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
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
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.
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
This legal update is an overview of existing eligible project activities and new project types proposed to be developed.
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