with the person
who made the objection; or
(b) written or oral communication with any other person
who has a special knowledge of, or interest in, the place
10 or precinct.
(3) If the person who made the objection makes a request to address
the Council or a relevant committee of the Council in relation to
the objection, the Council is to ensure that the person is given
the opportunity to address the Council or committee (as decided
15 by the Council) before the Council makes a recommendation to
the Minister under subsection (7).
(4) A person is not to be represented by another person before the
Council or a committee under subsection (3) unless the Council
determines otherwise on the ground that the process will not
20 work effectively without that representation but nothing in this
subsection prevents the person from being accompanied by
another person when appearing before the Council or a
committee.
(5) The Council may reconsider the interim entry in the Register
25 having regard to any submissions made under subsection (1),
(2) or (3) and decide whether or not to recommend to the
Minister to make the entry permanent.
(6) If the Council decides that making the interim entry in the
Register permanent is not warranted the Council is to --
30 (a) remove the entry as soon as practicable; and
(b) give public notice of the reasons for the decision within
14 days of the day on which the decision was made.
page 27
Heritage Bill 2000
Part 6 Heritage Register
Division 2 Entry in the Register
s. 38
(7) If the Council decides that making the interim entry in the
Register permanent is warranted, it is to make a
recommendation to that effect to the Minister.
38. Minister to take certain action if objection to permanent
5 entry
(1) This section applies if --
(a) a submission has been made objecting to making an
interim entry in the Register permanent;
(b) the objection has not been withdrawn after action taken
10 by the Council under section 37(2) or (3); and
(c) the Council has recommended that the entry be made
permanent.
(2) After having regard to the recommendation and report of the
Council about the interim entry in the Register, the Minister
15 may direct --
(a) that the entry be made permanent; or
(b) that the entry be removed from the Register.
(3) The Minister is not to direct that an entry be made permanent
unless the Minister is of the opinion that it is appropriate for the
20 place or precinct that is the subject of the entry to have the
protection afforded by this Act and in deciding whether or not to
give a direction the Minister may take into account any of the
following --
(a) the applicable assessment criteria published under
25 section 32(1);
(b) the interests of any owner of the place, or any owner of
any place within the precinct, as is relevant to the case;
or
(c) any other matter that in the opinion of the Minister is
30 relevant to whether a direction should be given.
page 28
Heritage Bill 2000
Heritage Register Part 6
Entry in the Register Division 2
s. 39
(4) The Council is to give effect to the Minister's direction and do
the things that it is required to do under Division 4.
39. When an entry in the Register has effect
An entry in the Register has effect on and from the day that the
5 relevant notice is published in the Gazette.
40. Time limit for making entry in the Register permanent
(1) If, within 12 months of a place being entered in the Register on
an interim basis --
(a) the entry has not been made permanent; or
10 (b) there has not been obtained from each owner of the
place written consent to the extension of the interim
entry beyond 12 months,
the Council must remove the entry forthwith.
(2) If, within 2 years of a precinct being entered in the Register on
15 an interim basis --
(a) the entry has not been made permanent; or
(b) there has not been obtained from each owner of each
place within the precinct written consent to the
extension of the interim entry beyond 2 years,
20 the Council must remove the entry forthwith.
41. Extension of time limit for making entry in the Register
permanent
(1) The Minister may, while a place or precinct is entered in the
Register on an interim basis, make a request to extend the time
25 in which the place or precinct remains entered in the Register on
an interim basis --
(a) in the case of a place, up to 2 years after the place was
entered in the Register; and
page 29
Heritage Bill 2000
Part 6 Heritage Register
Division 3 Changing or removing an entry in the Register
s. 42
(b) in the case of a precinct, up to 4 years after the precinct
was entered in the Register.
(2) A request under subsection (1) is to be dealt with under
section 32 of the Planning Appeals Act 2000.
5 Division 3 -- Changing or removing an entry in the Register
42. Updating or correcting an entry in the Register
The Council may change an entry in the Register --
(a) to update any details in the entry; or
(b) to correct any error in the entry.
10 43. Changing the area of a registered place or registered
precinct
(1) The Council may change a permanent entry in relation to a
registered place or a registered precinct to increase the area of
the place or precinct but only if --
15 (a) written consent is obtained from --
(i) each owner of the place or each owner of each
place within the precinct; and
(ii) the Minister;
or
20 (b) the procedures set out in sections 34, 35, 36, 37, 38 and
48 are complied with as if the references in those
sections to making an interim entry in the Register
permanent include a reference to changing a permanent
entry to increase the area of a registered place or
25 registered precinct.
(2) The Council may change a permanent entry in relation to a
registered place or a registered precinct to decrease the area of
the place or precinct but only if the procedures set out in
sections 34, 35, 36, 37, 38 and 48 are complied with as if the
30 references in those sections to making an interim entry in the
page 30
Heritage Bill 2000
Heritage Register Part 6
Changing or removing an entry in the Register Division 3
s. 44
Register permanent include a reference to changing a permanent
entry to decrease the area of a registered place or registered
precinct.
(3) Sections 34(c), 36(2)(b), 37(6) and 38(2)(b) do not apply for the
5 purposes of subsection (1) or (2).
44. Special Ministerial direction to remove an interim entry
from the Register
(1) The Minister may direct the removal of an interim entry from
the Register at any time.
10 (2) If, under subsection (1), the Minister directs the removal of an
interim entry from the Register, the Minister must give notice of
the direction and the reasons for the direction to both Houses of
Parliament within 21 days of giving the direction.
(3) Nothing in this section affects the Minister's power under
15 section 36(2)(b) or 38(2)(b) to direct the removal from the
Register of an interim entry.
45. Removing a permanent entry from the Register
(1) The Council may remove a permanent entry from the Register
but only if the procedures set out in sections 34, 35, 36, 37, 38
20 and 48 are complied with as if the references in those sections to
making an interim entry in the Register permanent include a
reference to removing a permanent entry from the Register.
(2) Section 34(c) does not apply for the purposes of subsection (1).
46. When a change to, or removal of, an entry has effect
25 A change to an entry in the Register and a removal of an entry
from the Register has effect on and from the day that the
relevant notice is published in the Gazette.
page 31
Heritage Bill 2000
Part 6 Heritage Register
Division 4 Notification and information
s. 47
47. Certain places not to be considered for re-entry in the
Register for 5 years
If an entry for a registered place is removed from the Register
the place to which the entry applied must not be considered for
5 re-entry in the Register for 5 years from the day the removal has
effect.
Division 4 -- Notification and information
48. Public notice and notification of interested persons
(1) This section applies to the following events --
10 (a) an interim entry in the Register;
(b) an entry in the Register being made permanent;
(c) a change to an entry in the Register to increase or
decrease the area of the place or precinct to which the
entry applies;
15 (d) the removal of an entry from the Register.
(2) If an event to which this section applies occurs the Council --
(a) is to give public notice of the event within 14 days of the
event occurring; and
(b) within 14 days of the publication in the Gazette, is to
20 give the documents set out in subsection (3) --
(i) to each owner of the place, or each owner of
each place within the precinct, to which the entry
applies;
(ii) to each lessee of the place, or each lessee of each
25 place within the precinct, to which the entry
applies, whose lease --
(I) is registered under the Transfer of Land
Act 1893; or
(II) is one for which the approval of the
30 Western Australian Planning
page 32
Heritage Bill 2000
Heritage Register Part 6
Notification and information Division 4
s. 49
Commission is required under
section 20 of the Town Planning and
Development Act 1928;
(iii) to the local government of the district in which
5 the place or area to which the entry applies is
located;
(iv) to the Western Australian Planning Commission;
(v) to any other relevant planning authority; and
(vi) if relevant, to the Director General of Mines as
10 defined in the Mining Act 1978.
(3) The documents to be given under subsection (2)(b) are --
(a) written notice of the Council's action;
(b) a copy of the entry or change to the entry, if relevant;
and
15 (c) a copy of the text of the public notice.
(4) If, in the Council's opinion, it is not practicable to comply with
subsection (2)(b)(i) or (ii) in respect of each owner or lessee of
the place or each owner or lessee of each of the places within
the precinct to which the entry applies, the Council must instead
20 cause the text of the public notice to be posted up in a prominent
location on or near the place or precinct.
49. Notifications on title
(1) If a notification is deposited under section 34(c) --
(a) the Registrar of Titles is to endorse each certificate of
25 title in relation to the affected land to that effect; or
(b) the Registrar of Deeds is to endorse each memorial or
record in relation to the affected land to that effect,
as the case requires.
(2) Subsection (3) applies if --
30 (a) an entry is removed from the Register; or
page 33
Heritage Bill 2000
Part 6 Heritage Register
Division 4 Notification and information
s. 50
(b) there has been a change to an entry in the Register to
increase or decrease the area of a registered place or a
registered precinct.
(3) The Council must, as soon as practicable after the removal or
5 change, request the Registrar of Titles or the Registrar of Deeds,
as the case requires --
(a) to remove the endorsements made under subsection (1)
in relation to the land; or
(b) to change the endorsements made under subsection (1)
10 in relation to the land to accord with the change,
as the case requires.
(4) A request is to be in a form approved by the relevant Registrar.
50. Informing public authorities
(1) The Council, so far as is practicable, is to assist local
15 governments, the Western Australian Planning Commission and
any other relevant planning authorities to be aware of, and have
ready access to, the entries in the Register.
(2) Nothing in subsection (1) affects any requirement under
section 48(2)(b) for the Council to provide documents to a local
20 government, the Commission or other relevant planning
authority.
(3) The Council is to ensure that the Valuer-General is notified of
the entry of a place in, or the removal of a place from, the
Register or the increase or decrease in the area of a registered
25 place.
51. Certificates
The Council, on receipt of an application to do so, is to provide
a certificate to the effect that under section 47, a place cannot be
considered for re-entry in the Register until the date set out in
30 the certificate.
page 34
Heritage Bill 2000
Public authorities Part 7
Local government heritage inventories Division 1
s. 52
Part 7 -- Public authorities
Division 1 -- Local government heritage inventories
52. Local government heritage inventories
(1) A local government is to establish and maintain an inventory of
5 places and precincts that --
(a) are in the local government's district; and
(b) are, or might be, of cultural heritage significance, for the
State or for the local government's district.
(2) The purposes of a local government heritage inventory
10 include --
(a) to assist in determining local government conservation
policies and other related policies;
(b) to provide information about heritage in the local
government district that may be required under a town
15 planning scheme for that district;
(c) to assist in achieving the heritage conservation
objectives of town planning in the State; and
(d) to assist the maintenance of the Register.
53. Consultation for local government heritage inventories
20 A local government must ensure that its heritage inventory is
established only after consultation with --
(a) each owner of a place that is the subject of a proposed
entry in the inventory;
(b) each owner of each place within a precinct that is the
25 subject of a proposed entry in the inventory; and
(c) with the general public.
page 35
Heritage Bill 2000
Part 7 Public authorities
Division 1 Local government heritage inventories
s. 54
54. Local government heritage inventories to be in accordance
with joint standards of Heritage Council and WAMA
(1) A local government must ensure that its heritage inventory is
established in accordance with any assessment criteria and other
5 standards agreed between the Heritage Council and WAMA in
relation to the establishment of local government heritage
inventories and published by the Heritage Council.
(2) A local government is to provide the Heritage Council with a
copy of its completed heritage inventory as soon as practicable,
10 and in any event, not later than 3 months after the completion.
55. Time in which local government heritage inventories to be
completed
A local government must ensure that its heritage inventory is
completed within 12 months after the day on which this Act
15 commences.
56. Review and revision of local government heritage
inventories
(1) Subject to subsection (2), a local government may review and
revise its heritage inventory as often as it considers it
20 appropriate to do so.
(2) A local government must ensure that its heritage inventory is
reviewed and revised at least every 5 years.
(3) A local government must ensure that a new entry in its
inventory is made only after consultation with --
25 (a) each owner of a place that is the subject of the new
entry;
(b) each owner of each place within a precinct that is the
subject of the new entry; and
(c) the general public.
page 36
Heritage Bill 2000
Public authorities Part 7
Local government heritage inventories Division 1
s. 57
(4) A local government must ensure that each review and revision
of its heritage inventory is done in accordance with any
assessment criteria and other standards agreed between the
Heritage Council and WAMA in relation to the review and
5 revision of local government heritage inventories and published
by the Heritage Council.
(5) A local government is to provide the Heritage Council with a
copy of its revised heritage inventory as soon as practicable
after the revision is completed.
10 57. Extension of time limit for local governments to complete or
revise and review their heritage inventories
(1) A local government may, before the period referred to in
section 55 expires, request the Minister to extend the time in
which it can complete its heritage inventory up to 18 months
15 after the day on which this Act commences.
(2) A local government may, before the period referred to in
section 56(2) expires, request the Minister to extend the time in
which it can revise and review its heritage inventory by a further
2 years.
20 (3) The Minister is not to grant an extension of time under
subsection (1) or (2) unless he or she is satisfied that the local
government is making satisfactory progress towards completing
or reviewing and revising its heritage inventory, as is relevant to
the case.
25 58. Heritage Council may establish or revise local government
heritage inventories in certain cases
(1) If a local government --
(a) has not completed the establishment of its heritage
inventory within the period referred to in section 55 or
30 the extended period, if any, or in accordance with the
standards referred to in section 54; or
page 37
Heritage Bill 2000
Part 7 Public authorities
Division 2 Heritage inventories of public authorities other than local
governments
s. 59
(b) has not reviewed and revised its heritage inventory
within the period referred to in section 56(2) or the
extended period, if any, or in accordance with the
standards referred to in section 56(4),
5 the Heritage Council may establish, or review and revise, the
local government's heritage inventory, as the case requires.
(2) Any costs incurred by the Heritage Council under subsection (1)
may be recovered from the local government as a debt in a court
of competent jurisdiction.
10 Division 2 -- Heritage inventories of public authorities other
than local governments
59. Application of Division
This Division applies to a public authority other than a local
government that is in possession of, or leases to a person or
15 otherwise controls, a place or precinct that --
(a) is a registered place or a registered precinct;
(b) is entered in a local government heritage inventory;
(c) is the subject of a National Trust recommendation or a
list or record compiled by the National Trust; or
20 (d) to the authority's knowledge, has been identified by
assessment or survey as being of cultural heritage
significance.
60. Heritage inventories of other public authorities
(1) A public authority is to establish and maintain an inventory of
25 the places and precincts referred to in section 59(a) to (d) that
are in its possession, leased by it to another person or otherwise
under its control.
page 38
Heritage Bill 2000
Public authorities Part 7
Heritage inventories of public authorities other than local Division 2
governments
s. 61
(2) The purposes of the heritage inventory of a public authority to
which this section applies are --
(a) to provide information about heritage in the possession
or control of the public authority;
5 (b) to assist in the management of assets; and
(c) to assist in achieving the heritage conservation
objectives of town planning in the State.
61. Public authority inventories to be in accordance with
Heritage Council standards
10 (1) A public authority must ensure that its heritage inventory is
established in accordance with any assessment criteria and other
standards set by the Heritage Council in relation to the
establishment of public authority heritage inventories and
published by the Heritage Council.
15 (2) A public authority is to provide the Heritage Council with a
copy of its completed heritage inventory as soon as practicable,
and in any event, not later than 3 months after the completion.
62. Time in which public authority heritage inventories to be
completed
20 A public authority must ensure that its heritage inventory is
completed as soon as practicable, and in any event, not later
than 3 years after the day on which this Act commences.
63. Review and revision of public authority heritage inventories
(1) Subject to subsection (2), a public authority may review and
25 revise its heritage inventory as often as it considers it
appropriate to do so.
(2) A public authority must ensure that its heritage inventory is
reviewed and revised at least every 5 years.
(3) A public authority must ensure that each review and revision of
30 its heritage inventory is done in accordance with any assessment
page 39
Heritage Bill 2000
Part 7 Public authorities
Division 3 Other matters concerning public authorities
s. 64
criteria and other standards set by the Heritage Council in
relation to the review and revision of public authority heritage
inventories and published by the Heritage Council.
(4) A public authority is to provide the Heritage Council with a
5 copy of its revised heritage inventory as soon as practicable
after the revision is completed.
64. Heritage Council may establish or revise public authority
heritage inventories in certain cases
(1) If a public authority --
10 (a) has not completed the establishment of its heritage
inventory within the period referred to in section 62 or
in accordance with the standards referred to in
section 61; or
(b) has not reviewed and revised its heritage inventory
15 within the period referred to in section 63(2) or in
accordance with the standards referred to in
section 63(3),
the Heritage Council may establish, or review and revise, the
public authority's heritage inventory, as the case requires.
20 (2) The public authority is to reimburse the Heritage Council for
costs reasonably incurred by the Council under subsection (1).
Division 3 -- Other matters concerning public authorities
65. Public authorities to cooperate with Heritage Council
(1) A public authority is to --
25 (a) give the Council such assistance in the performance of
the Council's functions as is reasonably practicable; and
(b) comply with all reasonable requests by the Council for
information.
page 40
Heritage Bill 2000
Public authorities Part 7
Other matters concerning public authorities Division 3
s. 65
(2) Nothing in subsection (1) exempts the Council from a
requirement to pay fees or charges applicable to its requests.
(3) Where the Council is of the opinion that a public authority has
not complied with subsection (1) or section 64(2) or 75 the
5 Minister of the Crown having responsibility for that public
authority may, on the request of the Council and after
consultation with the Commissioner for Public Sector
Standards, direct that authority to provide the assistance to the
Council, reimburse the costs or seek the advice of the Council,
10 as is relevant to the case, and any such direction may require
that the services of any person employed or engaged by that
authority are to be made available for that purpose.
page 41
Heritage Bill 2000
Part 8 Approvals and advice of Heritage Council as to works
s. 66
Part 8 -- Approvals and advice of Heritage Council as
to works
66. Works to be approved
(1) A person must not carry out, or cause to be carried out, works to
5 a registered place or a place within a registered precinct
unless --
(a) the Council has approved the works on an application
under section 68 and the works are done in accordance
with the approval; or
10 (b) the Council has granted an exemption under section 67.
Penalty: $50 000 and imprisonment for 2 years.
Daily penalty: $5 000.
(2) It is a defence to a charge of an offence under subsection (1)
that the works (other than demolition or partial demolition) are
15 to a place of worship and --
(a) an owner of the place has given the Council 42 days'
notice of the proposed works; and
(b) the notice includes a declaration by an officer of the
place of worship, who is authorised for that purpose,
20 that the works are required for public worship or for
purposes directly connected with public worship.
67. Exemptions
(1) The Council may exempt specified works or specified classes of
works from the requirement under section 66 for approval and
25 may revoke an exemption for any reason it considers
appropriate.
(2) An exemption or revocation under subsection (1) must be
published in the Gazette before it can take effect.
page 42
Heritage Bill 2000
Approvals and advice of Heritage Council as to works Part 8
s. 68
(3) In subsection (1) --
"specified" means specified in the exemption notice.
68. Application for approval
(1) A person who wishes to obtain the Council's approval to carry
5 out works to a registered place or a place within a registered
precinct must apply to the Council.
(2) An application must be in a form and manner approved by the
Council and include the information required by the Council.
(3) Within 7 days of receiving an application the Council is to give
10 a copy of the application to the local government of the district
in which the registered place or registered precinct that is the
subject of the application is located.
69. Works of significant public interest
(1) The Council must give public notice of proposed works that are
15 the subject of an application under section 68 if the Council is
of the opinion that the proposed works are a matter of
significant public interest.
(2) A public notice under subsection (1) must --
(a) specify the place at which particulars of the proposed
20 works can be inspected; and
(b) invite written submissions to be made to the Council
within 21 days of the publication of the notice in the
Gazette.
70. Matters to be considered in deciding applications
25 In deciding an application under section 68 the Council must
have regard to --
(a) the extent to which the proposed works, if carried out,
are likely to affect the cultural heritage significance of
the registered place or precinct;
page 43
Heritage Bill 2000
Part 8 Approvals and advice of Heritage Council as to works
s. 71
(b) whether there is any feasible and prudent alternative to
the proposed works;
(c) the comments made in relation to the application by the
local government of the district in which the registered
5 place or registered precinct that is the subject of the
application is located;
(d) the submissions made in relation to the proposed works
in response to the public notice given under section 69;
and
10 (e) any other matter which in the Council's opinion is
relevant to the application.
71. Time limit for deciding applications
The Council must either approve or refuse an application under
section 68 --
15 (a) within 60 days of receiving the application;
(b) if public submissions have been invited in relation to the
application, within 60 days of the closing date for the
making of submissions; or
(c) within such longer period as is agreed in writing
20 between the applicant and the Council.
72. Conditions etc.
The Council may approve an application under section 68 --
(a) subject to such conditions as are set out in writing; and
(b) for a period of time specified in writing.
25 73. Notification when application decided
Within 7 days of deciding an application under section 68 the
Council must notify --
(a) the applicant;
page 44
Heritage Bill 2000
Approvals and advice of Heritage Council as to works Part 8
s. 74
(b) the local government of the district in which the
registered place or registered precinct that is the subject
of the application is located;
(c) any other relevant planning authority; and
5 (d) each person who made a submission in relation to the
application.
74. Appeals from decisions on applications
An applicant who is aggrieved by a decision of the Council on
an application under section 68 may, within 60 days of the day
10 on which the applicant is notified of the decision, appeal under
the Planning Appeals Act 2000.
75. Certain authorities to seek advice of Heritage Council as to
works adjacent to registered places
(1) If, under a planning law, a planning authority receives an
15 application to carry out works on, or in respect of, land that is
adjacent to a registered place which, if carried out, are likely to
affect the cultural heritage significance of the place, the
planning authority must seek the advice of the Heritage Council
before making a decision in relation to the application.
20 (2) If works are intended to be carried out at a place that is --
(a) owned or occupied by, or under the control or
management of the Crown in right of the State, a
department, agency or instrumentality of the Crown in
right of the State or a local government; and
25 (b) adjacent to a registered place,
and the works, if carried out, are likely to affect the cultural
heritage significance of the registered place, the person who
proposes to carry out the works must seek the advice of the
Heritage Council before proceeding with the works.
page 45
Heritage Bill 2000
Part 8 Approvals and advice of Heritage Council as to works
s. 76
76. Relationship to other laws
Nothing in this Part affects a requirement of any other written
law to obtain an approval, authority, consent or permission to
carry out works that are the subject of an application under
5 section 68.
page 46
Heritage Bill 2000
Heritage agreements Part 9
s. 77
Part 9 -- Heritage agreements
77. Parties to heritage agreements
(1) A heritage agreement may be entered into between --
(a) an owner or occupier of land and the Council; or
5 (b) an owner or occupier of land and the Council and one or
more of the following --
(i) a local government;
(ii) any other public authority that is a body
corporate; or
10 (iii) the National Trust.
(2) An owner or occupier of land can only enter into a heritage
agreement in so far as that person's interests in the land permit.
78. Places to which heritage agreements can apply
(1) A heritage agreement may be entered into in respect of any land
15 where the land comprises the whole or part of --
(a) a registered place or a place in a registered precinct;
(b) a place, or a place in a precinct, that is entered in a local
government heritage inventory or a public authority
heritage inventory;
20 (c) a place entered in a heritage list, or a place in a heritage
area designated, under a town planning scheme; or
(d) a place entered in a heritage inventory or list prepared
for the purposes of the East Perth Redevelopment
Act 1991, the Midland Redevelopment Act 1999 or the
25 Subiaco Redevelopment Act 1994.
(2) A heritage agreement may be entered into in respect of any land
where the land is adjacent to or otherwise associated with a
place referred to in subsection (1) whether or not the land is of
cultural heritage significance.
page 47
Heritage Bill 2000
Part 9 Heritage agreements
s. 79
(3) For the purposes of subsection (2), land may be said to be
associated with a place if town planning development rights or
requirements, or other planning considerations or other interests
in or affecting the land or the place might be affected as an
5 incentive to, or for the purpose of effecting, the conservation of
the place.
79. When heritage agreements have effect
A heritage agreement or a variation or termination of a heritage
agreement has effect from the day specified in the agreement,
10 variation or termination.
80. Obligations and restrictions run with the land
(1) The obligations (including positive covenants) and restrictions
that bind the owner or occupier of land to which a heritage
agreement applies are binding also on that person's successors
15 in title, heirs, executors and administrators except to the extent
that the agreement otherwise provides.
(2) Subsection (1) only applies if, and from the time when, the
relevant endorsement is made under section 82(2).
81. Subject matter of heritage agreements
20 (1) A heritage agreement may contain provisions promoting the
conservation of a place referred to in section 78(1).
(2) A heritage agreement may, by covenant or otherwise --
(a) restrict the use of land to which it applies;
(b) require specified work or work of a specified kind to be
25 done in accordance with specified standards on the land
(but the specified standards, if not in accordance with a law
that is for the time being in force, must be in accordance
with an order under section 91(1));
(c) restrict the nature of works that can be carried out on the
30 land;
page 48
Heritage Bill 2000
Heritage agreements Part 9
s. 82
(d) provide for financial, technical or other professional
advice or assistance to an owner or occupier with
respect to the maintenance or conservation of the land or
the place to which the agreement applies;
5 (e) provide for the management of the land or a place to
which the agreement applies, in accordance with a
particular management plan or in accordance with
management plans to be agreed from time to time
between the parties to the agreement; or
10 (f) if the relevant planning authorities and other public
authorities are parties to the agreement, provide, subject
to an order under section 91(1), for --
(i) matters relating to the title, development and
planning in respect of the land, including the
15 transfer of town planning development rights;
(ii) payment of money; or
(iii) safety, maintenance, inspection or licensing
requirements.
82. Notifications on title
20 (1) The Council must, as soon as practicable after a heritage
agreement has effect, cause a notification of the agreement to be
prepared in a form approved by the Registrar of Titles or the
Registrar of Deeds, as the case requires, and deposited at the
Department within the meaning of the Transfer of Land Act 1893.
25 (2) If a notification is deposited under subsection (1) --
(a) the Registrar of Titles is to endorse each certificate of
title in relation to the affected land to that effect; or
(b) the Registrar of Deeds is to endorse each memorial or
record in relation to the affected land to that effect,
30 as the case requires.
page 49
Heritage Bill 2000
Part 9 Heritage agreements
s. 83
(3) The Council must, as soon as practicable after a variation to, or
termination of, a heritage agreement has effect, request the
Registrar of Titles or the Registrar of Deeds, as the case
requires --
5 (a) to change the endorsements made under subsection (2)
in relation to the land to accord with the variation; or
(b) to remove the endorsements made under subsection (2)
in relation to the land to accord with the termination,
as the case requires.
10 (4) A request is to be in a form approved by the relevant Registrar.
83. Notification to interested persons
(1) The Council is to take such steps as are reasonable to ensure
that all persons who appear from public records to have an
interest in land or a mining tenement in respect of land to which
15 a heritage agreement applies are informed of the existence and
effect of the agreement.
(2) The Council is to ensure that the Valuer-General is notified of
the existence of a heritage agreement or the variation or
termination of a heritage agreement.
20 84. Other rights of action not affected
A right of action for damages or payment of money that arose
before the endorsements referred to in section 82(2) were made
in relation to land to which a heritage agreement applies is not
affected by the agreement unless the agreement provides
25 otherwise.
85. Enforcement of heritage agreements
(1) If --
(a) a party to a heritage agreement fails to comply with the
agreement; or
page 50
Heritage Bill 2000
Heritage agreements Part 9
s. 86
(b) there is reason to apprehend that a party to a heritage
agreement may fail to comply with the agreement,
any other party to the agreement may apply to a court for an
order under this section.
5 (2) On such an application, the court may make such orders as are
necessary to secure compliance with the heritage agreement, or
to remedy the default, and to deal with any related or incidental
matters.
86. Damages for breach of heritage agreements
10 (1) Damages for contravention of a heritage agreement may be
awarded to a party to the agreement who has suffered loss as a
result of the contravention unless the person who contravened
the agreement shows that the contravention occurred without
the person's consent or connivance and that the person
15 exercised all reasonable care to prevent it.
(2) In assessing damages for contravention of a heritage agreement
by an owner or occupier of land to which the agreement applies,
a court may, in addition to any actual loss suffered, take into
account --
20 (a) any detriment to the public interest resulting from the
contravention; and
(b) any financial or other benefit sought to be gained by the
contravention.
(3) A court referred to in subsection (2) is to have regard to the
25 following principles when assessing damages --
(a) the damages are not only to compensate for loss but to
ensure that no person benefits from the contravention;
(b) the land should be restored to the extent of the damage
or deterioration caused by the contravention; and
30 (c) subsequent or similar contraventions should be deterred.
page 51
Heritage Bill 2000
Part 9 Heritage agreements
s. 87
87. Records of heritage agreements
(1) The Council is to cause to be kept a copy of each heritage
agreement and the terms of each variation or termination of a
heritage agreement.
5 (2) The Council is to ensure that the entry in the Register for each
registered place or registered precinct that is affected by a heritage
agreement or variation or termination of a heritage agreement is
noted in respect of the agreement, variation or termination.
(3) Any person may, without charge, inspect and copy extracts from
10 the records kept under subsection (1).
page 52
Heritage Bill 2000
Conservation incentives Part 10
s. 88
Part 10 -- Conservation incentives
88. Heritage Council may provide assistance or incentives
(1) The Council may, subject to subsection (2), provide or facilitate
financial, technical or other assistance for the identification,
5 assessment, conservation or interpretation of places and
precincts that are, or might be, of cultural heritage significance,
whether or not a place is a registered place or a precinct is a
registered precinct.
(2) For the purposes of this Act, but subject to the Minister's
10 approval, the Council may offer financial assistance or
incentives with or without a requirement for the giving of
security and either free of interest or at such rates of interest as
the Council determines.
89. Remission of taxes, rates and charges
15 (1) The Minister may provide special assistance to an owner of a
registered place or a place to which a heritage agreement
applies --
(a) to conserve the place; or
(b) if the use of the place is not economically feasible
20 without the special assistance.
(2) If the Minister decides to provide special assistance under
subsection (1) the Minister may, subject to subsections (3) and
(4), by order published in the Gazette, remit the whole or part of
one or more of the following --
25 (a) the tax payable by an owner under the Land Tax
Act 1976 that is attributable to the place or the land
where the place is situated;
(b) the Metropolitan Region Improvement Tax payable by
an owner in respect of the place under section 41 of the
30 Metropolitan Region Town Planning Scheme Act 1959;
page 53
Heritage Bill 2000
Part 10 Conservation incentives
s. 88
(c) any relevant rates or charges payable under any written
law in respect of the place or a building on the land
where the place is situated.
(3) The Minister cannot make an order under subsection (2) unless
5 the Council --
(a) has consulted with the public authority principally
assisting the relevant Minister in the administration of
the written law under which the tax, rate or charge is
payable;
10 (b) has reported to the first-mentioned Minister on the
results of the consultation; and
(c) has recommended that the special assistance be
provided.
(4) The Minister cannot make an order under subsection (2)(c) --
15 (a) in respect of local government rates or service charges
unless the relevant local government consents to the
remission of the rates or charges; or
(b) in respect of charges for water supply, sewerage,
drainage or irrigation services (including headworks)
20 unless the order specifies a monetary limit to the
remission of the charges.
(5) An order under subsection (2) may, subject to subsections (3)
and (4) --
(a) specify terms and conditions; and
25 (b) be varied or revoked.
(6) An order under subsection (2) and any variation or revocation of
the order has effect according to its tenor and is to be complied
with despite any other provision of a written law.
(7) Section 42 of the Interpretation Act 1984 applies to an order
30 under subsection (2) and an order varying or revoking such an
order as if the order were regulations within the meaning of that
Act.
page 54
Heritage Bill 2000
Conservation incentives Part 10
s. 90
(8) No interest can be imposed and no interest accrues under a
written law in respect of a tax, rate or charge the payment of
which is remitted under an order under subsection (2) unless the
order provides otherwise.
5 (9) The Council is not liable to fund a tax, rate or charge, or any
part of a tax, rate or charge, that is remitted under this section.
90. Payment of remitted taxes, rates and charges
(1) This section applies where the payment of a tax, rate or charge
is remitted under an order under section 89(2) in respect of a
10 registered place or a place to which a heritage agreement applies
and --
(a) the order is varied or revoked;
(b) works are carried out at the place contrary to a provision
of this Act or a heritage agreement; or
15 (c) on the application or request of an owner, the place
ceases to be a registered place or a place to which a
heritage agreement applies.
(2) The Minister may make an order requiring the immediate
payment of any tax, rate or charge that was remitted under the
20 order under section 89(2) in the 5 years preceding the event
referred to in subsection (1)(a), (b) or (c).
(3) The Minister cannot make an order under subsection (2)
unless --
(a) the Minister has consulted with the Council and the
25 Council has recommended that the order be made;
(b) the person against whom the order is to be made --
(i) has been notified of the proposed order and the
reasons for it; and
(ii) has been given 21 days to show cause why the
30 order should not be made;
and
page 55
Heritage Bill 2000
Part 10 Conservation incentives
s. 91
(c) the recommendation of the Council is consistent with
any relevant determination under the Planning Appeals
Act 2000.
(4) A person who is aggrieved by an order set out in a notice under
5 subsection (3)(b)(i) may, within 14 days of the day on which the
person received the notice, refer the matter to be dealt with
under section 33 of the Planning Appeals Act 2000.
(5) An order under subsection (2) has effect according to its tenor
against the person in whose favour the tax, rate or charge was
10 remitted or any successor in title of that person in accordance
with the terms of the order.
(6) A public authority to which moneys are required to be paid
under an order under subsection (2) may recover the moneys in
a court of competent jurisdiction as a debt due to the public
15 authority.
91. Modification or non-application of laws impeding
conservation
(1) The Minister may, subject to subsections (2) and (3), by order
published in the Gazette, declare that a written law or any
20 portion of a written law --
(a) does not apply; or
(b) is modified in the manner specified in the order,
in respect of a registered place, a place in a registered precinct, a
registered precinct or a place to which a heritage agreement
25 applies.
(2) The Minister cannot make an order under subsection (1)
unless --
(a) the Minister is of the opinion that --
(i) the written law prohibits or impedes the
30 conservation of the place or precinct; and
page 56
Heritage Bill 2000
Conservation incentives Part 10
s. 91
(ii) the order is necessary for the conservation of the
place or precinct;
(b) the Minister to whom the administration of the written
law is committed gives written consent to the making of
5 the order;
(c) the Council has recommended that the order be made;
and
(d) a report by the Council on the submissions received
under subsection (3) in support of, or objecting to, the
10 proposed order accompanies the Council's
recommendation to the Minister.
(3) If an order is proposed to be made under subsection (1) the
Council must --
(a) give public notice of the proposed order and invite
15 written submissions to be made to the Council --
(i) within 14 days of publication in the Gazette or
such longer period as specified in the notice;
(ii) in support of, or objecting to, the proposed order;
and
20 (b) provide a copy of the proposed order to each owner of
the place, the local government and any other public
authority or other person who or which, in the Council's
opinion, is likely to be affected by the order if it is made.
(4) The Council may amend the proposed order after having regard
25 to submissions received under subsection (3) but that subsection
does not apply to the proposed order as amended.
(5) An order under subsection (1) may, subject to subsections (2)
and (3) be varied or revoked.
(6) An order under subsection (1) and any variation or revocation of
30 the order has effect according to its tenor.
page 57
Heritage Bill 2000
Part 10 Conservation incentives
s. 92
(7) Section 42 of the Interpretation Act 1984 applies to an order
under subsection (2) and an order varying or revoking such an
order as if the order were regulations within the meaning of that
Act.
5 92. Heritage Council approvals override certain decisions of
local governments
(1) This section applies where a local government has refused
approval or consent for any works that would contribute to the
conservation of a registered place or a registered precinct.
10 (2) If the Council is of the opinion that --
(a) the cultural heritage significance of the registered place
or registered precinct is likely to be adversely affected
because the approval or consent for the works has been
refused;
15 (b) the refusal was made under the Local Government
(Miscellaneous Provisions) Act 1960; and
(c) it is in the interests of conservation of cultural heritage
that the works be carried out,
the Council may approve, or consent to, the works as if it were
20 the local government.
(3) Despite the provisions of the Local Government (Miscellaneous
Provisions) Act 1960 it is lawful to act or to carry out the works
in accordance with the approval or consent of the Council given
under this section.
25 (4) The Council may approve, or consent to, the works on an
application of an owner of a registered place or a place within a
registered precinct or on its own volition.
(5) The Council must consult with the local government before
giving its approval or consent under this section to carry out
30 works.
page 58
Heritage Bill 2000
Conservation incentives Part 10
s. 93
93. Revaluations
(1) This section applies where the Valuer-General has received
notice --
(a) under section 50(3) of the entry of a place in, or the
5 removal of a place from, the Register or the increase or
decrease in the area of a registered place; or
(b) under section 83(2) of the existence of a heritage
agreement or the variation or termination of a heritage
agreement.
10 (2) The Valuer-General must, as soon as practicable, revalue the
land affected by a matter referred to in subsection (1)(a) or (b),
taking into account any restrictions on the use of the affected
land.
(3) For the purposes of a revaluation under this section the
15 Valuer-General is to assume that --
(a) all the improvements to or on the land at the date of
revaluation are to be conserved and are not to be
demolished; and
(b) no improvements are to be made to or on the land after
20 the date of revaluation.
(4) Nothing in subsection (3) prevents the Valuer-General from
taking into account, in future valuations, the effect of any actual
demolition or construction on the land that occurs after the date
of revaluation under that subsection.
page 59
Heritage Bill 2000
Part 11 Protection and conservation orders
Division 1 Protection orders
s. 94
Part 11 -- Protection and conservation orders
Division 1 -- Protection orders
94. Protection orders for unregistered places
(1) The Minister may, on the recommendation of the Council or the
5 CEO, make an order to protect a place from imminent damage
(a "protection order").
(2) A protection order may be made in relation to a place that is, or
might be, of cultural heritage significance but cannot be made in
relation to a registered place or a registered precinct.
10 (3) A protection order may prohibit or restrict any activity which, in
the opinion of the Minister, is likely to adversely affect the
cultural heritage significance of a place and for that purpose
may prohibit or restrict --
(a) the commencement or continuation of any works at,
15 damage to, or removal of fabric from, the place, as
specified in the order;
(b) the removal from the place of any equipment, furniture
or moveable item that is specified in the order;
(c) the entry of persons other than an owner or occupier on
20 to the place;
(d) the bringing of vehicles, machinery or equipment,
livestock, materials or substances of any kind or of a
kind specified in the order on to the place; or
(e) anything specified in the order which, in the opinion of
25 the Minister, is likely to cause disturbance to the land or
any vegetation at the place.
(4) A protection order may be subject to such conditions as are
specified in the order or to the exercise of a discretionary
authority vested by the order in the Minister or other person
30 specified in the order.
page 60
Heritage Bill 2000
Protection and conservation orders Part 11
Protection orders Division 1
s. 95
(5) The Council is to affix a copy of the protection order in a
prominent position at the place to be protected by the order.
(6) The Minister may, on the recommendation of the Council,
revoke a protection order.
5 (7) If --
(a) a protection order is revoked; or
(b) the period of time in which a protection order has effect
is extended on a request under section 96,
the Council is to affix notice of the decision in a prominent
10 position at the place to be protected by the order.
(8) The Council is to --
(a) give public notice of each protection order, revocation
of a protection order or determination extending the
period of time in which a protection order has effect as
15 soon as is practicable after the order, revocation or
determination takes effect; and
(b) cause a copy of the order, revocation or determination to
be served, in accordance with section 76 of the
Interpretation Act 1984 --
20 (i) on each owner or occupier of the place if
practicable to do so;
(ii) the person in charge of carrying out the activity
that is prohibited or restricted by the order, if
practicable to do so; and
25 (iii) on the local government of the district in which
the place is located.
95. Effect of protection orders
(1) A protection order --
(a) takes effect from the time when a copy of the order was
30 affixed at the place under section 94(5); and
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Heritage Bill 2000
Part 11 Protection and conservation orders
Division 1 Protection orders
s. 96
(b) has effect, subject to earlier revocation --
(i) for 60 days from the time when the copy was so
affixed or a shorter period stated in the order;
(ii) for the period of time specified under the
5 Planning Appeals Act 2000 for the purposes of
section 96 or 98; or
(iii) until the place becomes a registered place or a
registered precinct or a place in a registered
precinct if the registration occurs before the
10 period referred to in subparagraph (i) or (ii), as is
relevant to the case, expires.
(2) A protection order cannot be made in relation to any place --
(a) that was affected by a protection order in relation to a
similar matter within the preceding 12 months; or
15 (b) which is a place to which section 47 applies for the time
being.
96. Extension of protection orders
(1) The Minister may, while a protection order has effect, make a
request to extend the time in which the protection order has effect.
20 (2) A request under subsection (1) is to be dealt with under
section 34 of the Planning Appeals Act 2000.
97. Contravention of protection orders
If a copy of a protection order has been affixed at a place under
section 94(5) a person must not --
25 (a) contravene the order; or
(b) cause any other person to contravene the order.
Penalty: $50 000 and imprisonment for 2 years.
Daily penalty: $5 000.
page 62
Heritage Bill 2000
Protection and conservation orders Part 11
Conservation orders Division 2
s. 98
98. Appeals as to protection orders
A person who is aggrieved by a protection order may, while the
protection order has effect, appeal under the Planning Appeals
Act 2000.
5 Division 2 -- Conservation orders
99. Conservation orders for registered places and registered
precincts
(1) The Minister may, on the recommendation of the Council or the
CEO, make an order (a "conservation order") to conserve the
10 cultural heritage characteristics of a registered place or a
registered precinct.
(2) When deciding whether or not to make a conservation order in
relation to a registered place or precinct the Minister is to have
regard to --
15 (a) the interests of each owner or occupier of the registered
place, or each owner or occupier of each place within
the registered precinct, as is relevant to the case; and
(b) any other matter that in the opinion of the Minister is
relevant to whether a conservation order should be made.
20 (3) A conservation order may only require an owner or occupier of
a registered place or a place within a registered precinct --
(a) to protect the place to a standard specified in the order
from damage or deterioration which would otherwise
result from weather (including the weatherproofing of
25 the place's roof, doors or windows);
(b) to prevent fire starting in the place or to protect the place
from damage or destruction by fire to a standard
specified in the order;
(c) to secure the place (including fencing or surveillance
30 measures to prevent vandalism) to a standard specified
in the order;
page 63
Heritage Bill 2000
Part 11 Protection and conservation orders
Division 2 Conservation orders
s. 100
(d) to effect such maintenance and repair works as are
necessary and specified in the order to prevent serious or
irreparable damage or deterioration to the place; or
(e) to cease any action specified in the order.
5 (4) A conservation order must state the period within which
anything specified in the order is to be done which must be
more than 30 days starting on the day the order is served.
(5) The Council is to serve, in accordance with section 76 of the
Interpretation Act 1984, a copy of a conservation order on the
10 owner or occupier to whom the order is directed but if service
cannot be effected in accordance with section 76 of the
Interpretation Act 1984 within 7 days of the day on which the
order was made, service may be effected on the person instead by
affixing a copy of the order in a prominent position at the place.
15 100. Notice of proposed conservation order
A conservation order has no effect unless --
(a) the Council has given the owner or occupier to whom
the order is proposed to be directed written notice of the
terms of the proposed order and the reasons for it;
20 (b) the owner or occupier is advised that he or she has
14 days from the day on which the notice was received
in which to make submissions in relation to the
proposed order;
(c) the Council considers the submissions (if any); and
25 (d) in the event that the Council recommends that the order
be made, the Council advises the Minister in relation to
the submissions before the Minister makes the order.
101. Compliance with conservation orders
If a person has been served with a copy of a contravention order
30 the person must not --
(a) contravene the order; or
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Heritage Bill 2000
Protection and conservation orders Part 11
Conservation orders Division 2
s. 102
(b) cause any other person to contravene the order.
Penalty: $50 000 and imprisonment for 2 years.
Daily penalty: $5 000.
102. Appeals as to conservation orders
5 A person who is aggrieved by a conservation order may, within
30 days of the day on which a copy of the order was served,
appeal under the Planning Appeals Act 2000.
103. Heritage Council may give effect to conservation orders
(1) If an owner or occupier of a registered place or a place within a
10 registered precinct --
(a) does not comply with a conservation order and has not
lodged an appeal against the order within the required
period; or
(b) does not comply with a determination on an appeal
15 under section 102,
the Council may enter the place or any land where the place is
situated and --
(c) take any action specified in the order;
(d) commence or complete any works specified in the order;
20 or
(e) if any specified action was required by the order to
cease, cause the action to cease.
(2) Subject to subsection (4), the Council may charge a person who
has been served with a copy of a conservation order for any
25 costs incurred in doing anything under subsection (1) in relation
to the order.
(3) A charge under subsection (2) is a debt due to the Council and is
recoverable in a court of competent jurisdiction.
page 65
Heritage Bill 2000
Part 11 Protection and conservation orders
Division 2 Conservation orders
s. 103
(4) If, on an appeal under section 102, a determination is made to
the effect that the requirements of a conservation order be set
aside solely on the ground of financial hardship the Council
may, at its own expense, enter the place or any land where the
5 place is situated and --
(a) take any action specified in the order;
(b) commence or complete any works specified in the order;
or
(c) if any specified action was required by the order to
10 cease, cause the action to cease.
page 66
Heritage Bill 2000
Compensation as to approvals and protection orders Part 12
s. 104
Part 12 -- Compensation as to approvals and
protection orders
104. Definition
In this Part --
5 "compensable determination" means --
(a) a determination on an appeal from a decision of the
Heritage Council on an application to approve works
to a registered place or a place within a registered
precinct (section 74); or
10 (b) a determination on an appeal about a protection order
(section 98).
105. Compensation
(1) An owner of a registered place or a place within a registered
precinct may seek compensation under this Part if the owner has
15 incurred loss because an effect of a compensable determination
is to --
(a) revoke or modify an approval, authority, consent or
permission that has been given under a planning law in
relation to the place; or
20 (b) suspend or delay the operation of an approval, authority,
consent or permission that has been given under a
planning law in relation to the place.
(2) Subsection (1) applies only if the approval, authority, consent or
permission was given before --
25 (a) the place became a registered place or part of a
registered precinct; or
(b) the protection order was made in relation to the place,
as is applicable to the case.
page 67
Heritage Bill 2000
Part 12 Compensation as to approvals and protection orders
s. 106
106. Losses that can be compensated
Compensation is payable under this Part only if the loss
incurred by an owner of the place --
(a) is directly attributable to the revocation, modification,
5 suspension or delay referred to in section 105(1);
(b) is expenditure reasonably incurred in carrying out work
which the compensable determination rendered abortive;
(c) is capable of being assessed as a liquidated amount;
(d) arises out of a contractual or statutory obligation
10 incurred before --
(i) the place became a registered place or part of a
registered precinct; or
(ii) the protection order was made in relation to the
place,
15 as is applicable to the case; and
(e) is not capable of recovery or mitigation other than under
this Part.
107. Assessment of compensation
(1) Compensation payable under this Part is to be assessed having
20 regard to all of the following --
(a) any incentive provided under this Act that mitigates the
loss incurred;
(b) any expenditure incurred --
(i) for the preparation of plans for the purposes of
25 any work; or
(ii) in other necessary matters preparatory to the
work;
(c) the cost of, and the circumstances relating to, the
acquisition of the land by the owner;
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Heritage Bill 2000
Compensation as to approvals and protection orders Part 12
s. 108
(d) any sum payable in respect of a breach of contract by
the owner directly attributable to the compensable
determination,
but no account is to be taken of the prospective use of the land
5 other than for the conservation of a place of cultural heritage
significance.
(2) In determining whether expenditure was reasonably incurred in
carrying out work which the compensable determination
rendered abortive where --
10 (a) the place affected was included in a publicly available
list of places of cultural heritage significance (other than
the Register); or
(b) the owner had received, or ought to have taken, notice of
the cultural heritage significance of the place,
15 regard is to be had to that fact and the consequential possibility
that this Act was likely to affect the place such that a reasonable
person would have been likely to proceed with caution and to
consult with the Council before incurring the expenditure.
108. Commercial Arbitration Act 1985 to apply
20 (1) The matters of whether compensation is payable, and the
amount of compensation payable, under this Part are, in default
of agreement between the parties, to be determined by means of
a reference to an arbitrator under and in accordance with the
provisions of the Commercial Arbitration Act 1985.
25 (2) The parties to the arbitration are to be the Council and the
owner of a place who seeks compensation under this Part.
(3) Despite section 20(1) of the Commercial Arbitration Act 1985,
each party may be represented before the arbitrator by a duly
qualified legal practitioner or other representative.
page 69
Heritage Bill 2000
Part 12 Compensation as to approvals and protection orders
s. 109
109. Payment of compensation
All compensation awarded and costs to be paid by the Council
for the purposes of this Part are to be charged to the
Consolidated Fund and this section appropriates the
5 Consolidated Fund accordingly.
page 70
Heritage Bill 2000
Enforcement and legal proceedings Part 13
Inspectors Division 1
s. 110
Part 13 -- Enforcement and legal proceedings
Division 1 -- Inspectors
110. Appointment of inspectors
(1) The CEO is an inspector under this Act.
5 (2) The CEO may appoint --
(a) any member of the Council or a committee of the
Council; or
(b) any member of staff of the Council or an officer or
employee referred to in section 19(1)(a), (b) or (c),
10 to be an inspector under this Act.
(3) When appointing an inspector, the CEO may limit the
inspector's powers to those powers of an inspector under this
Act that are specified in the instrument of appointment.
111. Identity cards
15 (1) The CEO is to ensure that each inspector is issued with an
identity card certifying that the holder is an inspector under this
Act and stating the limitations, if any, of the inspector's powers.
(2) An inspector must, at the request of a person in relation to
whom the inspector intends to exercise a power under this Act,
20 produce the inspector's identity card for the person's inspection.
(3) A person who possesses an identity card issued under this
section and who is not, or ceases to be, an inspector must cause
the card to be returned to the CEO as soon as practicable.
Penalty applicable to subsection (3): $500.
25 112. Powers of inspectors
(1) An inspector may enter any land (including a building) with the
consent of an owner of the land and make such investigation
and inquiry and seek such information as the inspector considers
page 71
Heritage Bill 2000
Part 13 Enforcement and legal proceedings
Division 1 Inspectors
s. 112
necessary or desirable to ascertain whether there has been
compliance with --
(a) the provisions of this Act or any approval, order, notice,
or other requirement given under the Act; or
5 (b) a determination under the Planning Appeals Act 2000
relating to an appeal or referral of a matter under this
Act.
(2) An inspector may require a person --
(a) to tell the inspector the person's name and address; and
10 (b) to produce any document the person is carrying that
contains the person's name and address,
if the inspector reasonably believes that person has committed,
is committing or is about to commit an offence under this Act.
(3) An inspector may require a person who appears to the inspector
15 to be carrying out, or about to carry out, any action that might
result in a contravention of this Act to furnish, within the period
specified in the notice, either orally or in writing the name and
address of any person who, on the date specified in the notice,
was --
20 (a) an owner of the land concerned;
(b) an occupier of the land concerned; or
(c) in control of any equipment, works or activity appearing
to relate to the land concerned.
(4) An inspector may require a person who the inspector reasonably
25 believes has committed, is committing or is about to commit an
offence under this Act to immediately leave the land concerned.
(5) In exercising a power under this Act an inspector may be
accompanied by another person whose assistance the inspector
considers necessary, and the person may do the things that are
30 necessary to assist the inspector in the performance of the
inspector's functions, and anything so done is to be taken to
have been done by the inspector.
page 72
Heritage Bill 2000
Enforcement and legal proceedings Part 13
Inspectors Division 1
s. 113
113. Warrants for entry onto premises
(1) A justice may issue a warrant authorising an inspector or any
other person named in the warrant to enter any land (including a
building) for the purposes of this Act if the justice is satisfied
5 that --
(a) the inspector requested entry to the land for the purposes
of this Act but was refused; or
(b) the land is unoccupied.
(2) A warrant has effect until --
10 (a) the purpose for which it was issued has been satisfied; or
(b) the day and time specified in the warrant,
whichever is the earlier.
114. Police assistance
Members of the police force must assist an inspector at the
15 request of the inspector in the performance of the inspector's
functions if it is practicable to do so.
115. Offences in relation to inspectors
A person --
(a) must comply with a requirement lawfully made by an
20 inspector;
(b) must not knowingly furnish to an inspector information
that is false or misleading;
(c) must not, without reasonable excuse, hinder or obstruct
an inspector in the exercise of a power under this Part;
25 or
(d) must not pretend to be an inspector.
Penalty: $10 000.
page 73
Heritage Bill 2000
Part 13 Enforcement and legal proceedings
Division 2 Legal proceedings
s. 116
Division 2 -- Legal proceedings
116. Time limit for proceedings
Despite section 51 of the Justices Act 1902, proceedings for an
offence under this Act must be commenced within 3 years after
5 the offence was committed.
117. Who may institute proceedings
(1) Proceedings in respect of a contravention of this Act may be
instituted --
(a) by any person whose rights have been infringed by, or
10 as a consequence of, the contravention; or
(b) by the Council and if instituted in the name of the Council,
may be conducted by an inspector or a member of the staff
of the Council authorised by the Council to do so.
(2) In any proceedings no proof is required of the authorisation of a
15 person under subsection (1)(b) and an averment in a complaint
that the person is so authorised is to be taken to be proved in the
absence of evidence to the contrary.
118. Committal for trial on indictment
If a court of summary jurisdiction hearing a complaint for an
20 offence against this Act is, for any reason, of the opinion that
the charge should be dealt with by way of prosecution on
indictment, the court may abstain from dealing with the charge
and commit the defendant to trial on indictment.
119. Evidentiary provision
25 In any proceedings a certificate purporting to be signed by the
CEO certifying as to a matter relating to --
(a) the terms of a heritage agreement or a variation or
termination of a heritage agreement;
(b) the service of a document on behalf of the Council or
30 the Minister;
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Heritage Bill 2000
Enforcement and legal proceedings Part 13
Legal proceedings Division 2
s. 120
(c) the contents of the Register at a specified time; or
(d) the contents of a protection or conservation order,
constitutes proof, in the absence of evidence to the contrary, of
the matter so certified.
5 120. Defences in certain proceedings
It is a defence in proceedings for a contravention of --
(a) section 66(1) (carrying out works to a registered place or
place within a registered precinct without, or not in
accordance with, approval); or
10 (b) section 97 (contravening a protection order),
to show that the action taken was urgently necessary --
(c) to avoid an imminent danger to life or health; or
(d) for the prevention of impending damage to a place or its
neighbouring property.
15 121. Offences by bodies corporate
(1) If a body corporate commits an offence under this Act any
person who is concerned or takes part in the management of the
body corporate who was in any way, by act or omission, directly
or indirectly knowingly concerned in, or party to, the
20 commission of the offence also commits the offence.
(2) A person referred to in subsection (1) may be proceeded against
and convicted of an offence under this Act whether or not the
body corporate has been proceeded against and convicted of the
offence.
page 75
Heritage Bill 2000
Part 13 Enforcement and legal proceedings
Division 2 Legal proceedings
s. 122
122. Court orders in respect of convictions for certain offences
(1) In this section --
"specified offence" means an offence under --
(a) section 66(1) (carrying out works to a registered
5 place or a place within a registered precinct without,
or not in accordance with, approval);
(b) section 97 (contravening a protection order); or
(c) section 101 (failure to comply with a conservation
order).
10 (2) If a person is convicted of a specified offence the court before
which the person is convicted may, instead of or in addition to
any other sentence imposed, order that --
(a) the person take the action specified in the order to make
good damage or disrepair that is the subject of the
15 offence, including the reconstruction of a demolished
building;
(b) the person pay to a person specified in the order an
amount determined by the court as appropriate to enable
the action to be taken, including an amount payable by
20 way of a bond; or
(c) no works be undertaken in respect of the place that is the
subject of the offence for a period specified in the order
not exceeding 10 years, except for action required to
make good damage or disrepair.
25 (3) Part 16 Division 1 of the Sentencing Act 1995 applies to an
order made under subsection (2) as if the order were a
reparation order within the meaning of that Part.
(4) Nothing in this section prevents a court from making a
reparation order within the meaning of Part 16 of the Sentencing
30 Act 1995.
page 76
Heritage Bill 2000
Enforcement and legal proceedings Part 13
Legal proceedings Division 2
s. 123
123. Enforcement of court orders under section 122(2)
(1) Section 119 of the Sentencing Act 1995 applies if an amount
payable under an order made under section 122(2)(b) is not paid
within 28 days after the date of the order as if the order were a
5 compensation order made under Part 16 of that Act.
(2) Section 122 of the Sentencing Act 1995 applies to a person who
does not comply with an order made under section 122(2)(a) or
(c) as if the order were a restitution order made under Part 16 of
that Act.
page 77
Heritage Bill 2000
Part 14 Acquiring land
s. 124
Part 14 -- Acquiring land
124. Interests in land may be taken under Land Administration
Act 1997 for conservation purposes
(1) The Minister or the Council may undertake the conservation of
5 a registered place or a place within a registered precinct and the
conservation is to be treated as a public work for the purposes of
Parts 9 and 10 of the Land Administration Act 1997.
(2) Subsection (1) does not apply to a place or precinct that has
been entered in the Register on an interim basis and the entry
10 has not been made permanent.
(3) Nothing in subsection (1) prevents an interest in land being
taken under Part 9 of the Land Administration Act 1997 for
purposes other than the conservation of a place or precinct
entered in the Register on a permanent basis.
15 125. Compensation for land taken
(1) Despite section 241 of the Land Administration Act 1997, in
determining the compensation (if any) to be offered, paid or
awarded for an interest in land taken under Part 9 of that Act
(whether or not by agreement) for the conservation of a place or
20 a place within a precinct entered in the Register on a permanent
basis, regard may also be had to --
(a) whether a building at the place has been deliberately
allowed to fall into disrepair for the purpose of justifying
its demolition and redevelopment or the redevelopment of
25 the site together with any adjoining land; or
(b) whether the land was acquired with the intention of
demolishing a building at the place.
(2) In a case referred to in subsection (1)(a) or (b) the value of the
land is to be assessed --
30 (a) having regard to the actual state of the place and of any
building at the place;
page 78
Heritage Bill 2000
Acquiring land Part 14
s. 125
(b) on the assumption that approval would not be given
under any written law for the demolition of a building
referred to in subsection (1)(a) or (b) or for any
development other than restoration and conservation;
5 and
(c) without regard to any amount which a particular
purchaser might be prepared to offer.
page 79
Heritage Bill 2000
Part 15 Miscellaneous
s. 126
Part 15 -- Miscellaneous
126. Execution of documents by Heritage Council
(1) The Council is to have a common seal.
(2) A document is duly executed by the Council if --
5 (a) the common seal of the Council is affixed to it in
accordance with subsections (3) and (4); or
(b) it is signed on behalf of the Council by a person or
persons authorised to do so under subsection (5).
(3) The common seal of the Council is not to be affixed to any
10 document except as authorised by the Council.
(4) The common seal of the Council is to be affixed to a document
in the presence of 2 of its members, and each of them is to sign
the document to attest that the common seal was so affixed.
(5) The Council may, by writing under its seal, authorise one or
15 more of its members, the CEO or a member or members of staff
of the Council to sign documents on behalf of the Council,
either generally or subject to such conditions or restrictions as
are specified in the authorisation.
(6) A document purporting to be executed in accordance with this
20 section is to be presumed to be duly executed until the contrary
is shown.
(7) When a document is produced bearing a seal purporting to be
the common seal of the Council, it is to be presumed that the
seal is the common seal of the Council until the contrary is
25 shown.
127. Notice of intention to sell land
(1) If a certificate of title, or memorial or record, in relation to land
has been endorsed following a notification under --
(a) section 34(c) (entry in the Register); or
page 80
Heritage Bill 2000
Miscellaneous Part 15
s. 128
(b) section 82(1) (heritage agreements),
the Registrar of Titles or the Registrar of Deeds, as the case
requires, is not to register or note a transfer of the ownership of
that land unless the Registrar is satisfied that the Council has
5 been notified of the intention to transfer the land.
(2) Nothing in subsection (1) affects the transfer of land even
though that subsection has not been complied with.
128. Service of documents
If it is impracticable to effect service of a document in the manner
10 referred to in section 76 of the Interpretation Act 1984, a Supreme
or District Court Judge in chambers may make an order for
substituted service or dispensing with the requirement for service.
129. Protection from liability for wrongdoing
(1) An action in tort does not lie against a person other than the
15 Council for anything that the person has, in good faith, done in
the performance or purported performance of a function under
this Act.
(2) The protection given by subsection (1) applies even though the
thing done as described in that subsection may have been
20 capable of being done whether or not this Act had been enacted.
(3) Despite subsection (1), neither the Council nor the Crown is
relieved of any liability that it might have for another person
having done anything as described in that subsection.
(4) In this section a reference to the doing of anything includes a
25 reference to the omission to do anything.
130. Limit on actions
No action lies, and no claim for compensation other than such
as is provided for in this Act arises, by reason only of --
(a) the entry of a place or precinct in the Register; or
30 (b) the operation of this Act, otherwise.
page 81
Heritage Bill 2000
Part 15 Miscellaneous
s. 131
131. Commissioner of Titles may take action to keep Register
accurate as to entries re heritage or heritage agreements
If the Registrar of Titles or Registrar of Deeds has not been
requested under section 49(3) or 82(3) ( the "relevant
5 provision") to remove or change an endorsement and the
Commissioner of Titles is satisfied that there has been a
removal or change of a kind to which the relevant provision
applies, the Commissioner may direct the Registrar to take the
action referred to in the relevant provision.
10 132. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed, for carrying out or
giving effect to the purposes of this Act.
15 (2) Without limiting subsection (1), regulations may provide for the
following --
(a) fees for applications under this Act;
(b) fees or charges in relation to registered places or places
in registered precincts owned or maintained by the
20 Council, or maintained on behalf of the Council;
(c) fees or charges in relation to activities, matters or things
promoted, arranged or controlled by, or on behalf of, the
Council.
133. Repeal
25 (1) The Heritage of Western Australia Act 1990 is repealed.
(2) The Heritage of Western Australia Regulations 1991 are
repealed.
134. Transitional and savings
Schedule 2 has effect.
page 82
Heritage Bill 2000
Miscellaneous Part 15
s. 135
135. Review of Act
(1) The Minister is to carry out a review of the operation and
effectiveness of this Act as soon as is practicable after the
expiry of 5 years from its commencement.
5 (2) In the course of that review the Minister is to consider and have
regard to --
(a) the effectiveness of the operations of the Council;
(b) the need for the continuation of the functions of the
Council; and
10 (c) any other matters that appear to the Minister to be
relevant to the operation and effectiveness of this Act.
(3) The Minister is to prepare a report based on the review and, as
soon as is practicable after the report is prepared, is to cause the
report to be laid before each House of Parliament.
page 83
Heritage Bill 2000
Schedule 1 Constitution and proceedings of the Heritage Council
Schedule 1 -- Constitution and proceedings of the
Heritage Council
[s. 9]
Division 1 -- Constitution and proceedings of the Heritage Council
5 1. Chairperson unable to act
(1) The Minister is to appoint a Council member (in and by the
instrument of appointment or in and by another instrument executed
by the Minister) as deputy chairperson of the Council.
(2) The Minister may remove a person from the office of deputy
10 chairperson of the Council at any time.
(3) A person holding office as deputy chairperson of the Council vacates
that office if that person --
(a) is removed from that office by the Minister;
(b) resigns that office by instrument in writing addressed to the
15 Minister; or
(c) ceases to be a Council member.
(4) When the chairperson is unable to act because of illness, absence or
other cause, or during any vacancy in that office, the deputy
chairperson is to perform the functions of the chairperson.
20 2. Term of office
(1) Subject to clause 3, a Council member holds office for such period
(being at least one year but not exceeding 5 years) as is specified in the
member's instrument of appointment, and is eligible (if otherwise
qualified) for reappointment.
25 (2) A Council member whose term of office expires by the passage of time
continues in office until that member is reappointed or the successor of
that member comes into office.
3. Resignation, removal etc.
(1) The office of a Council member becomes vacant if the member --
30 (a) resigns the office by written notice addressed to the Minister;
page 84
Heritage Bill 2000
Constitution and proceedings of the Heritage Council Schedule 1
(b) becomes ineligible to hold office as a member;
(c) is an insolvent under administration, as that term is defined in
the Corporations Law; or
(d) is removed from office by the Minister under subclause (2).
5 (2) The Minister may remove a Council member from office if the Minister
is satisfied that the member --
(a) has neglected the member's duty;
(b) has misbehaved;
(c) is incompetent;
10 (d) is suffering from mental or physical incapacity, other than
temporary illness, impairing the performance of the member's
functions under this Act; or
(e) has been absent, without leave and reasonable excuse, from
3 consecutive meetings of which the member has had notice.
15 4. Leave of absence
The Council may grant leave of absence to a Council member on such
terms and conditions as it thinks fit.
5. Council member unable to act
(1) The Minister may appoint a person to act temporarily in the place of a
20 Council member (other than the chairperson) when the Council
member is unable to act because of illness, absence or other cause.
(2) In the case of a member appointed under section 8(2)(b) or (c), the
National Trust or WAMA, as is relevant to the case, is to nominate
another person to act temporarily in the place of that member.
25 (3) In the case of a member appointed under section 8(2)(d) or (e), the
Minister is to appoint another person who is suitable to represent the
respective interests referred to in those paragraphs.
(4) In the case of a member appointed under section 8(2)(f)(i) or (ii), the
Minister is to appoint another person who has the respective
30 qualifications referred to in those subparagraphs.
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Schedule 1 Constitution and proceedings of the Heritage Council
(5) While acting according to the tenor of the appointment, the person
appointed to act in the place of a Council member is to be treated as a
Council member.
(6) The appointment of a person to act in the place of a Council member
5 may be terminated at any time by the Minister.
6. Saving
No act or omission of a person acting in place of another under
clause 1or 5 is to be questioned on the ground that the occasion for the
person's appointment or acting had not arisen or had ceased.
10 7. Member not a public service officer by virtue of appointment as
member
Part 3 of the Public Sector Management Act 1994 does not apply in
relation to the appointment of a Council member.
8. Coopted Council members
15 (1) The Council may appoint any person having specialised experience,
skills or qualifications as would enable the person to make a
contribution to the work of the Council to be a coopted member for
such period, or in relation to such matters, as specified in the
instrument of appointment.
20 (2) A coopted member is not entitled to vote but while acting according to
the tenor of the appointment, the member --
(a) may take part in the deliberations of the Council; and
(b) is to be treated as a Council member.
(3) Nothing in this clause prevents the Council from arranging for any
25 other person to participate in Council meetings in a consultative
capacity.
9. Committees of the Council
(1) The Council may appoint committees to assist it in the performance of
its functions, and may discharge or alter any committee so appointed.
30 (2) Persons who are not Council members may be members of a committee
but the chairperson of a committee must be a Council member.
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Constitution and proceedings of the Heritage Council Schedule 1
(3) The procedure for calling committee meetings and for the conduct of
business at those meetings is to be as determined --
(a) subject to this Act, by the Council; or
(b) subject to this Act, by the committee in accordance with any
5 determination of the Council, or in accordance with the terms
of any delegation.
10. General procedure
The procedure for the calling of Council meetings and for the conduct
of business at those meetings is, subject to this Act, to be determined by
10 the Council.
11. Presiding member
(1) The chairperson of the Council is to preside at all Council meetings at
which the chairperson is present.
(2) If both the chairperson and the deputy chairperson of the Council are
15 absent from a Council meeting the members present are to appoint one
of their number to preside.
12. Quorum
The quorum for a Council meeting is 6 members.
13. Voting
20 (1) At any Council meeting each member present has a deliberative vote.
(2) The person presiding at any Council meeting has a deliberative vote
and, in the event of an equality of votes, has a second or casting vote.
(3) A decision supported by a majority of the votes cast at a Council
meeting at which a quorum is present is the decision of the Council.
25 14. Minutes
The Council is to --
(a) cause accurate minutes to be kept of the proceedings at each
of its meetings; and
(b) give a copy of those minutes to the Minister as soon as
30 possible after each meeting.
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Schedule 1 Constitution and proceedings of the Heritage Council
15. Decisions may be made without meeting
A decision in writing signed or assented to by all the Council members
by letter, facsimile transmission or other written means has effect as if it
had been passed at a Council meeting.
5 16. Telephone or video meetings
(1) Despite anything in this Schedule, a communication between Council
members constituting a quorum by telephone, audio-visual or other
electronic means is a valid Council meeting.
(2) Subclause (1) only applies if --
10 (a) reasonable notice of the proposed communication has been
given to all Council members and each member either
participates in, or agrees to, the proposed communication;
and
(b) each participating member is able to communicate with every
15 other participating member instantaneously at all times while
participating in the proceedings.
Division 2 -- Disclosure of interests, etc.
17. Disclosure of interests
(1) A Council member who has a material pecuniary interest in a matter
20 being considered or about to be considered by the Council must, as
soon as possible after the relevant facts have come to the member's
knowledge, disclose the nature of the interest at a Council meeting.
Penalty: $10 000.
(2) A disclosure under subclause (1) is to be recorded in the minutes of
25 the Council meeting.
18. Voting by interested members
A Council member who has a direct or indirect pecuniary interest in a
matter that is being considered by the Council --
(a) must not vote whether at a meeting or otherwise --
30 (i) on the matter; or
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Constitution and proceedings of the Heritage Council Schedule 1
(ii) on a proposed resolution under clause 19 in respect of
the matter, whether relating to that member or a
different member;
and
5 (b) must not be present while --
(i) the matter; or
(ii) a proposed resolution of the kind referred to in
paragraph (a)(ii),
is being considered at a meeting.
10 19. Clause 18 may be declared inapplicable
Clause 18 does not apply if the Council has at any time passed a
resolution that --
(a) specifies the member, the interest and the matter; and
(b) states that the members voting for the resolution are satisfied
15 that the interest should not disqualify the member from
considering or voting on the matter.
20. Quorum where clause 18 applies
(1) Despite clause 12, if a member of the Council is disqualified under
clause 18 in relation to a matter, a quorum is present during the
20 consideration of the matter if at least 3 members are present who are
entitled to vote on any motion that may be moved at the meeting in
relation to the matter.
(2) The Minister may deal with a matter in so far as the Council cannot
deal with it because of subclause (1).
25 21. Minister may declare clauses 18 and 20 inapplicable
(1) The Minister may by writing declare that clause 18 or 20 or both of
them do not apply in relation to a specified matter either generally or in
voting on particular resolutions.
(2) The Minister must within 14 days after a declaration under
30 subclause (1) is made cause a copy of the declaration to be laid before
each House of Parliament.
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Schedule 2 Transitional and savings
Schedule 2 -- Transitional and savings
[s. 134]
1. Interpretation
(1) In this Schedule --
5 "commencement" means the commencement of this Act;
"former Council" means the Heritage Council of Western Australia
established under section 5 of the repealed Act;
"new Council" means the Heritage Council of Western Australia
established under section 7 of this Act;
10 "repealed Act" means the Heritage of Western Australia Act 1990
repealed by section 133(1) of this Act.
(2) The provisions of this Schedule do not prejudice or affect the
application of the Interpretation Act 1984 to and in relation to the
repeal effected by section 133(1) of this Act.
15 2. Former Council members
A person who, immediately before the commencement, was a
member of the former Council, ceases to hold office on the
commencement.
3. CEO
20 (1) The person who, immediately before the commencement, was
employed as the Director of the former Council is to be taken on and
after the commencement to be the CEO of the new Council until
3 November 2001.
(2) Except as otherwise agreed by the person referred to in subclause (1),
25 the remuneration, existing or accrued rights, rights under a
superannuation scheme or continuity of service of the person are not
affected, prejudiced or interrupted by the operation of that subclause
or the abolition of the former Council.
4. Staff
30 (1) A person who, immediately before the commencement, was a public
service officer as defined in the Public Sector Management Act 1994
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Transitional and savings Schedule 2
working for the former Council is to be taken on and after the
commencement to be an employee of the new Council.
(2) Except as otherwise agreed by an employee, the remuneration,
existing or accrued rights, rights under a superannuation scheme or
5 continuity of service of the employee are not affected, prejudiced or
interrupted by the operation of subclause (1) or the abolition of the
former Council.
(3) A person referred to in subclause (1) is to be regarded as having been
engaged under section 18 of this Act.
10 5. Assets and liabilities of former Council to vest in new Council
(1) On the commencement the property of the former Council is, by force
of this clause, transferred to the new Council without the need for any
conveyance or assignment.
(2) On and after the commencement the liabilities of the former Council
15 are, by force of this clause, the liabilities of the new Council.
6. Stamp duty
(1) Stamp duty under the Stamp Act 1921 is not chargeable on the transfer
of property effected by the operation of clause 5.
(2) The Minister may certify in writing that specified property was
20 transferred by operation of clause 5, and such a certificate is
conclusive evidence of that fact, unless the contrary is shown.
7. Proceedings and remedies
On and after the commencement --
(a) the new Council is a party to any proceedings that were
25 begun before the commencement by or against the former
Council; and
(b) any proceedings or remedy that, but for the repeal effected by
section 133(1) of this Act, might have been commenced by,
or available against or to, the former Council may be
30 commenced by, and are available against or to, the new
Council.
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Schedule 2 Transitional and savings
8. Heritage Fund
(1) The Heritage Fund established under section 14 of the repealed Act is,
on and after the commencement, to be taken to be the Heritage Fund
as defined by this Act.
5 (2) The Heritage Fund as defined by this Act is charged with any
liabilities of the Heritage Fund established under section 14 of the
repealed Act which arose before the commencement.
9. Records
On the commencement the new Council becomes the owner of all
10 registers, papers, documents, minutes, books of account and other
records (however compiled, recorded or stored) relating to the former
Council and the performance of its functions and of any tape, disc or
other device or medium relating to those records.
10. Financial reporting of former Council
15 Despite section 54 of the Financial Administration and Audit
Act 1985, the accountable authority of the new Council is to be the
accountable authority of the former Council for the purposes of the
report required by section 66 of that Act with respect to the period
from 1 July in a financial year to a day that --
20 (a) occurs in the same financial year; and
(b) immediately precedes the commencement,
and Division 14 of Part II of that Act applies to that person as the
accountable authority of the former Council as if that period were a
full financial year.
25 11. The Register
The Register of Heritage Places compiled under section 46 of the
repealed Act, as it was immediately before the commencement, is to
be taken on and after the commencement to be the Western Australian
Heritage Register referred to in section 28 of this Act.
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Transitional and savings Schedule 2
12. Local government heritage inventories
An inventory compiled by a local government under section 45 of the
repealed Act, as it was immediately before the commencement, is to
be taken on and after the commencement to be the local government's
5 heritage inventory required under section 52 of this Act.
13. Procedures in relation to entry in the Register or changing or
removing an entry
If procedures in relation to an entry in the Register as defined by the
repealed Act, or the amendment or removal of an entry in that
10 Register have been started but not finished before the commencement
a procedural step that has been completed may be taken to be the
corresponding procedural step for the purposes of Part 6 of this Act,
but otherwise the procedures are to be governed by this Act.
14. Heritage agreements
15 A Heritage Agreement that was entered into under section 29 of the
repealed Act that had effect immediately before the commencement
has effect, subject to clause 15, on and after the commencement as if
the repealed Act had not been repealed.
15. References to the former Council in agreements and instruments
20 (1) On and after the commencement agreements and instruments that had
effect immediately before the commencement --
(a) to which the former Council was a party; or
(b) which contain a reference to the former Council,
have effect, by force of this section, as if --
25 (c) the new Council were substituted for the former Council as a
party to the agreement or instrument; and
(d) any reference to the former Council were, unless the context
otherwise requires, a reference to the new Council.
(2) Subclause (1) is subject to clause 16.
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Schedule 2 Transitional and savings
16. Conservation and restoration orders
(1) A Conservation Order as defined in the repealed Act, other than a
Stop Work Order as defined in that Act, that had effect immediately
before the commencement ceases to have effect on the
5 commencement.
(2) A Stop Work Order as defined in the repealed Act or an order made
under section 62(1) of that Act that had effect immediately before the
commencement continues to have effect on and after the
commencement --
10 (a) subject to paragraph (b), as if the repeal had not been effected
by section 133(1); and
(b) as if a reference in the order to the former Council were a
reference to the new Council.
17. Overriding certain decisions of local governments
15 An order made under section 34 of the repealed Act that had effect
immediately before the commencement is, on and after the
commencement, to be taken to be an approval or consent given by the
Council under section 92 of this Act to carry out the work that is the
subject of the order.
20 18. Payments remitted under repealed Act
An order made under section 36(2) of the repealed Act that had effect
immediately before the commencement is, on and after the
commencement, to be taken to have been made under section 89(2) of
this Act.
25 19. Ministerial orders as to written laws affecting the conservation of
registered places
An order made under section 38 of the repealed Act that had effect
immediately before the commencement is, on and after the
commencement, to be taken to be an order made under section 91 of
30 this Act.
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Transitional and savings Schedule 2
20. Certain places not entered in Register not to be proposed for
registration for 5 years
(1) If section 55 of the repealed Act applied to a place immediately before
the commencement, section 47 of this Act applies in respect of the
5 place even though the event referred to in section 55(a), (b) or (c) of
the repealed Act, as is applicable to the case, occurred before the
commencement.
(2) The 5 year period referred to in section 47 of this Act is to be
calculated in respect of a place referred to in subclause (1) from the
10 time of the event referred to in that subclause.
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Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
building............................................................................................................ 3
CEO................................................................................................................. 3
commencement ....................................................................Schedule 2 clause 1
compensable determination .......................................................................... 104
conservation..................................................................................................... 3
conservation order ..................................................................................3, 99(1)
Council ............................................................................................................ 3
cultural heritage significance ............................................................................ 3
development..................................................................................................... 3
document ...................................................................................................14(4)
fabric ............................................................................................................... 3
former Council .....................................................................Schedule 2 clause 1
heritage agreement ........................................................................................... 3
Heritage Fund .................................................................................................. 3
information ................................................................................................14(4)
land.................................................................................................................. 3
National Trust .................................................................................................. 3
new Council .........................................................................Schedule 2 clause 1
occupier ........................................................................................................... 3
owner.......................................................................................................3, 4(1)
place ........................................................................................................3, 5(1)
planning authority ............................................................................................ 3
planning law..................................................................................................... 3
precinct ............................................................................................................ 3
protection order ......................................................................................3, 94(1)
public authority ................................................................................................ 3
public notice..................................................................................................... 3
Register...................................................................................................... 3, 28
registered place ................................................................................................ 3
registered precinct ............................................................................................ 3
relevant provision......................................................................................... 131
repealed Act .........................................................................Schedule 2 clause 1
specified.....................................................................................................67(3)
specified offence ......................................................................................122(1)
town planning .................................................................................................. 3
town planning scheme ...................................................................................... 3
WAMA............................................................................................................ 3
works ............................................................................................................... 3
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