05 Apr 2011

WA heritage protection laws given more bite

by Brad Wylynko, Frances Hoskins

Following the 200-fold increase in the penalty for damaging a registered heritage place, it pays to be aware of your heritage obligations in Western Australia.

Recent amendments to the Heritage of Western Australia Act, and the Planning and Development Act, have brought in million dollar penalties for damaging State heritage places, disobeying orders made under State heritage legislation, and carrying out developments or demolitions without the necessary planning approvals.

Need for greater deterrence

With the rapid rise in land values in Western Australia, and some high-profile demolitions of heritage-listed properties, the WA Government decided that the existing penalties for unauthorised demolition of registered heritage places were not providing a sufficient deterrent.

State heritage places

From 3 March 2011, the maximum penalty for damaging or despoiling a place entered on the State Register of Heritage Places increased from $5,000 to $1,000,000, with the daily penalty increasing from $500 to $50,000.

In addition, the courts also now have the power to make a restoration order requiring the person to restore the heritage place to its previous condition, or to make a payment or restitution to enable restoration work to be carried out.

The penalties for breaching a development moratorium, Stop Work Order or Conservation Order have also been raised to a maximum of $1,000,000, with a daily penalty of $50,000.

It is worth noting that the protection extends to interim listings on the State Register and, importantly, also includes places that are not individually registered but form part of a registered heritage precinct.

Local heritage places

As it is possible for heritage places to be listed in a local government's heritage inventory under a local planning scheme, the recent amendments have also increased the penalty for offences under the Planning and Development Act.

The general penalty for offences under this Act (including undertaking demolition or alterations without development approval) has increased from $50,000 to a maximum of $200,000, with a daily penalty of up to $25,000.

Heritage agreements

The amendments have not changed the situation for owners of properties which are the subject of voluntary Heritage Agreements. A breach of these agreements will result in damages being payable to the Crown rather than a criminal offence. In assessing the level of damages, courts are entitled to consider the amount necessary to compensate for the loss, as well as the amount of profit made through the breach.

So how does this affect you?

The increased penalties highlight the need for all property owners to be aware of the heritage status of their properties, and the approvals required for any future development. It is also critical to conduct a thorough assessment of the heritage restrictions relating to a property prior to purchase, to determine whether this affects its market value or future development opportunities.

 

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.