Heritage Amendment Bill

The Hon. J. W. SHAW (Attorney General, Minister for Industrial Relations, and Minister for Fair Trading), on behalf of the Hon. M. R. Egan [5.35 p.m.]: I move:

That this bill be now read a second time.

The Heritage Act 1977 was introduced by the Wran Government in response to widespread community concern over the extensive loss of its heritage in the
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early 1970s, which resulted in green bans. As my honourable colleagues are aware, this pioneering legislation provided a much needed measure for the protection of the then threatened environmental heritage of New South Wales, thereby removing the need for last resort actions of the community using the union movement and its green bans. Currently 650 items have been protected through permanent conservation orders under the Act. These orders protect some of the State’s major heritage landmarks. However, the identification and protection of the community’s heritage over the last 20 years has generally been in response to threats to individual items, and therefore primarily on an ad hoc basis.

I believe that those items currently protected by the Heritage Act do not provide a clear indication to the community of the range, extent or significance of our State’s heritage. They merely represent a sample of such items, those which have been subject to threats over this period. However, for the past two decades - since the introduction of heritage legislation in 1977 - I believe we have been too busy identifying and protecting heritage items to worry too much about whose values we were representing. It was these issues - and the need for the reform of the State’s heritage systems - which led to my release of the New South Wales Government heritage policy in 1996.

The thrust of my policy is to broaden the concept of heritage, to ensure protection is given before threats and conflicts arise to make the system work better and - most importantly - to encourage broader community involvement in heritage conservation. Having opened the matter generally, I seek the leave of the House to have the residue of my second reading speech incorporated in Hansard.

Leave granted.

The appointment of a respected community figure in the person of Hazel Hawke to the chair of the Heritage Council is a signal that the Government takes its responsibilities as custodians for the State’s heritage seriously. Mrs Hawke’s strong public profile is already proving to be a great asset in assisting the Government to win the support and partnership of the community for heritage conservation. She builds on the solid work of previous chairs, Howard Tanner and Justice Hope. The reforms to the heritage system that I announced in 1996 depend in large part on having the right mix of people and skills in the Heritage Council. It was important to establish a proactive and more broadly-based council with a greater range of skills. The first amendments to the Act that I brought to Parliament in late 1996 provided for this.

The new Council membership has been widened and deepened so that it is better able to make decisions about Aboriginal, natural and moveable heritage issues. In the second half of the 1990s and particularly in the lead up the 2000 Olympics it is vital that the State of New South Wales gives a much greater emphasis to these parts of our heritage, which have been overlooked for far too long. Governments are limited in what they can and should do. One thing government can do is actively put in place systems which encourage investment, development and conservation, systems which do not contradict each other - systems which provide for greater certainty, clarity and consistency in decision making in the regulatory framework.

The founder of the National Trust, Mrs Annie Wyatt, said it all when she said, " . . . concern for heritage . . . had to arise among the people themselves". This is a theme that I want to underline for I believe it lies at the heart of the next phase of heritage conservation in this State. Many of the initiatives for reform outlined in the Government’s heritage policy have been achieved since 1996. The Heritage Office was established on 1 July 1996 and reports directly to me as Minister. Twelve months ago, I launched the State heritage inventory in electronic format and it now incorporates a listing of 17,500 items which have statutory protection at State or local levels. In April 1996 I announced the new heritage 2001 $30 million fund to provide financial assistance for the conservation of items of state significance. The Heritage Council has commenced development of an Aboriginal heritage policy in consultation with organisations responsible for Aboriginal heritage management.

A moveable heritage project officer has been appointed to the Heritage Office, jointly funded with the Ministry of the Arts, to develop strategies for the Heritage Council to address this neglected aspect of heritage. The appointment of staff within the Heritage Office to broaden heritage identification to better include multicultural heritage values and education, promotion and publication activities have become a much more prominent role for the Heritage Council and Heritage Office. These steps are foundations in making heritage management more easily understood, more responsive and more proactive. What I think governments have a responsibility to do, also, is to ensure that the education system and the school curriculum are a key component in widening knowledge of and increasing our valuing of Australia’s heritage.

A $400,000 project partnership has been established by Minister Aquilina and myself to develop curriculum materials to ensure that heritage is a major component of education in the key learning area of human society and its environment K-10. Every child in every school will have access to the information on the computer-based state heritage inventory. The Government is responding to these key issues and the community’s demands by introducing these amendments. I am therefore pleased to present to the House today the amendments to the Heritage Act.

1 Protection of items of State heritage significance

At present the Act provides a mechanism for the protection of items through the making of interim or permanent conservation orders. In many cases these orders have been placed on items because of a perceived threat, not only because of their heritage significance. The current provisions are therefore adversarial in nature and often concentrate on resolving development and management issues instead of assessing heritage significance. The new part 3A of the Heritage Act introduced in this bill will, by contrast, establish a new State Heritage Register, which will eventually be a comprehensive list of publicly and privately owned places of State heritage significance. The new provisions provide for items to be subject to a thorough assessment of their heritage significance before they can be listed on the State heritage register. The establishment of the register will ensure that items will not be listed merely as a response to a perceived threat to their conservation.

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Under this new system the Heritage Council or its delegate will remain the approval authority for major changes to protected items on the register under section 57 of the Act. This is the same system that presently operates for items with permanent conservation orders. The bill introduces the concept of State heritage significance in new section 4A. Items can be listed on the State Heritage Register if they are of State heritage significance. An item will be of State heritage significance if it is of historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value or significance to the State. In order to ensure consistency and provide certainty to developers, owners, government agencies and the community the Heritage Council have developed criteria for ascertaining State heritage significance. Under the new section 4A I will publish the criteria in the Government Gazette and ensure it is available to all members of the community.

The New South Wales heritage manual launched by the Heritage Office and the Department of Urban Affairs and Planning, December 1996 currently provides guidance on the assessment of the heritage significance of items of the environmental heritage. A decision as to placement on the register will relate to the importance of the item, its possession of uncommon, rare or endangered aspects, and/or its ability to demonstrate the criteria for which it has been nominated. An item is not to be excluded from the register on the ground that items with similar characteristics have already been entered in the register. The register will also include places owned by the Crown. This is important. A significant proportion of the most important heritage items in the State is in public ownership. If the Government is prepared to obligate private owners then I believe it should be responsible for protecting its own heritage assets, the community’s assets.

I am sure that none of us in this Chamber could conceive of substantial neglect or any development proposal that would threaten the continued existence of State icons like the Sydney Opera House, the Sydney Harbour Bridge and the Chief Secretary’s Building. But that is not an argument for leaving them off a comprehensive listing of heritage items which the State Heritage Register is designed to be. The introduction of the State Heritage Register will enable us to reach the stage where everyone in the State - State officials, private developers, local councils and community organisations and private citizens - can look at one register through the Internet to find complete information about the State’s heritage resource. Accordingly, amendments to schedule 1 of the Act will transfer to the State Heritage Register those items which are currently subject to permanent conservation orders and those places identified as being of State significance in the heritage and conservation registers kept under section 170 of the Act by government instrumentalities.

After the State Heritage Register is constituted, the Minister will have power to add new items to the register and remove existing items from the register after getting the advice from the Heritage Council in accordance with part 3A. The new sections 32 and 38 respectively enable the Minister to list or remove items on the State Heritage Register on the recommendation of the Heritage Council. The effect of such a listing is that Heritage Council approval is needed for works or demolition under section 57 of the Act, as currently is the case for items subject to conservation orders. The listing process in new section 33 ensures that owners and occupiers are notified that their property is being considered for listing at the beginning of the listing process. It allows owners and occupiers the earliest opportunity to put their views to the Heritage Council prior to it making any recommendation to the Minister. It also permits the community to participate at an earlier stage in the listing process by providing for public advertising and the consideration of community submissions on proposed listings, before the Heritage Council makes a recommendation to the Minister.

As with the current procedures for permanent conservation orders, new section 33 also enables owners and other interested parties to object to the proposed listing on the Register on the basis that the item is not of State significance, the long-term conservation of the item is not necessary and the listing would render the item incapable of reasonable economic use or listing of the item would cause undue financial hardship to the owner, mortgagee or lessee. Under new section 34 the Minister is to decide whether or not to list an item on the State Heritage Register after he or she receives a recommendation from the Heritage Council. As in the present legislation, under new section 36 the Minister will retain the option of holding a commission of inquiry to review the recommendation of the Heritage Council. However, a commission of inquiry may not, in many cases, be the most effective way of reviewing a Heritage Council recommendation.

Consequently, the bill will introduce an alternative form of review: the ministerial review panel. New section 35 provides for a panel of three experts appointed by the Minister to review within 30 days and provide advice to the Minister as to whether or not the item concerned should be listed. I believe this initiative will receive wide support as it will be an efficient and effective way of resolving disputes for the owner, developer and community interests. I shall appoint to the panel, people with expertise relevant to the particular heritage issue under consideration. The existing benefits that apply to owners of properties covered by permanent conservation orders will also apply to those listed on the State Heritage Register. Additional provision has been made for the Minister to provide - in special cases - specific term relief from State imposts to encourage conservation of the listed item through the Heritage Incentive Fund under the new section 45.

The Heritage Council may also delegate its approval powers to appropriate organisations such as State government agencies and local councils, but only where it is confident of those organisations’ expertise in heritage management. This has already been done for the Broken Hill and North Sydney local government areas. These administrative initiatives will streamline approvals process and will be fully integrated with the wider reforms to the development approval system achieved by the commencement of the Environmental Planning and Assessment Amendment Act earlier this year. As a result, the Heritage Council will be able to concentrate on the identification and protection of the significant elements of the State’s heritage assets while providing an effective basis for local councils and communities to address their local heritage estate.

The introduction of the provisions relating to the State Heritage Register and these administrative initiatives will provide greater certainty and consistency in terms of the responsibilities for management of heritage assets to both developers, government agencies, and the community as a whole.

2 Interim protection

At present temporary protection at State level can be provided through interim conservation orders and through emergency orders under section 130 of the Act. Both these orders usually last for twelve months. Under the Heritage Amendment Bill the process will be simplified by combining interim

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conservation orders and section 130 orders in one new order to be called interim heritage orders. In the new part 3 of the Act the new section 29 will permit an interim heritage order to be placed over an item for a period of up to 12 months. The order will protect an item for up to 12 months so that a proper assessment of the item’s heritage significance can be made in a calm and rational manner. It will create a breathing space for all parties, and ensure a better result for the State’s heritage resource. Provision has been made for the Minister to make interim heritage orders for items of State or local heritage significance in section 24 of the Act.

The Heritage Council is to provide advice to the Minister on the making of those interim heritage orders. Development proposals can still be considered and approved while the order is in force under section 57 of the Act. Under section 25 the Minister can also authorise local councils to make interim heritage orders for items of local heritage significance. This is a major initiative as it will, for the first time, enable councils, as the representatives of the local community, to take full responsibility for the protection of their heritage within their local government area, therefore alleviating the need for referral to the Heritage Council and Minister for such interim protective measures. Detailed procedures have been included for the making or revoking of interim heritage orders, and for the prompt notification of owners, occupiers and the community generally in sections 26, 27, and 29 of the Act. Section 136 orders will be retained for emergency protection, where the item is under threat of damage or demolition.

3 Neglect of heritage items

The existing neglect provisions in the Act are based on the concept of "wilful neglect". The aim of these provisions was to enable the Heritage Council to take action against owners of items that were subject to permanent or interim conservation orders who neglected their properties to the extent that the features that made the property worth conserving were destroyed. The impotence of these existing provisions has become glaringly obvious. There has been no successful prosecution under these provisions since the Act was introduced over 20 years ago. During that time many items important to the community have been lost through neglect. The new division 5 of part 6 of the Act places the emphasis where it belongs - on the significance of the item. As part of this process section 118 provides for minimum standards of maintenance and repair in relation to four specified areas: weatherproofing, fire, vandalism and essential maintenance. These standards will be detailed in a regulation.

Owners of items listed on the State Heritage Register will be subject to these minimum maintenance requirements: so that their responsibilities as owners are clear. The minimum standards will be designed to prevent the heritage significance of an item on the State Heritage Register from being diminished particularly through "active" neglect by that very small group of irresponsible owners who try to circumvent the existing conservation provisions in the Act relating to permanent and interim conservation orders. A new orders regime has been introduced in this division, replacing the former sections 119 and 120. It gives the Heritage Council power to order repairs to be carried out to an item on the State Heritage Register. This is only possible where an owner fails to meet the minimum standards of maintenance under section 118. The orders regime for neglect of items on the State Heritage Register has been modelled on the existing provisions introduced last year in the Environmental Planning and Assessment Amendment Act 1997.

Except in an emergency, an order can only be made after consultation with an owner, who will get an opportunity to put his or her case before any order is made. New section 120L provides for a right of appeal to the Land and Environment Court against the Heritage Council’s order. New section 120K permits the Heritage Council to carry out the repairs itself and recover the cost. These provisions will enable the Heritage Council to contact the owner where it has evidence that heritage significance of an item is being diminished and negotiate remedial action. It will also be able to negotiate remedial actions with the owner, taking into account the capacity to fund those remedial actions. Let me make it absolutely clear, there will be no obligation for owners of items on the State Heritage Register to restore their properties but simply to protect them against that type of permanent damage or deterioration that will reduce the heritage significance of that property irretrievably.

Where the owner does not have the financial capacity to meet even these basic maintenance standards, there remains provision under the Act for grants or loans funding from the Heritage Council. However, as a last resort the Heritage Council, with the consent of the Minister, may prosecute an owner for failure to maintain a property to the minimum standards required by the regulation under new section 119. The new section 119 replaces the old wilful neglect offence in new section 117, which required the owner to neglect the item for the purpose of demolishing the property or allowing its redevelopment. This was an impossible matter to prove. Consequently, the offence did not act as any deterrent to those very few owners who attempted to circumvent their obligations. The new offence is a strict liability offence linked to the minimum standards for maintenance that will be specified under new section 118. I envisage that prosecutions under this provision will only be made in respect of those most recalcitrant of owners who reject the Heritage Council’s co-operative approach to the conservation of items on the State Heritage Register.

4 Protection of archaeological relics

The Act requires the Heritage Council to issue permits for the disturbance of archaeological relics over 50 years old. The current clause only requires a permit if the developer’s intention in excavating is to discover, expose or move relics. This is rarely a developer’s intention, except incidentally. This leads to the ridiculous situation that the current provisions do not cover those excavations and developments where the owner or developer has no intention to expose such relics, but because of the location of the site nevertheless is likely to do so. The amendment to section 139 of the Act will make it clear that a permit will be required if a developer knows or has reasonable cause to suspect that the excavation will uncover archaeological relics on site.

The amendments also give the Heritage Council the discretion to except certain classes of relics, locations, and types of excavation from the need for a permit where it has reasonable confidence that there are no significant relics on the site. The amendments to sections 146 and 146B of the Act widen the requirement to notify the Heritage Council if a relic is uncovered and provide for a range of options to ensure the continued conservation of excavated relics. An excavation permit is not required when an approval is also required under section 57 of the Act if the site is listed on the State Heritage Register, so that no double approval will be required.

5 Government owned heritage

The Government has responsibility for the management of the largest heritage property portfolio in the State. This heritage property is diverse both in terms of its type and relative levels

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of significance. It includes all aspects of the State’s heritage including items of Aboriginal, built, natural, landscape and movable heritage items. The important point to make however is that all the heritage assets are managed in trust by government agencies for the community. They are the community’s heritage assets. It is therefore important that there is parity between the standards of conservation and management expected of the private sector and those expected of the public sector. At the same time it must be acknowledged that State agencies have obligations to provide essential services to the community - health, education, transport and social support services. There is finite funding available to the Government to provide those services which the community rightfully expects.

Clearly, what is required is an appropriate balance in terms of conserving the State’s heritage for future generations and the provision of other services by the Government. I intend to achieve this by clearly articulating the heritage conservation initiatives that must be undertaken by government instrumentalities, including State owned corporations to identify and manage heritage assets under their care and control under section 170 of the Act. In addition to listing these key community assets, government instrumentalities will lead by example in heritage protection by adopting sound conservation and management strategies and practices to maintain the heritage significance of these community assets in a diligent manner. Heritage protection of these assets will mean taking the long view and planning for conservation and asset management or asset disposal in such a way that the heritage significance of the asset can be retained through its future adaptive or continuing use.

These heritage asset management principles will ensure that the State’s publicly owned heritage assets are better protected and managed by requiring that agencies integrate heritage considerations in their asset management decision making. Under the Act, State agencies will be required to comply with the Heritage Council’s guidelines. The Heritage Council will consult Government agencies and relevant community peak bodies to ensure that the guidelines are effective, practical and comprehensive. In addition, agencies will notify the Heritage Council when items are removed from registers and report on their compliance with the Act in their annual reports. This will include a statement of condition of items listed on the State Heritage Register which are under their care and control.

6 Local government heritage management

The Heritage Act was passed two years before the Environmental Planning and Assessment Act. This had the unintended effect of divorcing heritage considerations from other key aspects of environmental management at the local government level. The use of the planning system by local councils to protect heritage has a number of important advantages: heritage items can only be protected by local environmental plans following extensive community consultation; and heritage considerations are integrated with planning and development decisions made by local councils, thereby reducing ad hoc decision making. There are presently over 100 local councils managing heritage items in local environmental plans. It is desirable to maintain and support this role of local government in heritage protection.

It is impractical, in fact undesirable, for a single State agency to have sole responsibility for protection of the entire State’s heritage. Long-term conservation will only be successful when it is driven by the community, and where the community actively participates in and supports the process of nominating and protecting the heritage items which are valued. Local councils are best placed to continue to undertake this fundamental principle on the broad scale. The new section 84 include a statement of a local council’s obligation to protect the heritage through the planning system. It is considered important to make this clear statement in the Heritage Act to clarify in the eyes of the community, the respective and complementary roles of the two levels of government in heritage management. It is emphasised that this amendment will not add to the current workload of local councils as it simply the re-statement of the role established in 1985. Nevertheless, I am sensitive to the need to provide local councils with assistance and support to identify and protect heritage. The Government will give local councils the necessary tools in the areas of interim protection, direct funding and in the form of practical guidelines and advice.

Temporary Protection of Heritage by Councils

To date, however there is a basic problem that local environmental plans can take a number of months to prepare and councils have not had the ability to temporarily protect sites under threat. This has lead to councils requesting my intervention to protect sites of local significance. As stated earlier, as a result of the amendments, I will be able to authorise councils to make interim heritage orders under the Heritage Act where the council believe that an item has local heritage significance and may be harmed, to allow for time for LEPs to be made. The effect of the order is that local council approval for works will be needed for the life of the order - up to 12 months. Applicants dissatisfied with a council’s determination will be able to appeal to the Court.

There will be strict limits to the use of these new powers by councils. I will only authorise councils which have a proven record in heritage management. I will also be able to place conditions on the making of orders and can remove the power of councils to make orders should there be an abuse of the powers. Local council interim heritage orders can not be placed on sites deemed by me to be of significance to the State - in accordance with the Environmental Planning and Assessment Act - nor for development carried out by the Crown. The Heritage Council will monitor the making of the interim heritage orders as the councils will be required to notify the Heritage Council of each one made. I will retain the power to intervene and make an interim heritage order.

Guidelines and Advice to the Community

In addition, as provided by the amendments, I will instruct the Heritage Council to prepare the guidelines in consultation with local government and peak community interest groups to ensure that the guidelines are practical and reflect the broad range of community interests in urban and rural New South Wales. In the New South Wales Government heritage policy, I previously foreshadowed the need to assist councils in their heritage management responsibilities. As outlined in the policy, the Heritage Office has prepared a model heritage local environmental plan which councils will be able to utilise as a template, adapting it to local conditions. This will save councils considerable time and expense in having to "re-invent the wheel".

I believe that these initiatives will greatly assist councils and the general community in heritage conservation in their areas and provide clarity and certainty to owners and developers for future development proposals. The amendments will encourage councils to continue to take a more comprehensive approach to heritage protection. More upfront planning by councils will improve certainty for the community and developers - with heritage sites being identified early through a consultative

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process, reducing continual disputation over individual development sites over heritage issues.

7 Heritage agreements

A key element of the proposed changes to the Act is the introduction of the capacity for the Minister to enter into heritage agreements with owners of heritage items of State significance. These agreements are legally binding agreements which set out agreed undertakings between an owner and the Minister, such as conservation works to be carried out in return for funding incentives or exemptions from statutory approvals agreed by the Government. Heritage agreements have been successfully working in other States for a number of years. Their major attraction is to allow for a negotiated approach, ensuring good heritage outcomes to major heritage projects - a much needed alternative to the traditional and somewhat inflexible statutory approvals approach.

As heritage agreements are to be registered with the Land Titles Office and attached to the land title, it will be possible for owners to on sell properties with the negotiated undertakings as to development potential and conservation works clearly spelt out - a potential enhancement to the value of the property due to the added certainty. This co-operative approach will also enable the Minister to address any financial considerations and any other incentives which the Heritage Council believes will assist in the conservation of the item concerned. As with such measures the agreement relies on the co-operation of both parties and hence can be terminated or varied by the Minister when circumstances change.

8 Penalties

The wide range of heritage properties and items means that it is important to have an effective range of penalties to provide sufficient disincentive for offences against the Act. It will be clear to my honourable colleagues, that the disincentive for someone causing damage to a heritage property in the Sydney central business district must be quite different to that for someone in Corowa. It would also differ for damage to a building compared to a precious object. Clearly, the penalties available should reflect these considerations in order to create an effective deterrent. The amendments will increase both the amount and the range of penalties to provide a more realistic disincentive for non-compliance with the Act. The current maximum penalty of a $20,000 fine or six months in gaol is inadequate, particularly where the item in question is property within a major central business district.

There will in future be a maximum penalty of 10,000 units - in today’s dollars this means $1.1 million. This is in line with provisions in recent heritage legislation in other States. Two new penalties reflect the emphasis of the amendments on the management of the heritage significance of places: In the case of major damage to or destruction of a heritage item, the future development of the site may, at the discretion of the Minister, be restricted to the same building envelope as the heritage item; or the Land and Environment Court will also be able to require the reconstruction of an item where this is a feasible alternative. The objective of these changes is to limit the appeal of wanton damage or destruction to owners of heritage items by limiting the financial benefits they can derive from such actions.

9 Other changes

The amendments will make a number of other minor changes to the Act:

Heritage Valuations

The Act presently allows for heritage valuations to be made by the Valuer General on properties subject to permanent and interim conservation orders. Heritage valuations benefit the owner in terms of rating and land tax obligations, by ensuring the value of the land reflects highest and best use which can be achieved assuming that the heritage significance of the item is retained. The amendments recognise the value of this incentive for owners, allowing for the continuation of heritage valuations for properties listed on the State Heritage Register. The concession currently operates by requiring that each property listed with a permanent conservation order under the Heritage Act be assessed separately for land tax as if it were the only land owned by the owner. This concession thereby has the effect of granting, to certain owners, a potentially greater additional discount to land tax than would otherwise had been the case.

As such, the concession benefited only a small proportion of the community - those with multiple land-holdings. Under these amendments, this secondary benefit under section 128 will be phased out over five years. This is in relation to properties already subject to a permanent conservation order. A five-year sunset clause was carefully chosen to give owners sufficient notice of the change. No properties added to the new State Heritage Register will be eligible for the new section 128 land tax benefit, however they will still attract the heritage valuation benefit in terms of other property imposts.

Heritage Council Functions

Legislative protection for heritage resources of the community is very important but I am convinced that wider community education about and community understanding of heritage will be a major tool for heritage conservation in the future. The present range of functions of the Heritage Council established under the Act will specifically underline the education and promotional emphasis of the Government’s heritage policy.

Revised Definitions

Various minor revisions to definitions in the Act will be made to improve their workability and to reflect current heritage practice.

Streamlined Annual Reporting Requirements

The annual reports of the Heritage Council and Heritage Office will be combined into one comprehensive report. This will remove the unnecessary and artificial separation in the reporting of the achievements of the council and the office. The amendments will enable the community to gain a single and more coherent picture of conservation management achievements made by the Government.

10 Conclusion

The bill will provide a more effective basis for the identification and protection of the community’s environmental heritage in New South Wales. It will also provide certainty and consistency in terms of the responsibilities for management of heritage by the State Government, Heritage Council and local government. The revised Act will enable the Heritage Council and the Heritage Office to undertake the necessary reform of the heritage system so that Government agencies, owners, developers and the public can have greater confidence that the system is working for the good of the community as a whole. The proposed changes reflect current community and industry views and the proposed amendments

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have received strong support form major community groups such as the National Trust. I commend the bill to the House.

The Hon. M. F. WILLIS [5.38 p.m.]: The Opposition does not oppose the principle or the purpose of this proposed legislation. Honourable members will be relieved to know that I do not propose to speak at any length on the matter. The matter was extensively canvassed by the shadow minister, the member for Vaucluse, in the other place, and there would seem little purpose in my repeating, albeit in different words, what he had to say. However, in Committee the Opposition will move three amendments that have been circulated. Those amendments are in response to some serious representations made by interested parties on the question of relief from land tax.

In the other place the honourable member for Vaucluse quite rightly forecast that in his opinion there will need to be follow-up legislation to tidy up this bill. He made a commitment on behalf of the coalition to do just that when the coalition returns to the Treasury benches next March. A case in point is the very real concern regarding local councils raised by the Local Government Association, which said:

The proposed changes only act as a disincentive for councils to issue IHOs. Why should a council risk the costs of an appeal when the same decision by a Minister cannot be appealed?

With those few words the Opposition supports the bill. However, I should mention that the Opposition has been privileged to be given copies of amendments that the Hon. R. S. L. Jones intends to move in Committee. I give notice that the Opposition will not support any of the amendments and will move three amendments of its own.

The Hon. R. S. L. JONES [5.40 p.m.]: The Heritage Amendment Bill introduces amendments to the Heritage Act based on the philosophy that the community should be responsible for identifying and protecting their heritage, and that the State should support the community in that role. The bill allows the Heritage Council to delegate authority to local councils for development applications on significant State items and allows the Minister to appoint a ministerial review panel, instead of a commission of inquiry, to consider objections to heritage orders. It requires developers to seek a permit if they know, or have reason to know, that an archaeological relic may be uncovered during the course of work.

The bill also allows the Minister to delegate to local councils powers to place one-year interim orders. It requires State Government agencies and State-owned corporations to list and manage their heritage items, and it allows the Minister to make heritage agreements with owners of State significant heritage items which will run the land. It increases the penalties for offences against the Heritage Act in relation to State significant items.

I examined the bill in some detail and identified a number of concerns with it. I presented those concerns to the Minister and have received a number of responses from him. One of my concerns was that, in relation to a building or work, the definition of "harm" included "demolish". I wondered whether that referred to demolishing a part or the whole of a building. The Minister said it means demolishing a part as well as the whole of a building. A further concern was whether there would be any public input in arriving at the criteria mentioned in new section 4A(3). I have been satisfied by the Minister’s response.

A number of other issues were raised with the Minister. As a result, in conjunction with Jeni Emblem and the Environmental Liaison Officer I have drafted a number of amendments and I will move them in Committee. It would take up too much time to list all of my concerns now; it would be more appropriate to detail them in Committee. So, I support the legislation but I have a number of problems with it that I shall deal with at length in Committee.

The bill makes no specific provision for the National Trust or environmental groups to appear before the commissioners of inquiry. I hope that will be corrected. No public input is provided on the guidelines for the preparation of environmental planning instruments, and such instruments may not be legally enforceable. No monetary allocation is made for the Heritage Incentive Fund. Proceedings for offences for failing to maintain or repair buildings, works or relics can be instituted only with the written consent of the Minister. Orders to remedy failures to maintain and repair do not extend to natural areas. The current land tax concessions for a property subject to a heritage order are removed. This will be addressed by one of the amendments foreshadowed by the Hon. M. F. Willis, which is desirable. In response to my draft amendments the Minister wrote to me as follows:

I wish to advise that after consideration of the issues you have raised I will not be supporting any of the amendments in Parliament. A number of the issues you have raised will receive further consideration once the bill has had the opportunity to be put into practice. These include guidelines for protecting items of moveable heritage under the new maintenance provisions and the review of the ministerial review panel guidelines during the first year of the MRP’s operation.

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He referred to a letter from Jacquie Svenson, the Environmental Liaison Officer. She was under the impression that my proposed amendments had received support from the National Trust. That was not so. The Minister seems to think that Ms Svenson deliberately misled the National Trust, but that is not so. The office of the Environmental Liaison Officer does an excellent job but it is obviously underresourced for the amount of work that needs to be done. I assure the Minister that there was no deliberate intention by her or me to give false information. With those few words I support the bill.

The Hon. I. COHEN [5.46 p.m.]: The Greens New South Wales support greater protection of heritage in New South Wales, whether it is natural or cultural. This cultural Heritage Amendment Bill has a number of key provisions. Does the Hon. Dr B. P. V. Pezzutti have a problem with that? I have always said that the Greens New South Wales are good on heritage matters and on many other matters. In a number of those key areas the bill could be improved.

The Greens believe that there could be better representation on the Heritage Council, including from both Aboriginal and conservation interests, and a more transparent and accountable process - especially in respect of the ministerial review panel. There should be a system for protecting heritage items from all development, regardless of whether it is being carried out by a State agency or a developer, and for developments of State significance.

The Greens consider that the increase in local government powers for issuing interim heritage orders should be restricted to councils which, in the opinion of the Heritage Council, have shown the requisite levels of responsibility and expertise needed to implement those powers. In conjunction with the Hon. R. S. L. Jones I will move a number of amendments that have been developed in consultation with the Nature Conservation Council, the National Trust and the Environmental Defenders Office. Each of the amendments has been through considerable consultation.

This evening the Opposition has circulated a number of proposed amendments which are substantially similar to those mentioned by the Hon. R. S. L. Jones. We look forward to the coalition’s support for those amendments. On behalf of the Greens New South Wales I support the bill.

The Hon. PATRICIA FORSYTHE [5.49 p.m.]: The coalition does not oppose the bill, and it would have been nice to have been able to give the Government full support and praise for some aspects of the bill. With this proposed legislation the Government is on the right track, as it should be because the process of reform was commenced by the coalition when it was in office. Many of the reforms highlighted in the bill were recognised by the coalition as being important. Underlying all of this is the fact that the coalition and the Government accept the importance and value of heritage.

Rather than regarding an item of heritage as something to be preserved only when it is in danger of being demolished or attacked in some form, we should do better to introduce a note of certainty so that everyone will come to understand the value of and support the heritage of this State. The sad thing about the bill is not that the Government has taken the wrong track; indeed, it has taken the right path with the bill. The bill will introduce heritage as part of the curriculum in schools so that young people will better understand the value of heritage.

When I read this bill and consider the direction the Government has taken I remember that each time I come to Parliament House I drive past that ugly hole at the end of Macquarie Street: the remnants of the Conservatorium of Music. That hole is seen as part of the apparent reconstruction. However, the convict-built road and drainage system have been effectively destroyed by that work, without any intervention by the Government.

Honourable members would recall that last June the coalition sought to move a motion in relation to that work, but it was not supported. On 2 November the Sydney Morning Herald reported that an independent assessment of the conservatorium site carried out by Mr Justin McCarthy, the Managing Director of Austral Archaeology, and commissioned by the National Trust, delivered a scathing report on the work of the Government. In his report Mr McCarthy stated that the discovery of the remains of the convict-built road and drainage system would:

normally . . . lead to conservation policies which would conserve (and perhaps interpret) the site in situ. However . . . there is one factor which prevents this occurring - namely, that the site is earmarked for a major redevelopment.

One major factor influenced that decision; it was Bob Carr’s project and nothing was allowed to stand in its way. The Government introduced this, in principle, fine heritage bill, although it needs amendments. In Macquarie Street, the most historic precinct in New South Wales, we are seeing one of our oldest convict remnants being destroyed as a result of poor work on the historic conservatorium
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building. If the work had been carried out by a private developer, the heritage legislation would have come into play and the work would have been stopped. A permanent or interim conservation order would have been applied but, because this is Bob Carr’s project, this historic precinct is being damaged.

Tonight I was impressed that Government members spoke about curriculum. As a former history teacher I know that teachers bring high school students from across the State to Macquarie Street, because it embodies so much of our early history. That includes many features of our early colonial architecture; not only Parliament House but also St James’s Church and the Conservatorium of Music. Had it been possible to preserve the convict work that had been uncovered as part of that excavation, as one would have expected, it would have fitted that description. Under other circumstances one would assume that that work would have been preserved.

I support the legislation, but I say that the Government’s record is tarnished by its actions. The Minister’s good intentions have been tarnished because the Government did not properly conserve that site. Having said that, I agree that many of the other principles contained in the bill are important. One of the most important is the introduction of an element of certainty. One reason why heritage has not been well regarded in this State is that it is only when a building is under threat that we introduce heritage interim orders and seek conservation orders - a knee-jerk reaction - rather than ask what we should acknowledge, what should we have on a register, and what are we trying to achieve.

Everyone with an interest in heritage would welcome this legislation, and to that extent it should be supported. An outstanding amendment to the Act is new subsection (1)(b) of section 160, which states that if a building is destroyed, a new structure can be erected only within the existing envelope occupied by the heritage item. That is important, because, as we all know, over the years mysterious fires and other damage has occurred in buildings which have been earmarked for heritage conservation. Of course, developers assume that they can then build larger buildings on heritage sites, but the bill acts as a disincentive to that sort of assumption. But beyond that we may be able to better encourage property owners to understand the value of their heritage. In order to do that, owners of heritage listed buildings or buildings on the State register will be supported by the Government through this legislation.

Minister Knowles in the other place regularly highlights the good job his Government has done by comparison with former governments. The Minister noted in his second reading speech that currently there were 650 items protected by permanent conservation orders. In November 1994 in the Legislative Assembly Mr Knowles asked the then Minister for Land and Water Conservation, representing the Minister for Planning, Mr Robert Webster, a question regarding Heritage Act conservation orders. Honourable members would be interested to know that at that time there were 669 permanent conservation orders.

When the Minister does his usual comparisons he should note that the coalition did well; in fact, there are fewer items now protected by permanent conservation orders than there were in November 1994. The former coalition Government acted to preserve a significant number of buildings. Far from trying to put a division between the coalition and the Government on the subject of heritage, we should agree that in principle this is a bipartisan issue; we all support good heritage and it is time we introduced certainty. To that extent I support the legislation.

The Hon. Dr A. CHESTERFIELD-EVANS [5.56 p.m.]: The Australian Democrats basically support the bill, which has been seven years in development and has the support of heritage interests and the National Trust. The Democrats believe that too much of our heritage has been lost already and that it is certainly important to protect our heritage for the future. One of my good friends has been involved in developing the heritage database, which we totally support as an important tool in establishing in the education system an appreciation of the historic features of each locality. From an early age people should be able to appreciate not only what is there but also what is of significance.

Only when heritage concerns and pride are developed in young people and in the community can we get away from this last-minute fight against each development application as developers attempt to destroy what is left of our heritage. Each time I drive to the city I drive past the hole in the ground where the Regent Theatre once stood. I remember that there was a workable plan which involved building on part of the site and preserving it. But, no, the building had to be demolished because it was economically sensible to do so. If it was economically sensible why, ten years later, is there still a great big hole there? That is a most unsatisfactory situation.

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When I come to work on the ferry I notice the Walsh Bay wharves and worry about their future; one of them has been preserved and a couple of them are about to go. As I wait at the ferry wharf, thinking that Circular Quay is pretty well at total capacity, I look at the row of "toasters" that are being built because we did not knock down the first one. All the other buildings are coming up to the same height and the lovely vista of the botanic gardens and the harbour in the distance is being totally lost; again, because of greed. I wonder what can be done about that!

The Hon. D. J. Gay: You have a short memory. You must have seen what was there 10 years ago. The building that was there was bigger than the existing building.

The Hon. Dr A. CHESTERFIELD-EVANS: The modifications that have been made at the quay were due to the fact that the height of the building was reduced after public submissions. The "toaster" is in fact a mitigation, in that the road was lost in exchange for a reduction in the height of the building. But that resulted from the fact that a single owner availed himself of a great opportunity, and the demolition of buildings along Macquarie Street. That opportunity was lost, I believe, through the lack of political courage and good sense, as well as a lack of vision.

We do not want such a thing to happen again. However, I recognise that this bill does not deal with such matters. Whenever I think of heritage I am reminded of Newtown’s Elizabethan Theatre, which burned down in rather odd circumstances. I used to enjoy going to performances at that theatre. I recall also the Wintergarden theatre, which ended up as a mere postscript to its former stature. The spirit of the Wintergarden remains only to bump up the value of expensive town houses. That was the end of the Wintergarden! I worry about the Bondi Pavilion and the Balmoral Pavilion and their ownership and use by the general community.

It is important that we think carefully about what we do with our heritage. We should preserve it as it is, and not add a penthouse floor to it - another problem that arises from time to time when architects become involved in the restoration of heritage buildings. Customs House seems to have been affected by that problem. The Australian Democrats support the general thrust of the bill, because it will result in a little less adhockery in the implementation and observance of heritage policy. I foreshadow that the Australian Democrats will support the amendments to be moved by the Hon. I. Cohen and the Hon. R. S. L. Jones to toughen up the provisions of the bill.

The Hon. JAN BURNSWOODS [6.01 p.m.]: I support these amendments to our heritage legislation and I congratulate the Government on their introduction. I draw attention to a number of important steps in the implementation of heritage policy that the Government has taken since its election in 1995. Unlike the nasty, bitter and twisted speech made by the Hon. Patricia Forsythe, my speech will concentrate on positive things, rather than the raising of negatives and red herrings. Since the Government released its heritage policy in 1996, a number of very important changes have been made to that policy. I might point out that the previous Government had these heritage policy recommendations from 1992 onwards, but did absolutely nothing about them prior to losing office in 1995.

One of the most important things done in 1996 was the creation of the Heritage Office, so that separate advice was provided to the Heritage Council, rather than the Heritage Council being dependent on the services of the Department of Urban Affairs and Planning. That has been a most welcome change. I pay tribute to the work of the Heritage Office under Rosalind Strong. I had recent experience of this when I went to the Royal Australian Historical Society conference in Port Macquarie late last month. I found that not only did the conference deal overwhelmingly with heritage items, and not only had the conference received massive support from the Heritage Office, but more than half of the Heritage Office staff had come to the conference to give advice and guidance to Royal Australian Historical Society delegates gathered from rural New South Wales in particular.

As it is Government policy that local communities, and in particular local government, should play a much bigger role in protecting and preserving our heritage, the assistance and advice provided by officers of the Heritage Office at that conference was most important and very much appreciated. The introduction of these recommended steps in heritage policy in 1996 marked an important step forward. Of course, Labor governments in New South Wales have a fine record in respect of our heritage, going back many years.

The attacks made by the Hon. Patricia Forsythe on happenings in Macquarie Street strike me as absolutely outrageous, particularly in light of the record of the Wran Government, in particular of Neville Wran and Jack Ferguson, in relation to the protection and preservation of Macquarie Street. This parliamentary building, the hospital, the Mint, the Barracks, so much of the street scape of Macquarie Street, would not exist as we know it now if it had not been for the fantastic efforts of
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Neville Wran, Jack Ferguson, the Government Architect’s Office and the historic buildings branch under that Government. So, for a member of the Opposition at this point to criticise this Government strikes me as hypocritical indeed. I will mention briefly just a couple of points about the conservatorium.

I suppose that the Hon. Patricia Forsythe found she could not, for once, support a bill without throwing in a whole lot of nasty remarks. It seems strange - I can only put it down to her desperate desire to prop up the leadership of Peter Collins - that she would make such remarks. All members of the New South Wales Parliament, particularly members of this House, know about the ridiculous debates that we had about this time a year ago regarding the setting up a select committee in relation to the conservatorium. Peter Collins has some sort of obsession about moving the conservatorium to the Rozelle hospital site - despite the advice of everyone else in Sydney, everyone in the music community, everyone in the heritage community, in fact anyone in relation to anything whatsoever.

The overwhelming opinion is that the Sydney Conservatorium of Music should not be moved, nor does it want to move, to the site of Rozelle hospital. Peter Collins continues with his childish obsession that that is where the conservatorium should be. It is not, therefore, surprising that the Hon. Patricia Forsythe is still trying to prop up poor little Peter by attacking the work now going on at the conservatorium. The Sydney Conservatorium of Music has been at its current site for something like 90 years. That fact in itself, given our 200-plus years of European civilisation, probably qualifies the conservatorium for heritage listing.

As for the nonsense about the convict road, I remind honourable members that about 80 metres of sandstone remains of that road. Unfortunately, a small amount - something like three metres of the drain at the side of that old road - was damaged. That is being repaired. That is hardly an issue on which to devote the majority of a speech on these important changes to the Heritage Act.

I briefly mention the importance of these amendments not only to make sure that local government plays its role in the protection of our heritage but, as this becomes a bigger and bigger task, to emphasise that none of us should think that a centralised State body alone can protect our heritage. If we do not have the co-operation of local government, in reaction to the fine work of local historical societies and other heritage groups, then we will not be able to protect our heritage.

Another really important issue - one in respect of which I pay tribute to the Government - is that this legislation moves towards a preventive philosophy. Rather than act once damage is imminent or already taking place, we need to act in advance to identify what is valuable and protect it. That applies not only to buildings but to Aboriginal relics, archaeological evidence and our movable heritage as well. We must put in place processes that protect heritage items before they are threatened with destruction or before an atmosphere of crisis occurs.

The penalty increases provided by this bill are well overdue. Until now, the penalties have been viewed with derision by developers who stand to make large profits from proposed developments. The considerable increase in penalties, plus the Minister’s power to require reconstruction of a damaged site and to limit redevelopment of a site will go a long way towards preventing cowboys in the development industry from deliberately damaging heritage buildings and sites because, in the end, they would still make profits from their actions. This legislation is another step in an important series of heritage protection items that Minister Craig Knowles has introduced under this Labor Government.

I would correct another error made by the Hon. Patricia Forsythe. It is quite wrong to say that more permanent conservation orders were made under Minister Robert Webster than are being made now. I do not know where the honourable member got her figures, because she has forgotten that the Hon. Robert Webster removed some conservation orders which led, regrettably, to the destruction of some buildings. The honourable member has also forgotten the process under way of removing the protection of certain items to local environmental plans. Her speech was motivated only by the desire to oppose for the sake of opposing and to throw in negative items which have absolutely nothing to do with amendments to the Act.

Reverend the Hon. F. J. NILE [6.10 p.m.]: The Christian Democratic Party supports the Heritage Amendment Bill. This bill will amend the Heritage Act 1977 to replace provisions for the making of permanent conservation orders by the Minister with provisions for the listing of items on a new State Heritage Register; provide for the making of heritage agreements between the Minister and the owner of an item of State heritage significance; establish the Heritage Incentive Fund, to be used to provide financial assistance to the owners of land subject to heritage agreements; provide for minimum standards of maintenance and repair for items listed on the State Heritage Register and to provide for the enforcement of those minimum standards by the
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Heritage Council, in place of existing provisions based on an offence of deliberately allowing a building or work to fall into disrepair; authorise the Minister to restrict future development of land to the envelope occupied by a heritage item when a person has been convicted of certain offences involving the heritage item or has not complied with an order to repair and maintain a heritage item; and provide for a number of other miscellaneous matters.

These changes will promote the ability of the Heritage Council to delegate authority to council for development applications on State significant items when a council can show that it has the experience and expertise to deal with such heritage issues. Currently, an objection to the placement of a heritage order automatically triggers a commission of inquiry.

Under these amendments the Minister will have the discretion to appoint a ministerial review panel to consider the objection - the panel will be appointed by the Minister - or to appoint a commission of inquiry. This will allow a more flexible process, when a commission of inquiry may be an overly cumbersome process. The ministerial panel option is already in place in other States. The provisions relating to archaeological relics will be amended. Currently, the Act states that developers of land must seek a permit when they intend to move, destroy or alter a relic. This will be changed so that developers are required to obtain a permit if they know or have reason to believe that a relic may be uncovered during the course of the work.

The bill provides that the Minister, on the advice of the Heritage Council, will be able to delegate to local councils the power to place section 130 orders - one-year interim orders - when they have shown responsibility and expertise in heritage management. It further provides for increased penalties for offences against the Heritage Act. There will be a formalised process for action against owners of State significant heritage properties who do not take steps to protect an item from permanent damage, that is, basic protection from fire, water or vandalism. It will not require restoration works, et cetera, but it will protect an item from permanent damage. Some honourable members have criticised the Government’s action in relation to the Sydney Conservatorium of Music.

The Select Committee on the Sydney Conservatorium of Music, of which I was chairman, spent a great deal of time investigating the two options: to redevelop the conservatorium where it is presently located or to shift the conservatorium to Balmain. The Government accepted the committee’s recommendation that the conservatorium be redeveloped on its present site. The more I have considered the matter and examined the current building development and improvement of the conservatorium, the more I believe the select committee made the right decision.

The Hon. Patricia Forsythe referred to the conservatorium as no longer heritage - in other words, many buildings surrounding the conservatorium detracted from the heritage aspect of the conservatorium. The Government has removed the old buildings, classrooms, et cetera and virtually restored the building to its former heritage status. It should be commended for the sensitive way it has dealt with redevelopment of the conservatorium. I am pleased to support the Heritage Amendment Bill.

The Hon. R. D. DYER (Minister for Public Works and Services) [6.14 p.m.], in reply: I thank honourable members for their contributions to the debate on the Heritage Amendment Bill. The Hon. Patricia Forsythe made some quite disproportionate and inaccurate statements regarding development of the Sydney Conservatorium of Music. An unfortunate accident occurred on that site last week involving damage to part of the drains that had been discovered on the site. However, I emphasise, as did the Hon. Jan Burnswoods, that just over three metres, out of a total of some 80 metres of heritage drain on the site, was damaged. I indicate that it will be possible to repair the damaged section by using parts of the drain previously removed from the site and carefully stored by the Department of Public Works and Services.

That is not to say that I am not concerned that any damage, however minor, occurred. Indeed, I have instituted an investigation of that unfortunate event. The inquiry is being presided over by the Acting Government Architect, Mr Peter Mould. He is interviewing all persons involved and will report his findings in due course. I note that the Heritage Office, via Ms Roslyn Strong, made a statement last week to the effect that while the damage was unfortunate it was relatively minor. They may not be Ms Strong’s exact words, but I am grateful that she described the matter in that way because that is what happened.

During debate on this bill it is not appropriate to enter into a wholesale debate regarding the Conservatorium of Music site. However, I thank Reverend the Hon. F. J. Nile for his comments, because I strongly agree that when the development is complete it will be seen to be a major improvement over the improvements already made to the site. As the honourable member said, ugly
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concrete classrooms were added to the heritage building during the 1960s but they have now been demolished, revealing the heritage building. I have seen illustrations and art work of the heritage building dating from the last century which show the old Government House stables viewed from Farm Cove. They show a very attractive and, indeed, beautiful building. When the development is complete the public will see that the work now occurring will have been worthwhile. With those few comments I commend the bill to the House.

Motion agreed to.

Bill read a second time.