Australia: The heritage ripple effect: New regulation of development on land adjoining heritage places - 1 December 2016

Last Updated: 4 December 2016
Article by David Nicholls

Owners of properties adjoining heritage places will be affected by a new State assessment trigger and State Development Assessment Provisions (SDAP). The Sustainable Planning Regulation (No. 4) 2016 (SPR4) and an amendment to SDAP are due to commence on 5 December 2016. SPR4 provides that making a material change of use (MCU) of premises on a lot that shares a common boundary with a lot that is, or contains, a Queensland heritage place, will be subject to code assessment. The exceptions to this requirement are MCU's for or involving:

  • a dwelling house more than 25 metres from the boundary of the lot containing the Queensland Heritage Place
  • any use more than 75 metres from the boundary of the lot containing the Queensland Heritage Place
  • only single storey buildings or structures
  • only internal alterations or minor external alterations of existing buildings or structures.

It can be observed that the underlying intent of SPR4 is to discourage buildings or uses close to the boundary of heritage places, or those which are greater than one storey, regardless of the actual location of the relevant heritage buildings within the curtilage of the heritage place. The reference to distance from the boundary of the heritage place suggests a de facto expansion of the influence of heritage places beyond the boundaries that were determined at the point of listing of those places.

There seems to be an inherent presumption that development in excess of the exclusions proposed potentially adversely affects heritage buildings. Such a presumption is questionable because development on adjoining land is highly unlikely to have an adverse effect on a Queensland heritage place unless it has been listed under the aesthetic significance criteria in section 35(1)(e) of the Queensland Heritage Act 1992 (QHA) and even then, the statement of significance would need to identify the adjoining land as part of the setting of the place, or that views of the place from the adjoining land form part of the place's cultural significance. It must be noted that there are seven other criteria under which places may be listed, none of which seem to be capable of bringing in views or settings as an element of the listing.

Development falling under the new concurrence trigger is required to be assessed against the relevant provisions of SDAP and the chief executive administering the Sustainable Planning Act (SPA) will act as a concurrence agency. Notably, the referral jurisdiction is stated as the purpose of the SPA rather than the purpose of the QHA. This seems odd as the trigger relates to the State interest in Queensland heritage places entered in the register under the QHA. Therefore, it must be understood as expanding the scope of the QHA by collateral amendments to regulations under the SPA.

SDAP Module 9 has been completely re-written. The purpose of the code recognises that it seeks to regulate development on and adjoining a State heritage place so as to conserve cultural heritage significance for the benefit of the community and future generations and minimise or mitigate unavoidable impacts on cultural heritage significance. It also states that its purpose is to "maintain or enhance the setting and streetscape adjoining the state heritage place, and views to and from the state heritage place, where these aspects from part of its cultural heritage significance".

The cultural heritage significance of a Queensland heritage place is found in the citation which identifies the cultural heritage criteria under which, and the reasons why, the place was entered in the register. The citation is not open to expansion, reinterpretation or reinvention so as to give traction to the new State assessment criteria. Thus, for owners of properties adjoining Queensland heritage places, it is important to examine and understand the nature and effect of the criteria under which an adjoining heritage place was listed.

The performance outcome for development on land adjoining a State heritage place is contained in table 9.1.3 of the Module and is as follows:

"Table 9.1.3: Material change of use on land adjoining a state heritage place"

A place may, for example, be entered in the register solely because of its historic significance and not because of its aesthetic significance. In that instance, the place itself will have cultural heritage significance but its setting is unlikely to form part of the citation for its entry. On the other hand, a place which may have been listed because of its aesthetic values may include in the citation reference to the importance of its setting or to particular views of the place. If the setting or views of the place form part of its cultural heritage significance, development on adjoining land that would impede the views may arguably result in an adverse impact on the place's cultural heritage values.

It is important that owners of land suitable for redevelopment adjoining State heritage places understand how these changes may affect their development rights. The changes have a de facto retrospective operation on property rights because owners of adjoining land:

  • usually will not have been consulted when adjoining places are proposed for entry in the heritage register;
  • usually will not be aware of the provisions in a heritage citation with potential to adversely affect their development rights; and
  • probably would not have objected to a proposed entry (if they knew about it) believing that the heritage listing of the adjoining property would not affect their interests.

It is self-evident that those land owners would have been relaxed about such heritage listings because, until now, the State's powers to restrict development were limited to heritage sites and did not extend to adjoining land.

It is important for owners of adjoining land to note that presently, under section 34 of the QHA, the chief executive administering the QHA may change the citation or statement of significance for a heritage place with the consent of the owner of the heritage place and the Queensland Heritage Council. This means the citation could be changed to reference particular views or the setting of a heritage place without the consent of the adjoining owner, who would currently have no recourse under the QHA to prevent such action. While there is a right under the QHA for any person (which would include an adjoining land owner) to apply to have a place removed from the register, there is no ability to apply to have a statement of significance altered, nor to legally challenge an adverse change to a statement of significance.

The changes to the regulations and the proposed changes to SDAP are significant because they expand the reach of the QHA and thereby affect the rights of third parties who are currently not affected by that Act. The QHA should be amended in parallel with the commencement of the regulations and SDAP so as to require the consent of adjoining owners to any amendment to the statement of significance which potentially attracts the operation of the new concurrence powers. Property owners should also be given the right to appeal against the heritage listing of an adjoining property.

The exercise of concurrence powers pursuant to the new trigger is subject to review by the Planning and Environment Court in relation to refusal or the imposition of unreasonable conditions.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

David Nicholls
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions