HERITAGE - LOCAL GOVERNMENT

by Susan O’Neill

Heritage - Local Government

• Strategic heritage planning – identifying and listing heritage items and translating policy into development controls

• Development application assessment –

– State Environmental Planning Policies (SEPP)– Local Environment Plan (LEP) – contains heritage provisions and

schedule heritage items– Development Control Plan (DCP) – contains development controls and

specific controls for heritage conservation areas– Policies

Hierarchy of Planning Instruments

Acts and Regulations

SEPPs

LEPs

DCPs

policies, guidelines, codes

statutory

non statutory

Legislative framework for heritage management in NSW

Heritage Act 1977

• Establishes the Heritage Council of NSW, an advisory body, which provides advice and recommendations to the Minister

• The Heritage Branch of the NSW Office of Env & Heritage (Dept Premier and Cabinet) administers the NSW Heritage Act, provides advice to State agencies and local councils and supports projects through funding

EP&A Act 1979

• Enables responsibility for heritage to be shared by state and local government agencies

• Provides local government with the power to protect items and places of heritage significance in their local area through LEPs and DCPs

• Under the Act, councils prepare LEPs – standard heritage provisions and heritage schedule

Local Environment Plan (LEP)

• LEPs are the main statutory instrument for regulating land use and development within a local government area in NSW

• On line version www.legislation.nsw.gov.au• LEP contains heritage provisions and a schedule to the

main instrument of heritage items• Map of heritage items integral component of LEP

Dunbar Anchor

LEP standard instrument template

• Currently, LEPs reflect a heterogeneity of historically derived and locally specific provisions

• The standard instrument (LEPs) Order 2006 prescribes the form and content of principal LEPs, including compulsory provisions, optional provisions and additional provisions for locally specific issues

• Move to standardise LEPs will reduce much of the diversity in the format, approach to zoning, choice of provisions and definitions across LEPs in NSW

• Standard instrument template has allocated Schedule 5 for heritage items, with standard format for all LGA

Heritage incentive clause – standard instrument LEP5.10 Conservation incentives

The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that:

(a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

Heritage registers• worldUNESCO

• nationalNational Heritage List

Commonwealth List (places owned by Government)

Register of the National Estate (frozen Feb 2007, statutory until 2012)

• stateState Heritage Register

• localLEP Schedule

non-statutory registers

• National Trust

• AIA 20th Century Buildings of Significance

• Art Deco Society Register

• Geological Society Register

• Engineering Heritage Register

History of local heritage listings

• 1979 the Heritage Council made grant funding available to local councils to undertake local heritage studies for LEP heritage schedules (disparagingly referred to now as windscreen surveys)

• Local Council’s compiled a list of addresses to be included as a schedule in their LEP

• Lists have evolved from addresses with no information, to requiring thorough research and documentation about why a place is significant, and therefore why it should be listed

Adding a heritage item = amending the LEP Requirements under the EP&A Act

• Formal Council resolution to prepare a LEP or an amendment to the LEP

• Department of Planning notified of this resolution, DOP provides advice on any matters of state or regional significance that should be considered

• EP&A Act (s57) requires a local environment study for plan making

• Public meetings & workshops to discuss the development of the plan with members of the public, meetings with public agencies

• Draft plan exhibited 28 days, public make written submission (s66)• DOP approves LEP and it is gazetted, notice is published in the

NSW Government Gazette

Strategic heritage planning at Woollahra Council - amending the LEP

• Studies of the municipality identify potential heritage items

• Thematic approach

For example, particular period or style; the work of a specific architect, an area of homogenous development

• Potential HCA

• Report to Urban Planning Committee made up of elected Council members, Committee makes a recommendation to the Council

• Council votes - Ultimately, the decisions about what is ‘heritage’ and is included in the LEP schedule are made by the elected Council – it is a political decision

• Proposed heritage item/s are advertised as an amendment to the LEP

• Department of Planning approves the amendment, it is gazetted

• New items are included in the heritage schedule of the LEP

Development Control Plans

• DCPs can be used for a wide range of development control purposes, such as specifying development standards and requirements in heritage conservation areas.

• DCPs are able to address the same range of issues as environmental planning instruments, but they do not have the same status under the EP&A Act. While their provisions are not legally binding, they are given weight by the NSW Land and Environment Court, if they are consistently applied by the Council.

• Woollahra Council has place specific DCPs, such as the Paddington Heritage Conservation Area DCP.

• By 2011, only one applicable DCP will be permitted per site.

DA assessment process

• Most developments require the owner to submit a development application (DA) to gain consent (approval).

• Council is required to assess the application against the relevant development rules, consider objections and determine the environmental impacts of the proposal.

• WMC – 5 levels at which DA may be determined;

– Staff delegation by Development Assessment Team Leaders– Application Assessment Panel (APP) staff– Development Control Committee (DCC) 6 councillors– Full Council– Joint Regional Planning Panel

DA Assessment Process - heritage

• If a property is listed as a heritage item (LEP Schedule) or is in the vicinity of a heritage item or is within a HCA, a Statement of Heritage Impact is required as part of the DA submission.

• A Statement of Heritage Impact will assess the heritage significance of the heritage listed property or the property within the HCA and will assess the impact of the development on the identified significance.

• If a property is listed on the SHR, the DA is an Integrated Development and will also require approval from the Heritage Council (Heritage Act 1977 s58). A s 60 application to the Heritage Branch must also be submitted.

Heritage referral – Woollahra Council• The planner responsible for the assessment of the DA

refers the application to a heritage officer, if the property is a heritage item, in the vicinity of a heritage item, is within a heritage conservation area or is to be demolished.

• The heritage officer visits the site and assesses the plans, Statement of Heritage Impact and supporting information against Council’s LEP and relevant DCP.

• They submit a report, called a ‘heritage referral’ at Woollahra Council, with recommendations for approval/refusal and conditions to the planner.

Refusal of DA – applicant has the right of appeal

• On appeal, the applicant is seeking a review of Council’s decision by the NSW Land and Environment Court. – Merits appeal.

• The Court exercises all the powers and functions of the original decision maker assessing the application for development or modification of a development against the criteria in s79 EP&A Act.