Posted: May 31st, 2015

heritage

Planning and Environment Law Autumn 2015

Assessment 3 questions

 

General instructions

 

One only of the following questions must be answered.

 

You are asked to work with 2 or 3 other students (but with no more than 4 in a group) in researching the topic and to either individually or as part of your group:

• Prepare and submit a written report/essay on the topic; and

• Give an oral presentation, being:
  • a summary of your research towards the written report/essay; or
  • a short persuasive argument encapsulating any point of view or any important aspect of the matter you may wish to present.

If time and numbers permit the “presentation” may be by way of a “debate” between members of 2 groups who have chosen the same topic. Each person should prepare his or her presentation in conjunction with other members of his or her group, allowing 5 minutes for each group member.

 

The written report/essay should be substantially completed by the beginning of the second block.

It should be finalised in the week following the oral presentations and should incorporate any ideas or greater understanding gained from the presentations

 

As a guide only, your written report/essay should be approximately 3,500 words. It must be succinct and persuasive.

 

At the end of your report/essay you must say who you worked with and what their contribution was.

For joint reports/essays, the name(s) of the student(s) leading the group and editing the document should also be given.

 

Remember that every student contributing to a group report/essay is responsible for ensuring that it is completed on time and that the entire report/essay complies with UTS’ requirements relating to plagiarism. http://web.uts.edu.au/teachlearn/avoidingplagiarism/

 

The oral presentation is to be given in the second block.

 

Every other student in the class must also participate in the presentations of others by (as a group task) critiquing the presentation and by asking a question of the presenters.

Further guidance will be given in class in the first teaching block. The learning content of the first block will relate to issues raised by the assessment.

Read the materials provided on working in groups.

 

 

 

Question 4 Understanding statutes and subordinate instruments: Heritage

 

Prepare a presentation on the taking into account of heritage considerations in the determination of development applications.

 

Centre your presentation on a case study.

 

Start your research by reading:

 

• The Heritage Act 1977;
• Relevant provisions in the Environmental Planning and Assessment Act 1979;
• The heritage clauses in at least 3 LEPs;
• Chapter 17 of Farrier;
• Chapter 12 of Lyster;
• At least 3 Land and Environment Court cases dealing with heritage issues.

You should also go to:

 

• The Department of Planning web page;
• Heritage council webpage
• Wherever else your enquiring minds take you.

 

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Power Point Slides – to be discussed

 

• Introduction – focus on demolition DAs
• NSW Heritage Act 1977
• NSW Environmental Planning and Assessment Act 1979
• Local Environmental Plans – heritage considerations
• Criteria for heritage listing
• Case Studies
  • Case Study 1 – Items of State significance – Regent Theatre demolition
  • Case Study 2 – Items of Local significance – Woollahra Council v Andriotakis & Ors
  • Case Study 3- Items of Local Significance – Tova Pty Ltd v Parramatta City Council[2004] NSWLEC 282 (development application for demolition of listed heritage item – structural adequacy of item – heritage significance of item) – item retained
  • Case Study 4 – Item where a ICO was issued – Meldeep No 5 Pty Ltd v Manly Council[2006] NSWLEC 472 (development application to demolish two existing buildings and construct a residential flat building – heritage item in draft LEP – whether acceptable impact on heritage item)
• Conclusion

 

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Introduction

 

There are several ways in which heritage items are listed, both through statutory and non-statutory lists. The two most common ways items are listed in NSW in a statutory sense are through either the State Heritage Register or through Schedules included in Local Environmental Plans.

 

The NSW Heritage Act was introduced by the Wran Government in 1977 and was the result of widespread community concern over the loss and potential loss of heritage items. The Act was extensively modified in 1998, which came into effect in 1999. One of the more significant changes to the NSW Heritage Act was the inclusion of the State Heritage Register.

 

This presentation discusses how heritage is taken into account in the determination of development applications, with a focus on applications concerned with demolition.

 

NSW Heritage Act 1977

 

If an item is listed on the State Heritage Register (SHR), the item can be said to be of State Significance. The NSW Heritage Act establishes a set procedure for matters relating to items that are listed on the SHR.

 

Items included on the State Heritage Register

 

Section 31 of the Heritage Act states that a State Heritage Register must be kept by the Heritage Council and that section 31 (2);

 

“Items can only be listed on or removed from the State Heritage Register at the direction of the Minister”.

 

If an item is not listed, the Minister that administers the Heritage Act, under section 24 (1);

 

“ The Minister may make an interim heritage order for a place, building, work, relic, moveable object or precinct that the Minister considers may, on further inquiry or investigation, be found to be of State or local heritage significance.”

 

Removing items from the State Heritage Register

 

Section 38 of the Heritage Act, is concerned with the removal of items from the SHR. Section 38 (1) states that;

 

“ The Minister may, after considering the recommendation of the Heritage Council on the matter, direct the removal of a listing from the State Heritage Register”

 

Placement of orders on potential heritage items
Under Section 136 of the Heritage Act, the Minister, or the Chairperson of the Heritage Council, is of the opinion that an item is about to be harmed, an order may be placed stopping work within a period of 40 days after the date of the order. When an order is placed, advice is sought with respect to the making of an interim heritage order. The Minister can make interim heritage orders, for items that are found on further investigation, to be of local or State significance. Interim heritage orders normally last for a period of 12 months, unless otherwise specified or revoked by the Minister. This period of times enables an item to be included on the State Heritage Register or Local Environment Plan, depending on its grading of significance.

 

 

Environmental Planning and Assessment Act

79C   Evaluation

(1) Matters for consideration—general in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

 

Local Heritage Listed Items and LEPs

 

• Local listed heritage items and heritage conservation areas
• Heritage reviews
• Inclusion on LEPs (as part of Schedule 5)
• Heritage Conservation is a compulsory component of the standard LEP; objectives included below
• Objectives
• 
  The objectives of this clause are as follows:
• (a) To conserve the environmental heritage of [the relevant LGA],
• (b) To conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views,
• (c) To conserve archaeological sites,
• (d) To conserve Aboriginal objects and Aboriginal places of heritage significance.

 

Criteria for heritage listing

 

CRITERIA FOR LISTING ON THE STATE HERITAGE REGISTER

 

The State Heritage Register is established under Part 3A of the Heritage Act (asamended in 1998) for listing of items of environmental heritage which are of state heritage significance.

 

To be assessed for listing on the State Heritage Register an item will, in the opinion of the Heritage Council of NSW, meet one or more of the following criteria;

 

1. a) An item is important in the course, or pattern, of NSW’s cultural or natural history;
2. b) An item has strong or special association with the life or works of a person, or group of persons, of importance in NSW’s cultural or natural history;
3. c) An item is important in demonstrating aesthetic characteristics and/or a high degree of creative or technical achievement in NSW;
4. d) An item has strong or special association with a particular community or cultural group in NSW for social, cultural or spiritual reasons;
5. e) An item has potential to yield information that will contribute to an understanding of NSW’s cultural or natural history;
6. f) An item possesses uncommon, rare or endangered aspects of NSW’s cultural or natural history;
7. g) An item is important in demonstrating the principal characteristics of a class of NSW’s

– Cultural or natural places; or

– Cultural or natural environments.

 

 

Case Studies

• Case Study 1 – Items of State significance – Regent Theatre demolition
• Case Study 2 – Items of Local significance – Woollahra Council v Andriotakis & Ors
• Case Study 3- Items of Local Significance – Tova Pty Ltd v Parramatta City Council[2004] NSWLEC 282 (development application for demolition of listed heritage item – structural adequacy of item – heritage significance of item) – item retained
• Case Study 4 – Item where a ICO was issued – Meldeep No 5 Pty Ltd v Manly Council[2006] NSWLEC 472 (development application to demolish two existing buildings and construct a residential flat building – heritage item in draft LEP – whether acceptable impact on heritage item)

 

Conclusion