Heritage Laws:

Under section 79C of the Heritage Act 1977 (NSW), the authority can issue a stop work order if the authority “is of the opinion that a building, work, relic, moveable object or place the subject of an interim heritage order or listing on the State Heritage Register is being or is about to be harmed.”

After a stop work order is issued, no action can take place on the site to which the order refers for a period of 40 days, starting on the date that the stop work order is physically affixed on the subject site. There are limitations on the number and issue of stop work orders, and when they can be issued by the authority. These will depend on the circumstances of each case.

For developers, it is prudent to seek legal advice in relation to any stop work orders that have been received, not only because it is an offence to ignore them, but because any work that continues and damages or destroys a heritage site cannot be reversed – the loss of cultural heritage for future generations can never be adequately compensated.

For individuals who are concerned that heritage is being damaged or destroyed as a result of development, it is important to seek legal advice on steps that can be taken to prevent further destruction before it occurs.

Under Part 6, Division 3 of the Heritage Act 1977 (NSW) powers are available for land to be acquired under terms for the purposes outlined in the Act. Land acquisitions are made by the Minister in his corporate capacity acting as the “Minister administering the Heritage Act 1977” (section 102). Acquisitions can be by agreement or by compulsory acquisition, and under the terms of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). Acquisitions can only be made in relation to property “which is associated with and contributes to the significance of that [property] as an item of the environmental heritage” or “which is required for the purpose of restoring, enhancing, furnishing or decorating that [property].” Not all provisions of the 1991 Act are relevant for acquisition of heritage property. For more information about acquisition of land on just terms, see our “Compulsory Acquisition” section.

An occupier or owner of a heritage site will have specific and strict duties in relation to how he or she will deal with the property and the heritage item itself. Provision for these matters is made in Part 6, Division 5 of the Heritage Act 1977 (NSW). Minimum standards are described, the offence of failing to maintain is created and a mechanism is established to remedy the failure. An individual will have certain rights to make representations in respect of any notice that is served on him for the proper maintenance of the site, including the right to appeal any orders made after representations have been received and considered. It is important to note that any order made in relation to maintenance and repair binds future occupiers of the heritage site.

Divisions 8 and 9 of the Heritage Act 1977 (NSW) relates to the control and protection of buildings and relics (including historic shipwrecks). This part of the Act relates to unlawful work being done on the site, the process of applying for permits to excavate sites, variations of those permits, appeals relating to the issuing or revocation of permits, and the manner in which discovered relics are to be dealt with.

Under section 195, a maximum penalty for a breach of a provision of the Heritage Act 1977 (NSW) will be 10,000 penalty units or six months imprisonment, or both. For a breach of the Regulations, the maximum penalty will be 50 penalty units. At the time of the drafting of this brief, a penalty unit was defined in section 17 of the Crimes (Sentencing and Procedure) Act 1999 (NSW) as $110.00.

It is imperative to seek legal advice before taking any action which an individual or business may suspect involves an issue relating to an item of heritage. Navado Lawyers and Solicitors can provide legal guidance in relation to any question of heritage protection and assist with any representation that may be required either to the relevant authority established under the Act or a Court in which a matter will be litigated.