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Selections The Submission
I begin this submission by acknowledging some of the strengths of the Heritage Council as it currently functions, then addressing each of the Panel's terms of reference; and concluding with a list of recommendations for ease of reference.

Some of the unacknowledged strengths of the Heritage Council and Heritage Office that are overshadowed by current focus on heritage as an exclusively planning or land use approvals issue:

  • World Heritage and National Heritage - making assessments using WHL and NHL procedures, preparing submissions and input into or upon world and national nominations, leading role in WHL inscription of Sydney Opera House, and now in WHL nomination for Australian Convict Sites - demonstrates body of expertise and experience and skills not available anywhere else in NSW.
  • Widely consulted by overseas heritage agencies - frequently visited by delegations from cultural heritage bodies in our region, especially People's Republic of China - demonstrates high regard at high level for expertise and knowledge of the Heritage Council & Heritage Office in cultural heritage management, contributes to standing of NSW and Australia within the Asia Pacific.
  • Expert guidance publications in a variety of areas, notably in materials conservation, significance assessment, thematic studies, and so on, all of which are influential across Australia, and widely emulated and copied in other jurisdictions. This demonstrates a level of expertise and intellectual capacity that is at leading edge of heritage conservation thinking and practise in Australasia.
  • The development of a body of heraldic knowledge and expertise as a consequence of the Heritage Council & Heritage Office assuming its responsibilities under the State Arms, Symbols & Emblems Act 2004 has made it the leading repository of heraldic knowledge and source of heraldic management in NSW and Australia. This has been recognised in meetings and discussions by the Heritage Office with the former Chief Herald of Canada and the Clerk of the Lyon Court in Scotland.
  • Key role by Heritage Council & Heritage Office in the field of maritime archaeology: represented by expert staff at maritime archaeology conferences and symposiums around the Asia Pacific, presenting key papers; key role in the verification and conservation of M24, the World War Two Japanese midget submarine sunk off Sydney, and HMAS AE2, the World War One submarine sunk in Turkey. This demonstrates a body of highly specialised skills and knowledge not available elsewhere in NSW, with national and international standing.
  • Development and implementation of SHR criteria and numerous guidelines for identifying and assessing heritage significance some derived from expert consideration by the Heritage Council's advisory panels. Many of these have been copied or emulated by other jurisdictions across Australia, or are directly referred to by them as best-practice or exemplary approaches. This demonstrates the high levels of expertise and knowledge about assessing heritage values in the Heritage Council & Heritage Office, and the high level of respect in which the Heritage Council & Heritage Office is held.
  • Training programs and support for heritage practitioners, conducted almost exclusively in-house by Heritage Office staff, include annual programs with heritage advisors, one-offs or occasional programs such as Lime Days and Stonework courses. These reflect the degree and breadth of knowledge and expertise within Heritage Office staff that is not available elsewhere.
  • Body of expertise in historical archaeology. A considerable body of expert advice on identifying, assessing and managing archaeological materials has been produced by the Heritage Office, which is highly regarded and used in other jurisdictions. This demonstrates a body if knowledge and practice in managing archaeological resources that is unparalleled in Australia.
  • The Heritage Office operates a very high quality website which is very easy to navigate and visually engaging but also contains much detailed and helpful advice, guidance and commentary for a large range of heritage issues. The website and web pages have been largely developed in-house, and most of the content generated and prepared by Heritage Office staff, which demonstrates the high standard of expertise and skills of the Heritage Council and Heritage Office. The Heritage Office would be able to provide statistics on usage of the site to verify its high status in the community.
  • The range of Heritage Council advisory panels extends the body of expert knowledge available to the Heritage Council and Heritage Office by some 80 people. Members of these panels provide advice on highly specialised areas, such as archaeology (maritime and historical), history, materials conservation, and religious properties, for very small remuneration, which informs much policy and decision making, as well as website content, and the content of many specialised publications, such as guidelines for particular SHR criteria.
This overall body of Heritage Council, Advisory Panels and Heritage Office knowledge and expertise is unequalled in NSW, and probably Australia.

These strengths are a valuable asset for the State of NSW and its public administration. I urge the IRP to ensure that its recommendations maintain and encourage the continuity and further development of these strengths.To that end I submit the following recommendations.

Terms of Reference
Undertake a review of the Heritage Act and its operations and make recommendations to reform and update administrative and legislative provisions. The review should particularly focus on [but not limited to] the following:
(the references follow in bold headings)

It would be a useful outcome from the review if the Minister or the NSW Government issued a heritage policy that set out a vision for the future of heritage in NSW. The last such policy statement was issued by Minister Knowles in 1997. It set out a vision for heritage and a framework for putting that vision into action. It was clearly grounded in, and drew upon, the findings of the 1992/96 Heritage Review. It informed the 1999 amendments to the Heritage Act 1977. The establishment of this review, and the report of the IRP, mark a timely reconsideration and overhaul after a decade of operating (more or less) in line with the Knowles policy.

Recommendation A
Encourage the Minister Administering the Heritage Act to issue a new State Heritage Policy that will give the people of NSW an understanding of the government's vision for heritage and a 'road map' for implementing that vision over the coming decade.

Term of Reference 1: Duplicative and overlapping provisions with other legislation [including at the national level]

The Heritage Act 1977 needs to address national and world heritage, as well as State and local heritage. This is not an area of duplication or overlap, but of vacuum. The Environment Protection & Biodiversity Conservation Act 1999 (EPBC Act) does address national and world heritage, but only within the realm of Commonwealth responsibilities. The current initiative to achieve a world heritage listing of Australian Convict Sites (which includes four sites in NSW, three of which are controlled by the NSW Government) involves establishing buffer zones for each site through the provisions of the Environmental Planning & Assessment Act 1979 (EP&A Act). This in turn has raised questions of whether the Heritage Council has any jurisdiction in relation to world and national heritage, despite it being the practice for many years for the Heritage Council to respond to these issues as they have arisen. Certainty in this matter could be provided by an amendment to the Act to specifically give the Heritage Council functions in regard to world and national heritage.

Recommendation 1.1:
Amend s21 of the Heritage Act to include a Heritage Council function of considering any matters concerning World heritage, National heritage, State heritage, Local heritage and any other context or category of environmental heritage.

The Conversion of Cemeteries Act 1974 applies to local council-controlled cemeteries, but not private cemeteries, or Crown cemeteries for which the Department of Lands is responsible. The Act allows for the 'conversion' of such cemeteries to open spaces and recreation grounds, which involves the removal and relocation of headstones. The Act preceded the Heritage Act by several years, and makes no reference to any sort of heritage assessment of a cemetery before a conversion is undertaken. Again, this is not an area of overlap or duplication but of vacuum. Such cemetery 'conversions' are directly antithetical to contemporary heritage practices, and the potential heritage significance of such cemeteries has been severely compromised, if not altogether destroyed, by conversions since 1974.

This could be addressed by amendments to the Conversion of Cemeteries Act 1974 to require Heritage Council approval for any proposed cemetery conversions. The Heritage Council could issue guidelines for its approval, which at a minimum would require researching and assessing the cultural significance of the cemetery, and developing an archaeological research design to guide the conversion process. The Conversion of Cemeteries Act 1974 could also be amended to only allow a converted cemetery to revert to a cemetery function with Heritage Council approval.

Recommendation 1.2
Amend the
Conversion of Cemeteries Act 1974 to require Heritage Council approval for any conversion, to allow the Heritage Council to issue guidelines for approval, and to require Heritage Council approval for any reversion of a converted cemetery to a cemetery function.

The State Arms, Symbols & Emblems Act 2004 (SASE Act) provides an important role for the Heritage Council in advising the Premier on various matters relating to the heritage significance and conservation requirements for physical representations of the Royal Coat of Arms. However, this only applies to Arms that are part of or attached to a building of heritage significance. There have been community requests to the Heritage Office to prevent the removal of Royal Arms from public buildings that are not heritage items, as well as a continuing level of requests for heraldic information and guidance on managing heraldic assets.

The Heritage Office has developed a certain body of knowledge and skills in responding to these requests which suggests a need for a formalised structure for dealing with heraldry. Again, this is not an area of overlap or duplication but of vacuum. The Commonwealth is apparently unable to exercise any heraldic responsibilities except in relation to the Australian Coat of Arms. The State has already begun to exercise certain responsibilities (see the SASE Act), and a Legislative Council inquiry in 2003 recommended a greater role for the State in the management of official, corporate and personal heraldry. The Heritage Council is ideally placed to develop this function.

The Heritage Council has worked within spirit of the SASE Act to inform and complement its administration of the Heritage Act, and has demonstrated a capacity to engage with heraldry and the management of heraldic heritage, for example:

  • Created a position on its History Advisory Panel for a member with expertise in heraldry
  • Issued guidelines for identifying and managing heraldic heritage in the State Agency Heritage Management Guidelines
  • Issued a Model brief for surveying and assessing the heritage significance of official heraldry
  • Advised the NSW Parliament on the removal of the Royal Arms and installation of the State Arms in each chamber of the House
  • Commemorated the Centenary of the granting of the State Arms in 2006, which remains the subject of a popular on-line exhibition of the Heritage Office website

There is scope for the Heritage Council to undertake heraldic functions, at least for a limited period of time as a transitional arrangement; and there is scope for these functions to generate an income at least sufficient to cover its own costs. At a minimum, these functions would include the granting and registration of Arms, managing succession to Arms, regulating the use and display of Arms, and facilitating the training and development of heraldic artists and craftspeople. This would require several amendments to the Act, and could include a sunset clause to review and assess the implementation of these functions after a certain period.

Recommendation 1.3
Amend the Heritage Act to allow the Heritage Council to govern the management, use and display of heraldry in NSW, subject to review in 5 or 7 years time.

Term of Reference 2: Strengthening the integration of heritage provisions with the EP&A Act [both at the plan making and development control levels]

The Heritage Council can issue guidelines under s84 of the Heritage Act for local councils preparing an LEP. These guidelines could include requirements for the investigation and assessment sections of a LES, including the preparation of a thematic history and the participation of the community in the study. The current Community-based Heritage Study approach already provides some practical experience to draw upon. The guideline could also include requirements relating to the qualifications of consultants undertaking such studies, such as a signed commitment to work in accordance with the Burra Charter principles.

Recommendation 2.1
A commitment to issuing s84 Guidelines could be included in a State Heritage Policy.

Term of Reference 3: State heritage provisions and practice, including but not limited to:
I have several comments below on State heritage provisions and practice in general, followed by more detailed approaches under each of the sub-references.

The 1992/96 review considered and recommended the separation of approaches to significance and management, and concurred with Burra Charter principles of understanding a place first, then working out how to manage it. There is a view that the listing approach has been driven (or has been reverting to older practices) for some years now by management considerations rather than significance - that is, all of the management issues (or potential issues) need to be resolved to the satisfaction of all parties before any substantial consideration is given to significance. Whether this view is correct is another matter, but it suggests that there are at least perceptions that the separation of significance and management, as recommended in the 1992/96 review, and as at least implied by the structure and content of the Heritage Act, has been regressing. I have addressed this matter further in ToR 3.d.

Recommendation 3.1
The principle of separating assessments of significance from the management of items should be reaffirmed in a State Heritage Policy.

Recommendation 3.2
A principle of understanding significance first, and then developing management regimes to conserve that significance, should be reaffirmed in a State Heritage Policy.

It is critical in investigating and assessing heritage that proper understandings of historical research and analysis, and of historical values and significance, and of engaging with historians in the heritage system be at least maintained and preferably enhanced. Heritage is about more than just land uses or planning or economic issues - it is a critical element in debates about our cultural identity, has great potential to contribute to community capacity-building and social cohesion, and is important to understanding notions of political sovereignty as well as shared and individual identities. Although the terms of reference focus on a more limited view of heritage, the point needs to be made that heritage doesn't only include buildings, it also includes movables and collections, documents, literature and art works, heraldry, genealogies, intangibles such as folklore and traditions, and more. There are many potential synergies between the work of the Heritage Council and Heritage Office, and that of agencies within the Arts portfolio.

The heritage system has been regarded as a sub-set of the planning system since 1977, which has many advantages but also makes it difficult for it to recognise these other more diverse and vernacular understandings of heritage. I understand this Review will not be able to extend into these areas, but it would be useful for a heritage policy to acknowledge the breadth and depth of our heritage, and perhaps provide some goals or a vision for a holistic approach to heritage.

Recommendation 3.3
A State Heritage Policy should be issued that provides a vision for a more holistic approach to heritage in NSW.

The SHR should be a list of highly significant items. The focus for listings has to be on an ability to meet thresholds for significance, not on numbers of items (large or small). I am not aware of any evidence that numerical targets for listings have ever produced a credible or comprehensive heritage register. Anecdotal evidence suggests the opposite: a focus on numerical targets reduces the attention that needs to be focused on significance, and ultimately devalues the listing process and registers. It could result in a lowering of thresholds to the point where they become meaningless, and registers become bloated with items of questionable significance. Numerical targets are not a measure of the quality of a heritage register.

Recommendation 3.4
The SHR and LEP Heritage Schedules should be based upon significance.

Recommendation 3.5
Numerical targets should not be used for determining the size or content of heritage registers or lists.

There is already an issue with the quality of some SHR listings, especially the former PCO items that were automatically transferred to the SHR upon its establishment in 1999. These constitute about one-third of all SHR listings, and are too-often characterised by register entries that lack descriptions, histories, and statements of significance. Listing resources have been focused since 1999 on adding items to the SHR. There is a critical need to assess the former PCO items using the present criteria and thresholds (or those that may be developed as an outcome of this review) and either reaffirm these listings or begin delisting procedures.

Recommendation 3.6
Review the former PCO listings on the SHR to either affirm their significance or institute a delisting process.

Term of Reference 3a: improvements that can be made to the listing process

The delisting of items from the SHR is uncommon, and there is some debate as to whether the process is too burdensome in achieving a delisting. In practise, the Heritage Council needs to recommend to the Minister that at item be delisted because it is not of state significance, although s33(2) of the Act purports to provide other grounds, essentially economic, for delisting. The Heritage Council's core expertise is in matters of heritage significance, and it is reasonable for the Council to advise the Minister on whether an item is no longer of State significance. As items are listed on the basis of their significance, this should also be the basis for their delisting. Perhaps the Act could allow for the Minister to delist on other grounds, using advice and expertise that is not available to the Heritage Council. Such an approach would have to be transparent, with, for example a written statement of reasons tabled in Parliament and published for public information. The Act could bound the grounds on which a Minister could delist without a Heritage Council recommendation (for example, the submissions allowed under s33 (2), subsections (b) (c) and (d) could form such grounds).

Recommendation 3a.1
The Heritage Council should continue to be able to recommend a delisting from the SHR on the basis that the item is no longer of State significance.

Recommendation 3a.2
The Act could be amended to allow the Minister to delist on grounds other than significance provided that the Minister is able to publish public reasons for the delisting.

Assessments of a nominated item need to establish a clear relationship with a proposed curtilage or the proposed geographical extent of a listing. A listing is generally described by a cadastral description or a reference to a plan or map of the listed area. Once a listing has occurred, the Heritage Act provides no mechanism to vary the physical extent of the area listed, either by increase or decrease. There are occasions when such a variation is needed in order to better maintain the significance of an item, but the process involved is cumbersome and time consuming, often involving the simultaneous delisting and relisting of an item. Consequently there are very few variations in listed areas, causing an important problem in maintaining the integrity of some listings on the SHR. This could be remedied by a simple amendment to the Act.

Recommendation 3a.3
The Act should be amended to allow the Minister to vary the land covered by a SHR listing, after receiving a recommendation from the Heritage Council to make such a variation, by notice in the Gazette.

The Heritage Act is currently silent on the process for nominating items for SHR listing. The current nomination process is a matter of Heritage Council policy and Heritage Office administrative procedures. The only reference (albeit rather oblique) at all to nominations is in section 32 whereby the Minister can ask the Heritage Council to consider recommending an item for SHR listing, and the one-off provisions of s170 for transfers of items from State agency conservation registers. One result of this silence is a reliance on receiving nominations from the community, with little scope for the development of more strategic approaches to nominations that could be clearly focussed on significance (rather than responding to site management issues).

It would be useful for the Heritage Act to provide a capacity for the Heritage Council to receive nominations, and to adopt strategic approaches to managing nominations. For example, the Heritage Council could regularly issue thematic, typological or regional priorities for nominations within particular timeframes. This would clearly flag what nominations will be considered over a certain period of time, and emphasise the significance basis for SHR listings. It would also be useful for the Heritage Council to have an unambiguous capacity to broaden the base from which it receives nominations, such as professional bodies - this would probably be most useful in the form of allowing the Heritage Council to issue guidelines on the content and sources of nominations, and for setting strategic priorities for nomination programs.

Recommendation 3a.4
The Heritage Act should be amended to specifically provide for the Heritage Council to receive nominations for SHR listings, and to issue from time to time guidelines on the source of nominations, the content of nominations and other such matters, as well as setting regular, strategic priorities for nomination programs.

Term of Reference 3b: alternatives to the listing process [e.g. heritage agreements]

Heritage agreements are essentially a management tool, not a method for assessing significance; and listing is often regarded as the end of a process. It can be useful to negotiate an agreement with an owner once a listing has occurred, or at least a verifiable and independent assessment of significance has been made, as this might emphasise that a listing is a beginning, not an end. The Heritage Act already provides for the making of heritage agreements (Part 3B) for items that are SHR listed. This reference presumably refers to agreements for items that are not on the SHR. This provision could usefully be extended to LEP items, allowing for agreements between LEP item owners and local councils. An owner should be able to request such an agreement once an item has been listed.

Recommendation 3b.1
Amend the Heritage Act to allow local councils to negotiate heritage agreements with owners of LEP items, at the owner's request.

There are often questions with the proposed listings of certain types of items that relate to the management of such items if they are listed on the SHR. For example, listing a national park raises concerns as to whether another layer of approvals and other controls will be added to the management of the park. Similar issues arise in relation to potential listings of marine parks, Crown reserves, documents, museum and art gallery collections, and so on. The common factor across these item types is the existence of legislative management regimes that already govern their use and provide for their conservation.

However, there is rarely any denial that these item types are of cultural significance, whether that be Royal National Park, the first volume of the register of Torrens Titles, the letters patent for the State Arms, or the sculpture collection of the AGNSW. The SHR has the capacity to list such items of cultural significance, but concerns about management implications generally thwart such listings. It would be useful for the Heritage Council to have the power to recognise other statutory management regimes, and be able to list an item of the SHR with a complete or partial exemption from the approvals requirement of the Heritage Act in favour of those under another Act.

This approach would emphasise that listing on the SHR is based upon significance, not the resolution of site-specific management issues, and recognise the existing management regimes operated by other State agencies, which are often of best-practice standards. In particular I have in mind the regimes that operate under the National Parks & Wildlife Act 1974, the Historic Houses Act 1980 and the State Records Act 1998, but there are others. The EPBC Act 1999 provides a possible model in bilateral agreements. Such agreements could be made between the Heritage Council and agencies responsible for other conservation management legislation (or between their relevant Ministers) whereby those management regimes could be Œaccreditedč by the Heritage Council, and directly linked to any SHR listings of items that are already, or which could be better, managed under another legislative conservation regime. This would provide a transparent and accountable process, allow for a more diverse range of items to listed on the SHR, and facilitate a more cooperative approach between conservation agencies (in the broadest sense) without duplicating approvals and other management processes. It would also accord with a principle that SHR listings are based upon significance.

Recommendation 3b.2
The Heritage Act should be amended to allow the Heritage Council to enter into a form of bilateral agreement with other conservation agencies (in the broadest sense) to recognise approvals and management processes under other legislation for items listed, or nominated for listing, on the SHR.

Term of Reference 3c: the public benefit of outcomes

There is a need for a vision for the SHR to be articulated. The Act simply provides a mechanism or process for operating the SHR, but is silent on the purpose or reason for the SHR. It would be useful for a heritage policy to be issued that sets out such a vision and purpose. The benefits of the SHR should flow from its purpose.

One way to conceptualise the SHR is to think of it as an 'open air archive', a catalogue to the collection of NSW's most culturally important assets - assets that are of such significance that we, as a society, having collectively inherited, want to conserve in the present and pass on to the future. Each item in the SHR is a three-dimensional historical record that can be read and understood, and which needs to be looked after. The number of records is small, which increases to their cultural value as the cultural environment continues to change and change again. There are probably many ways to understand the purpose and character of the SHR. The open-air archive is just one way. The SHR is an important cultural artefact in its own right - a record of 30 years of trying to understand what the people of NSW collectively value as their cultural inheritance. It will never be complete, but there needs to be a public statement of its value in order for its benefits to be charted and appreciated.

Recommendation 3c.1
A vision for the SHR needs to be stated in order for the public benefits of SHR listings to be increased and developed.

Term of Reference 3d: the test for achieving State heritage status

The current SHR guidelines require only one criterion to be met. In practice, nominators strive to meet as many criteria as possible, and the Heritage Council has required any criterion to be clearly met, rather than just getting across the line. Evidence of listings on the SHR in recent years shows only one item listed on the basis of meeting a single criterion (Rosebank, in Liverpool). This suggests that the current criterion test is well and truly sufficient as it is routinely exceeded. Criticisms made to Heritage Office staff on this matter generally come from unsuccessful nominators when advised that their nominated place has failed to meet any of the criteria. The criticism is generally along the lines of 'the test is too difficult'.

Recommendation 3d.1:
No change is made to the criteria test.

The World Heritage List requires a nominated place to meet a three-part test: criteria, integrity and authenticity. The criteria test is essentially similar to the SHR test, and generally needs to be successfully met before considering the other two tests. The integrity test relates to the demonstrable existence and routine implementation of a conservation management system for the place. If no such system is in place, then it must be at least in the development stage for the nomination to meet this test. The authenticity test addresses the question of whether the nominated place is 'the real thing', rather than a reconstructed copy or a structure that has been so changed that it no longer 'authentically' demonstrates the characteristics and qualities claimed to make it significant. The World Heritage model is a very useful model to look at when considering any changes to the test for SHR listing.

The detail of applying such a model would be better left to the Heritage Council's administrative processes, but the Act could be amended to specifically allow for these tests to be included. It could be argued that, in practice, an integrity test of some sort already operates in the form of the routine negotiating of management issues with owners prior to assessing significance in detail. The use of a World Heritage model would regularise the process, and make it transparent. It would also enforce a view that listing is about cultural significance, not a response to perceived threats.

It would also be useful to allow the Heritage Council criteria for determining heritage significance to be applied across all categories or contexts of significance, rather than be restricted to State significance. In practise, the criteria are broadly applied at local level as a matter of course, but greater certainty is needed and could be provided by amending the Act as described in Recommendation 3d.3.

Recommendation 3d.2:
Amend s4A of the Heritage Act to allow the Heritage Council to include integrity and authenticity tests in the criteria it uses for making decisions on significance.

Recommendation 3d.3:
Amend s4A (3) of the Heritage Act to allow the Heritage Council to issue criteria for determining heritage significance in any context or category, not just State heritage significance.

Two of the SHR criteria, criteria F and G (rarity and representativeness), are really qualifiers of the other criteria, and prior to 1999 were explicitly used in this way. It is difficult to imagine that an item could be rare or representative in a vacuum - it can only be one or the other in relation to comparable items. The presentation of these two criteria needs to be reconsidered.

Recommendation 3d.4
The status of criteria F and G as criteria in their own right should be reconsidered with a view to reverting to their former use as qualifiers of the other criteria.

Assessments of heritage items occasionally lead to a conclusion that while an item may of greater than local significance, it is not necessarily of State significance. It would be useful to reconsider the concept of regional significance, perhaps building upon recent work by the Heritage Council's History Advisory Panel for developing a regional research framework.

Recommendation 3d.5
The former category or context of regional significance needs reconsideration.

Term of Reference 3e: the role of the property owner or stakeholders and appeal rights

My focus, under this reference, is upon the role of SHR property owners, and their appeal rights. The Heritage Office deals with many SHR property owners, including the owners of residential properties. A common concern to residential owners is proposals for developments adjoining their properties, or which otherwise have the potential to impact upon their properties and affect the State heritage significance of their property. Many of these owners have purchased their properties with an understanding that the SHR listing would provide some protection for its cultural values.

However, the Heritage Act does not contain any 'development in the vicinity' provisions similar to LEP clauses, and the Heritage Council and Heritage Office have no specific role to act as an advocate on behalf of SHR owners, either within government or the public domain. Owners find it very difficult to understand or accept that they cannot appeal to the Heritage Council to advocate on their behalf, and it greatly devalues the listing in their eyes. The Heritage Council comes to be perceived as a paper tiger. The Act needs to allow for the Heritage Council to play a proactive advocacy role defending the property rights of SHR owners as SHR owners, especially within the planning system where it could be very effective. A 'development in the vicinity' function would probably be best utilised as a comment role - this would allow the Heritage Council to play the role of a broker, able to negotiate a better outcome for both the SHR owner and heritage conservation, without removing the final approval function from the local council and its ultimate accountability to the local residents.

Recommendation 3e.1
An explicit role for the Heritage Council to advocate on behalf of SHR owners within the planning system, and within the government and public domain generally should be provided for in a State Heritage Policy.

Recommendation 3e.2
The Heritage Act could be amended to provide a Heritage Council role, probably a comment role, concerning development within the vicinity of a SHR item.

The community, as a stakeholder, or community groups as particular stakeholders, can currently appeal to the Minister to establish either a MRP or a COI to reconsider any listing recommendation from the Heritage Council. However, they cannot appeal against a recommendation to not list an item, neither can they appeal against a Minister's decision to not list an item despite a recommendation from the Heritage Council to list it. There is a lack of equity in this matter, and of transparency. This could be overcome by providing for community stakeholders (and the owners of nominated properties) to appeal against a decision to not list, and/or providing the Minister with a capacity to make a public statement that sets out his reasons for not listing, as is required of the equivalent Commonwealth Minister under the EPBC Act.

Local Councils have been known to delete items from draft LEP schedules for reasons that are unrelated to significance. While there may sometimes be justifiable reasons for doing so, the rationale for such removals should be transparent and have some relation to significance (or the lack of significance). In the absence of such a process, owners of potential LEP items, and local stakeholder groups, should be able to appeal against such deletions, probably to the Land & Environment Court.

Recommendation 3e.3
The Heritage Act could be amended to provide for appeals against decisions to not list a place, and /or to provide for a Minister to publish a statement of reasons for not listing a nominated item. The same provisions could also apply at the local level to the local Council in relation to local heritage listings.

Term of Reference 3f: the approval process for Alterations to items on the SHR, including the rights of property owners and stakeholders

At present, the Heritage Council has an advisory role in regard to listings, and a determinatory role in relation to approvals. Consider the impact of reversing these functions - of determining listings, and advising on approvals. At its simplest, this would allow the Heritage Council to determine listings on the SHR, with an appeal mechanism to the Minister (through a MRP or COI); and to advise other decision makers on approvals issues - within the Department of Planning for SHR items, and within local councils for LEP items of a certain category or class. Under this scenario, listings would be based on a rigorous intellectual assessment of significance, with clearly defined statements of significance, while approvals would be integrated within larger planning considerations. The current provisions for advertising or notifying applications under the EP&A Act would apply.

Recommendation 3f.1
Consideration should be given to reversing the Heritage Council's basic functions to make it have a rigorous determining role in significance assessment, and an expert advisory role in approvals.

History-minded community groups and individuals are 'stakeholders' in the heritage system, as are other interest-based groups in the core heritage disciplines (history, archaeology, architecture and planning). It may be useful to consider requiring that submissions be specifically sought from these groups when considering applications for approvals to heritage items.

Recommendation 3f.2
Specific stakeholder groups in history, archaeology, architecture and planning could be identified for specific consultation on applications for approvals.

Term of Reference 3g: resource and time efficiency

The scenario envisioned under 3f.1 above would essentially mean the 'mainstreaming' of approval functions throughout the Department of Planning for SHR items, other Agencies for s170 items and local councils for LEP items. This may produce efficiencies, but such a scenario would need a thorough cost-benefit analysis and other business planning to test the scenario before being put into effect.

The Heritage Office has already undertaken significant streamlining of functions over the past two years in the area of SHR nominations and listing procedures. However, a degree of intellectual rigour is a necessary part of the heritage system, and there is a fine balance between efficiency and rigour.

Term of Reference 4: The functions and constitution of the Heritage Council

It is of critical importance to maintain representation by the history community on the Heritage Council, currently through the nomination of a member by the Royal Australian Historical Society under s8(2)(a)(iii), which combines expert-based representation with a very broad and diverse community-based membership in local historical and heritage societies across the State.

Recommendation 4.1
The representation of history interests on the Heritage Council should be maintained.

There are two obvious areas of expertise, in relation to the actual work carried out by the Heritage Council and Heritage Office that are not represented on the Heritage Council: historical archaeology and maritime archaeology and history. It would be useful for these functions to be reflected in the Heritage Council's membership.

Recommendation 4.2
Amend the Heritage Act to provide representation on the Heritage Council for historical archaeology and maritime archaeology & history

The Heritage Council is currently presented in many ways simply as a government approvals body for items on the SHR. In practice, it is much more than this, and could be repositioned as an expert heritage policy 'think tank', with a focus on five discrete areas: Significance assessment, Managing heritage practice, Compiling statistical and survey data, Community capacity building, Operating an artefact repository, and possibly with a sixth function: the heraldic function outlined in Recommendation 1.3.

Significance assessment would involve many of the activities described above under Reference 3. It could also involve accrediting nominators, or nomination bodies, as a means of managing nomination processes.

Managing heritage practice would include guidelines for approvers, training programs for approvers, managing an accreditation system for approvers and private practitioners - generally a focus on regulating practices and practitioners, and training the decision makers and 'approvers', rather than undertaking the approval functions as such. It could also include vocational and professional development for heritage practitioners and officials, perhaps in cooperation with TAFE. Some specialist heritage approvals work should remain in the Heritage Office, such as archaeological approvals and approvals for items with highly significant architectural or landscape values.

Compiling survey and statistical data of heritage resources, cultural heritage sustainability research, best-practice modelling, comparative historical and typological research and databases. These functions are something like the functions of the World Heritage Centre, which could be a useful model. Many assumptions are made, and acted upon, concerning heritage in the absence of reliable information. The Productivity Commission report identified the lack of satisfactory data on the heritage industry as an important issue to address.

Community capacity building programs, integrating and using heritage to further quality of life issues, integrated with cultural and Arts programs, addressing new settlers, developing 'letting go' programs, and many other approaches could be undertaken. These are often disparaged as 'soft', but the devotion of some serious effort in this area could support many of the social benefits that the planning system is seeking to achieve.

Anartefact repository, operated with a commercial partner, for archaeological relic could be developed. This could also be used to house overflow from museums, other agencies, and so on that could subsidise relics storage, which could be linked with archaeological research programs (but not archaeological presentation, which is a site or museum role).

Heraldic management could be developed, building upon the base already developed within the Heritage Office (see discussion with Recommendation 1.3 above). The inclusion of a review clause in any such program would provide an appropriate time to consider whether this function should be developed further within the Heritage Council, transferred to another agency, or created as a separate agency, once experience of heraldic administration has developed.

Recommendation 4.3
Consider repositioning the Heritage Council and Heritage Office as an expert policy 'think tank', with a focus on significance research and assessment, managing heritage practice and professional development, compiling statistical and survey data, community capacity building, operating an artefact repository, and possibly heraldic administration.

Term of Reference 5: Consideration of local heritage processes and whether they warrant improvement

Consider making LEP schedules easier to revise and amend. Once established with a good base level of items, they should operate like the SHR: a council can add, remove or vary listings, strictly on a significance basis, with public notice and submissions. Power to do this should not be delegable, must remain with councillors so they can be accountable for actions. The authorisation for the making of local Interim Heritage Orders could also be extended to all local councils as part of such an approach.

Recommendation 5.1
Amend the EP&A Act to allow local councils to add or remove items, or amend existing items, in an LEP Schedule in a manner similar to that used for managing the State Heritage Register, and extend the IHO authorisation to all local councils.

Consider changing designation of 'LEP Heritage Schedule' to Local Heritage List or Register to clarity its purpose, and align with terminology at State, national and world levels. There is a certain level of confusion about local listings, one issue being the designation of the listing mechanism. Recent evolution of the heritage system means that, de facto, 'Lists' contain items on the basis of values, 'Registers' contain items on the basis of significance, so prefer Local Heritage Register as probably the appropriate term. The heritage controls within the LEP should remain part of a plan making process, and changes to these controls subject to the overview of the Minister as at present - this is a more strategic approach by the State, while leaving local communities to debate the inclusion/exclusion of items. The initial Schedule (List or Register) should probably remain subject to Ministerial approval to establish a baseline of heritage items, but councillors must then take responsibility, and be accountable to their communities, for future changes to the Schedule (List or Register). The Heritage Council could still retain a comment role in such a process for integrity purposes.

Recommendation 5.2
Amend the EP&A Act to designate an LEP Schedule of Heritage Items as either a Local Heritage Register or Local Heritage List.

Consider changing the grading designations within LEP schedules from 'State' and 'Local' to another system, such as A and B, or star-ratings - current designations are confusing, they imply that 'state' means state significant, but what it really means is that applications for change to the item will be subject to a higher degree of assessment within the local council - the designations should reflect this reality. 'State' designations on LEP Schedules have rarely been subject to state-wide comparative analysis to confirm state significance; but there is a broad perception that they have somehow been assessed as being of State significance, and therefore should automatically be transferred to the SHR. This is compounded by the LEP being signed-off by the Minister, which is often taken as a prima facie case that the items so-designated are actually of significance at a state-wide level. These assumptions are incorrect, and can be overcome by changing these designations.

Recommendation 5.3
Remove the designations of 'State' and 'local' rankings within LEP Heritage Schedules and replace them with a grading system using letters, numbers, stars or something similar.

LIST OF RECOMMENDATIONS

Recommendation A
Encourage the Minister Administering the Heritage Act to issue a new State Heritage Policy that will give the people of NSW an understanding of the government's vision for heritage and a 'road map' for implementing that vision over the coming decade.

Recommendation 1.1:
Amend s21 of the Heritage Act to include a Heritage Council function of considering any matters concerning World heritage, National heritage, State heritage, Local heritage and any other context or category of environmental heritage.

Recommendation 1.2
Amend the Conversion of Cemeteries Act 1974 to require Heritage Council approval for any conversion, to allow the Heritage Council to issue guidelines for approval, and to require Heritage Council approval for any reversion of a converted cemetery to a cemetery function.

Recommendation 1.3
Amend the Heritage Act to allow the Heritage Council to govern the management, use and display of heraldry in NSW, subject to review in 5 or 7 years time.

Recommendation 2.1
A commitment to issuing s84 Guidelines could be included in a State Heritage Policy.

Recommendation 3.1
The principle of separating assessments of significance from the management of items should be reaffirmed in a State Heritage Policy.

Recommendation 3.2
A principle of understanding significance first, and then developing management regimes to conserve that significance, should be reaffirmed in a State Heritage Policy.

Recommendation 3.3
A State Heritage Policy should be issued that provides a vision for a more holistic approach to heritage in NSW.

Recommendation 3.4
The SHR and LEP Heritage Schedules should be based upon significance.

Recommendation 3.5
Numerical targets should not be used for determining the size or content of heritage registers or lists.

Recommendation 3.6
Review the former PCO listings on the SHR to either affirm their significance or institute a delisting process.

Recommendation 3a.1
The Heritage Council should continue to be able to recommend a delisting from the SHR on the basis that the item is no longer of State significance.

Recommendation 3a.2
The Act could be amended to allow the Minister to delist on grounds other than significance provided that the Minister is able to publish public reasons for the delisting.

Recommendation 3a.3
The Act should be amended to allow the Minister to vary the land covered by a SHR listing, after receiving a recommendation from the Heritage Council to make such a variation, by notice in the Gazette.

Recommendation 3a.4
The Heritage Act should be amended to specifically provide for the Heritage Council to receive nominations for SHR listings, and to issue from time to time guidelines on the source of nominations, the content of nominations and other such matters, as well as setting regular, strategic priorities for nomination programs.

Recommendation 3b.1
Amend the Heritage Act to allow local councils to negotiate heritage agreements with owners of LEP items, at the owner's request.

Recommendation 3b.2
The Heritage Act should be amended to allow the Heritage Council to enter into a form of bilateral agreement with other conservation agencies (in the broadest sense) to recognise approvals and management processes under other legislation for items listed, or nominated for listing, on the SHR.

Recommendation 3c.1
A vision for the SHR needs to be stated in order for the public benefits of SHR listings to be increased and developed.

Recommendation 3d.1:
No change is made to the criteria test.

Recommendation 3d.2:
Amend s4A of the Heritage Act to allow the Heritage Council to include integrity and authenticity tests in the criteria it uses for making decisions on significance.

Recommendation 3d.3:
Amend s4A (3) of the Heritage Act to allow the Heritage Council to issue criteria for determining heritage significance in any context or category, not just State heritage significance.

Recommendation 3d.4
The status of criteria F and G as criteria in their own right should be reconsidered with a view to reverting to their former use as qualifiers of the other criteria.

Recommendation 3d.5
The former category or context of regional significance needs reconsideration.

Recommendation 3e.1
An explicit role for the Heritage Council to advocate on behalf of SHR owners within the planning system, and within the government and public domain generally should be provided for in a State Heritage Policy.

Recommendation 3e.2
The Heritage Act could be amended to provide a Heritage Council role, probably a comment role, concerning development within the vicinity of a SHR item.

Recommendation 3e.3
The Heritage Act could be amended to provide for appeals against decisions to not list a place, and/or to provide for a Minister to publish a statement of reasons for not listing a nominated item. The same provisions could also apply at the local level to the local Council in relation to local heritage listings.

Recommendation 3f.1
Consideration should be given to reversing the Heritage Council's basic functions to make it have a rigorous determining role in significance assessment, and an expert advisory role in approvals.

Recommendation 3f.2
Specific stakeholder groups in history, archaeology, architecture and planning could be identified for specific consultation on applications for approvals.

Recommendation 4.1
The representation of history interests on the Heritage Council should be maintained.

Recommendation 4.2
Amend the Heritage Act to provide representation on the Heritage Council for historical archaeology and maritime archaeology & history

Recommendation 4.3
Consider repositioning the Heritage Council and Heritage Office as an expert policy 'think tank', with a focus on significance research and assessment, managing heritage practice and professional development, compiling statistical and survey data, community capacity building, operating an artefact repository, and possibly heraldic administration.

Recommendation 5.1
Amend the EP&A Act to allow local councils to add or remove items, or amend existing items, in an LEP Schedule in a manner similar to that used for managing the State Heritage Register, and extend the IHO authorisation to all local councils.

Recommendation 5.2
Amend the EP&A Act to designate an LEP Schedule of Heritage Items as either a Local Heritage Register or Local Heritage List.

Recommendation 5.3
Remove the designations of 'State' and 'local' rankings within LEP Heritage Schedules and replace them with a grading system using letters, numbers, stars or something similar.