Heritage Amendment Act 2008

i Heritage Amendment Act 2008 No. 48 of 2008 TABLE OF PROVISIONS Section Page 1 Purpose 1 2 Commencement 2 3 Principal Act 2 4 Submissions 2 5 New section 39 inserted 3 39 Recommendation not to include place or object in Register and no objections to recommendation 3 6 Section 40 substituted 5 40 Recommendation not to include place or object in Register and objections to recommendation 5 7 New section 41 substituted and new sections 41A and 41B inserted 7 41 Recommendation to include place or object in Register 7 41A Role of Executive Director in determination of recommendation 8 41B Sale of land or object the subject of recommendation 8 8 Decision of Heritage Council 8 9 Certificates 10 10 Issue of permits 10 11 New section 74A inserted 10 74A Noncompliance with permit 10 12 Repeal of Division 2 of Part 5 11 13 Repeal of section 99 11 14 Repeal of section 206 11 15 New Division 7 of Part 10 11 Division 7—Transitional provision arising from Heritage Amendment Act 2008 11 214 Recommendations of Executive Director 11 16 Schedule 1 11 17 Repeal of amending Act 12 ═══════════════ ENDNOTES 13 -- 1 of 14 -- 1 Heritage Amendment Act 2008 † No. 48 of 2008 [Assented to 15 September 2008] The Parliament of Victoria enacts: 1 Purpose The main purpose of this Act is to amend the Heritage Act 1995— (a) in relation to the process of registration of a place or object; and (b) to create a new offence of failing to comply with a permit or a condition of a permit; and (c) to clarify that a security may be required as a condition of a permit; and (d) to ensure that the certificate provisions refer to World Heritage Environs Areas; and Victoria -- 2 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 2 (e) to abolish the Historic Shipwrecks Advisory Committee. 2 Commencement (1) Subject to subsection (3), this Act (except sections 4 to 8) comes into operation on a day or days to be proclaimed. (2) Subject to subsection (3), sections 4 to 8 come into operation on a day to be proclaimed. (3) If a provision of this Act does not come into operation before 1 December 2008, it comes into operation on that day. 3 Principal Act In this Act, the Heritage Act 1995 is called the Principal Act. 4 Submissions After section 38(2) of the Principal Act insert— "(2A) Any person may make a written submission to the Heritage Council in accordance with a notice by the Heritage Council under section 39(3)(b) or 40(2)(a). (2B) A submission under subsection (2A) must be made within 60 days after the date that notice is given or published by the Heritage Council.". s. 2 See: Act No. 93/1995. Reprint No. 4 as at 1 January 2006 and amending Act Nos 32/2006 and 80/2006. LawToday: www. legislation. vic.gov.au -- 3 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 3 5 New section 39 inserted After section 38 of the Principal Act insert— "39 Recommendation not to include place or object in Register and no objections to recommendation (1) This section applies if— (a) the recommendation of the Executive Director is that a place or object should not be included in the Heritage Register; and (b) no submissions have been made under section 38(1) objecting to the recommendation. (2) Unless the Heritage Council considers that the place or object that is the subject of the recommendation may be of cultural heritage significance, the Heritage Council must determine the matter in accordance with section 42 within 40 days after the end of the submission period. (3) If the Heritage Council considers that the place or object that is the subject of the recommendation may be of cultural heritage significance, the Heritage Council must within 60 days after the end of the submission period give notice advising that— (a) the Executive Director has recommended that the place or object, specified in the notice, should not be included in the Heritage Register; and (b) the Heritage Council considers that the place or object may be of cultural heritage significance; and s. 5 -- 4 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 4 (c) written submissions may be made to the Heritage Council within 60 days of the notice. (4) Notice under subsection (3) must be— (a) given in writing to— (i) the owner; and (ii) the nominator of the place or object; and (iii) the relevant municipal council; and (iv) any person who has made a submission under section 38(1) in support of the recommendation; and (b) published in a newspaper circulating generally in the area in which the nominated place or object is located. (5) After the end of the submission period notified under subsection (3)(c), the Heritage Council must consider any submission made within the required time. (6) If no submissions are made within the required time, the Heritage Council must determine the matter in accordance with section 42 within 40 days after the end of the submission period. (7) As part of its consideration under subsection (5), the Heritage Council may ask a person who has made a submission for more information in relation to the submission. s. 5 -- 5 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 5 (8) After considering each submission under subsection (5), the Heritage Council may— (a) conduct a hearing into whether or not the place or object is of cultural heritage significance; or (b) subject to subsection (8), determine the matter without a hearing. (9) The Heritage Council must conduct a hearing under subsection (8)(a) if the Trust or a person with a real or substantial interest in the place or object requests a hearing by the Heritage Council in a submission under section 38(2A).". 6 Section 40 substituted For section 40 of the Principal Act substitute— "40 Recommendation not to include place or object in Register and objections to recommendation (1) This section applies if— (a) the recommendation of the Executive Director is that a place or object should not be included in the Heritage Register; and (b) one or more submissions have been received under section 38(1) objecting to the recommendation. (2) The Heritage Council must within 14 days after the end of the submission period for section 38(1)— (a) give notice advising that— (i) the Executive Director has recommended that the place or object, specified in the notice, s. 6 -- 6 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 6 should not be included in the Heritage Register; and (ii) submissions have been received objecting to the recommendation; and (iii) a hearing into whether or not the place or object should be included in the Heritage Register will be conducted; and (iv) written submissions may be made to the Heritage Council within 60 days of the notice; and (b) after the end of the submission period under paragraph (a), conduct a hearing into whether or not the place or object should be included in the Heritage Register. (3) Notice under subsection (2)(a) must— (a) be given in writing to— (i) the owner; and (ii) the nominator of the place or object; and (iii) the relevant municipal council; and (iv) each person who has made a submission under section 38(1); and (b) published in a newspaper circulating generally in the area in which the nominated place or object is located.". s. 6 -- 7 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 7 7 New section 41 substituted and new sections 41A and 41B inserted For section 41 of the Principal Act substitute— "41 Recommendation to include place or object in Register (1) This section applies if the recommendation of the Executive Director is to include a place or object in the Heritage Register. (2) If no submissions have been received under section 38(1) in relation to the recommendation, the Heritage Council must determine the matter in accordance with section 42 within 40 days after the end of the submission period. (3) If one or more submissions have been received, the Heritage Council must consider each submission made within the required time. (4) As part of its consideration under subsection (3), the Heritage Council may ask a person who has made a submission for more information in relation to the submission. (5) After considering each submission under subsection (3), the Heritage Council may— (a) conduct a hearing into the whether or not the place or object should be included in the Heritage Register; or (b) subject to subsection (6), determine the matter without a hearing. (6) The Heritage Council must conduct a hearing under subsection (5)(a) if the Trust or a person with a real and substantial interest in the place or object requests a hearing by the Heritage Council in a submission under section 38(1). s. 7 -- 8 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 8 41A Role of Executive Director in determination of recommendation The Executive Director— (a) must provide any information requested by the Heritage Council in relation to a recommendation under section 32(1); and (b) may appear and be heard or be represented at any hearing into a recommendation. 41B Sale of land or object the subject of recommendation (1) If any land or object that is the subject of a recommendation under section 32(1) has been offered for sale by auction the Heritage Council may, with the agreement of the owner of the land or object, defer the consideration of the recommendation until after the auction. (2) The owner of land or an object to which subsection (1) applies must inform the purchaser of the land or object of the deferral of consideration of the recommendation. (3) If the owner of land or an object which is the subject of a recommendation under section 32(1) fails to comply with subsection (2), the contract of sale is not invalid, but is voidable at the option of the purchaser.". 8 Decision of Heritage Council (1) For section 42(1) of the Principal Act substitute— "(1) After considering a recommendation in respect of a place or object and any submissions and conducting any hearing into s. 8 -- 9 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 9 those submissions, the Heritage Council may— (a) determine that the place or object is of cultural heritage significance and should be included in the Heritage Register; or (b) in the case of a recommendation in respect of a place, determine that part of the place is of cultural heritage significance and should be included in the Heritage Register; or (c) determine that a place or object or part of a place is not of cultural heritage significance and does not warrant inclusion in the Heritage Register; or (d) in the case of a recommendation in respect of a place, refuse to register the place and— (i) refer the recommendation and submissions to the relevant planning authority for consideration for an amendment to a planning scheme; or (ii) determine that it is more appropriate for steps to be taken under the Planning and Environment Act 1987 or by any other means to protect or conserve the place.". (2) Section 42(3) of the Principal Act is repealed. (3) In section 42(5) of the Principal Act after "38(1)" insert "or 38(2A)". s. 8 -- 10 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 10 9 Certificates After section 50(3)(a) of the Principal Act insert— "(ab) whether or not the place is in a World Heritage Environs Area;". 10 Issue of permits For section 74(4) of the Principal Act substitute— "(4) Without limiting subsection (3) but subject to subsection (5), the Executive Director, in granting a permit, may impose a condition that a security be given to ensure— (a) the satisfactory completion of the work; or (b) compliance with another condition imposed on the permit. (4A) The form and amount of security must be determined by the Executive Director having regard to— (a) in the case of a security for the purpose of subsection (4)(a), the nature and extent of the work referred to in the permit; or (b) in the case of a security for the purpose of subsection (4)(b), the nature of the condition to be complied with.". 11 New section 74A inserted After section 74 of the Principal Act insert— "74A Noncompliance with permit A person carrying out works or activities for which a permit is issued under section 74 must ensure that the works and activities s. 9 -- 11 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 11 comply with the permit and any terms and conditions of the permit. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units.". 12 Repeal of Division 2 of Part 5 Division 2 of Part 5 of the Principal Act is repealed. 13 Repeal of section 99 Section 99 of the Principal Act is repealed. 14 Repeal of section 206 Section 206 of the Principal Act is repealed. 15 New Division 7 of Part 10 After Division 6 of Part 10 of the Principal Act insert— "Division 7—Transitional provision arising from Heritage Amendment Act 2008 214 Recommendations of Executive Director This Act, as in force immediately before the commencement of sections 4 to 8 of the Heritage Amendment Act 2008, continues to apply in respect of any recommendation of the Executive Director made before that commencement.". 16 Schedule 1 Clause 13(1)(c) of Schedule 1 to the Principal Act is repealed. s. 12 -- 12 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 12 17 Repeal of amending Act This Act is repealed on 1 December 2009. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 17 -- 13 of 14 -- Heritage Amendment Act 2008 No. 48 of 2008 13 ENDNOTES † Minister's second reading speech— Legislative Assembly: 26 June 2008 Legislative Council: 31 July 2008 The long title for the Bill for this Act was "A Bill for an Act to amend the Heritage Act 1995 and for other purposes." Endnotes -- 14 of 14 --