Heritage Act 1977

This Act may be cited as the Heritage Act 1977.

Section 1 and this section shall commence on the date of assent to this Act.

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.

The objects of this Act are as follows—

to promote an understanding of the State’s heritage,

to encourage the conservation of the State’s heritage,

to provide for the identification and registration of items of State heritage significance,

to provide for the interim protection of items of State heritage significance,

to encourage the adaptive reuse of items of State heritage significance,

to constitute the Heritage Council of New South Wales and confer on it functions relating to the State’s heritage,

to assist owners with the conservation of items of State heritage significance.

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—

in the case of an order or listing applicable to a place—the owner or any occupier of land that comprises the place, or

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

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

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—

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.

(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—

the erection of a building on that land,

the carrying out of a work in, on, over or under that land,

the use of that land or of a building or work on that land, and

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 government agency that must give details of land to Property and Development NSW under the Property and Development NSW Act 2006, section 21A, and

a State owned corporation.

harm means—

in relation to a building or work—demolish, or

in relation to a relic or moveable object—damage, despoil, move or alter, or

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—

relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement, and

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.

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.

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.

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.

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.

A reference in this Act to—

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,

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—

the carrying out of structural work, or

the repair or renovation, or the painting, plastering or other decoration, of that building or work,

the carrying out of a work includes a reference to the rebuilding, enlargement or extension of a work,

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,

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,

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

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.

A reference in this Act to a prescribed form includes a reference to a form that is to the effect of that prescribed form.

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.

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.

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.

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.

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.

There is hereby constituted a Heritage Council of New South Wales.

The Heritage Council is a NSW Government agency.

The Heritage Council is to consist of 9 members. Of the members, 8 are to be appointed by the Minister (the appointed members).

The other member is to be the Secretary of the Department of Planning, Industry and Environment.

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—

(Repealed)

archaeology,

architecture,

the building, development and property industries,

conservation of the environmental heritage,

engineering,

New South Wales or Australian history,

local government,

moveable heritage,

natural heritage,

planning,

property, planning or environmental law,

property economics,

rural interests,

cultural landscapes.

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.

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).

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.

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.

Schedule 2 contains provisions relating to the members and procedure of the Heritage Council.

The functions of the Heritage Council are—

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,

to make recommendations to the Minister relating to the taking of measures for or with respect to—

the conservation of,

the exhibition or display of,

the provision of access to, and

the publication of information concerning,

items of the environmental heritage,

to carry out investigations, research and inquiries relating to the matters referred to in paragraph (b),

to arrange and co-ordinate consultations, discussions, seminars and conferences relating to the matters referred to in paragraph (b), and

to maintain a database (to be called the State Heritage Inventory) listing items of State and local heritage significance, and

to conduct community education concerning the State’s environmental heritage, and

to exercise such other functions as are conferred or imposed on it by or under this or any other Act or the regulations.

Without limiting subsection (1), the Heritage Council may—

make submissions to persons or bodies in respect of—

environmental studies,

proposed environmental planning instruments, and

environmental impact statements,

prepared under the Environmental Planning and Assessment Act 1979 in so far as they relate to the environmental heritage, and

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.

The Heritage Council may establish committees to assist it in connection with the exercise of any of its functions.

It does not matter that any or all of the members of a committee are not members of the Heritage Council.

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.