Heritage Bill 2016
Location: Victoria

1. Planning Minister Richard Wynne has tabled the Heritage Bill 2016, which revises the Heritage Act 1995 to streamline processes and increase protection for heritage places on the Victorian Heritage Register. We are pleased that the Minister has followed through on his commitment to review the act. The RHSV supports the National Trust analysis of the bill (see http://www.trustadvocate.org.au/heritage-bill-2016-to-be-debated-in-parliament/). The RHSV made a strong submission to the review process (25 August 2015). This Response sets out in detail our response to the bill as tabled.

2. The Heritage Bill 2016 contains some improvements over the 1995 Act and we applaud these. We support the increase in penalties for demolition of listed heritage places: the new maximum penalty is $746,208 and/or 5 years’ imprisonment for individuals to $1,492,416 for corporations. We do not agree, however, that the responsible persons in corporations which commit such crimes should not face imprisonment just as private persons will. Developers working through a corporation, such as those who recently demolished the Corkman Hotel (formerly Carlton Hotel), would escape jail while a developer acting in a personal capacity would face imprisonment. And, more fundamentally, as we discuss below, these new penalties apply only to places listed on the state register; places covered under local Heritage Overlays, such as the Corkman, are not covered in this legislation.

3. The Heritage Bill 2016 contains some streamlining. While we have some concern with a new provision to allow the Executive Director of Heritage Victoria to reject a nomination ‘which has no reasonable case for inclusion in the register’, we accept that the new bill provides sufficient safeguards in that the nominator can request a review of the decision by the Heritage Council (Clauses 29-30). Our only proviso is that requests for such reviews not be subject to fees.

4. The RHSV is pleased that Clause 10 continues the requirement that one person must be appointed from the National Trust and one person must have a demonstrated understanding, expertise or interest in the State’s heritage or in the management of heritage places, though we wonder if that should not apply to all members of the Heritage Council. We applaud a new requirement for the appointment to the Council of an Aboriginal person who has relevant experience or knowledge of cultural heritage. We believe that consideration should be given to inclusion of a person with a demonstrated understanding of heritage outside the metropolitan area and/or one person with a demonstrated understanding of the workings of local historical societies.

5. We are pleased that the Heritage Bill 2016 (Clause 11) maintains the Heritage Act 1995 provision for the Heritage Council ‘to advise government departments and agencies and municipal councils on matters relating to the protection and conservation of places and objects of cultural heritage significance.’ We regret, however, that this provision has not been strengthened. Local councils are under-resourced to deal with heritage matters. We believe that the state should provide adequate heritage expertise and support to local councils where appropriate. We regret that the Heritage Bill 2016 does not offer any such provision. In its absence, the RHSV renews its call for the state to provide financial support for local councils to deal with heritage matters.

6. The Heritage Bill 2016 contains provisions for more collaboration between state and local government authorities, but these provisions are insufficient to remedy the problem caused by the inadequacies of the second tier of protection, Heritage Overlays designated by local councils. At the very least, the government should adopt ‘a provision in the Heritage Act for unsuccessful nominations to the Victorian Heritage Register that clearly demonstrate local significance to trigger interim local heritage controls, with a requirement for Councils to investigate permanent protection’, as the National Trust has called for. The RHSV strongly endorses National Trust CEO Simon Ambrose’s statement (National Trust responds to biggest changes to Heritage Act in 20 years): ‘In recent years, we have seen the demolition of a number of places valued by local communities, including 16 St Georges Road in Toorak, and “Frogmore” in Carnegie, because they have been rejected for inclusion on the State heritage register, but not protected by local heritage overlays—effectively ‘falling through the cracks’.

7.  Similarly, the Heritage Bill 2016 offers no apparent improvement in the procedure for interim protection orders where a building comes under threat of demolition before it has been nominated for heritage protection, an important point also raised by the National Trust. S. 56 of the Heritage Act 1995 allowed the Heritage Council or the Executive Director to make an interim protection order (ipo) at their discretion. This did not, however, offer protection to buildings that may in the future be nominated for listing and it does not provide for an ipo to be initiated except on the initiative of the Heritage Council. This left open buildings which have not yet been nominated but which on the threat of demolition be nominated. We submitted that any building nominated for consideration for inclusion in the Register be automatically put under an ipo until consideration is completed. No such provision has been included in the Heritage Bill 2016. We believe it is more necessary than ever.

8. The new bill does not appear to address the issue of VCAT’s failure to give adequate weight to heritage considerations. As the Review Paper implied, VCAT does not have the expertise to deal appropriately with heritage issues. These issues are often raised in the context of planning disputes which submerge the heritage aspects. The bill does not even address the Review’s suggestion ‘to require the tribunal [in certain circumstances] to consist of a member or members with an in-depth and up-to-date knowledge of heritage legislation and practice’ (Review Paper, p. 9). The RHSV submitted that ‘When considering planning issues involving Local Heritage Overlays, local Councils and, a fortiori, VCAT, be required to seek advice from the Heritage Council and take into consideration the long-term cultural impact of the proposal.’ We do not resile from this position. We accept, however, that this issue may be more appropriately dealt with under VCAT legislation (see ¶ 12, below).

9. The new bill provides for the possibility of fees for applications for requests for reviews as well as for supplying documents (Clause 255). The RHSV does not object in principle to such fees and indeed supports their application to developers, but we are concerned about the possibility that they could be used as a dissuasive mechanism against community groups. We would like to see community groups, such as local historical societies, the National Trust, and local councils exempted from fees for appeals against decisions of the Heritage Council and against decisions of the Executive Director to reject a proposal without referral to the Council.

10.1 The Heritage Bill 2016 maintains the Minister’s powers to call in an application before the Heritage Council makes a decision (Clause 50) as well as to override a decision of the Council (Clause 52). We regret inclusion of these powers.

10.2 We do not accept that the Minister should be able to override Council decisions without any avenue of appeal. This opens the Minister to pressures of developers or others and undermines the whole purpose of the Heritage Council. This power should be limited or subject to appeal.

10.3 Calling in an application before it goes to the Heritage Council is an egregious overreach that could be misused by future ministers. It is simply a means to prevent adverse publicity for the Minister. There is no justification for this power and it should be removed from the bill.

Related Issues

11. While the Heritage Bill 2016 is not concerned with funding issues, we join with the National Trust in calling on the State government ‘to ensure that Heritage Victoria be adequately resourced to ensure that unlawful demolition and wilful ‘demolition by neglect’ can be monitored, and that appropriate enforcement action can be pursued, with ongoing financial support provided through the State Government’s Living Heritage Fund for the conservation of our most significant places’.

12. As noted in ¶ 8, above, the issue of how VCAT handles heritage matters may be more appropriately dealt with by amendment of the Victorian Civil and Administrative Tribunal Act 1998 and the Victorian Civil and Administrative Tribunal Amendment Act 2014. The Minister has already acted on a campaign promise to give locals a say in VCAT decisions affecting their community (Recognising Objectors Bill 2015). The RHSV strongly supports that aim. There is, however, considerable doubt as to whether the Recognising Objectors Bill 2015 has achieved the aim. We therefore urge the government to consider together VCAT’s handling of heritage measures as per ¶ 8 above and VCAT’s response to local communities via a review of the Recognising Objectors Bill 2015.