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Heritage
Introduction
This part of the Court’s website is designed to provide information to court users, legal practitioners, experts, students and the general public on heritage and the law.
It lists the statutes and subordinate legislation relevant to heritage, and also lists a number of cases dealing with disputes arising under this legislation in the Land and Environment Court.
Matters that involve heritage issues are often before the Land and Environment Court. In the Class 1 jurisdiction, the Court is regularly required to consider heritage issues in merits appeals. These cases commonly relate to the grant or refusal of a development application to demolish, alter or develop in the vicinity of a heritage item or conservation area listed under the Heritage Act 1977 or another planning instrument. These matters often raise questions of the heritage significance of an item or a conservation area and the Court must determine the impact a proposal will have on this significance.
Heritage issues also arise in civil and criminal enforcement proceedings before the Court. Individuals or a corporation may be prosecuted for a breach of the Heritage Act 1977, Environmental Planning and Assessment Act 1979 or National Parks and Wildlife Act 1974. These statutes make it an offence to destroy, demolish, deface or move a heritage item, including an Aboriginal object or place, without obtaining a valid permit or consent as required by the relevant Act.
The Court may also be required to consider heritage issues in judicial review proceedings challenging the validity of a consent or permit to destroy or demolish a heritage item, or an Aboriginal object or place.
In addition to the case law, the page provides links to the websites of various State and Commonwealth government departments that are responsible for administering the legislation. These websites provide additional information on heritage issues.
This page is intended to act as a guide to the Court’s approach to heritage issues, however it does not constitute legal advice or offer any guarantee as to how a particular dispute will be decided by the Court.
Statutes
New South Wales
Commonwealth
Subordinate instruments
Regulations
Environmental Planning Instruments (EPIs)
The Environmental Planning and Assessment Act 1979 contains extensive provisions for the drafting of EPIs, which place several duties regarding heritage conservation on local councils. Planning proposals are to include maps of heritage areas if applicable and heritage matters are generally to be considered by councils when assessing development applications. EPIs are to be approved by the Minister who is advised by the Heritage Council and the Department of Planning.
There are two main types of EPIs: state environmental planning policies (SEPPs) and local environmental plans (LEPs). Many of these EPIs deal with heritage issues. Copies of the EPIs are available from the NSW legislation website under the heading EPIs.
The NSW government has moved to standardise LEPs across the State. There is a Standard Instrument Principal Local Environmental Plan, a copy of which can be accessed here.
The Standard LEP contains extensive provisions dealing with heritage conservation (see cl 5.10). Local councils are required to prepare a LEP for their area based on the standard instrument by 2011.
Heritage provisions in the older LEPs are based on the Local Government Heritage Guidelines 2002, a copy of which can be accessed through the following link.
Decisions of the Land and Environment Court on heritage issues
Cases considering the impact of a development on the heritage significance of an item or place
Cases considering the impact of a development on a heritage conservation area
Cases considering the value of land with a heritage item or place
Prosecution/ civil enforcement proceedings relating to the destruction of a heritage item, Aboriginal object or place
Judicial review of consents or approvals or a question of law on an appeal under the Heritage Act 1977 or Environmental Planning and Assessment Act 1979
Judicial review of permits to destroy Aboriginal objects granted under the National Parks and Wildlife Act 1974
Judicial review of development consents or other approvals relevant to Aboriginal objects or places
Other information and material
NSW
Commonwealth
International
- International Council on Monuments and Sites (ICOMOS):
- World Heritage Convention:
- text available here
- list of all sites available here
- list of sites within Australia available here
Other organisations
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