In New South Wales, there are different types of statutory listings for Local, State and National heritage items. A property is a heritage item if it is: –
1. Listed in the heritage schedule of local council’s Local Environmental Plan (LEP) or regional environmental plan (REP);
2. Listed on the State Heritage Register (wherein the register places items of particular importance to the new people of NSW are listed); or,
3. Listed on the National Heritage List which is established by the Australian Government to list places of outstanding heritage significance to Australia.
They are governed by the statutory regulations. In NSW, legal protection is enumerated in the Heritage Act 1977 (Amended 1998) and the Environmental Planning and Assessment 1979.
Places are enumerated on the national heritage list of Protected and Environmental Protection and Biodiversity Conversation Act 1999.
The benefits of places that are heritage listed not only reveal the story for the Australian past, they safeguard and enrich our present and future. Accordingly, it retains our limited heritage resources.
NSW has two main types of Heritage Listings, known as Heritage Items and Conservation Areas. Heritage Listings flag that a place or object have heritage significance. Four main statutory lists contain Heritage Listings for places that are significant locally, state-wide, Australia wide and worldwide. Heritage places from all four lists collectively demonstrate the unique history and achievements of the people of NSW and Australia. These heritage places of NSW not only reveal the story of Australia’s past, but they also safeguard and enrich your present and future. By listing it, we are providing a balance framework for managing change. Listings keep heritage places
authentic, alive and useful.
If you wish to find out where a place is listed, please proceed to search under the ‘online heritage database’. This database includes over 27,000 items listed on local council’s Local Environmental Plan (LEP) or on the State Heritage Register. However, if you need information on a heritage listing when you wish to buy or sell a property, you will need to apply for a certificate under the LEP for a Section 149 Certificate or under the NSW Heritage Act 1977.
Community registers and listings tell us about places that are of heritage significance, but they do not provide legal protection. It includes national trust register, the royal institute of architects register, the art deco society register, etc.
Advantage of owning a heritage list of property includes: –
1. Protection of an item;
2. Requires local council to consider effects of any proposed developments in the area surrounding the item or conservation areas;
3. It confirms a heritage status that is a source of pride for many people;
4. The assessment process reading to listing often unearths new information on the history and style of an item or place;
5. Heritage listing provides certainty for owner’s neighbours and intending purchasers;
6. It explains why certain suburbs, towns, villages and rural properties are sought after;
7. Listing on the State Heritage Register also enables its owners to enter into a heritage
agreement which can attract land tax, stamp duty and local rate concessions. You are unable to knock down and rebuild a heritage listed property. It, however, has no legal restriction on the sale or leasing of properties, though its options may be limited;
8. Maintenance of heritage items and gardens does not require formal agreements. This does not include the adaptive reuse of a heritage item for another use.
If you wish to find out whether a property is heritage listed, you can search the heritage schedule to the local council’s LEP or search the State Heritage Register. You could also go to NSW State Heritage Inventory online.
An interim heritage order can be made by the minister on recommendation of the Heritage Council to provide ‘breathing space’ of no more than 12 months, during which a full heritage assessment Page 3 of 3 can be completed. As outlined above, approval must be gained from the heritage council when making changes to a heritage listed place. Approval is also required if you are excavating any land in NSW where you might disturb an archaeological relic.
However if you wish to excavate and disturb land which is heritage listed, you would need to make an Application to the Heritage Council if you will be disturbing or excavating any land in NSW that is likely to contain archaeological remains.
There are two types of applications, which includes: –
1. Section 60 Form; and
2. Section 140/144 Archaeological Permit and Variation Form seeking permissions.
There are many places that the community has identified as being important. However, in order to keep these special places for future generations, care needs to be provided. Looking after a place that retains the value that makes it significant to us is known as ‘conservation’, and it is our duty to conserve the heritage listed properties.
If you wish to discuss this further, please do not hesitate to contact Freedman & Gopalan Solicitors on 02 8917 8700.