New South Wales: Heritage Act 1977 (NSW)

Heritage Act 1977 No 136 An Act to conserve the environmental heritage of the State. Part 1 Preliminary 1 Name of Act This Act may be cited as the Heritage Act 1977. 2 Commencement (1) Section 1 and this section shall commence on the date of assent to this Act. (2) Except as provided in subsection (1), the several provisions of this Act shall commence on such day or days as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 Objects The objects of this Act are as follows— (a) to promote an understanding of the State's heritage, (b) to encourage the conservation of the State's heritage, (c) to provide for the identification and registration of items of State heritage significance, (d) to provide for the interim protection of items of State heritage significance, (e) to encourage the adaptive reuse of items of State heritage significance, (f) to constitute the Heritage Council of New South Wales and confer on it functions relating to the State's heritage, (g) to assist owners with the conservation of items of State heritage significance. 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— affected owner or occupier, in relation to an interim heritage order or to listing on the State Heritage Register, means— (a) in the case of an order or listing applicable to a place—the owner or any occupier of land that comprises the place, or (b) in the case of an order or listing applicable to a building, work or relic (being a relic that is attached to or forms part of land)—the owner or any occupier of land on which the building, work or relic is situated, or (c) in the case of an order or listing applicable to a relic that is not attached to or does not form part of land or is applicable to a moveable object—the owner of the relic or moveable object, or (d) in the case of an order or listing applicable to a precinct—the owners or occupiers of land in the precinct. approval includes an authority or a consent or permission. approved form means a form approved by the Heritage Council. area has the same meaning as it has in the Local Government Act 1993. building includes a part of a building, a structure or a part of a structure. Chairperson means the Chairperson of the Heritage Council, appointed as referred to in section 8 (5). consent authority, in relation to any act, matter or thing specified in or of a kind specified in the Local Government Act 1993, any instruments made under that Act, the Environmental Planning and Assessment Act 1979 or an environmental planning instrument in force thereunder, or the Strata Schemes Development Act 2015 means— (a) the person or body with whose approval that act, matter or thing may be done or without whose approval that act, matter or thing may not be done. (b) (Repealed) conservation includes preservation, protection, maintenance, restoration and adaptation. council has the same meaning as it has in the Local Government Act 1993. Court means the Land and Environment Court. deferred commencement approval means an approval referred to in section 63A (1). Department means the Department of Climate Change, Energy, the Environment and Water. development, in relation to land, means— (a) the erection of a building on that land, (b) the carrying out of a work in, on, over or under that land, (c) the use of that land or of a building or work on that land, and (d) the subdivision of that land, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. environmental heritage means those places, buildings, works, relics, moveable objects, and precincts, of State or local heritage significance. functions includes powers, authorities and duties. government instrumentality means— (a) a government agency that must give details of land to Property and Development NSW under the Property and Development NSW Act 2006, section 21A, and (b) a State owned corporation. harm means— (a) in relation to a building or work—demolish, or (b) in relation to a relic or moveable object—damage, despoil, move or alter, or (c) in relation to a place or precinct—damage, despoil or develop the land that comprises the place or is within the precinct or damage or destroy any tree or other vegetation on, or remove any tree or other vegetation from, the place or precinct. heritage agreement means a heritage agreement under Part 3B. Heritage Council means the Heritage Council of New South Wales constituted under this Act. interim heritage order means an interim heritage order in force under Part 3. item means a place, building, work, relic, moveable object or precinct. list means list on the State Heritage Register. local heritage significance has the meaning given by section 4A. moveable object means a moveable object that is not a relic. owner has the same meaning as it has in the Local Government Act 1993. place means an area of land, with or without improvements. Independent Planning Commission has the same meaning as it has in the Environmental Planning and Assessment Act 1979. precinct means an area, a part of an area, or any other part of the State. regulations means the regulations made under this Act. relic means any deposit, artefact, object or material evidence that— (a) relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement, and (b) is of State or local heritage significance. State heritage significance has the meaning given by section 4A. State Heritage Register means the State Heritage Register kept under Part 3A. Valuer-General means the valuer-general appointed under the Valuation of Land Act 1916. (2) A reference in this Act to an item of the environmental heritage is a reference to an item that comprises part of the environmental heritage. (2A) A reference in this Act to the excavation of land extends to the excavation of any land beneath State waters within the meaning of Part 3C, and includes a reference to the dredging of a body of water or watercourse. (3) A reference in this Act to the exercise of a function includes, where that function is a duty, a reference to the performance of that duty. (4) Where functions are conferred or imposed by or under this Act on a council, those functions may be exercised in respect of an area by the council of that area. (5) A reference in this Act to— (a) the erection of a building includes a reference to the rebuilding, enlargement or extension of a building or the placing or relocating of a building on land, (b) the alteration of a building or work is a reference to the making of changes to the internal or external fabric or appearance of that building or work whether or not involving— (i) the carrying out of structural work, or (ii) the repair or renovation, or the painting, plastering or other decoration, of that building or work, (c) the carrying out of a work includes a reference to the rebuilding, enlargement or extension of a work, (c1) a work includes a reference to any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act, (d) the subdivision of land is a reference to the subdivision of land as defined by section 4B of the Environmental Planning and Assessment Act 1979, (e) the demolition of a building or work is a reference to the damaging, defacing, destruction, pulling down or removal of that building or work, in whole or in part, and (f) the carrying out of development includes a reference to the erection of a building, the carrying out of a work, the use of land or of a building or work, or the subdivision of land, as the case may require. (6) A reference in this Act to a prescribed form includes a reference to a form that is to the effect of that prescribed form. 4A Heritage significance (1) In this Act— State heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to the State in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item. local heritage significance, in relation to a place, building, work, relic, moveable object or precinct, means significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item. (2) An item can be both of State heritage significance and local heritage significance. An item that is of local heritage significance may or may not be of State heritage significance. (3) The Heritage Council must notify the Minister of the proposed criteria for the making of decisions as to whether or not an item is of State heritage significance and of any proposed change to the criteria. If the Minister approves the criteria or any proposed change, the Minister is to cause notice of the criteria or any change to be published in the Gazette. (4) The Heritage Council must use only criteria published in the Gazette under this section for the making of decisions as to whether or not an item is of State heritage significance. 5 Act binds Crown This Act binds the Crown not only in right of New South Wales but also, as far as the legislative power of Parliament permits, the Crown in all its other capacities. Part 2 The Heritage Council of New South Wales Division 1 Constitution of the Heritage Council 6 (Repealed) 7 The Council (1) There is hereby constituted a Heritage Council of New South Wales. (2) The Heritage Council is a NSW Government agency. 8 Members of Heritage Council (1) The Heritage Council is to consist of 9 members. Of the members, 8 are to be appointed by the Minister (the appointed members). (2) The other member is to be the Secretary of the Department of Planning, Industry and Environment. (3) Five of the appointed members are to be persons who, in the opinion of the Minister, possess qualifications, knowledge and skills relating to any of the following areas— (a) (Repealed) (b) archaeology, (c) architecture, (d) the building, development and property industries, (e) conservation of the environmental heritage, (f) engineering, (g) New South Wales or Australian history, (h) local government, (i) moveable heritage, (j) natural heritage, (k) planning, (l) property, planning or environmental law, (m) property economics, (n) rural interests, (o) cultural landscapes. (3A) One of the other appointed members is to be a person who, in the opinion of the Minister, possesses qualifications, knowledge and skills relating to Aboriginal heritage. (4) One of the other appointed members is to be a person appointed from a panel of 3 persons nominated by the National Trust of Australia (New South Wales). (5) The other appointed member is to be appointed as Chairperson by the member's instrument of appointment or a subsequent instrument executed by the Minister. (6) One member appointed under subsection (3), (3A) or (4) is to be appointed as Deputy Chairperson by the member's instrument of appointment or a subsequent instrument executed by the Minister. 9 Members and procedure of Heritage Council Schedule 2 contains provisions relating to the members and procedure of the Heritage Council. 10–20 (Repealed) Division 2 Functions of the Heritage Council 21 Functions of Heritage Council (1) The functions of the Heritage Council are— (a) to make recommendations to the Minister for or with respect to the exercise by the Minister of any functions conferred or imposed on the Minister by or under this Act or the regulations, (b) to make recommendations to the Minister relating to the taking of measures for or with respect to— (i) the conservation of, (ii) the exhibition or display of, (iii) the provision of access to, and (iv) the publication of information concerning, items of the environmental heritage, (c) to carry out investigations, research and inquiries relating to the matters referred to in paragraph (b), (d) to arrange and co-ordinate consultations, discussions, seminars and conferences relating to the matters referred to in paragraph (b), and (e) to maintain a database (to be called the State Heritage Inventory) listing items of State and local heritage significance, and (f) to conduct community education concerning the State's environmental heritage, and (g) to exercise such other functions as are conferred or imposed on it by or under this or any other Act or the regulations. (2) Without limiting subsection (1), the Heritage Council may— (a) make submissions to persons or bodies in respect of— (i) environmental studies, (ii) proposed environmental planning instruments, and (iii) environmental impact statements, prepared under the Environmental Planning and Assessment Act 1979 in so far as they relate to the environmental heritage, and (b) provide opinions, statements or other information relating to the environmental heritage to persons or bodies if the Heritage Council considers it appropriate to do so. 21A Committees of the Heritage Council (1) The Heritage Council may establish committees to assist it in connection with the exercise of any of its functions. (2) It does not matter that any or all of the members of a committee are not members of the Heritage Council. (3) The procedure for the calling of meetings of a committee and for the conduct of business at those meetings is to be as determined by the Heritage Council or (subject to any determination of the Heritage Council) by the committee. 21B Publication of certain submissions (1) Any written submission in relation to State significant development that is made by the Heritage Council to a consent authority, or to any other person or body having functions under the Environmental Planning and Assessment Act 1979 with respect to the approval of that development, is to be made publicly available on the internet by the Heritage Council within 14 days after the submission is made. (2) In this section, State significant development means— (a) development that, were it not State significant development, State significant infrastructure or a transitional Part 3A project under the Environmental Planning and Assessment Act 1979, would require approval under Part 4 of this Act or an excavation permit under section 139 of this Act, or (b) development that is State significant development, State significant infrastructure or a transitional Part 3A project under the Environmental Planning and Assessment Act 1979 and that impacts on an item of State heritage significance that is not on the State Heritage Register or the subject of an interim heritage order. 22 Registers (1) The Heritage Council is to keep a register of the following— (a) items and land that are the subject of interim heritage orders, (b) orders made under this Act, (c) notices served under this Act, (d) heritage agreements entered into under this Act. (2) The Heritage Council is also to keep the State Heritage Register under Part 3A. (3) The register kept under this section and the State Heritage Register are each to be available for public inspection without charge at the office of the Heritage Council during ordinary office hours. 23 Annual report (1) As soon as practicable after 30 June in each year, the Heritage Council shall prepare and present to the Minister a report on its operations and activities during the year ending on that day. (2) The report shall, in respect of the year for which it is prepared, include— (a) a summary of the recommendations, advice and opinions made and given by the Heritage Council to the Minister during the year under the following provisions— (i) section 24 (Minister can make interim heritage orders for items of State or local heritage significance) (ii) section 32 (Minister can direct listing on State Heritage Register) (iii) section 38 (Removal of items from State Heritage Register) (iv) section 39 (Minister can enter into heritage agreements) (iva) section 50 (Heritage Council advice on historic shipwrecks protection orders) (v) section 83 (Heritage Council to be consulted in preparation of certain environmental planning instruments) (vi) section 136 (Order restricting harm to buildings etc), and (a1) particulars of stop work orders made under section 79C, and (b) particulars of all additions to, deletions from and other amendments to the register kept under this section and the State Heritage Register during that year, and (c) particulars of such financial assistance as is provided under Division 2 of Part 6 during that year. (3) The Minister shall lay the report, or cause it to be laid, before both Houses of Parliament as soon as practicable after its receipt by the Minister. (4) The report of the Heritage Council under this section may be included in the annual report of the Department. Part 3 Interim heritage orders for items of State or local heritage significance 24 Minister can make interim heritage orders for items of State or local heritage significance (1) The Minister may make an interim heritage order for a place, building, work, relic, moveable object or precinct that the Minister considers may, on further inquiry or investigation, be found to be of State or local heritage significance. (2) The Heritage Council is to provide advice to the Minister on the making of interim heritage orders, either at the request of the Minister or on its own initiative. 25 Minister can authorise councils to make interim heritage orders for items of local heritage significance (1) The Minister may, by order published in the Gazette, authorise a council to make interim heritage orders for items in the council's area. (2) A council authorised under this section may make an interim heritage order for a place, building, work, relic, moveable object or precinct in the council's area that the council considers may, on further inquiry or investigation, be found to be of local heritage significance, and that the council considers is being or is likely to be harmed. (3) An interim heritage order made by a council is of no effect in so far as it applies to any of the following items— (a) an item to which an interim heritage order made by the Minister applies, (b) an item listed on the State Heritage Register. (4) An authorisation under this section can be given subject to conditions and a council cannot act in contravention of the conditions of its authorisation. (5) The Minister may at any time by notice published in the Gazette withdraw a council's authorisation or change the conditions of its authorisation. The withdrawal of a council's authorisation does not of itself affect any interim heritage order made before the authorisation was withdrawn. 26 No notice required of intention to make interim heritage order The Minister or a council is not required, before making an interim heritage order, to notify any person who will be affected by the order of the intention to make the order. 27 Application of interim heritage orders to curtilage and site An interim heritage order made in respect of an item may be expressed to apply (and if so expressed does apply) to— (a) if the item is a building—the curtilage of that building or the site of that building, being the curtilage or site specified or described in the order, or (b) if the item is a work or a relic that is attached to or forms part of land—the site specified or described in the order for that work or relic. 28 Procedure for notifying interim heritage orders (1) When an interim heritage order is made, the Minister (in the case of an order made by the Minister) or the council that made the order (in the case of an order made by a council) is to do or cause the following to be done— (a) the order is to be published in the Gazette, (b) as soon as possible after the order is published in the Gazette, notice of the making of the order is to be given to the Chairperson and to each person who appears to the Minister or the council to be an affected owner or occupier, (c) the notice to an affected owner or occupier is to include a statement as to the effect of the order and a statement of the reasons for the making of the order, (d) within 7 days after the order is published in the Gazette, notice of the making of the order is to be published in a manner that the Minister or the council is satisfied is likely to bring the notice to the attention of members of the public in the area in which the item is situated. (2) An interim heritage order is taken to have been published in the Gazette even if any map or plan referred to in the order is not published with it. (3) An interim heritage order is not invalid merely because of— (a) any failure to give notice of that order as required by this section, or (b) any failure to include in that notice a statement required by this section to be included in it, or (c) any error in or omission from such a statement included in the notice. 29 Commencement, duration and revocation of IHOs (1) An interim heritage order takes effect on the date of publication of the order in the Gazette. (2) An interim heritage order remains in force for 12 months or such shorter period as may be specified in the order, unless it is revoked sooner. (3) The Minister may revoke an interim heritage order made by the Minister or by a council. (4) A council may revoke an interim heritage order that the council has made (but cannot revoke one made by the Minister or by another council). (5) When an interim heritage order is revoked, the Minister (in the case of an order revoked by the Minister) or the council that revoked the order (in the case of an order revoked by a council) is to do or cause the following to be done— (a) notice of the revocation of the order is to be published in the Gazette, (b) as soon as possible after the notice of revocation is published in the Gazette, notice of the revocation of the order is to be given to the Chairperson and to each person who appears to the Minister or the council to be an affected owner or occupier, (c) within 7 days after notice of the revocation of the order is published in the Gazette, notice of the revocation of the order is to be published in a manner that the Minister or the council is satisfied is likely to bring the notice to the attention of members of the public in the area in which the item is situated. (6) The listing of an item on the State Heritage Register revokes any interim heritage order in respect of that item. 30 Appeal against IHO made by council (1) An affected owner or occupier may appeal to the Court against the making of an interim heritage order by a council. (2) The appeal must be made within 28 days after the interim heritage order takes effect. (3) The appeal does not stay an interim heritage order except to the extent that the Court may otherwise order. Part 3A State Heritage Register 31 State Heritage Register to be kept by Heritage Council (1) There is to be a register called the State Heritage Register kept by the Heritage Council. The Register is to be kept in such form and manner as the Heritage Council determines. (2) Items can only be listed on or removed from the State Heritage Register at the direction of the Minister, as provided by this Part. Note— Schedule 1 (Savings and transitional provisions) provides for the automatic listing of items that were formerly the subject of permanent conservation orders, or that are owned by government instrumentalities and identified as being of State heritage significance. 32 Minister can direct listing on State Heritage Register (1) The Minister may direct the listing on the State Heritage Register of a place, building, work, relic, moveable object or precinct that the Minister considers is of State heritage significance, but only if the Heritage Council has recommended that the item be listed and the Minister has considered the following— (a) the recommendation of the Heritage Council that the item should be listed, (b) whether the long-term conservation of the item is necessary, (c) whether the listing would render the item incapable of reasonable or economic use, (d) whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated. (2) The Heritage Council may make a recommendation to the Minister that an item be listed on the State Heritage Register at the request of the Minister, on the Heritage Council's own initiative or at the request of the owner of the item concerned or the council of the area in which the item is situated. (3) A listing in respect of an item can be expressed to apply (and if so expressed does apply) to— (a) if the item is a building—the curtilage of that building or the site of that building, being the curtilage or site specified or described in the listing, or (b) if the item is a work or a relic that is attached to or forms part of land—the site specified or described in the listing of that work or relic. 33 Procedure before recommendation for listing (1) Before making a recommendation for the listing of an item on the State Heritage Register, the Heritage Council must follow this procedure— (a) the Heritage Council is to give notice that it is going to consider whether or not to recommend the listing of the item concerned (a notice of intention to consider listing)— (i) by written notice given to each person that it considers to be an affected owner or occupier (except in the case of the listing of a precinct), or (ii) in the case of the listing of a precinct, by notice published in a manner that the Heritage Council is satisfied is likely to bring the notice to the attention of affected owners or occupiers and of members of the public, and (b) within 14 days after notice of intention to consider listing is given under paragraph (a) (i), the Heritage Council is to cause a notice of intention to consider listing to be published in a manner that the Heritage Council is satisfied is likely to bring the notice to the attention of members of the public in the area in which the item is situated, and (c) a notice of intention to consider listing is to invite submissions on the listing and is to specify a date as the closing date for the receipt of submissions (being a date that is at least 14 days after notice under paragraph (a) (ii) or (b) was first published) and the manner in which submissions may be made, and (d) the Heritage Council is to consider the submissions that are received before the closing date for receipt of submissions and is to decide within 30 days after that closing date whether or not to recommend the listing, and (e) the Heritage Council is to give notice of its decision in the same manner as it is required to give notice of its intention to consider listing under paragraph (a) and is also to give notice to the council of the area in which the item is situated and to each of the persons who made submissions that were considered, and (f) if the decision of the Heritage Council is to recommend the listing, the Heritage Council is to make that recommendation to the Minister within 14 days after notice is given of the decision under paragraph (e). (2) Without limiting the submissions that can be made for the purposes of this section, any of the following submissions can be made— (a) a submission that the item the subject of the proposed recommendation should not be subject to listing on the State Heritage Register by reason that it is not of State heritage significance, (b) a submission that the item the subject of the proposed recommendation should not be subject to listing on the State Heritage Register by reason that its long-term conservation is not necessary, (c) a submission that the item the subject of the proposed recommendation should not be subject to listing on the State Heritage Register by reason that listing would render the item incapable of reasonable or economic use, (d) a submission that conservation of the item the subject of the proposed recommendation could not be achieved without causing undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated. (3) The Heritage Council must not make a decision to recommend the listing of an item on the State Heritage Register unless it considers that— (a) the item satisfies more than one of the criteria approved as referred to in section 4A for determining whether an item is of State heritage significance, or (b) if it satisfies only one of those criteria, the item is of such particular significance that it should be listed. (4) Without limiting any other matter it may consider in determining whether to make a recommendation, the Heritage Council may consider the following (whether or not any submissions are made under subsection (2))— (a) whether the long-term conservation of the item is necessary, (b) whether the listing would render the item incapable of reasonable or economic use, (c) whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated. 34 Action by Minister following recommendation for listing (1) Within 14 days after the Heritage Council makes a recommendation for listing to the Minister, the Minister must— (a) decide whether or not to direct the listing and inform the Heritage Council of that decision, or (b) request the Independent Planning Commission to review the matter. (1A) On receiving a request to review a matter, the Independent Planning Commission is to conduct its review and provide a report to the Minister within the time period specified in the regulations. (2) If the Minister requests a review by the Independent Planning Commission, the Minister must, within 14 days after the Commission provides its report— (a) consider that report, and (b) decide whether or not to direct the listing, and (c) inform the Heritage Council of that decision. (3) The Minister may make a request under this section on the Minister's own motion or after a request by an affected owner, mortgagee, lessee or occupier. (4) A decision of the Minister to direct, or not to direct, the listing on the State Heritage Register of an item that the Heritage Council has recommended be listed is to contain the reasons for listing or not listing the item and is to be made publicly available on the internet by the Heritage Council within 7 days after the decision is made. 35 (Repealed) 36 Independent Planning Commission (1) At a review conducted by the Independent Planning Commission each of the following is entitled to appear before the Commission either personally or, unless otherwise provided by the regulations, by an Australian legal practitioner or agent— (a) an owner, mortgagee or lessee of land to which the proposed listing will apply or of land on which is situated the building, work or relic (being a relic that is attached to or forms part of land) that will be subject to the proposed listing, (b) an owner of a relic (not being a relic that is attached to or forms part of land) or moveable object that will be subject to the proposed listing, (c) the council of the area in which the item or precinct concerned is situated, (d) the Heritage Council, (e) the Secretary of the Department or a nominee of the Secretary, (f) any other person with the leave of the Commission. (2) At the conclusion of the review, the Independent Planning Commission is to provide a report in writing to the Minister containing a summary of the submissions made to the review, the findings of the Commission with respect to those submissions and a recommendation as to how those submissions should be dealt with. The Minister is to make copies of the report available to the public after the Minister decides whether or not to direct the listing. (3) (Repealed) 37 Action by Heritage Council on Minister's decision (1) Within 14 days after being notified of the Minister's decision on a recommendation for listing on the State Heritage Register, the Heritage Council is to do the following— (a) give notice of the Minister's decision in the same manner as it is required under section 33 (1) (a) to give notice of its intention to consider the listing, (b) if the Minister's decision is to direct the listing, make the listing in accordance with the Minister's decision and cause notice of the listing to be published in the Gazette. (2) A listing takes effect on the date of publication of the notice of listing in the Gazette. That notice need not include any map or plan referred to in the listing. (3) A listing is not invalid merely because of any failure to give notice of the Minister's decision as required by this section. (4) Publication in the Gazette before 24 March 2012 of the Minister's decision to direct a listing on the State Heritage Register is (for the purposes of this section) deemed to be (and always to have been) publication in the Gazette of notice of the listing. 38 Removal of items from State Heritage Register (1) The Minister may, after considering the recommendation of the Heritage Council on the matter, direct the removal of a listing from the State Heritage Register— (a) if the Minister is of the opinion that the item is not of State heritage significance, or (b) if the Minister is of the opinion that the long-term conservation of the item is not necessary and that either or both of the following apply to the item— (i) the listing renders the item incapable of reasonable or economic use, (ii) the listing causes undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated. (2) The Heritage Council may make such a recommendation to the Minister either at the request of the Minister, or on the Heritage Council's own initiative, or at the request of the owner of the item or of the council of the area in which the item is situated. (3) The procedure for the removal of a listing from the State Heritage Register is the same as the procedure for listing on the State Heritage Register and for that purpose the provisions of sections 33–37 (other than section 33 (3)) apply to and in respect of the removal of a listing in the same way as they apply to and in respect of a listing. 38A Conservation management plans for State heritage items (1) The Heritage Council may, for the purposes of this Act, endorse a conservation management plan for an item listed on the State Heritage Register. (2) The regulations may make provision for or with respect to conservation management plans for items listed on the State Heritage Register. (3) In this section— conservation management plan means a document that— (a) identifies the State heritage significance of an item, and (b) sets out policies and strategies for the retention of that significance, and (c) is prepared in accordance with the guidelines for the preparation of conservation management plans (if any) publicly issued from time to time by the Heritage Council. Part 3B Heritage agreements 39 Minister can enter into heritage agreements The Minister may enter into a heritage agreement with the owner of an item that is listed on the State Heritage Register with respect to the conservation of the item. The Minister is to obtain and consider the advice of the Heritage Council before entering into a heritage agreement. 40 What heritage agreement can provide for A heritage agreement in respect of an item can include provisions relating to all or any of the following— (a) the conservation of the item, (b) the financial, technical or other professional advice or assistance required for the conservation of the item, (c) the review of the valuation of the item or the land on which it is situated, (d) the restriction on the use of the item or the land on which it is situated, (e) requirements for the carrying out of specified works or works of a specified kind, (f) the standards in accordance with which the works are to be carried out, (g) the restriction on the kind of works that may be carried out, (h) the exemption of specified activities or activities of a specified kind from Part 4 (Effect of interim heritage orders and listing on State Heritage Register), (i) the repayment of money advanced or loaned by the Minister under section 45 (Financial and other assistance), (j) the public appreciation of the State heritage significance of the item, (k) the availability of the item for public inspection, (l) the charges made for admission, (m) such other matters as the Minister considers, on the advice of the Heritage Council, will assist in the conservation of the item, (n) such other matters as may be prescribed by the regulations. 41 Variation and termination of heritage agreements The Minister may vary or terminate a heritage agreement by a subsequent agreement with the owner of the item concerned or in a manner specified in the original agreement. The Minister is to obtain and consider the advice of the Heritage Council before varying or terminating a heritage agreement. 42 Duration of heritage agreements A heritage agreement takes effect on a date specified in the agreement and expires on a date specified in the agreement. 43 Registered heritage agreement to run with land (1) A heritage agreement can be registered under this section if the following persons agree to its registration— (a) if the agreement relates to land under the Real Property Act 1900—each person who has an estate or interest in the land registered under that Act, or (b) if the agreement relates to land not under the Real Property Act 1900—each person who is seised or possessed of an estate or interest in the land. (2) On lodgment by the Minister of an application for registration in a form approved by the Registrar-General, the Registrar-General is to register the agreement— (a) by making an entry in the Register kept under the Real Property Act 1900 if the agreement relates to land under that Act, or (b) by registering the agreement in the General Register of Deeds if the agreement relates to land not under the Real Property Act 1900. (3) A heritage agreement that has been registered by the Registrar-General under this section is binding on, and is enforceable against, the owner of the land from time to time as if each owner for the time being were the owner who entered into the agreement. (4) A heritage agreement relating to land under the Real Property Act 1900 about which an entry is made in a folio is an interest recorded in the folio for the purposes of section 42 of that Act. (5) A reference in this section to a heritage agreement includes a reference to any variation or termination of the heritage agreement. 44 Injunction (1) On the application of the Minister, the Court may grant an injunction restraining a threatened or apprehended breach, or the continuation of a breach, of a heritage agreement. (2) An injunction may be granted without the Minister being required to show a likelihood of damage. (3) If in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of the application. (4) When the Minister makes an application to the Court for the grant of an injunction under this section, the Court is not to require the Minister or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages. 45 Financial and other assistance (1) The Minister may provide or arrange for the provision of such financial, technical or other assistance to the owner of an item or land that is the subject of a heritage agreement as the Minister considers necessary to ensure the conservation of the item or land. (2) The financial assistance provided under this section can only be for the payment of land tax, duty or council rates. The financial assistance is to be provided out of the Heritage Incentive Fund established under section 105A. 46 Heritage agreement cannot be suspended by EPI A heritage agreement is not a regulatory instrument for the purposes of section 28 (Suspension of laws etc by environmental planning instruments) of the Environmental Planning and Assessment Act 1979. Part 3C Protection of historic shipwrecks Division 1 Preliminary 47 Definitions (1) In this Part— excavation permit means an excavation permit referred to in section 139. historic shipwreck means the remains of any ship (including any articles associated with the ship)— (a) that have been situated in State waters, or otherwise within the limits of the State, for 75 years or more, or (b) that are the subject of a historic shipwrecks protection order. historic shipwrecks permit means a historic shipwrecks permit referred to in section 51. historic shipwrecks protection order means an order referred to in section 48 (1). Register of Shipwrecks means the Register referred to in section 49. ship includes any navigable vessel. State waters means— (a) the coastal waters of the State (within the meaning of Part 10 of the Interpretation Act 1987), or (b) any other waters within the limits of the State. (2) In this Part, a reference to an article being associated with a ship includes a reference to— (a) any article that appears to have formed part of the ship, and (b) any article that appears to have been installed on, or carried in, the ship, and (c) any article that appears to have been constructed or used by a person associated with the ship. (3) In this Part, a reference to any remains of a ship, or any article associated with a ship, being situated in State waters includes a reference to any such remains or article— (a) being situated in, or forming part of, the land beneath those waters, or (b) being situated in, or forming part of, a reef in those waters. Division 2 Historic shipwrecks protection 48 Declaration of historic shipwrecks (1) The Minister, by order published in the Gazette, may declare to be a historic shipwreck the remains of any ship situated in State waters or otherwise within the limits of the State, and may do so regardless of the length of time for which it has been so situated. (2) An order under this section may relate to one or more ships or one or more articles, or to both one or more ships and one or more articles. (3) An order under this section must identify, in accordance with any requirements imposed by the regulations, the nature and location of the historic shipwreck to which the order relates. 49 Register of Shipwrecks (1) There is to be a register called the Register of Shipwrecks kept by the Heritage Council. The Register is to be kept in such form and manner as the Heritage Council determines. (2) The Register is to contain particulars of each historic shipwrecks protection order made under this Part. 50 Heritage Council advice on historic shipwrecks protection orders The Heritage Council is to provide advice to the Minister on the making of historic shipwrecks protection orders, either at the request of the Minister or on its own initiative. Division 3 General 51 Movement, damage or destruction of historic shipwrecks (1) A person must not move, damage or destroy any historic shipwreck otherwise than in accordance with a historic shipwrecks permit. (2) This section does not apply to a historic shipwreck that is subject to an interim heritage order made by the Minister or a listing on the State Heritage Register. (3) This section does not prevent a person from moving, damaging or destroying a historic shipwreck situated in any land in accordance with an excavation permit in force in respect of that land. (4) It is a defence to proceedings for an offence under this section if the defendant establishes that the act giving rise to the offence was done for the purpose of— (a) saving human life, or (b) securing the safety of a ship where the ship was endangered by stress of weather or by navigational hazards, or (c) dealing with an emergency involving a serious threat to the environment. 52 Part not to apply to certain waters This Part does not apply to such of the State waters as are waters to which the Historic Shipwrecks Act 1976 of the Commonwealth applies. 53–55B (Repealed) Part 4 Effect of interim heritage orders and listing on State Heritage Register Division 1 Preliminary 56 Definitions In this Part— approval body means— (a) in respect of an interim heritage order made by the Minister or listing on the State Heritage Register—the Heritage Council, or (b) in respect of an interim heritage order made by a council—the council that made the order. integrated development has the same meaning as in section 91 of the Environmental Planning and Assessment Act 1979. prescribed application means an application for the approval of a consent authority under any of the following— (a) the Environmental Planning and Assessment Act 1979, not being an application under Part 3A or Part 5.1 or an application relating to State significant development or integrated development, (b) Part 1 of Chapter 7 of the Local Government Act 1993, (c) any prescribed provision of the Local Government Act 1993 or any prescribed provision of any instrument made under that Act, (d) Part 4 of the Strata Schemes Development Act 2015, (e) (Repealed) in respect of the doing or carrying out of an act, matter or thing the doing or carrying out of which requires an approval of the Heritage Council under Subdivision 1 of Division 3 of this Part. Division 2 Controlled activities 57 Effect of interim heritage orders and listing on State Heritage Register (1) When an interim heritage order or listing on the State Heritage Register applies to a place, building, work, relic, moveable object, precinct, or land, a person must not do any of the following things except in pursuance of an approval granted by the approval body under Subdivision 1 of Division 3— (a) demolish the building or work, (b) damage or despoil the place, precinct or land, or any part of the place, precinct or land, (c) move, damage or destroy the relic or moveable object, (d) excavate any land for the purpose of exposing or moving the relic, (e) carry out any development in relation to the land on which the building, work or relic is situated, the land that comprises the place, or land within the precinct, (f) alter the building, work, relic or moveable object, (g) display any notice or advertisement on the place, building, work, relic, moveable object or land, or in the precinct, (h) damage or destroy any tree or other vegetation on or remove any tree or other vegetation from the place, precinct or land. (1A) In the case of an interim heritage order made by a council, subsection (1) does not apply to— (a) State significant development within the meaning of the Environmental Planning and Assessment Act 1979, or (b) development, or demolition of a building or work, carried out by or on behalf of the Crown (with Crown including the persons prescribed for the purposes of Division 4 of Part 4 of the Environmental Planning and Assessment Act 1979 as referred to in section 88 (2) (a) of that Act). (1B) Subsection (1) does not apply to anything that is exempted from the operation of this Part by a heritage agreement. (1C) Subsection (1) (d) does not apply in the case of a relic to which an interim heritage order made by a council applies. (1D) Subsection (1) does not apply to anything that is exempted from the operation of this Part by a conservation management plan (within the meaning of section 38A) endorsed by the Heritage Council. (2) The Minister, on the recommendation of the Heritage Council, may, by order published in the Gazette, grant an exemption from subsection (1) or such of the provisions of that subsection as are specified in the order in respect of the engaging in or carrying out of such activity or class of activities by such person or class of persons in such circumstances as may be so specified. The Minister's power under this subsection extends to apply in respect of interim heritage orders made by councils. (3) A council may, by order published in the Gazette, grant an exemption from subsection (1) or such of the provisions of that subsection as are specified in the order in respect of the engaging in or carrying out of such activity or class of activities by such person or class of persons in such circumstances as may be so specified. Such an exemption has effect only in respect of an interim heritage order made by the council concerned. Division 3 Applications for approval Subdivision 1 Applications generally 58 Application of Subdivision (1) This Subdivision applies to an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57 (1). (2) This Subdivision applies in addition to, and not in derogation from, the provisions of any other Act or statutory instrument under which an application for approval in respect of the doing or carrying out of an act, matter or thing referred to in section 57 (1) is required to be made. 59 Making of application An application for approval may be made by— (a) the owner of the item or land the subject of the application, or (b) any person with the consent in writing of that owner, or (c) if the item or land is situated on or comprises Crown land as defined in the Crown Land Management Act 2016, the lawful occupier of the Crown land. 60 Form of application An application for approval shall be made to the approval body in the approved form and shall be accompanied by such fee as may be prescribed. 61 Public notice of certain applications (1) Where an application for approval is made in respect of an item of the environmental heritage and that application, if approved, would, in the opinion of the approval body, materially affect the significance of that item as an item of the environmental heritage, the approval body shall cause public notice of that application to be given in a manner that the approval body is satisfied is likely to bring the notice to the attention of members of the public. (1A) Public notice is not to be given under this section of an application for approval in respect of integrated development of which public notice has been given under the Environmental Planning and Assessment Act 1979. (2) A notice referred to in subsection (1) shall contain a statement to the effect that the application for approval referred to in that notice and any plans, specifications or similar documents lodged in connection with that application and in the custody of the approval body may be inspected at the office of the approval body by any person during ordinary office hours within a period of 21 days after the day on which that notice is first published in accordance with subsection (1). (3) During the period specified in subsection (2), any person may inspect the application and any documents referred to in that subsection which have been lodged in connection with that application at the office of the approval body during ordinary office hours and make representations in writing to the approval body with respect to that application. (4) The approval body shall not determine the application until the expiration of the period specified in subsection (2). 62 Process for determination of application (1) In determining an application for approval in respect of an item or land, the approval body shall take into consideration— (a) the extent to which that application, if approved, would affect the significance of any item as an item of the environmental heritage, (b) the representations, if any, made with respect to that application under section 61 (3), (c) such matters relating to the conservation of that item or land as to it seem relevant, and (c1) any applicable conservation management plan (within the meaning of section 38A) endorsed by the Heritage Council, and (d) such other matters as to it seem relevant. (2) The regulations may make further provision with respect to the process for determining an application. 63 Determination of application (1) Except as provided by subsection (2), the approval body may determine an application for approval by granting approval to that application, either unconditionally or subject to conditions, or by refusing approval. (1A) The determination of an application for approval in relation to integrated development is subject to Division 5 of Part 4 of the Environmental Planning and Assessment Act 1979. (2) Where— (a) an application for approval is made to demolish the whole of a building or work, or (b) an application for approval is made which would, if it were approved, necessitate the demolition of the whole of a building or work, the approval body shall determine that application by refusing approval. (3) Nothing in subsection (2) prevents the approval body from approving an application referred to in that subsection if— (a) it is of the opinion that the building or work constitutes a danger to the users or occupiers of that building or work, the public or a section of the public, or (b) it is a condition of the approval that the building or work be relocated on other land, or (c) the building or work is situated (whether wholly or partly) in a place or precinct that is an item of State heritage significance, but is not itself such an item, and the approval body is of the opinion that the demolition of the whole of the building or work will not have a materially detrimental effect on the heritage significance of the place or precinct. (4) Without limiting or restricting the power of the approval body to impose conditions under subsection (1), it may, in granting approval to an application for approval, impose, as a condition of its approval, a condition— (a) that the applicant give security in such form and such amount as is determined by the approval body having regard to the nature and extent of the work referred to in the approval to ensure the satisfactory completion of that work, and (b) that where the approval is to the demolition, in whole or in part, of a building or work, such measures as are specified in the approval be taken in the interests of public safety and convenience with respect to the demolition. 63A Deferred commencement approvals (1) An approval may be granted subject to a condition that it is not to operate until the applicant for the approval satisfies the approval body as to any matter specified in the condition (a deferred commencement approval). (2) Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. (3) A deferred commencement approval must be clearly identified as a deferred commencement approval (whether by the use of that expression or by reference to this section or otherwise). (4) A deferred commencement approval must clearly distinguish conditions concerning matters as to which the approval body must be satisfied before the approval can operate from any other conditions. (5) An approval body may specify the period within which the applicant must produce evidence to the approval body sufficient enough to enable it to be satisfied as to those matters. (6) The applicant may produce evidence to the approval body sufficient to enable it to be satisfied as to those matters and, if the approval body has specified a period for the purpose, the evidence must be produced within that period. (7) If the applicant produces evidence in accordance with this section, the approval body must notify the applicant whether or not it is satisfied as to the relevant matters. (8) If the approval body has not notified the applicant within the period of 28 days after the applicant's evidence is produced to it, the approval body is, for the purposes only of sections 70 and 70A, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires. 63B Partial and conditional approvals (1) An approval may be granted— (a) for the doing or carrying out of the act, matter or thing for which the approval is sought, or (b) for the doing or carrying out of that act, matter or thing, except for a specified part or aspect of that act, matter or thing, or (c) for the doing or carrying out of a specified part or aspect of that act, matter or thing. (2) An approval referred to in subsection (1) may be granted subject to a condition that— (a) the act, matter or thing for which the approval is sought, or (b) the specified part or aspect of that act, matter or thing, or (c) any thing associated with that act, matter or thing or the doing or carrying out of that act, matter or thing, must be the subject of another approval. 64 Notice of determination (1) The approval body shall give notice in writing of its determination of an application for approval to the applicant. (2) Where the approval body determines an application for approval by granting approval subject to conditions or by refusing approval, the notice shall— (a) indicate the reasons for the determination, and (b) except in relation to the determination of an application referred to in section 63 (2) which is required to be determined by refusing approval, notify the applicant that he or she has a right of appeal under this Act against the determination. 65 Effect of failure to make determination (1) Where the approval body has not determined an application for approval (other than an application for approval in respect of integrated development) within a period of 40 days, or, where public notice of that application has been given under section 61, within a period of 60 days, after service of that application on it, it shall, for the purposes only of section 70, be deemed to have determined that application by refusing approval. (2) Nothing in subsection (1) prevents the approval body from determining an application after the expiration of the period referred to in subsection (1) in relation to that application. (3) The determination of an application as referred to in subsection (2) shall not, where an appeal in respect of that application has been made under section 70, prejudice or affect the making, continuance or determination of that appeal. (4) The regulations may prescribe periods of time that are not to be taken into account in calculating the expiration of the periods referred to in subsection (1) in circumstances where the approval body has requested the applicant to provide it with additional information relating to the application. 65A Modification of approvals (1) On application in the approved form by any person entitled to act on an approval, the approval body may modify the approval— (a) so as to vary any aspect of the original approval, but only if it is satisfied that the act, matter or thing authorised by the modified approval is substantially the same as the act, matter or thing authorised by the original approval, or (b) so as to correct a minor error, misdescription or miscalculation. (2) The provisions of sections 61, 62, 64 and 65 apply to an application under subsection (1) (a) in the same way as they apply to an application for an approval, but do not apply to or in respect of an application under subsection (1) (b). (3) For the purposes of this section— (a) the Minister is taken to be the approval body in relation to an approval granted by the Minister as a result of an appeal under Division 4, and (b) the Court is taken to be the approval body in relation to an approval granted by the Court as a result of an appeal under Division 4, but, in either case, the application for modification of the approval is to be lodged not with the Minister or Court but with the approval body to whom the application for original approval was made. (4) Modification of an approval under this section is not to be construed as the granting of an approval, but a reference in this or any other Act to an approval includes a reference to the modified approval. Subdivision 2 Prescribed applications 66 Application of Subdivision This Subdivision prevails the extent of any inconsistency between this Subdivision and the Environmental Planning and Assessment Act 1979 (Part 3A, the provisions relating to State significant development or integrated development and Part 5.1 excepted), any environmental planning instrument in force under that Act, the Local Government Act 1993, any instrument made under that Act, or the Strata Schemes Development Act 2015. 67 Order of giving of approvals An approval given by a consent authority to a prescribed application before the Heritage Council's determination of the application has been notified to the consent authority is void. 68 Consistency of approvals An app