Heritage Act 2018

The Act’s core legal concepts are cultural heritage significance, place, registration, protection/repair orders, heritage agreements, and the Council as regulator and facilitator.

Cultural heritage significance is defined broadly as aesthetic, historic, scientific, social or spiritual value for individuals or groups in Western Australia, and it can be embodied not only in physical fabric but in setting, use, associations, records and related objects (s 5(1)-(3)). The statutory factors for determining significance are set out in s 38 and include importance in demonstrating historical patterns, rarity, research potential, representative characteristics, social or spiritual associations, aesthetic values, associations with persons or organisations, creative or technical achievement, and any other characteristic the Council regards as relevant (s 38(1)(a)-(i)). The test permits a place to be significant despite lacking surviving physical fabric (s 38(2)).

Place is a spatially defined or readily identifiable area of land and may include archaeological remains, buildings and structures, associated objects, gardens and trees and may consist of contiguous or non‑contiguous parts in multiple titles (s 7(1)-(2)). Land descriptions for register entries must be sufficient to identify location and boundaries, using Torrens certificate of title particulars where applicable (defined term land description, s 4).

The register is the central public record. The Council must keep entries that include a land description and the current statement of cultural heritage significance (ss 35-36). Entry requires that the Council determine the place has cultural heritage significance and comply with a five‑year exclusion rule for recently removed land, subject to a Supreme Court application (ss 37-38).

Protection orders are three types: consent orders (Minister makes with owner consent), stop work orders (Minister may make urgently, with limited duration) and continuing protection orders (Minister makes after Council consultation and recommendation) (ss 55-57). Orders describe prohibited activities and may be absolute, conditional or subject to discretionary authorisations (s 58). Certain protection orders take immediate effect on publication or service; stop work orders take effect when affixed to the site or served (s 60). Tribunal review rights exist for stop work and continuing protection orders (s 62).

Repair orders are Ministerial orders requiring owners/occupiers to carry out specified works to arrest neglect or prevent irreversible deterioration, following a Council‑issued repair notice and prescribed consultation steps (ss 64-67). Repair orders include specifics about works, land description and a completion date (s 65(4)) and may be reviewed by the Tribunal (s 69).

Heritage agreements are contracts between the State and landowners that can impose conservation commitments, restrictions on works, design controls, inspection rights, financial contributions and security for obligations (ss 90-93). Certified heritage agreements bind successors in title once registered or notified (ss 90(5)-(6), 97(4)).

Decision‑maker referral is a central planning interface. Decision‑makers must refer proposals likely to affect registered places, places under heritage agreements where Council is a party, or places under protection orders giving Council discretionary authorisation (s 72(1); s 73(1)). Decision‑makers must use best endeavours to minimise adverse effects and, in general, act consistently with Council advice unless there is no feasible and prudent alternative (s 75).

Enforcement and remedies include criminal penalties, restoration and prohibition orders after conviction, and civil remedies such as injunctions, damages and the Tribunal’s powers to enforce agreement obligations (Parts 11-12, ss 129-137, 150-151, 133-134, 101). Inspectors and police have investigatory powers, and entry warrants are available where necessary (ss 114-126).

Support mechanisms exist. The Council may make grants, loans and technical assistance with ministerial approval for grants, and can recommend modification orders to planning instruments to enable conservation where planning rules impair conservation outcomes (ss 84, 86-87). Valuation adjustments are obligatory for land subject to registration or heritage agreements when the Valuer‑General values land (ss 81-83).

Key institutional features include the Council as an agent of the State with State immunities (s 12(1)), the Minister’s power to give general directions (s 22), and Tribunal review channels preserved across many decisions (multiple provisions). The Act also preserves the operation of distinct Aboriginal and environmental heritage regimes in s 10, and excludes coverage of places that comprise only the natural environment or that have heritage significance solely because of Aboriginal tradition or culture (s 9).

The Act balances regulatory prohibitions and facilitative incentives through the Heritage Fund, conservation assistance, heritage agreements and modification orders, while embedding substantial enforcement powers and an explicit compensation scheme for certain work prohibitions (s 29, ss 84, 86-87, Pt 12). The rest of this note addresses stakeholders, duties, enforcement mechanics and compliance implications.

The Act creates legal obligations and affects multiple cohorts with concrete roles and costs: owners and occupiers of land, proponents and applicants under planning regimes, local governments, State agencies, developers, mining tenement holders, the Council, decision‑makers under other statutory regimes, and the public.

Owners and occupiers: Owners and occupiers of land included in registered places or subject to heritage agreements are primary duty‑bearers. They may be required to undergo consultation during registration or amendment processes (ss 39-40, 44), to comply with protection orders and repair orders (ss 55-66), to discharge costs associated with land description amendments or removal (ss 45(3), 50(4)), and to carry out specified works under repair orders (s 65). They may be required to provide security or contribute financially under heritage agreements (s 92(g)-(h)). Owners are exposed to high monetary penalties and potential imprisonment for serious contraventions (ss 129-132).

Occupiers and others carrying out works: Persons, agents, contractors and developers proposing works that may affect registered places must navigate referral processes and Council advice (ss 72-76). Works carried out contrary to protection orders or without a works permit where required can trigger criminal liability (ss 79-80, 129-130). Employers, principals and corporate officers may be held liable for offences committed by agents, employees or the body corporate (ss 143, 145-146).

Decision‑makers and public authorities: Planning authorities, local governments and other decision‑makers must refer certain proposals to the Council and generally must act consistently with Council advice unless there is no feasible and prudent alternative (ss 73-75). Public authorities must assist the Council by providing prescribed assistance and information where reasonably practicable, and may be directed by Ministers to do so (s 20). State agencies holding heritage assets must follow Council guidelines and may be required to consult before disposing of heritage assets (ss 107-108).

The Minister and Council: The Minister decides on registration directions, protection and repair orders, and may make directions to the Council on general functions except for evaluating significance and giving heritage advice (ss 21-22, 41, 55-57, 65). The Council assesses significance, administers the register, gives advice on proposals, recommends modification orders and may run conservation assistance programs (ss 17, 35, 74, 86-87, 84). The Minister may access Council information and the Council must comply with requests (s 23).

Tribunals and courts: The State Administrative Tribunal has specified powers to review protection orders, works permits, repair orders, modification orders and some heritage agreement disputes (ss 62, 69, 80, 88, 101). Courts are used for criminal prosecutions, restoration and prohibition orders and compensation orders (Parts 11-12, ss 133-137, 134).

Mining and resource sector interests: Holders of mining tenements are captured by the owner definition where they hold tenements or have applied for them (s 6(g)). The Council or public authority must notify the Mining CEO of heritage agreements and the Mining CEO must publicise agreements to persons seeking information about tenements (s 98). This imposes notification obligations and can affect future mining tenement dealings.

Valuation and finance stakeholders: The Valuer‑General must take registration and agreement restrictions into account when valuing land, assuming conservation of contributing improvements and no post‑valuation improvements (s 82). The Council manages the Heritage Fund and may make grants or loans subject to Ministerial approval for grants (ss 29, 84). The Council may borrow with Treasurer approval; a Treasurer guarantee can be provided under conditions including required security (ss 30-32).

General public and interest groups: The Act mandates public consultation for registration, removal and many orders, and makes the register publicly inspectable (ss 35(4), 40(1)(b), 49(1)(b), 57(2)). Local communities and interest groups may thus be engaged in processes and can make submissions that the Council must consider (ss 40(3)(a), 49(6)(b)).

Who pays and bears costs: Owners are routinely the immediate cost bearers for works, amendments, or compliance conditions imposed by the Minister or Council; the Act explicitly contemplates owners discharging costs associated with amendments and removals and bearing costs under heritage agreements (ss 45(3), 50(4), 92(g)). The Council can recover prescribed costs in performance of functions (s 18(3)). The Heritage Fund is available to finance Council activities and assistance (s 29).

In sum, the Act constructs a regulatory web where private owners face obligations, the Council and Minister exercise regulatory discretion and decision‑makers in planning must incorporate heritage advice, all set against specific compensation and public funding mechanisms.

This section organises the statutory duties and rights created by the Act under registration, decision‑making, orders and agreements. Citations indicate the statutory source of each duty or entitlement.

Duties to consult and notify

• Council obligations: When reviewing nominations, making recommendations for registration, or proposing continuing protection orders, the Council must consult owners and undertake public consultation as prescribed (ss 40(1)(b), 57(2), 44(1)(b), 49(1)(b)). The Council must give statutory notification of entries, amendments, removals and statements of significance (ss 42(2)(c), 46(2)(c), 51(2)(c), 54(a)).
• Decision‑makers: Decision‑makers must refer proposals likely to affect registered places, certain heritage agreement venues or places under protection orders to the Council as soon as practicable (ss 72-73). Where a place becomes registered while a prescribed proposal is under consideration, referral and suspension mechanisms apply (s 76).

Obligations on owners and occupiers

• Compliance with protection orders and repair orders: Owners and occupiers must not contravene prohibitions in protection orders and must complete works specified in repair orders by the date set (ss 56, 65, 130, 132). A repair notice precedes a repair order and requires consultation steps (s 64).
• Responses to Council directions and notices: Owners and occupiers may be required to provide information and respond to Council or inspector directions (ss 126, 119). The Valuer‑General must take account of registration restrictions in valuations, which affects rates and compensation outcomes (s 82).
• Potential financial obligations: The Minister may condition land description amendments or removals on owners discharging costs associated with the amendment or removal (ss 45(3), 50(4)). Heritage agreements can include contributions towards costs, indemnities, and security for performance (s 92(g)-(h)).

Rights and procedural protections

• Tribunal review rights: Owners may apply to the Tribunal to review stop work and continuing protection orders, repair orders, works permit refusals or conditions and modification orders within statutory timeframes (ss 62, 69, 80, 88). The Tribunal applies Planning and Development Act Part 14 procedures with necessary modifications (ss 62(3), 69(2), 80(3), 101(3)).
• Council advice and recommendation rights: The Council must advise and prepare draft register entries and provide reasons for recommendations made to the Minister; the Minister must have regard to Council recommendations when directing entry, amendment, or removal (ss 40(3), 41(2), 44(3), 45(2), 49(6), 50(2)).
• Notice and reasons: The Minister must state reasons for making or not making a protection order, and those reasons must be communicated to affected owners (s 57(3); s 41(1)(b) and 41(3) for registration directions). Directions given by the Minister under s 22 must be included in the Council’s annual report (s 22(4)).

Enforcement rights and remedies

• Restoration and compensation orders: Courts may make restoration orders requiring restorative measures or payments, and courts can make compensation orders for loss caused by contraventions (ss 133, 137). The Council can recover reasonable expenses in executing restoration orders and may charge or recover costs in prescribed circumstances (s 133(5); s 18(3); s 162).
• Securing compliance: The Minister or Council may seek injunctions in courts or apply to the Tribunal for orders to secure compliance with the Act (s 151). The court may grant interim ex parte injunctive relief without requiring the applicant to give undertakings as to damages or costs (s 151(4)-(5)).

Limitations on private actions and confidentiality

• No private cause of action for offences: The Act expressly does not create private causes of action for offences under the Act beyond statutory actions for damages under s 150 (s 157(1)). This narrows remedies that third parties might otherwise seek for prosecutable conduct.
• Confidentiality: The Council must not disclose communications with owners or occupiers except in limited circumstances, including with owner consent, for statutory purposes, or where investigation or proceedings require disclosure (s 159).

Compensation and valuation rights

• Compensation for relocations and work prohibitions: Owners who suffer compensable loss owing to work prohibitions can apply to the Minister for compensation and, if the Minister fails to recommend, can require the Treasurer to determine (Pt 12, ss 152-155). The Valuer‑General must treat registered or agreement subject land as constrained in value for valuation purposes (s 82).

Other administrative rights

• Heritage agreements: Owners of eligible land may enter into heritage agreements that are certified by the Minister and that bind successors in title when notified or registered (ss 90-97). The Council may recommend heritage agreements as conditions of approvals for certain land types (s 74(4); s 75(3)).

Duties of public authorities

• Assistance to Council: Public authorities must provide prescribed assistance and respond to reasonable information requests from the Council, subject to reasonableness and existing fee obligations (s 20). Ministers may direct public authorities to comply where the Council reports non‑compliance (s 20(4)-(5)).

Financial duties and institutional obligations

• Council financial management: The Council operates under the Financial Management Act and Auditor General Act (s 27), maintains the Heritage Fund (s 29), may borrow with Treasurer approval (s 30) and must notify the Minister of financial difficulty (s 33).

This catalogue shows the Act imposes a mixture of substantive prohibitions, procedural duties, consultation obligations and statutory rights to review, with pressure points centred on owners and decision‑makers and institutional powers given to the Council and Minister.

The Act combines criminal sanctions, civil orders, inspector powers and Tribunal and court remedies. Penalties are significant and include daily fines and, for some contraventions, imprisonment.

Criminal offences and statutory penalties

• Damaging registered places: Section 129 criminalises alteration, demolition, damage, despoilation and removal that detrimentally affect a registered place. Each subsection attracts a fine of up to $1 000 000 and a daily penalty of up to $50 000, subject to statutory exceptions for authorised works (ss 129(1)-(4)).
• Contravention of protection orders: Section 130 criminalises contravention of protection orders. Subsections (1)-(2) provide fines up to $1 000 000 and imprisonment for one year, with daily penalties. Subsection (3) provides a $1 000 000 fine and daily penalties where a stop work order is affixed to the place and the prohibited work is carried out (s 130(1)-(3)).
• Contravention of repair orders: Section 132 requires the owner to complete works specified in a repair order by the date specified and prescribes fines up to $1 000 000, imprisonment for one year and daily penalties for continuing contraventions (s 132(1)).

Defences, onus and corporate liability

• Onus of proof in demolitions: Section 131 creates a statutory presumption against the owner in prosecutions for substantial demolition where circumstances suggest the owner did not suffer significant financial loss. The owner is presumed to have carried out or authorised the demolition unless the contrary is proved (s 131).
• Corporate and derivative liability: The Criminal Code provision for officer liability applies to listed offences, so officers of bodies corporate may be criminally liable (s 143). Principals, employers and successors in title may also be held liable in certain circumstances (ss 145-146, 142).

Inspector and police powers

• Appointment and powers: Inspectors are appointed by the Minister and police officers have inspector functions by operation of statute (ss 114-115). Inspectors can enter land for investigation purposes with consent, or with a warrant, and have powers to require information, examine, photograph, seize evidence and direct persons at the site (ss 118-125, 119).
• Entry warrants: Inspectors may apply for warrants under procedures adapted from the Criminal Investigation Act 2006; warrants authorise entry and exercise of inspection powers for up to 30 days and must particularise the place and purposes (ss 121-123).

Civil orders and remedies

• Restoration orders: Courts may order convicted persons to restore places or make payments to effect restoration; failure to comply attracts fines and enables the Council to carry out works and recover costs as a debt (s 133).
• Prohibition orders: Following conviction, the Governor may make prohibition orders that restrict development, use or subdivision of land for up to 10 years; contravention carries significant penalties including imprisonment (s 134).
• Compensation orders: Courts can make orders compensating third parties for loss caused by contraventions (s 137).

Injunctions and securing compliance

• Injunctive relief: The Minister or Council may apply to the Supreme Court, District Court or Tribunal for orders or injunctions to secure compliance; courts may grant interim ex parte injunctions and are expressly not to require undertakings as to damages in applications under s 151 (s 151(2)-(5)). The Tribunal has specified review powers in relation to protection orders, repair orders, works permits and modification orders (ss 62, 69, 80, 88).

Time limits and prosecution initiation

• Time limits: Criminal proceedings must be commenced within three years after the alleged offence (s 135). Civil claims for damages are subject to a three‑year limitation for statutory claims (s 150(2)).
• Prosecution initiators: The Council or an authorised person may commence prosecutions; the statute does not require proof of authorisation in proceedings absent contrary evidence (s 136).

Enforcement costs and recovery

• Recovery of costs: Where the Council executes a restoration order or carries out work, it may recover reasonable expenses from the person who failed to comply or a successor in title as a debt (s 133(5)). Regulations permit the Council to impose fees and charges for prescribed functions, subject to limitations on certain functions (s 162).

Procedural constraints on enforcement

• Double jeopardy safeguards: The Act provides that a person convicted under one subsection of s 129 or s 130 is not to be convicted under another subsection for the same conduct (s 130(4); s 132(2) for repair orders). The Governor must not make a prohibition order if the convicting court recommends no prohibition order be made (s 134(4)).

Overall enforcement architecture combines investigatory powers, significant sanctions, administrative enforcement tools, civil and criminal remedies, and Tribunal review channels. The high penalties and the availability of daily fines create strong deterrent effects, while the Act also supplies statutory mechanisms for restoration, cost recovery and owner recourse via Tribunal and court review.

The Act is drafted to sit alongside and, in some respects, modify the operation of other Western Australian statutes. It preserves certain regimes, amends references in major planning and building laws, and sets out notification and valuation interactions.

Non‑derogation clauses and exclusions

• Excluded Acts: Section 10 expressly states the Act does not affect the operation of the Aboriginal Heritage Act 1972, the Conservation and Land Management Act 1984, the Environmental Protection Act 1986, or the Maritime Archaeology Act 1973. These statutes continue to operate in parallel where relevant (s 10).
• Exclusions for Aboriginal and natural places: The Act does not apply to places that consist only of the natural environment or places whose cultural heritage significance arises solely from Aboriginal tradition or culture (s 9). Those areas remain within other statutory schemes.

Planning and development law

• Referral and decision‑maker interplay: The Act requires decision‑makers under other written laws to refer proposals that may affect registered places or certain heritage interests to the Council for advice (ss 72-75). The Planning and Development Act 2005 is specifically amended across multiple provisions to reference protection orders and the new register (Pt 15, s 186). Decision‑makers must generally act consistently with Council advice unless there is no feasible and prudent alternative (s 75(1)(d)).
• Modification orders: The Minister may, on Council recommendation, modify planning instruments to enable conservation of a registered place (ss 86-87). These modification orders are published in the Gazette and are subject to Tribunal review within 28 days (s 88).

Building law and development approvals

• Building Act cross‑references: The Building Act 2011 is amended to replace references to the 1990 Act with this Act (Pt 15, s 183). Works requiring development approval that might affect heritage places must go through decision‑maker referral processes under Part 5 where applicable (s 71; s 73) and may require works permits under s 79 when no other decision‑maker exists.

Land registration and succession

• Heritage agreement registration: The Council or a public authority may notify the Registrar of Titles or the Registrar of Deeds to record the coming into operation of a heritage agreement; the Registrar must register the notification and endorse the title (s 97). Once registered, heritage agreements bind successors and are notice to successors in title (s 97(4)). Notification to the Mining CEO triggers additional steps to bring agreements to the attention of mining tenement applicants (s 98).

Valuation and compensation regimes

• Valuer‑General duties: When valuing land subject to registration or heritage agreements, the Valuer‑General must assume that contributing improvements must be conserved and that no post‑valuation improvements may be made, materially affecting valuation outcomes (s 82). An owner may request an interim valuation under the Valuation of Land Act following registration or agreement (s 83).
• Compensation interaction: The Act limits compensation rights to the statutory scheme it creates; except for the specific compensation regimes in Parts 10 and 12, the Act does not give rise to compensation claims (s 156). Acquisition processes under the Land Administration Act 1997 are triggered where registered land is declared required for protection, and Part 10 governs compulsory acquisition and compensation interaction (ss 109-110).

Criminal and evidence law

• Entry warrants and warrants procedure: Entry warrant applications and execution follow procedures from the Criminal Investigation Act 2006 applied to this Act (s 121(3)). Findings of fact from court proceedings under this Act may be used as evidence in other proceedings (s 138).
• Officer liability: The Criminal Code’s officer liability provisions apply to offences listed in s 143, aligning corporate officer liability with criminal law provisions.

Public sector and financial management

• Financial Management Act and Auditor General Act apply to Council: The Council is subject to the Financial Management Act and Auditor General Act for financial governance and reporting (s 27). The Heritage Fund is an agency special purpose account under the Financial Management Act (s 29).

Local government and other statutes

• Local government: The Act exempts Council‑owned, leased or controlled land from local government rates where used or preserved by arrangement with the Council (s 34). Local heritage surveys prepared by local governments under Part 8 are intended to feed into planning instruments and local heritage lists (ss 103-105).
• Amendments to other Acts: Part 15 makes multiple amendments to existing statutes to update references and entrench referral obligations, including to the Planning and Development Act 2005, Building Act 2011, Strata Titles Act 1985 and Swan Valley Planning Act 1995.

Administrative overlaps and precedence

• Minister and Council interactions: The Minister can give general directions to the Council but not directions that relate to evaluating cultural heritage significance or advice about specific places (s 22(3)). The Minister also has statutory rights of access to Council information (s 23). These provisions set the administrative relationship with constrained Ministerial influence over expert judgments.

In practice, the Act creates a layered compliance footprint that intersects planning approvals, building approvals, land titling and valuation, mining tenement information flows, and court and tribunal processes. Practitioners must map applications and approvals across these regimes and ensure that referral obligations, notification requirements and valuation assumptions are observed.

The Act replaced the Heritage of Western Australia Act 1990 and includes both express repeal and transitional provisions, plus later amendments recorded in the compilation table and marginal notes. Key points in the amendment history, as reflected in the statute text and compilation table, are:

Enactment and commencement

• The Heritage Act 2018 (No. 22 of 2018) received Royal Assent on 18 September 2018. Part 1 (other than ss 3-10) commenced on assent day; the remainder of the Act commenced by proclamation, with most provisions commencing on 1 July 2019 (s 2; compilation table).

Repeal and transition

• Section 166 repealed the Heritage of Western Australia Act 1990; Division 2 of Part 14 contains extensive savings and transitional provisions preserving the former Council, the former register, interim registrations, conservation orders and existing heritage agreements, and setting out the interim period for conversion of interim registrations to entries under the new regime (ss 166-182).

Post‑enactment amendments captured in the compilation table and inline notes

• Swan Valley Planning Act 2020 (No. 45 of 2020): Part of this Act amended cross‑references and related matters with a commencement date 1 August 2021 (compiled amendments noted in the compilation table).
• Aboriginal Cultural Heritage Act 2021: Section 349 of that Act altered s 9 and s 10 of the Heritage Act 2018, with the effect that s 9 was amended and s 10 updated to confirm the Act does not affect operation of several listed Acts; the amendment took effect 1 July 2023 as recorded in the compilation table and marginal notes.
• Directors’ Liability Reform Act 2023 (No. 9 of 2023): Inserted s 143 and related provisions on officer liability and made other changes (marginal note shows insertion in 2023; compilation table records commencement 5 April 2023).
• Aboriginal Heritage Legislation Amendment and Repeal Act 2023: Section 29 made further amendments to s 9 and s 10 and commenced 15 November 2023.
• Notes indicate uncommenced provisions from later Acts such as the Petroleum Legislation Amendment Act 2024 s 433(2) remain to be proclaimed.

Amendments incorporated in the Act text and Part 15 cross‑references

• Part 15 contains numerous amendments to other Acts to update cross‑references, notably the Planning and Development Act 2005 (s 186), Building Act 2011 (s 183) and Strata Titles Act 1985 (s 187). These amendments replace references to the repealed 1990 Act with references to the Heritage Act 2018 and adjust provisions on development approvals for heritage places to align procedures with the new referral and suspension mechanisms in Part 5 (Pt 15, ss 183-188, and detailed amendments to PLD Act sections specified).

Transitional operationalisation

• The transitional provisions ensured continuity: the new Council is the legal continuation of the former Council, members continued in office and prior registers and conservation orders are taken to be entries and orders under the new Act (ss 169-179). The interim period for converting interim registrations to full entries is two years from commencement day (s 178).

Regulatory implementation

• Many operational details are left to regulations, which permit the Governor to prescribe forms, procedures, fees and consultation rules (s 164). The Act itself includes numerous references to prescribed periods and procedures that would be fleshed out by regulation.

Reporting and scheduled review

• The Act includes a statutory review requirement: the Minister must carry out a review of the operation and effectiveness of the Act as soon as is practicable after the 5th anniversary of the commencement of s 165 and lay the report before both Houses (s 165).

For practitioners, the amendment history shows the Act has been updated to reflect newer heritage and administrative statutes, and that cross‑legislative amendments in Part 15 were aimed at integrating heritage processes with planning, building and strata regulation. Users must check both the Act and the regulations (and declared commencement dates) to determine operative obligations at any point in time.

The Act text itself does not list court decisions. It creates multiple statutory review and judicial avenues that are likely to be engaged in litigation, and it sets procedural and evidential frameworks that shape likely disputes. The Act prescribes who may seek review and the statutory limits on review, and identifies the forum and time limits relevant to litigation:

Tribunal review jurisdictions and pathways

• Stop work and continuing protection orders: Owners may apply to the State Administrative Tribunal for review of such orders (s 62(1)). The Minister may refer a stop work order to the Tribunal seeking continuation beyond 60 days (s 62(2)). The Act applies Planning and Development Act Part 14 procedures to these applications (s 62(3)). The Tribunal’s powers include revoking, confirming or modifying protection orders (s 62(4)).
• Repair orders and works permits: Persons subject to repair orders may seek Tribunal review (s 69(1)); applicants aggrieved by works permit decisions may apply to the Tribunal (s 80(1)-(2)). Both are subject to Part 14 procedures of the Planning and Development Act (ss 69(2), 80(3)).
• Modification orders: Persons aggrieved by a modification order may apply to the Tribunal within 28 days to set aside or amend the order on grounds of non‑compliance with statutory requirements that substantially prejudiced interests (s 88).
• Heritage agreements: The Tribunal can determine matters where owners seek orders about what provisions a heritage agreement should contain in certain negotiation failures (s 101(1)). The Tribunal can order performance, compensation or other orders to secure agreement performance (s 101(2)).

Judicial reviews and court proceedings

• Declaration of land required for protection and acquisition: A person aggrieved by a declaration under s 109(2) may apply to the Tribunal to determine whether the Minister had reasonable cause to declare the land required for protection; the Tribunal’s determination must be given effect by the Minister and the Minister administering the Land Administration Act (s 111(1), (3)-(4)). The Tribunal cannot determine the nature or degree of cultural heritage significance (s 111(4)).
• Criminal and civil prosecutions: The Council or an authorised person may commence prosecutions for offences under the Act (s 136). Courts may impose penalties, make restoration orders, and award compensation orders (ss 129-137).
• Time limits and limitation bars: Proceedings to challenge Council or Minister actions under Part 3 may not be commenced after three years from the action date (s 160). Criminal proceedings must be commenced within three years (s 135). These limitation periods affect litigation strategy and timing.

Evidential and procedural mechanisms that will affect litigation

• Findings from proceedings under the Act in one proceeding are admissible in other proceedings as evidence of those facts (s 138). A certified heritage agreement is prima facie evidence of its terms in legal proceedings absent proof to the contrary (s 95).
• The Act creates evidentiary presumptions affecting owners in demolition prosecutions: owners are presumed to have carried out or authorised demolition unless they prove otherwise where circumstances indicate lack of significant financial loss (s 131).

Practical litigation pressures implied by the Act

• High penalties and daily fines provide a strong enforcement incentive for the State and private litigants with authority to prosecute. Restoration and prohibition orders impose long‑term land‑use constraints that can be the subject of administrative and judicial challenges.
• The Act’s interaction with other statutes (modified references to planning and building Acts) channels disputes into the Tribunal via Part 14 procedures. Tribunal review is therefore the expected forum for many administrative disputes between owners and the State or Council over protection and repair orders, works permits, modification orders and heritage agreement disputes.
• Confidentiality provisions and the Council’s obligation not to disclose communications except in limited contexts may affect disclosure strategies and evidence in litigation (s 159).

Limitations on private enforcement

• The Act explicitly restricts private causes of action for offences under the Act (s 157). Where conduct gives rise to both a prosecution and a breach of a heritage agreement, the Council can choose to pursue prosecution, civil action or combination approaches (s 149). These rules constrain third party litigation options and focus enforcement in the Council as the State’s enforcement agent or other authorised prosecutorial actors.

Because the Act is relatively recent and transitions from the 1990 Act were managed by savings provisions, most litigation will arise in the Tribunal and courts within the statutory review windows set by the Act. Practitioners should carefully note review timeframes, the specified procedural cross‑references to the Planning and Development Act 2005 Part 14, and the evidentiary presumptions created for demolition cases.

This section flags statutory traps, operational frictions and practical pitfalls in the Act text that frequently produce compliance failures or contested outcomes. Each item is grounded in the Act.

1. Limited coverage for Aboriginal cultural heritage and natural places

• The Act expressly does not apply to places that consist only of the natural environment or that have cultural heritage significance solely because of Aboriginal tradition or culture (s 9). That exclusion shifts regulatory responsibility and can cause confusion when places have mixed values. Practitioners must determine which statute governs a particular site, since s 10 preserves operation of the Aboriginal Heritage Act 1972 and other listed Acts.

2. Wide Ministerial discretion with limited substantive constraint

• The Minister must have regard to Council advice when directing entries, amendments or removals (s 41(2); s 45(2); s 50(2)). However the Minister retains discretion and may give directions, and s 22 allows general directions to the Council except regarding evaluation of significance and advice on places (s 22(3)). Practitioners should note advice from the Council is influential but not determinative.

3. Immediate effect of stop work orders

• A stop work order can take effect the moment it is affixed to the site or served (s 60(2)). The order can be made without owner consent when imminent damage is alleged (s 56(2)). Although Tribunal review exists, the operation is not stayed by review and the Tribunal cannot stay the order (s 62(6)). Owners who continue work risk severe penalties.

4. Extremely high penalties and presumptions against owners

• Maximum fines of $1 000 000 and daily fines of $50 000 apply for many breaches (ss 129-132). Section 131 creates a presumption in demolition prosecutions that the owner authorised the demolition unless they prove otherwise where circumstances suggest no significant financial loss. These features require prompt legal and evidentiary responses when enforcement actions arise.

5. Onus to consult and notification technicalities

• Numerous processes require notice and prescribed consultation steps, including registration reviews, land description amendments, removals, continuing protection orders and repair notices (ss 40, 44, 49, 57, 64). Regulations set many timeframes and procedural details; failure to follow prescribed forms or statutory notice procedures can be fatal to decisions or be grounds for Tribunal review (s 88).

6. Valuation assumptions can devalue land unexpectedly

• For Valuation of Land Act valuations, the Valuer‑General must assume that improvements contributing to cultural heritage significance must be conserved and that no post‑valuation improvements may be made (s 82(1)(b)). This may materially reduce market valuations, affect mortgage and acquisition decisions, and complicate compensation calculations.

7. Limited compensation and narrow compensable loss definition

• Compensation under Part 12 is available only for narrowly defined compensable loss arising from a work prohibition, which excludes capital costs and requires loss to be liquidated, contractual or statutory, and unrecoverable or unmitigable (s 152). The Minister has discretion in recommending compensation and may require a heritage agreement as a condition (s 154). If the Minister does not recommend, the Treasurer may determine; an applicant can require that determination (s 155). Practitioners must manage expectations on compensation.

8. No private cause of action for offences

• Section 157 prevents creating private causes of action for offences under the Act. Where third parties suffer loss due to contraventions and wish to pursue private prosecutions, the pathways are constrained; the Council or an authorised person holds primary prosecutorial capacity (s 136).

9. Confidentiality exceptions and evidence in proceedings

• The Council must not disclose communications with owners except in enumerated circumstances (s 159). This protects owners’ communications but can limit transparency in contested matters. Conversely, findings of fact in proceedings under the Act can be used as evidence in other proceedings (s 138), which can amplify consequences across litigation.

10. Regulatory dependency and uncommenced particulars

• The Act delegates many operational matters to regulations: forms, time limits, prescribed persons, fees, detailed procedures for consultation and technical standards (s 164). Until regulations are made or consulted, certain procedural obligations may be unclear. Practitioners must check the current regulations to understand applicable forms and timeframes.

11. Interaction with mining tenements and successor in title exposure

• The owner definition includes mining tenement holders and applicants (s 6(g)). Notification mechanisms to the Mining CEO and registration with the Registrar can bind successors in title (ss 98, 97). Successors may inherit liabilities and obligations under heritage agreements (s 97(4)); this complicates due diligence in land and tenement transactions.

12. Statutory time limits for challenges and prosecutions

• Proceedings challenging Council or Minister actions under Part 3 are barred after three years (s 160). Criminal proceedings must be commenced within three years (s 135). Missing these windows can forfeit rights.

13. Council’s ability to recover costs and impose fees

• The Council may recover prescribed costs and impose fees in connection with its functions under regulations, subject to specified exclusions (s 18(3); s 162). Owners should factor potential fees and charges into budgeting for applications, amendments, or compliance.

These practical pitfalls arise from the way the Act allocates power, prescribes procedure and sets evidential presumptions. They underline the need for early engagement with the Council, rigorous record keeping, and careful planning when works may affect potential or registered heritage places.

This section gives concrete steps that owners, developers, local governments and public authorities should take to stay within the Act’s obligations, grounded in the statutory provisions.

1. Check the register and local heritage surveys early (s 35; ss 103-105)

• Before planning works, consult the State Register of Heritage Places to confirm whether the site is registered (s 35(1)). Check local heritage surveys prepared by local governments as these inform planning decisions and may flag places for which referral is required (ss 103-105). The Council must make the register available for public inspection in regulations (s 35(4)).

2. Identify referral obligations and engage the Council promptly (ss 72-75)

• If a proposed development might affect a registered place, a place under a relevant heritage agreement or a protection order that delegates discretion to Council, the relevant decision‑maker must refer the proposal to the Council as soon as practicable (ss 72-73). Practitioners should build the referral and Council consultation timetable into project planning, allow for prescribed response periods and seek the Council’s advice early to reduce the chance of decisions being inconsistent with advice (s 75(1)(c)-(d)).

3. Use pre‑application consultation and prepare thorough heritage documentation (ss 40(1)(b), 74(2))

• During nomination or review, the Council will consider cultural heritage significance and consult owners and the public (s 40(1)(a)-(b)). Applicants should prepare a robust statement of cultural heritage significance, conservation management plans, and impact assessments addressing the s 38 factors. Early engagement and sharing of drafts reduces risk of adverse findings and strengthens prospects for agreeable conditions or heritage agreements.

4. If there is no decision‑maker, apply for a works permit (s 79)

• For works not requiring approval under another written law and which would otherwise contravene s 129, apply to the Council for a works permit under s 79. Prepare to pay prescribed fees, supply heritage assessments and accept conditions or bond requirements.

5. Respond promptly to repair notices and comply with repair orders (ss 64-66)

• If the Council issues a repair notice due to neglect, follow the prescribed steps for consultation and negotiation. Where a repair order is made, complete specified works by the stated date and ensure compliance with building, planning and local government requirements referenced in s 67. Keep documentary evidence of works, standards followed and approvals obtained.

6. Consider heritage agreements as a tool to manage obligations and access incentives (Pt 7)

• Heritage agreements allow owners to formalise obligations and may be a condition of approvals in certain cases (ss 74(4), 75(3)). They can include payments, security and inspection clauses (s 92). If offered, obtain independent legal and valuation advice before entering an agreement; if registering a heritage agreement, ensure timely notification to the Registrar and Mining CEO where necessary (ss 97-99).

7. Be mindful of valuation effects and request interim valuations where appropriate (ss 82-83)

• If land becomes registered or subject to a heritage agreement, the Valuer‑General’s valuation assumptions will apply. Owners may request an interim valuation under s 83 to have values updated. Valuation may affect rates, mortgages and compensation outcomes; engage valuers and lenders early.

8. Keep records and exercise compliance diligence to defend presumptions (ss 119, 131)

• Inspectors can request records and information; comply with lawful information directions and maintain robust records of works, maintenance, approvals and communications with heritage authorities (ss 119, 126). In demolition contexts the owner bears a challenging evidential presumption under s 131; contemporaneous documents and evidence of financial loss or independent contractor actions help rebut it.

9. Prepare for potential enforcement and use Tribunal processes strategically (ss 62, 69, 80, 88, 111)

• If facing a protection order or repair order, consider Tribunal review early and comply with time limits for applications. Tribunal procedures mirror Planning and Development Act Part 14; prepare submissions accordingly.

10. Budget for potential conditions, charges and compliance costs (ss 45(3), 50(4), 162)

• The Minister may require owners to discharge costs associated with amendments or removals. Regulations permit fees and charges in connection with Council functions. Factor potential costs for heritage assessments, works, securities and Council fees into project budgets.

11. Ensure disclosure in transactions and due diligence

• Heritage agreements can be registered and will bind successors in title; ensure title searches include registered notifications and check for outstanding protection or repair orders (s 97). Mining tenement holders and applicants are within the owner definition and may be subject to obligations; check Mining CEO notices where applicable (s 6(g); s 98).

12. Use confidentiality and consultation protections

• Communications with the Council are confidential except in prescribed circumstances (s 159). Use confidentiality protections when negotiating, but be aware the Council may disclose information when investigating offences or for statutory purposes.

13. Plan for compensation contingency where work prohibitions cause demonstrable losses (Pt 12)

• If a work prohibition suspends or delays development and causes liquidated contractual loss, consider applying to the Minister for compensation under Pt 12. Prepare evidence of compensable loss as defined in s 152 and expect the Minister to inquire into whether the expenditure was reasonably incurred; if the Minister fails to recommend, the Treasurer determination route under s 155 is available.

14. Monitor regulations and guidelines

• Many details are implemented by regulations (s 164) and by Council guidelines for local heritage surveys and State agency inventories (ss 105, 107). Keep updated copies of relevant regulations and guidelines to ensure procedural compliance.

15. Engage professional heritage advisors and legal counsel early

• Given the technical character of s 38 assessments, the procedural complexity of referrals, and the high penalties in enforcement, engage heritage consultants, valuers and legal counsel during project conception, planning consent, and any Council interactions.

Following these concrete steps, with attention to specific statutory citations referenced above, will reduce the risk of enforcement, improve the prospects of consent or negotiated outcomes and preserve rights of review.