Heritage Regulation 2012

The Regulation defines two key terms in clause 3: ‘ruin’ has the same meaning as in section 118 of the Heritage Act, and ‘the Act’ means the Heritage Act 1977. A ‘ruin’ is not further defined in the Regulation itself, so its meaning comes from the Act. The distinction between a ruin and a building or work is critical because different minimum standards regimes apply: Division 1 of Part 3 imposes standards for buildings, works, and relics (other than ruins), whereas Division 2 of Part 3 provides that the minimum standards for ruins and moveable objects are those listed on the Register, not those set out in the Regulation itself. Another core concept is the ‘assessment period’. Part 2A defines this for applications for approval (40 or 60 days under section 65(1) of the Act) and for excavation permits (21 days under section 141(2) of the Act). The assessment period is not a static deadline: clause 8C provides that the period between a relevant body’s request for additional information and the applicant’s response is not counted toward the assessment period, effectively pausing the clock. The relevant body (approval body for approvals, Heritage Council for permits) may request further information under clause 8B, and it must notify the applicant of the days elapsed and the effect of the pause. The applicant may refuse to provide the information, and that refusal is taken to occur if the applicant fails to respond within the specified period or a further allowed period. Fees are calibrated to the ‘estimated cost’ of the activity, defined in clauses 4(2) and 5(2) as the reasonable cost based on prices current when the application is made. Fee tiers range from a flat $150 for small-scale work on owner-occupied private dwellings up to a base of $3,000 plus $10 for each additional $100,000 over $10 million. A separate fee of $100 applies for an evidentiary certificate under section 167 of the Act. The concept of ‘owner-occupied private dwelling’ appears only in the fee provisions and provides a substantial concession. Conservation management plans (CMPs) serve as a flexible tool: clause 9(3) allows an endorsed CMP to disapply or add to the Division 1 minimum standards, effectively overriding the default regulatory requirements. For ruins and moveable objects, no default standards are set; instead, the Heritage Council may list minimum standards on the Register using a procedural consultation process set out in clause 17, which requires notice to affected owners and occupiers, public notice, a submission period of at least 28 days, and consideration of whether the standards would render the item incapable of reasonable or economic use or cause undue financial hardship.

The Regulation imposes duties and creates rights for a range of actors. Owners of items on the State Heritage Register (whether buildings, works, relics, ruins, or moveable objects) bear the primary burden: they must ensure the item is maintained and repaired to the minimum standards (through the operation of section 119 of the Act), arrange inspections at prescribed intervals, and, if the Heritage Council so requests, provide inspection reports within two months. Owners of unoccupied buildings face additional fire protection and security measures under clauses 12 and 14 if the building will be unoccupied for 60 continuous days or more, including shutting down gas services and installing smoke detection connected to fire brigade. Applicants for approvals under section 57(1) of the Act (which covers a broad range of activities affecting heritage items) and applicants for excavation permits under section 140 must pay prescribed fees when they lodge their applications. The fee depends on the estimated cost of the activity and whether the property is an owner-occupied private dwelling. Applicants are also subject to the information request process under Part 2A: they may receive a written request for additional information from the relevant body and must respond within a specified period to avoid being deemed to have refused. Approval bodies (defined by reference to section 56 of the Act, which includes the Heritage Council, local councils, and the Minister) are the decision-makers for approvals and may request information relating to matters referred to in section 62 of the Act. They must calculate the assessment period excluding the time between request and response. The Heritage Council has several roles: it determines applications for permits, may list minimum standards on the Register for ruins and moveable objects, endorses conservation management plans (which can vary standards), reviews CMPs for a fee, and may request inspection reports and require inspections. Government instrumentalities (such as state agencies and authorities) must maintain Heritage and Conservation Registers under section 170 of the Act. Clause 22 prescribes the classes of items that must be included: items listed under environmental planning instruments, items subject to interim heritage orders, items on the State Heritage Register, and items identified by the instrumentality as having State heritage significance (using the Minister’s criteria). The Secretary of the Department of Planning and Environment (or a delegate) determines fees for review of conservation management plans and may approve the form of entries in Heritage and Conservation Registers. The Planning Assessment Commission is given a three-month time period under clause 21 to conduct a review of a listing recommendation and provide a report to the Minister under section 34(1A) of the Act. Inspectors appointed under section 148 of the Act use the prescribed form (Form 1 in Schedule 1) for their certificate of authority. The Regulation also affects affected owners who may request a review of a CMP and must pay the determined fee, including a possible public notice component.

The central duty imposed by the Regulation is the obligation of owners to maintain and repair listed items to the minimum standards set out in Division 1 of Part 3 (for buildings, works, and relics other than ruins) or as listed on the Register for ruins and moveable objects under Division 2. The duty is not a one-off obligation: clause 19 requires owners to arrange inspections at least once every 12 months for weather protection, fire protection, and security standards (clauses 10-14), and at least once every three years for essential maintenance and repair (clause 15). For ruins and moveable objects, inspections must occur within the time period specified in the relevant listing, if any. The Heritage Council may request an inspection at any time. If the Heritage Council notifies an owner before an inspection that an inspection report is required, the owner must provide it within two months of the inspection. The report must detail problems identified and type of work needed, and be signed by the person who conducted the inspection (clause 20). Owners have the right, under clause 10(2) and 13(3), to board up doors and windows as an alternative to repairing them, but only if the building is unoccupied or as a short-term measure pending repair. Under clause 9(3), an owner may rely on an endorsed conservation management plan that disapplies a standard, in which case that standard does not apply. Applicants have the right under clause 8B(4) to notify the relevant body in writing that requested additional information will not be provided; the application may then be dealt with on the existing information. The assessment period clock stops under clause 8C until the earlier of the provision of information or the notification (or deemed notification) that information will not be provided. Affected owners have procedural rights under clause 17 if the Heritage Council proposes to list minimum standards on the Register for a ruin or moveable object: they must receive written notice, have at least 28 days to make submissions, and the Heritage Council must consider whether the standards would render the item incapable of reasonable or economic use or cause undue financial hardship. All applicants for approvals or permits have the right to know, when an information request is made, the number of days of the assessment period that have elapsed and the effect of clause 8C on the assessment period (clause 8B(2)(c)). Government instrumentalities have the right (and duty) under clause 22(1)(d) to identify items of State heritage significance using the Minister’s criteria, and they must include those items in their Heritage and Conservation Register. The Secretary and the Heritage Council have the right to determine fees for review of CMPs under clause 8, including a public notice component, and may charge affected owners who request a review or endorsement.

The Regulation itself does not create penalties; it operates through the enforcement provisions of the Heritage Act 1977 as extended by clause 18. Under that clause, sections 119-122 of the Act are extended to ruins (including the order-making powers under section 120), and sections 119-120N are extended to moveable objects. This means that the minimum standards imposed by the Regulation become enforceable through the Act’s mechanisms. Section 119 of the Act requires an owner to ensure a listed item is maintained and repaired to standards not less than the minimum standards imposed by the regulations. If an owner fails to comply, section 120 empowers the Minister or the Heritage Council to issue an order requiring the owner to carry out specified work. Section 121 deals with the content and service of such orders, and section 122 provides for penalties for non-compliance with an order. Similarly, for moveable objects, sections 120E-120N provide for orders and enforcement. The Act (not the Regulation) sets the penalty amounts. The Regulation makes clear in clause 9(2) and 16(2) that nothing in Part 3 affects any requirement for approval under Part 4 of the Act. This means that carrying out maintenance or repair work that would otherwise be an activity requiring approval still requires that approval, and failure to obtain approval attracts separate penalties under the Act. The inspection obligations under clauses 19 and 20 are not directly penalised in the Regulation, but failure to comply could be evidence of non-compliance with the duty to maintain and repair under section 119, potentially triggering an order. The fees prescribed in Part 2 are mandatory: an application for approval or an excavation permit must be accompanied by the prescribed fee (sections 60 and 140(2) of the Act). If the fee is not paid, the application may not be validly made. There is no enforcement mechanism in the Regulation for late payment or underpayment; the Act governs the validity of applications. The Heritage Council’s power to list minimum standards on the Register for ruins and moveable objects under clause 17 is subject to procedural requirements, and failure to follow the consultation procedure could render a listing invalid. The Regulation does not prescribe penalties for failure to arrange inspections or provide inspection reports, but the Heritage Council may take that into account in exercising its enforcement powers under the Act. The savings provision in clause 23 ensures continuity but does not affect enforcement. In summary, the Regulation channels enforcement through the Act’s existing machinery: orders, penalties, and potentially criminal prosecution for breach of an order. No new offences are created in the Regulation.

The Heritage Regulation 2012 is made under the Heritage Act 1977 and must be read as part of that statutory scheme. It explicitly references the Act in multiple places: for example, definitions incorporate the Act’s meaning of ‘ruin’ (clause 3(1)), fees are prescribed ‘for the purposes of’ provisions of the Act (clauses 4, 5, 6, 7), the process in Part 2A is expressed to be for the purposes of sections 62(2), 65(4), and 141(3) of the Act, and the minimum standards are imposed under section 118(1), (2), and (3) of the Act. The Regulation does not operate independently; it fills the interstices left by the Act. The Act itself provides the legal force for the obligations: section 119 requires owners to maintain to ‘standards that are not less than the minimum standards imposed by the regulations’. If the Regulation were silent on a matter, the Act would still apply. The Regulation interacts with the Environmental Planning and Assessment Act 1979 (EP&A Act) through clause 22(1)(a), which prescribes items listed as heritage items under an environmental planning instrument made under the EP&A Act as a class that must be included in a government instrumentality’s Heritage and Conservation Register. This means that local heritage listings under local environmental plans (LEPs) are directly relevant to state agencies’ record-keeping obligations. The Regulation also provides in clause 9(2) and 16(2) that nothing in Part 3 affects any requirement for approval under Part 4 of the Act. Part 4 of the Act is the approvals regime for activities affecting heritage items. This means that even if an owner complies with the minimum maintenance standards, they may still need separate approval for the work if it involves an activity listed in section 57(1). The Regulation does not override or replace the approvals process. Conservation management plans endorsed by the Heritage Council are given effect by clause 9(3), allowing them to vary the default minimum standards. These CMPs are often themselves prepared in accordance with guidelines under the Act and may be required as a condition of approval. The Regulation’s fee schedule interacts with the Act’s provisions that make payment of the prescribed fee a prerequisite for a valid application. The process for determining applications in Part 2A modifies the Act’s default timelines by prescribing that the assessment period excludes time taken for information requests. This is expressly authorised by sections 65(4) and 141(3)(b) of the Act. The three-month time period for the Planning Assessment Commission’s review under clause 21 is prescribed for the purposes of section 34(1A) of the Act. The definition of ‘approval body’ in clause 8A refers to section 56 of the Act, which lists the bodies that can grant approvals. The savings provision in clause 23 ensures that things done under the repealed Heritage Regulation 2005 continue in effect, preserving continuity without needing transitional provisions in the Act. The Regulation does not interact with Commonwealth heritage laws (such as the Environment Protection and Biodiversity Conservation Act 1999) because it is purely a state instrument, but the Heritage Act itself has provisions for coordination with Commonwealth listings that are not replicated in the Regulation.

The Heritage Regulation 2012 was published on the NSW legislation website and commenced on 1 September 2012. It replaced the Heritage Regulation 2005, which was repealed on the same day by section 10(2) of the Subordinate Legislation Act 1989. The Regulation has been amended four times within the text provided. The first amendment was by Heritage Legislation Amendment Act 2018 No 25, Sch 2.14, which amended clause 17 (the procedure for listing minimum standards on the Register for ruins and moveable objects). The specific changes are marked as amendments to clause 17(1) and (2) in the source text, though the exact nature of the 2018 changes is not detailed beyond the citation. The second amendment was by Regulation 2021 (No 3), Sch 1, which inserted the entirety of Part 2A (Process for determination of certain applications) and added clauses 8A, 8B, and 8C. This was a significant addition, introducing the formal process for requesting additional information and pausing the assessment period. The third amendment was by Statute Law (Miscellaneous Provisions) Act 2022 No 59, Sch 3.34, which amended clause 8 (fee for certain reviews of conservation management plans) and clause 22 (items to be included in Heritage and Conservation Registers), in both cases updating references to the Secretary of the Department of Planning and Environment (reflecting machinery of government changes). The fourth amendment was by Regulation 2024 (No 326), Sch 1, which made multiple changes: it substituted the heading of Part 2A, amended the definitions in clause 8A (updating the definition of ‘application’ and ‘assessment period’ to cover both approval and permit applications), and amended clauses 8B and 8C to extend the information request process to permit applications (not just approvals). The 2024 amendment also refined the wording in several places (e.g., replacing ‘approval body’ with ‘relevant body’ where appropriate). The endnotes also indicate amendments by 2024 (326) to various clauses but do not show any other amending instruments. The Regulation remains in force as at the date of the provided text. There is no indication of any amendment to the fee amounts in clauses 4 and 5 since commencement, though the amounts may be subject to indexation or future amendment not reflected here.

The text of the Heritage Regulation 2012 does not cite any court decisions or tribunal proceedings. No cases are mentioned in any clause, note, or schedule. This is typical for a subordinate regulation that operates at a detailed, procedural, and technical level. Litigation concerning heritage matters in New South Wales more commonly arises under the Heritage Act 1977 itself, for example, disputes about the validity of interim heritage orders, listing decisions, approval conditions, or enforcement orders. The Regulation would be relevant in such litigation where the interpretation of a fee provision, the calculation of an assessment period under Part 2A, or the content of minimum standards is in issue. For instance, a court or the Land and Environment Court might need to determine what constitutes an ‘owner-occupied private dwelling’ for fee purposes or whether the Heritage Council followed the correct procedure under clause 17 when listing minimum standards for a ruin. The provision for the assessment period to stop during an information request could be litigated if an applicant claims that the relevant body unreasonably delayed the process. However, no such cases are recorded in the regulation text. Practitioners should be aware that the Land and Environment Court has jurisdiction under the Heritage Act to hear appeals against certain decisions, and the Regulation’s provisions would be relevant to those appeals. The absence of cited case law does not mean the Regulation has been free from dispute; it simply means the text itself does not reference any litigation. Researchers would need to search case databases for decisions that interpret the Regulation. The source material does not provide any such decisions.

Practitioners working with the Heritage Regulation 2012 should watch for several traps that are easy to overlook. First, the fee scale in clause 4 uses a non-linear structure. For projects estimated between $2,000,001 and $5,000,000, the fee is $1,500 plus $33.33 for each $100,000 or part thereof. That $33.33 figure is unusual and may be misapplied if a calculator rounds incorrectly. For projects over $10,000,000, the base fee is $3,000 plus only $10 per $100,000 in excess of $10 million, meaning the incremental rate drops sharply compared to the $100 per $100,000 rate for the $500,001 to $1 million band. Second, the concession for owner-occupied private dwellings applies only when the estimated cost is $100,000 or less (clauses 4(1)(a) and 5(1)(a)). Once the cost exceeds $100,000, the standard rates apply regardless of occupancy. Third, the assessment period under Part 2A stops as soon as the relevant body issues a request for additional information, even if the request is later found to be unreasonable or unnecessary. The applicant cannot rush the clock; it resumes only when information is provided or the applicant notifies refusal. If the applicant fails to respond within the specified period (or a further period allowed), they are taken to have notified they will not provide the information, and the application may be dealt with on the existing material , but the assessment period resumes from that deemed notification date. Fourth, for unoccupied buildings, the 60-day trigger under clauses 12 and 14 is a continuous period, not an aggregate. If a building is unoccupied for 59 days, then occupied for a day, the clock resets. Practitioners should also note that ‘outbuilding’ within the curtilage is exempt from these additional measures unless constructed or adapted as a dwelling (clauses 12(2), 14(2)), and using a building for storage does not count as occupation if the building has another ordinary use (clauses 12(3), 14(3)). Fifth, the minimum standard for weather protection (clause 10) requires that doors and windows be repaired or, alternatively, boarded up. Boarding up is permitted only if the building is unoccupied or as a short-term measure pending repair. If an opening is designed to have a closure but does not, it must be boarded up , there is no discretion. This imposes an immediate obligation on owners of buildings with missing windows. Sixth, the inspection report obligation under clause 20 is not automatic; it arises only if the Heritage Council notifies the owner before the inspection that a report is required. However, the Heritage Council may request a report after the fact, and if it does so before the inspection, the owner must provide it within two months. The report must be signed by the person who carried out the inspection, so the owner cannot delegate responsibility to an unqualified person , the inspection must be by someone with appropriate expertise and experience (clause 19(4)). Seventh, the minimum standards for ruins and moveable objects are not in the Regulation themselves; they are whatever the Heritage Council lists on the Register after a formal process under clause 17. This means an owner of a ruin cannot simply read the Regulation to know what is required , they must check the Register entry and the specific listing. The clause 17 procedure requires the Heritage Council to consider financial hardship and reasonable use, but if standards are listed, they become enforceable. Eighth, the savings provision in clause 23 is broad , any act, matter, or thing done under the 2005 Regulation continues to have effect. This could include approvals, permits, or listings that were made under the old fee structure or old standards. Ninth, the form of the certificate of authority in Schedule 1 is prescribed; an inspector using a different form may not be validly authorised. Tenth, the Heritage and Conservation Register requirements under clause 22(4) require entries for items on the State Heritage Register or identified as State significance to be ‘in the form approved by the Secretary of the Department of Planning and Environment or a delegate’. No form is provided in the Regulation, so practitioners must check with that department. Finally, the definition of ‘application’ in Part 2A now explicitly includes applications for modification of an approval under section 65A of the Act (clause 8A). This means the information request process applies to modification applications as well, not just initial approvals.

Compliance with the Heritage Regulation 2012 requires a systematic approach tailored to the type of heritage item and the activities proposed. For owners of buildings, works, or relics (other than ruins) listed on the State Heritage Register, the first step is to review the relevant minimum standards in Division 1 of Part 3 (clauses 9-15). An owner should check whether a conservation management plan endorsed by the Heritage Council exists for the item, because such a plan may disapply or add to the default standards (clause 9(3)). The owner must then arrange inspections: at least annually for weather protection, fire protection, and security (clauses 10-14), and at least once every three years for essential maintenance and repair under clause 15. These inspections must be carried out by a person with expertise and experience appropriate to the item (clause 19(4)). If the Heritage Council notifies the owner before an inspection that a report is required, the owner must provide the report within two months (clause 20). The report must identify problems and needed work, and be signed by the inspector. Even if no report is requested, the owner should document inspections to demonstrate compliance with the duty under section 119 of the Act. For unoccupied buildings, if the building will be unoccupied for 60 continuous days or more, additional fire protection measures must be taken: shut down gas services, turn off gas or oil supply at the mains, remove portable storages, and install smoke detection connected to the fire brigade (clause 12). For unoccupied periods of six months or more, the smoke detection must have a permanent power supply. Additional security measures under clause 14 require that any electronic surveillance or alarm system be connected to a police station or commercial security provider; if no such system is installed, regular surveillance arrangements must be in place. Owners of ruins or moveable objects must check the Register for any minimum standards listed by the Heritage Council (clause 16). If none are listed, the duty under section 119 of the Act still applies but without specific regulatory benchmarks. For all items, the owner should maintain a file of inspection reports, maintenance records, and any correspondence with the Heritage Council. When applying for an approval under section 57(1) of the Act or an excavation permit under section 140, the applicant must calculate the estimated cost of the activity using prices current at the time of application (clauses 4(2), 5(2)). The fee must accompany the application. The applicant should be prepared for the possibility that the relevant body will request additional information under clause 8B. The request will specify a reasonable period for response and will state the number of days elapsed in the assessment period and the effect of the pause. The applicant should respond promptly to avoid the assessment period being deemed to have resumed without the information, which could lead to a decision made on incomplete material. If the applicant decides not to provide the information, they must notify the relevant body in writing; the application will then be dealt with as is. Government instrumentalities must maintain their Heritage and Conservation Register under section 170 of the Act. They must include items listed under environmental planning instruments, items subject to interim heritage orders, items on the State Heritage Register, and items they identify as having State heritage significance using the Minister’s criteria (clause 22). Entries must include name, location, and local government area for items in classes (a) and (b), and must be in the form approved by the Secretary for classes (c) and (d). Any affected owner seeking a review of a conservation management plan must pay the fee determined by the Secretary under clause 8, including any public notice component within 30 days of notification. Practitioners should keep copies of all fee determinations and receipts. Finally, inspectors authorised under section 148 of the Act must use Form 1 in Schedule 1 for their certificate of authority. All persons involved should monitor amendments to the Regulation, particularly to fee amounts and the Part 2A process, as these have been amended recently (2024).