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What is heritage listed property in Victoria?

An Overview on Heritage Listed Property

The preservation and conservation of heritage listed property is legally recognised in Victoria’s heritage laws. The Heritage Act 2017 (Vic) is a statutory regime that formally provides for the protection and conservation of cultural heritage and establishes the Victorian Heritage Register to record the registration of places with cultural heritage significance.

In this article, we address the frequently asked questions regarding heritage listed properties:

How does the Heritage Act 2017 (Vic) affect property?

The Heritage Act 2017 (Vic) supersedes its predecessor, Heritage Act 1995 (Vic). Importantly, section 3 of the Heritage Act 2017 (Vic) sets out the purpose that is intended to be achieved, including:

  • to provide for the protection and conservation of the cultural heritage of Victoria
  • to establish the Victorian Heritage Register for the registration of places and objects
  • to establish a Heritage Council to perform functions in relation to cultural heritage.

The Victorian Heritage Register and Heritage Council, as functions created by the Heritage Act 2017 (Vic) play important and vital roles in preserving Victoria’s heritage and culture.

Is a heritage listed property recorded on the Victorian Heritage Register?

If a property is heritage listed, then it will be recorded on the Victorian Heritage Register. The Victorian Heritage Register records places and objects that are of cultural heritage state-level significance. The Victorian Heritage Register covers non-indigenous heritage places of state-level significance.

Notably, the Executive Director must record in the Heritage Register:

RecordSummary
State-level cultural significanceAll places and objects of State-level cultural significance that are registered.
ObjectsAll objects integral to registered places.
World Heritage ListAny place in the State that is included in the World Heritage List.
Historical Shipwrecks and ArtefactsAll historical shipwrecks and historic shipwreck artefacts to the extent they are known.
Heritage Act 1995 (Vic)All places and objects included in the Heritage Register under the Heritage Act 1995 (Vic) immediately before the commencement of section 257.

The term, place, has a statutory meaning, and is defined to also include a building, an area of land covered with water, and land associated with any of the mentioned things.

What happens if a property is heritage listed on the Victorian Heritage Register?

After a property is recorded on the Heritage Register, then permits are generally required to be sought for most alterations to registered property. A permit under the Heritage Act 2017 (Vic) is separate to a planning permit and should be sought in addition to any planning permit that may be required.

Furthermore, there are obligations that are expected of owners of a heritage listed property, including:

  • an owner must not allow a registered property to fall into disrepair
  • an owner must not fail to maintain a registered property to the extent that its conservation is threatened
  • an owner must not alter any part of a registered property, without a permit or is listed under an exception that a permit is not required.

Read More: An example of a heritage listed place is Lake Wendouree (previously discussed in “What is the cultural significance of Lake Wendouree?”).

As heritage property are intended to be conserved and protected, there are a number of enforcement orders that can be made regarding a heritage-listed property. Some of the orders, include repair orders, rectifications orders, stop orders, and declaration that a property cannot be developed or used during a period up to ten (10) years.

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Who makes a determination for a property to be heritage listed?

For a property to be heritage listed, the Heritage Council determines whether a property should be heritage-listed. The Heritage Act 2017 (Vic) establishes the Heritage Council and consisting of 10 members. It is a requirement that:

  • seven (7) members must possession certain recognised skills
  • one (1) member must be appointed by the Minister from a list of three names submitted by the National Trust
  • one (1) member must be an Aboriginal person with relevant experience or knowledge of cultural heritage
  • one (1) member must have an understanding, expertise, or interest in Victoria’s heritage or in the management of heritage

Therefore, whether a determination is made for property to be included on the Heritage Register, the main functions of the Heritage Council, includes:

  • to advise the Minister on Victoria’s cultural heritage resources and on any steps necessary to protect and conserve them.
  • to promote public understanding of Victoria’s cultural heritage and development and conduct community and education program
  • adopt and forward to the Minister, World Heritage Strategy Plans and amendments to World Heritage Strategy Plans
  • add or remove places from the Victorian Heritage Register.

Furthermore, Heritage Victoria is not synonymous with the Heritage Council, as Heritage Victoria is an agency within Victoria’s Department of Transport and Planning.

Who maintains the Victorian Heritage Register?

The Executive Director, supported by Heritage Victoria, carries important statutory functions. The statutory functions of an Executive Director, include:

  • to establish and maintain the Heritage Register
  • to recommend to the Heritage Council, the registration of any place or object in the Heritage Register
  • to establish and maintain the Heritage Inventory
  • to determine applications for permits and consents.

The Executive Director, and Heritage Council are both involved in the process of registering places on the Heritage Register with different roles and responsibilities.

For example, when a person is nominating a property for inclusion on the Heritage Register, then the nomination must be made to the Executive Director. The Executive Director may make a recommendation to the Heritage Council, whereas the Heritage Council determines whether a property should be included on the Heritage Register.

What should be considered when purchasing a heritage listed property?

If you are considering purchasing a property that could be heritage listed, then it is recommended that you should obtain a Heritage Certificate or obtain legal advice in relation to heritage-related matters.

A Heritage Certificate is issued in accordance with section 58 of the Heritage Act 2017 (Vic), and the certificate will list relevant information about a property and if it is affected by heritage-related matters. Some of the information included in a Heritage Certificate, is whether or not:

  • the property is included on the Heritage Register, and if so, what category it is registered in the Heritage Register.
  • the property is in a World Heritage Environs Area
  • the property is subject to an interim protection order, and if so, the date of the order
  • nomination has been made for inclusion of a property in the Heritage Register
  • a property is being considered for inclusion in the Heritage Register
  • a repair order, rectification order, specific court order under section 229 of the Heritage Act 2017 (Vic), is in force, in respect of a property
  • there are current proceedings for a contravention, in respect of a property.

What should be considered when selling a heritage listed property?

If you are an owner of a heritage listed property, then the owner has disclosure requirements. When an owner enters into a contract of sale in relation to a registered property, then the owner must give written notice to the Executive Director regarding the contract of sale.

There are also disclosure obligations for an owner of a property that has been nominated, or is subject of a recommendation, to be heritage listed on the Victorian Heritage Register.

Read More: As a vendor of a heritage listed property, there are also disclosable obligations expected when forming a Section 32 Vendor’s Statement. “What is a Section 32 Statement in Victoria?” provides a general overview of the legal requirements of a Section 32 Vendor’s Statement.

Lake Wendouree (Heritage Listed) | Cultural Heritage Significance | Section 32 Statement

At Nevett Wilkinson Frawley Lawyers, our conveyancers and conveyancing lawyers have extensive experience in all areas of property conveyancing including disclosure obligations on heritage listed property.

Do you need legal advice? Call us on (03) 5331 1244 to get in touch and arrange an appointment with one of our conveyancing lawyers.

You can also connect with us by filling out your details and telling us about your information for legal advice below:

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Authored by:
Ben Franklin, Managing Partner (LIV Accredited Specialist – Property Law), &
Matthew Tran, Lawyer.

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