Historic Cultural Heritage Act 1995 (Tas)

Historic Cultural Heritage Act 1995 An Act to promote the identification, assessment, protection and conservation of places having historic cultural heritage significance and to establish the Tasmanian Heritage Council [Royal Assent 8 December 1995] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Historic Cultural Heritage Act 1995 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation In this Act – Appeal Tribunal means the Tasmanian Civil and Administrative Tribunal; building has the same meaning as in the Planning Act; chairperson means the chairperson of the Heritage Council; conservation, in relation to a place, includes – (a) the retention of the historic cultural heritage significance of the place; and (b) any maintenance, preservation, restoration, reconstruction or adaptation of the place; development includes – (a) the construction, exterior alteration or exterior decoration of a building; and (b) the demolition or removal of a building; and (c) the subdivision or consolidation of land, including buildings or airspace; and (d) the placing or relocating of a building; and (e) the construction, or putting up for display, of signs or hoardings; Fund means the Heritage Fund established under Part 3 ; GDA means – (a) the Geocentric Datum of Australia (also known as "the GDA" or "GDA94") as defined in the Commonwealth Gazette No. GN 35, 6 September 1995, as amended from time to time; or (b) another geodetic reference system substituted for the Geocentric Datum of Australia referred to in paragraph (a) by the Intergovernmental Committee on Surveying and Mapping (established in 1988), as amended from time to time; guidelines means guidelines issued and in force under section 90A ; heritage agreement means an agreement in force under Part 7 ; heritage area means an area declared as such under Part 5 ; Heritage Council means the Tasmanian Heritage Council established under section 5 ; Heritage Register means the Tasmanian Heritage Register kept under Part 4 ; historic cultural heritage significance, of a place, means its significance in terms of the registration criteria; land includes – (a) buildings and other structures permanently fixed to land; and (b) land covered with water; and (c) water covering land; law includes any enactment, regulations, rules, by-laws or proclamation; local public notice, in relation to any process affecting any place, means a notice published – (a) in a daily newspaper published in the State and circulating generally in the region in which the place is located; and (b) by one or more of the following means also: (i) in the Gazette; (ii) any electronic means the Heritage Council considers appropriate in the circumstances; member means a member of the Heritage Council and includes an alternate member; National Trust means the National Trust of Australia (Tasmania) established under the National Trust Act 2006 ; notify means give notice in writing; object, in relation to a place, includes fittings, artefacts, tools, implements and other items, other than fixtures, in or on the place that contribute to the historic cultural heritage significance of the place; owner includes any mortgagee, lessee or other person who has an interest in property; place includes – (a) a site, precinct or parcel of land; and (b) any building or part of a building, including fixtures; and (c) any shipwreck; and (d) any objects related to the place; and (e) any open outdoor spaces, built landscape features, gardens or plants on the place that contribute to the historic cultural heritage significance of the place; Planning Act means the Land Use Planning and Approvals Act 1993 ; planning authority means – (a) a council as defined in the Local Government Act 1993 exercising jurisdiction in the locality to which the context relates; and (b) primary production means production resulting directly from – (a) the cultivation of land; and (b) the maintenance of animals or poultry for the purpose of selling them or their bodily produce; and (c) the manufacture of dairy produce by a person who produces the raw material used in the manufacture; and (d) fishing operations; and (e) forest operations; and (f) mining operations; and (g) horticulture; protected zone means a zone declared to be a protected zone under section 69 ; registered means entered in the Heritage Register; registration criteria means the criteria set out in section 16(2) ; responsibilities means powers, functions and duties; shipwreck includes a shipwreck site and any maritime relic; statutory rule means a statutory rule for the purposes of the Rules Publication Act 1953 ; stopwork order means an order made under Part 8 ; use has the same meaning as in the Planning Act; works includes – (a) any development; and (b) any physical intervention, excavation or action which may result in a change to the nature or appearance of the fabric of a place; and (c) any change to the natural or existing condition or topography of land; and (d) (e) any removal of vegetation or topsoil; works guidelines – see section 90A(1)(b) . 3A. Timing of actions Where a provision of this Act requires or directs a person to take an action consequent on making a decision or another occurrence, then, unless the contrary intention appears, the provision is to be taken as requiring or directing the person to take the action as soon as practicable after making the decision or as soon as practicable after the other occurrence. 4. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. 4A. Matters to be regarded (1) In performing or exercising any functions or powers under this Act in relation to a place, the Heritage Council, the Minister and any other person must have regard to – (a) the retention of the historic cultural heritage significance of the place; and (b) any relevant provisions of the Building Act 2016 . (2) The Heritage Council, the Minister and any other person who performs or exercises functions or powers under this Act in relation to a place must do so in a manner that is consistent with the objectives of the resource management and planning system and the planning process set out in Schedule 1 to the Planning Act. (3) Nothing in this Act is to be taken to prevent any person having regard to an object in determining the historical cultural heritage significance of a place. PART 2 - Tasmanian Heritage Council 5. Establishment of Heritage Council (1) The Tasmanian Heritage Council is established. (2) The Heritage Council is part of the State's resource management and planning system, the objectives of which are set out in Schedule 1 to the Planning Act. 6. Constitution of Heritage Council (1) The Heritage Council consists of 15 persons appointed by the Minister of whom – (a) one is the chairperson; and (b) one is the Director of National Parks and Wildlife; and (c) 4 are persons – (i) who together have expertise in at least 4 of the areas of architecture, archaeology, engineering, history, planning and building surveying; and (ii) one of whom is nominated by the Local Government Association of Tasmania; and (d) one is a person representing heritage conservation interests; and (e) one is a person representing community interests; and (f) one is a person representing the National Trust in Tasmania; and (g) one is a person representing the Local Government Association of Tasmania; and (h) one is a person representing the building development industry; and (i) one is a person representing the mining industry with expertise in mining heritage; (j) one is a person representing the Tasmanian Farmers and Graziers Association who – (i) has agricultural expertise or experience; and (ii) is the owner of a rural place of historic cultural heritage significance; and (k) one is a person representing the Tourism Council of Tasmania; and (l) one is a person representing the Tasmanian Council of Churches. (1A) If an association or a body referred to in subsection (1) changes its name, the Minister, by order, may amend that subsection by substituting the new name. (1B) If an association or a body referred to in subsection (1) ceases to exist, the Minister, on the recommendation of the Heritage Council, by order, may amend that subsection by substituting the name of an association or a body that the Minister is satisfied substantially represents the interests of that association or body. (1C) The Minister may appoint a State Service officer or State Service employee employed in the Department, or having knowledge or expertise in relation to the State's historic cultural heritage, as an alternate member for the member referred to in subsection (1)(b) . (1D) The alternate member is to act as a member of the Heritage Council only if the member referred to in subsection (1)(b) is – (a) absent from a meeting of the Heritage Council; or (b) incapable of acting as a member of the Heritage Council. (1E) If the alternate member acts as a member of the Heritage Council – (a) he or she may exercise all the powers of the member for whom he or she is an alternate; and (b) all things done or omitted to be done by the alternate member are as valid, and have the same consequences, as if they had been done or omitted to be done by the member for whom he or she is an alternate. (1F) The members of the Heritage Council may elect a member to be deputy chairperson of the Heritage Council. (1G) If the chairperson is unable for any reason to perform the duties of chairperson, the deputy chairperson may perform those duties and, when doing so, is taken to be the chairperson. (2) Schedule 1 has effect with respect to membership of the Heritage Council. (3) Schedule 2 has effect with respect to meetings of the Heritage Council. 7. General functions and powers of Heritage Council (1) The functions of the Heritage Council are – (a) to advise the Minister on matters relating to Tasmania's historic cultural heritage and the measures necessary to conserve that heritage for the benefit of the present community and future generations; and (b) to work within the planning system to achieve the proper protection of Tasmania's historic cultural heritage; and (c) to co-operate and collaborate with Federal, State and local authorities in the conservation of places of historic cultural heritage significance; and (d) to encourage and assist in the proper management of places of historic cultural heritage significance; and (e) to encourage public interest in, and understanding of, issues relevant to the conservation of Tasmania's historic cultural heritage; and (f) to encourage and provide public education in respect of Tasmania's historic cultural heritage; and (g) to assist in the promotion of tourism in respect of places of historic cultural heritage significance; and (h) to keep proper records, and encourage others to keep proper records, of places of historic cultural heritage significance including records of objects related to those places; and (i) to perform any other function the Minister determines. (2) The Heritage Council may do anything necessary or convenient to perform its functions. 8. Delegation by Minister The Minister may delegate to the chairperson or any other person any of the Minister's functions or powers under this Act, other than – (a) this power of delegation; and (b) a function or power under section 10A . 9. Delegation by Heritage Council The Heritage Council may delegate to a planning authority or any other person any of its functions or powers other than – (a) this power of delegation; and (b) a function or power under section 10B . 10. Committees (1) The Heritage Council may establish any committee to assist in the performance and exercise of its functions and powers. (2) The Heritage Council may appoint any person, including a member, as a member of a committee on any terms and conditions, including remuneration, the Heritage Council determines. 10A. Statements of expectation (1) The Minister is to issue the Heritage Council with triennial statements of expectation and the Heritage Council is to discharge its responsibilities consistently with those statements. (2) A statement of expectation is to set out the Minister's aims for the Heritage Council for the relevant triennium but not so as to purport to – (a) enlarge or diminish its responsibilities; or (b) interfere with, or impede, the discharge of its responsibilities. (3) The Minister, on his or her own motion or at the request of the Heritage Council, may at any time – (a) amend a statement of expectation; or (b) revoke a statement of expectation. (4) In preparing a statement of expectation or any amendment to a statement of expectation, the Minister – (a) is to consult the Heritage Council; and (b) may consult any planning authorities or other persons. (5) A statement of expectation or any amendment to a statement of expectation is to be in writing and signed by the Minister. (6) A statement of expectation or any amendment to a statement of expectation takes effect on such day, following its day of issue, as it specifies. (7) The Heritage Council is to ensure that the public has reasonable access to all statements of expectation, including those that have been superseded. (8) Without limiting the generality of subsection (7) , the Heritage Council is to ensure that any person presenting at any of its offices during normal business hours may – (a) inspect any statement of expectation without charge; and (b) obtain a copy of any statement of expectation. 10B. Statements of intent (1) On being issued with a statement of expectation under section 10A , the Heritage Council is to give the Minister a statement of intent in response. (2) The statement of intent is to indicate in general terms how the Heritage Council proposes to realise the ministerial aims set out in the statement of expectation. (3) The statement of intent is to be – (a) in writing; and (b) signed by the chairperson; and (c) given to the Minister within 3 months after the Heritage Council is issued with the statement of expectation. (4) The Heritage Council is to ensure that the public has reasonable access to all statements of intent, including those that have been superseded. (5) Without limiting the generality of subsection (4) , the Heritage Council is to ensure that any person presenting at any of its offices during normal business hours may – (a) inspect any statement of intent without charge; and (b) obtain a copy of any statement of intent. 11. Staff (1) Subject to and in accordance with the State Service Act 2000 , persons may be appointed or employed for the purposes of this Act. (2) The Secretary of the Department may make arrangements with another Head of a State Service Agency for any State Service officers and State Service employees employed in that Agency to be made available to perform functions under this Act. (3) An officer or employee made available under subsection (2) may hold office in conjunction with State Service employment. PART 3 - Financial Provisions 12. Heritage Fund (1) There is established a fund to be known as the Heritage Fund. (2) There is to be paid into the Fund – (a) any money appropriated by Parliament for the purpose of administering this Act; and (b) any money received by the Heritage Council by any means; and (c) any income derived from the investment of money standing to the credit of the Fund. (3) The Heritage Council, with the approval of the Treasurer, is to administer the Fund. 13. Application of Fund The Heritage Council must apply money in the Fund for the following purposes: (a) the payment of expenses, charges and obligations incurred by it in the administration of this Act; (b) the payment of salaries, remuneration, allowances and expenses payable under this Act; (c) the provision of financial or other assistance for the purposes of this Act. 14. Money and property on trust (1) The Heritage Council, with the Treasurer's approval, may – (a) accept money or property on trust; and (b) invest any money held by it on trust in accordance with section 5 of the Trustee Act 1898 . (2) The Heritage Council may apply any money or property accepted by it on trust otherwise than in accordance with the trust or any condition on which it was accepted only if that application is in relation to its powers and functions. 14A. Accounting records (1) The Heritage Council is to keep accounting records that correctly record and explain its transactions and financial position. (2) The records are to be kept in a manner that – (a) allows true and fair accounts of the Heritage Council to be prepared; and (b) allows its accounts to be conveniently and properly audited or reviewed; and (c) subject to any contrary direction of the Treasurer, complies with Australian Accounting Standards; and (d) complies with any direction of the Minister. 14B. Financial statements (1) The Heritage Council is to prepare and forward to the Auditor-General a copy of its financial statements for each financial year in accordance with the Audit Act 2008 . (2) Financial statements are to contain any information the Treasurer may determine. 14C. . . . . . . . . 14D. . . . . . . . . PART 4 - Tasmanian Heritage Register 15. Heritage Register (1) The Heritage Council is to keep a register to be known as the Tasmanian Heritage Register. (1A) The purpose of the Heritage Register is to ensure that Tasmania – (a) keeps an inventory of places of State historic cultural heritage significance; and (b) accords those places status and recognition; and (c) has a basis for protecting that historic cultural heritage significance. (1B) Subsection (1A) does not apply in respect of places whose historic cultural heritage significance derives solely from their cultural value to the Aboriginal people of Tasmania. (2) The Heritage Register – (a) is to be in any form the Heritage Council considers appropriate; and (b) may consist of more than one document or record. (3) The Heritage Council is to enter in the Heritage Register details of the following: (a) any place provisionally entered under section 18 (2) ; (b) any place entered on a permanent basis under section 21 (1) ; (c) any heritage area; (d) any heritage agreement; (e) any variation of a heritage agreement under section 49 ; (f) the termination of a heritage agreement under section 49 ; (g) any order made under this Act; (h) any shipwreck entered under section 65 ; (i) any protected zone; (j) any certificate issued under section 83 ; (k) any other information the Heritage Council considers appropriate. (4) An entry of a place in the Heritage Register is to – (a) identify the place by reference to any, or any combination of, the following: (i) its address; (ii) its title particulars; (iii) its GDA coordinates; and (b) define the boundaries of the place by reference to either or both of the following: (i) its title; (ii) a plan in the Central Plan Register; and (c) describe the place; and (d) state the historic cultural heritage significance of the place, including – (i) the registration citeria on which the entry is based; and (ii) the way in which the place meets those registration criteria. (5) Any person may inspect the Heritage Register during normal business hours. (6) . . . . . . . . 16. Entry of places in Heritage Register (1) The Heritage Council may enter a place in the Heritage Register if it is satisfied that the place has historic cultural heritage significance. (2) For the purposes of subsection (1) , the Heritage Council may determine that a place has historic cultural heritage significance if it is satisfied that the place meets one or more of the following criteria: (a) the place is important to the course or pattern of Tasmania's history; (b) the place possesses uncommon or rare aspects of Tasmania's history; (c) the place has the potential to yield information that will contribute to an understanding of Tasmania's history; (d) the place is important in demonstrating the principal characteristics of a class of place in Tasmania's history; (e) the place is important in demonstrating a high degree of creative or technical achievement; (f) the place has a strong or special association with a particular community or cultural group for social or spiritual reasons; (g) the place has a special association with the life or works of a person, or group of persons, of importance in Tasmania's history; (h) the place is important in exhibiting particular aesthetic characteristics. 17. Provisional entry in Register (1) The Heritage Council, on its own initiative or on application to it by any person, may decide to enter a place in the Heritage Register on a provisional basis if in its opinion it meets any one or more of the registration criteria. (2) A person who applies to have a place entered in the Heritage Register on a provisional basis must give any information the Heritage Council requires to enable it to deal with the application. Penalty: Fine not exceeding 20 penalty units. (3) The Heritage Council must not exclude a place from being entered in the Heritage Register on a provisional basis only on the ground that another place with similar characteristics is already entered in the Heritage Register. 18. Procedure relating to provisional entry in Register (1) Before entering a place in the Heritage Register on a provisional basis, the Heritage Council may invite written submissions from – (a) any person or body with a special knowledge of, or interest in, the place; or (b) any person or body with a special interest in Tasmania's historic cultural heritage. (2) After considering any submissions, the Heritage Council may provisionally enter a place in the Heritage Register. (3) If the Heritage Council enters a place in the Heritage Register on a provisional basis, it must – (a) give the owner of the place and the planning authority a written notice – (i) stating it has provisionally entered the place in the Heritage Register and that it intends to enter the place on a permanent basis; and (ii) stating the registration criteria on which the entry is based; and (iii) explaining the right to object to the place being entered in the Heritage Register on a permanent basis; and (b) publish a local public notice– (i) stating that it intends to enter the place in the Heritage Register on a permanent basis; and (ii) inviting written submissions relating to that intention; and (iii) explaining the right to object to the place being entered in the Heritage Register on a permanent basis. (4) A notice to the owner of a place must be given at least 21 days and not more than 28 days before – (a) the same notice is given to the planning authority; and (b) a local public notice is published under subsection (3) (b) . (4A) The Heritage Council may give such other notice of a decision to provisionally enter a place in the Heritage Register as it considers appropriate. (5) The Heritage Council must make available to the owner of a place registered in the Heritage Register on a provisional basis – (a) the name of any person who has made an application under section 17 (1) ; and (b) any information given under section 17 (2) ; and (c) a copy of any submission made under section 18 (1) . 19. Objection to permanent entry in Register (1) Any person may object to the Heritage Council's intention to enter a place in the Heritage Register on a permanent basis. (2) An objection must be – (a) made in writing; and (b) lodged with the Heritage Council within – (i) 60 days after a notice was given or published under section 18 (3) , whichever is the later; or (ii) any further period the Heritage Council allows. (3) An objection may be made only on the basis that the place does not satisfy any of the registration criteria on which the entry is intended to be based. (4) A person who lodged an objection may appear in person before the Heritage Council to make representations in relation to the objection. 20. Submission relating to permanent entry in Register (1) Any person may make a submission in relation to the Heritage Council's intention to enter a place in the Heritage Register on a permanent basis. (2) A submission is to be lodged with the Heritage Council within – (a) 60 days after the relevant local public notice is published under section 18 (3) (b) ; or (b) any further period the Heritage Council allows. 21. Permanent entry in Register (1) After considering any objection made under section 19 or any submission made under section 20 , the Heritage Council may – (a) enter the place in the Heritage Register on a permanent basis; or (b) not enter the place in the Heritage Register on a permanent basis. (2) If the Heritage Council does not enter a place in the Heritage Register on a permanent basis, it must remove the provisional entry of the place in the Heritage Register. (3) The Heritage Council is to make a decision under subsection (1) within 180 days after provisionally entering the place in the Heritage Register. 22. Removal of place from Register (1) The Heritage Council, on its own initiative or on application to it by any person, may decide to remove from the Heritage Register an entry relating to a place. (1A) However, the Heritage Council may only make a decision under subsection (1) in respect of a place if it is satisfied that – (a) the place has been destroyed; or (b) because of new information or for some other reason, the place does not meet, or no longer meets, any of the registration criteria; or (c) the entry duplicates or substantially duplicates an existing entry; or (d) the removal is required by law. (2) A person who applies to have a place removed from the Heritage Register is to give any information the Heritage Council requires to enable it to deal with the application. (3) Before removing a place from the Heritage Register, the Heritage Council may invite written submissions from – (a) any person or body with special knowledge of, or interest in, the place; or (b) any person or body with a special interest in Tasmania's historic cultural heritage. (4) After considering any submissions, the Heritage Council may decide to remove from the Heritage Register an entry relating to a place if it considers that the place no longer meets any of the registration criteria. (5) If the Heritage Council intends to remove from the Heritage Register an entry relating to a place, it must – (a) give the owner of the place and the planning authority a written notice – (i) stating that it intends to remove the entry from the Heritage Register; and (ii) stating the reasons for the removal; and (iii) explaining the right to object to the removal; and (b) unless subsection (1A)(a) , (c) or (d) applies, publish a local public notice– (i) stating that it intends to remove the entry from the Heritage Register; and (ii) inviting written submissions relating to that intention; and (iii) explaining the right to object to the removal. (6) A notice to the owner of a place must be given at least 21 days and not more than 28 days before – (a) the same notice is given to the planning authority; and (b) the relevant local public notice is published under subsection (5) (b) . (7) The Heritage Council may give such other notice of a prospective removal of a place from the Heritage Register as it considers appropriate. 23. Objection to removal from Register (1) Any person may object to the Heritage Council's intention to remove from the Heritage Register an entry relating to a place. (2) An objection must be – (a) made in writing; and (b) lodged with the Heritage Council within – (i) 30 days after a notice was given or published under section 22 (5) , whichever is the later; or (ii) any further period the Heritage Council allows. 24. Submission relating to removal from Register (1) Any person may make a submission in relation to the Heritage Council's intention to remove from the Heritage Register an entry relating to a place. (2) A submission is to be lodged with the Heritage Council within – (a) 30 days after the relevant local public notice is published under section 22 (5) (b) ; or (b) any further period the Heritage Council allows. 25. Removal of entry from Register (1) After considering any objection made under section 23 or submission made under section 24 , the Heritage Council may – (a) remove from the Heritage Register an entry relating to a place; or (b) not remove the entry