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Heritage Building Conservation

Update for State agencies:
Amendments to Queensland heritage legislation up to March 2009

Introduction

This note provides information for State agencies on recent changes to Queensland heritage legislation.

Activities undertaken by State agencies in delivering Government programs may impact on the State’s cultural heritage. For example, agencies may use or manage heritage buildings, or may undertake development that impacts on heritage places. Legislation protects heritage places in Queensland. Heritage legislation, principally the Queensland Heritage Act 1992 (QH Act) and the Integrated Planning Act 1997 (IPA), uses the existing development control system to limit inappropriate development in heritage places. The legislation binds the State, but makes express provision for approving development proposed by the State in heritage places.

Legislation update

Following a review of Queensland’s heritage legislation, the Government made extensive legislative amendments which commenced on 31 March 2008. The Department of Public Works provided State agencies with information on the changes relevant to their activities through this website.

The amended legislation had a number of unintended impacts and in December 2008, further amendments were made to address these issues. The amendments added transitional provisions to allow development approved prior to April 2008 to proceed without regard to the provisions for local heritage. Other amendments provided more options for State agencies proposing development in local heritage places.

This note describes the 2008 amendments to heritage legislation that are relevant to State agencies.

Registers

Heritage legislation is triggered when the site of a proposed development is on a heritage register. Registers generally describe heritage places by reference to the Property Description of an area of land.

State heritage places are recorded on the Queensland Heritage Register. The operation of this register continues effectively unchanged.

The amended legislation requires local government to record places of local cultural heritage significance in a ‘local heritage register’. The registers are operated by each local government in Queensland, except for 14 local governments areas listed in schedule 1 of the Queensland Heritage Regulation 2003. The local governments in schedule 1 will continue to rely solely on the relevant planning scheme provisions for the conservation of local heritage places in these local government areas (or part areas). In all other local government areas, the QH Act requires the local government to identify local heritage places, add them to the local heritage register and to control development in local heritage registered places to conserve local heritage values. Where an existing local government planning instrument identifies places with local cultural heritage significance for the local government’s area on 31 March 2008, then those places are taken to be local heritage places.

A local government can add State heritage places located within the local government area to a local heritage register. The Brisbane City Council has done this. If a State agency proposes development in a dual-registered place, the approval process associated with each register must be satisfied before the development can commence. The approval processes are described in the next section.

Development in Queensland heritage places

Development by the State in a Queensland heritage place remains ‘exempt development’ under IPA so does not require a development permit, but must comply with relevant provisions of the QH Act before development can commence.

Where a proposed development by the State in a Queensland heritage place will not have a detrimental impact on the cultural heritage significance of a Queensland heritage place, the development may proceed under an exemption certificate. This provides a simple and fast process to approve work of a minor or routine nature, but which still falls within the definition of ‘development’. A proposed development may be covered by an exemption certificate issued by the Environmental Protection Agency (EPA) as a ‘general exemption’, or may require a specific application to the EPA. In all cases, development under an exemption certificate must be carried out in accordance with any associated guideline or conditions set out in the certificate. Exemption certificates are now issued by the EPA where formerly they were issued by the Queensland Heritage Council. General exemptions are published on the EPA website.

Where an exemption certificate is not applicable or has been refused, the State can undertake development in a Queensland registered place under section 71 of the QH Act –Development by the State. In outline, the s 71 process is as follows:

• The Chief Executive of the department or agency proposing the development provides a report on the proposed development to the Queensland Heritage Council;
• The Queensland Heritage Council provides a recommendation to the Minister of the department or agency proposing the development;
• The Minister proposing the development must consider the recommendation and decide to accept or reject it;
• In some cases, the Heritage Council may publish a public notice about a proposed development calling of submissions before making a recommendation, in which case the Minister proposing the development must publish a public notice of the development decision a reasonable time before the development starts.

The Minister is not bound to accept a recommendation of the Queensland Heritage Council; however the process ensures that the Minister takes public responsibility for the decision to proceed with a development. It is common for agencies to consider the views of the Queensland Heritage Council when planning a development in a registered place to ensure, as far as is possible, that a positive recommendation is obtained before seeking the Minister’s decision to proceed with a development.

The amended legislation makes new provision for emergency work in Queensland heritage places, which is consistent with similar provision in IPA. The State can undertake ‘Emergency building work’ in a State registered place without an exemption certificate or without following s 71 of the QH Act, if there is an emergency endangering the life or health of a person or the structural safety of a building. If practicable, advice of a registered professional engineer must be obtained before starting the work, and all reasonable steps must be taken to ensure the work is reversible, or where the work is not reversible, to limit the impact of the work on the cultural heritage significance of the place. As soon as reasonably practicable after starting the emergency building work, an application must be made or other process initiated to obtain approval for the development.

Development in local heritage places

Amendments to IPA pertaining to local heritage places which commenced on 11 December 2008 were backdated to 31 March 2008.  IPA makes all aspects of development on a local heritage place ‘assessable development’ other than development mentioned in schedule 8, part 1, table 5, item 2A, which is made self assessable, namely:

• Building Work by the State;
• Development by the State for public housing;
• Development by the State on designated land; or
• Development mentioned in schedule 9 (for example, development for South Bank or an urban development area).

For all other development on a local heritage place, the local government for the place is made the assessment manager.

In self assessing a proposed development in a local heritage place, State agencies are required to consider all applicable codes. The QH Act requires a proposed development on a local heritage place to be assessed against an IDAS code, contained in schedule 2 of the Queensland Heritage Regulation 2003. Amendments to the regulation gazetted on 5 December 2008 make the code more flexible by providing for consideration of development which impacts on local heritage values where there is “no prudent and feasible alternative” to undertaking the development. Any code for development in a local heritage place contained in a local planning instrument is also applicable; however if any requirements conflict, the IDAS code takes precedence.

Historical Archaeological Places

The QH Act protects historical archaeological evidence in Queensland. All finds must be notified to the chief executive (Director-General) of the Environmental Protection Agency as soon as practicable after discovery. To make information on historical archaeological places more accessible, the Queensland Heritage Register will now also list archaeological places.

Aboriginal and Torres Strait Islander cultural heritage

The protection of Aboriginal or Torres Strait Islander cultural heritage in Queensland is covered by separate legislation and is not addressed in this note.

The Environmental Protection Agency, Cultural Heritage Branch administer the QH Act and can provide advice on the legislation, the Queensland Heritage Register and development assessment. EPA also provides pre-lodgement meetings for specific developments. Local governments can provide advice on local heritage registers and development assessment.

Current reprints of legislation referenced in this note are available online from the Office of Queensland Parliamentary Counsel: http://www.legislation.qld.gov.au