Heritage Penalties Ministerial Announcement

In June, the Minister for Heritage, Hon Michelle Roberts MLA, made an important announcement regarding proposed changes to the range and scope of penalties available to protect heritage places and values. This announcement was timely given the general consensus of the Heritage Summit on 28/29 May that the rapid rise in land values and potential profits had diminished the effectiveness of both existing penalties and incentives.

In summarising the current situation, the Minister noted that penalties for illegal works on heritage-listed places in Western Australia were extremely low, and offered little deterrence to deliberate unauthorised destruction. Currently, under the Planning and Development Act 2005 the maximum penalty for an illegal works including demolition is $50,000.  Under the Heritage Act, the maximum penalty for unauthorised works on a State-Registered place is $5,000.

Most heritage observers would agree that penalties in themselves are only one strategy but were an area meriting immediate action. If heritage penalties were not stringent, as a community we continue to risk losing more of Western Australia’s important heritage stock.  Property values have escalated rapidly over the past decade, overtaking a penalty regime that was devised in the 1980s. Illegal demolition has generally been fairly limited in recent years, but there is the potential it will become more common given escalating land and property values.

The announcement by Minister Roberts gives hope that the new penalties will provide an effective deterrent. In particular they will bring WA into line with penalties provided in other states.  (SA and Qld fines up to $1.2million; Vic and NSW fines up to $1.1million). Importantly there will be a range of penalties, not just monetary fines for example the placing of a moratorium on the site to stop development for a set number of years.

Penalties for State-Registered places will be provided under the Heritage of Western Australia Act 1990. 

-      A monetary penalty up to $1,000,000 and a daily penalty for continuing offences of $50,000;

-      A development moratorium up to 10 years; and

-      Repair work (whereby the offender is obliged to make good the unauthorised works).

Penalties for heritage-listed places listed in town planning schemes will be 50% of the penalties that apply to places listed in the State Register. 

Town planning scheme penalties will apply under the Planning and Development Act 2005.

-      A monetary penalty up to $500,000 and a daily penalty for continuing offences of $25,000;

-      A development moratorium up to 5 years; and

-      Repair work (whereby the offender is obliged to make good the unauthorised works).

It is important to note that the new Planning and Development Act penalties will only apply to places listed in a Heritage List that form part of a town planning scheme.  That is, the protection will not apply to places on a Municipal Inventory (MI) unless the place is also listed in a town planning scheme.   MIs do not have statutory protection in themselves. From the perspective of procedural fairness it should also be noted that penalties applied will not be linked to the value of the property.  It will be up to the courts to decide what is the appropriate penalty for a given situation.

CASE STUDY - Demolition of 5 Victoria Ave, Claremont

In August 2007, the historic Federation house (1907) located at 5 Victoria Avenue, Claremont, was demolished on a Sunday afternoon without approval. The house was listed in the Town of Claremont’s heritage inventory and protected by the heritage provisions in the Claremont town planning scheme.  (Note: It was not in the State Register.) The house was in very good condition having been extensively restored in the 1990s by the previous owner.

The demolition appeared to have been carried out in the full knowledge that an application for approval (if sought), would likely have been refused. The maximum penalty that could be imposed of $50,000 was small when compared with the value of the land, which was estimated at over $3 million. The illegal demolition of 5 Victoria Ave caused a public outcry with calls for penalties to be increased.