Historical Heritage Legislation

The State Heritage Office (SHO) – or the Heritage Council - is Western Australia’s advisory body on historical heritage matters, with a focus on places, buildings and archaeological sites. The SHO has a mission to provide for and encourage the conservation of places significant to the cultural heritage of WA under the jurisdiction of the Heritage of Western Australia Act 1990. The department manages the online inHerit database that contains information about Western Australian cultural heritage places, including those that are listed in the State Register of Heritage Places, in local government inventories and the Australian Government's heritage list.

Heritage of Western Australia Act 1990

The purpose of the Heritage Act 2018 (HA) is to recognise and promote WA cultural heritage by defining principles for conservation, use, development or adaptation for heritage places. The HA serves are the main legislative framework for historical heritage, sometimes referred to as European heritage, in the State and the main purpose of this Act is to identify, conserve and enhance places which are of cultural heritage significance. The HA sets out processes for the management of the State Register of Heritage Places, including the establishment of a Heritage Council. The purposes of this Council include assessment places of significance, advising the Minister for Heritage, guiding public authorities on best practice, promoting public awareness and administration of the register of places. The Heritage Council of Western Australia is Western Australia’s advisory body on heritage matters and focuses on places, buildings and archaeological sites, with a mission to provide for and encourage the conservation of places significant to the cultural heritage of WA under the jurisdiction of the HA.

The HA requires the keeping of a Register of Heritage Places for places that are protected by the provisions of the Act. Heritage places generally gain registration under the HA by being shown to be of cultural heritage significance or possessing special interest relating to or associated with cultural heritage. Section 38 outlines relevant factors in determining the significance of heritage places. This section uses definitions and values like those of the Burra Charter (see above): The Council are to consider values such as aesthetic, historical, scientific, social or spiritual, and characteristics such as fabric, setting, associations, use and meaning.

Part 5 outlines the responsibilities of public authorities to consider heritage matters within development planning. Under Section 73 of the HA, public authorities must refer a development proposal to the Council when the proposed works have potential to impact a registered place. The advice provided by the Council in response to a referred proposal may consider the restoration, maintenance and interpretation of the heritage place in question.

Part 11 outlines the definitions and penalties for offences and contraventions of the Act. Under section 129 of the HA, unauthorised impact to registered heritage places is subject to penalty. Section 129 defines damage as including altering, demolishing, removing or despoiling any part of, or thing in, a registered place. The penalties for contravention of the Act are severe, including a $1 million fine, imprisonment for one year and a daily penalty of $50,000. Applications to develop, disturb or alter any place entered on the Register can be made under Part 5 Division 2 of the HA. The HA is currently administered by the Department of Planning Lands and Heritage in Perth.  

The Planning and Development Act 2005

The purposes of the Planning and Development Act 2005 (the PDA) are to consolidate the provisions of the Acts repealed by the Planning and Development (Consequential and Transitional Provisions) Act 2005 (i.e. the Metropolitan Region Town Planning Scheme Act 1959, the Town Planning and Development Act 1928 and the Western Australian Planning Commission Act 1985). The PDA is intended to provide for an efficient and effective land use planning system in the State, as well as promoting the sustainable use and development of land in the State.

The PDA requires that the advice of the Heritage Council be sought in cases relating to places listed on the State Register of Heritage Places or on any inventory maintained under sections 45 or 46 of the HWAA (i.e. a Local Government Inventory). In such instances the local government in preparing or amending a local planning scheme is to refer the proposed scheme or amendment to the Heritage Council for advice and is not to proceed without the consent of the Minister of Environment; Heritage.