Queensland Bills Explanatory Notes

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QUEENSLAND HERITAGE AMENDMENT BILL 1998

                                     1
                       Queensland Heritage Amendment


         THE QUEENSLAND HERITAGE
           AMENDMENT BILL 1998


                EXPLANATORY NOTES

   The Queensland Heritage Amendment Bill has been drafted to be
consistent with current legislative practice and in modern language. As a
consequence particular sections and clauses require little or no specific
further explanation in these Explanatory Notes. Those parts may be repeated
or summarised in general terms only.


GENERAL OUTLINE

The Bill's Short Title
  Queensland Heritage Amendment Bill 1998


Reasons for the Bill
   It is the Government's policy to provide for consideration of the views of
the owner of a place which is subject to an application to enter that place in
the Heritage Register ("the Register") before a decision is taken to enter the
place in the Register. The Act presently provides for an owner to object to
the entry of the place only after the Queensland Heritage Council has taken
a decision to enter the place provisionally in the Register.
   It is necessary to rectify the omission of local government from the
Queensland Heritage Council delegations. Part 5 of the Act, which provides
for approval of applications to develop places entered in the Register,
includes provision for local government to approve such applications if it
holds delegated authority from the Queensland Heritage Council.
  The Queensland Heritage Act 1992 provides for a Heritage Council
composed of 12 members. Amendment is required to reduce the size of the
Heritage Council, and the cost of its administration.

 


 

2 Queensland Heritage Amendment A review of the operation of the legislation since its commencement found that the processing of applications for entry of places in the Register ("nominations"), and the maintenance of documentation on entries in the Register, required improvement. The Act was amended in November 1995 to remove anomalies in definitions, particularly in the definition of "cultural heritage significance", and to clarify the criteria in s.23 for the entry of places in the Heritage Register. These aspects of the Act have functioned well since that time. Objectives of the Legislation The objective of the Bill is to provide for: · consideration of the views of owners and local government by the Heritage Council before places are entered in the Register. · delegation of Heritage Council powers to local government; · the correction of factual matters in Entry in the Register documents; · improved protection for places entered in the Register which share party walls with, or encroach upon, places not entered in the Register; · improved processing of nominations to the Register; · clarification of definitions and public advertisement requirements; · reduction in the size of the Heritage Council; and · improved disclosure by members of the Heritage Council of an interest in a matter to be considered by the Heritage Council. The way in which the policy objectives are to be achieved in the Bill The policy objectives are achieved by providing for consideration of the views of owners and local government, by reducing the size of the Heritage Council, and by improving the processing of applications for the entry of places in the Heritage Register, and the maintenance of Entry in the Register documents. Minor amendments to the Queensland Heritage Regulation 1992 ("the Regulation") are required to support the amendments. The amendments to

 


 

3 Queensland Heritage Amendment the Regulation will be the subject of a separate Regulatory Instrument. Alternatives to the Bill The policy objectives can only be achieved by amendment of an Act of Parliament. Assessment of the administrative cost to Government The amendments will reduce the cost of administering the Act through reduction in size of the Heritage Council, and through requiring persons submitting applications for the entry of a place in the Register to provide much of the material required by the Heritage Council to consider the application. Consistency with Fundamental Legislative Principles The Bill is considered to comply with Fundamental Legislative Principles. Consultation Consultation in relation to the draft Bill was carried out with key stakeholders which comprised the following: · Queensland State Government -- Department of Local Government and Planning -- Office of the Queensland Parliamentary Counsel -- Department of Treasury · Local Government and Statutory Authorities -- The Queensland Heritage Council · Stakeholder Organisations -- the Australian Council of Trade Unions, Queensland Branch; -- the Anglican, Catholic, Uniting and Lutheran Churches; -- the National Trust of Queensland;

 


 

4 Queensland Heritage Amendment -- the Property Council of Australia; -- the Local Government Association of Queensland; -- the Infrastructure Association of Queensland; -- the Queensland Environmental Law Association; -- the Urban Development Institute of Australia; -- the Royal Australian Institute of Architects; -- the Royal Australian Planning Institute; and -- the Australian Heritage Commission. Organisations consulted supported the Bill, apart from the proposal to reduce the size of the Heritage Council. NOTES ON PROVISIONS Clause 1 states the short title of the Act Clause 2 provides for the commencement of the Act Clause 3 states the purpose of the Act Clause 4 amends the Objects of the Act to ensure consistency in the use of the term "development in relation to a registered place" throughout the Act. Clause 5 reduces the size of the Queensland Heritage Council from 12 members to 9, omits nomination for membership of the Council from a panel of 3 names submitted by the Trades and Labor Council of Queensland, and reduces from 7 to 5 the persons nominated after representations are invited from organisations with appropriate knowledge, expertise and interest in heritage conservation. A reduction to 9 members would be likely to improve efficiency and reduce costs, and yet be unlikely to reduce breadth in the consideration of issues. The Trades and Labor Council of Queensland (now the Australian Council

 


 

5 Queensland Heritage Amendment of Trade Unions, Queensland Branch, "ACTU") is deleted from the organisations submitting panels of names for nomination to the Council. The ACTU can be asked to supply a panel of names under s.10(4)(f) as an organisation with appropriate knowledge, expertise and interest in heritage conservation. The reduction from 7 to 5 of the persons nominated after representations are invited from organisations with appropriate knowledge, expertise and interest in heritage conservation [s.10(4)(f)] maintains the balance of Heritage Council membership between members nominated by specific organisations, and members nominated by groups with general knowledge expertise and interest in heritage conservation. Clause 6 reduces the quorum required for Heritage Council meetings from 6 to 5 members, which is appropriate to the reduced size of the Council. Clause 7 provides for members of the Heritage Council to disclose direct or indirect material personal interest in a matter under consideration, or to be considered, by the Heritage Council. A definition of "material personal interest" is provided. The Act currently provides for a member of the Heritage Council to declare a direct or indirect pecuniary interest in a matter being considered, or to be considered, by the Council. The restriction of disclosure of interest to pecuniary interest does not provide sufficiently for all eventualities. A definition of "associate" is also provided to cover situations in which an associate of a member of the Heritage Council stands to gain a benefit or suffer a loss depending on the outcome of the Council's decision. Provision is made for "associate" to be further prescribed by Regulation. Clause 8 adds local government to the Heritage Council's powers of delegation. The Heritage Council has previously sought to delegate powers to local government, particularly under s.34(2) in Part 5 (Development), but it has been thwarted by the inability to delegate to a local government due to the omission of local government from its delegations in

 


 

6 Queensland Heritage Amendment s.15(1). Clause 9 replaces s.24(2) with a new s.24(2), and expands the Regulation to set out the information which must accompany a nomination to the Register. The Heritage Council has previously accepted nominations to the Register with minimal supporting information, and substantial research by Departmental staff has been required to prepare a detailed submission for the Heritage Council's consideration. The replacement of s.24(2) will place the onus on the nominator to undertake much of the research needed by the Heritage Council to consider the entry of a place in the Register. The insertion of s.24(2A) and the amendment of s.24(4) provide a formal mechanism for an owner to be consulted, and for the Heritage Council to consider the owner's views, before a place is entered provisionally in the Register. The insertion of s.24(2B) will require the Heritage Council to seek the written advice of the relevant local government on the nomination, particularly whether or not the place is subject to a development approval under the Integrated Planning Act 1997, or whether or not a development application is under consideration by the local government. Provision is made for a period of 28 days in which the local government is to respond to the Heritage Council. The Heritage Council will not consider the nomination during this period. Insertion of s.24(2C) provides that if no response is received from the local government during this period, the local government will be deemed to have responded as if there is no development approval or development application under consideration for the place. Insertion of s.24(5) provides that if advice is received from the local government that the place is subject to a development approval under the Integrated Planning Act 1997, the Heritage Council will not consider whether that place should be entered in the Register for the period of that development approval, unless the owner has provided written consent to the nomination.

 


 

7 Queensland Heritage Amendment The insertion of s.24(2A)(b) provides that a copy of the nomination will be provided to the owner. This will disclose the information on which the nomination is based and the identity of the nominator. Clause 10 inserts s.30A to allow entries in the Register to be corrected when there are, for example: changes to the real property description; change of owner; change of street address; when further information about the place becomes available; or an error in the entry requires correction. Proposals to alter the boundary of a registered place, and proposals to amend or alter the statement of significance or criteria for the place, unless to correct an error, would continue to be reconsidered through the full process for entry in the Register, or removal from the Register. Clause 11 inserts s.32A to provide an extended meaning for development in Part 5 of the Act to include development of a place any part of which immediately adjoins the registered place, if such development is likely to cause physical damage to buildings on, or the landscape or natural features of, the registered place. This will protect registered places which share party walls with, or encroach upon, places not entered in the Register. It is likely to be less onerous to adjoining property owners than an Environmental Impact Study process which is often triggered in situations where development on a site adjoining a registered place may have an adverse impact on the cultural heritage values of the registered place. Clause 12 provides consistency between the advertising requirements for Crown applications for development with the requirements in regard to privately-owned places entered in the Register. Development applications for privately-owned places are required to be advertised only if the proposed development would "have a substantial effect on the cultural heritage significance of the registered place". In contrast, all proposals for development of places owned by the Crown are required to be advertised, irrespective of whether or not the proposals will have a substantial effect

 


 

8 Queensland Heritage Amendment on the cultural heritage significance of the place. Representations, rather than objections, will be sought from interested members of the public in respect of Crown development proposals, and those representations will be considered. The current provision is inconsistent with the provisions for public notice of private development applications which invite representations from interested members of the public. © The State of Queensland 1998

 


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