HERITAGE COUNCIL HEARINGS PROTOCOL 1
GENERAL INFORMATION ABOUT HERITAGE COUNCIL HEARINGS
1.
Types of hearing
There are two kinds of hearing:
(i)
(ii)
Registration Hearings – hearings regarding a recommendation to include or
not include a place/object in the Heritage Register; and
Permit Appeal Hearings – hearings in response to a refusal to grant a permit
or conditions placed on a permit.
A Committee of at least three (3) members or alternate members of the Heritage
Council will conduct the hearing. All hearings are open to the public.
2.
Registration Hearings
2.1
Anyone may make a submission to the Heritage Council about a recommendation of
the Executive Director to include or not include a place/object in the Heritage
Register.
2.2
A submission should be lodged with the Heritage Council, in writing, in the form
“Heritage Council Hearings Protocol 2: Registration Submission to Heritage Council”.
This must be done within 60 days of the Executive Director’s recommendation. The
submitter may request a hearing.
2.3
The Heritage Council:
(i)
(ii)
(iii)
must have a hearing if requested by the National Trust or a person with a real
and substantial interest in the place/object;
must have a hearing if submissions are received objecting to the Executive
Director’s recommendation not to include a place/object in the Heritage
Register;
may conduct a hearing in other cases.
If a hearing is not required under (i) or (ii) above, the Heritage Council may determine
the matter without a hearing.
2.4
If a Registration Hearing is to be held, the following people will have the opportunity to
lodge detailed submissions for Heritage Council consideration:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
2.5
the Executive Director, Heritage Victoria;
the owner;
the National Trust;
a person who made a submission in response to the Executive Director’s
recommendation to include or not include a place/object in the Heritage
Register;
a person with a real and substantial interest in the place/object;
the person who requested the hearing; and
any person who the Heritage Council allows in order to inform itself.
The above people will have the opportunity to verbally present their submission at the
hearing.
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2.6
The relevant issues to be considered by the Heritage Council are:
(i)
whether or not the place/object is of cultural heritage significance in
accordance with s8(2) Heritage Act 1995 (this includes consideration of the
“Heritage Council Criteria for the Assessment of Cultural Heritage
Significance”, adopted 7 August 2008);
(ii)
the extent of registration; and
(iii)
categories of work/activities able to be carried out without the need for a
permit.
Note: specific development proposals that may affect the place in the future cannot
be considered.
2.7
‘The Victorian Heritage Register Criteria and Threshold Guidelines’ outlining key
considerations in determining whether a place or object is of state level cultural
heritage significance are available at www.dpcd.vic.gov.au/heritage.
3.
Permit Appeal Hearings
3.1
There are two kinds of Permit Appeal Hearings:
(i)
(ii)
The permit applicant, the owner or a person with a real and substantial
interest in the place/object can appeal against a refusal of the Executive
Director to issue a permit for all or some of the proposed works (within 60
days of the Executive Director’s decision).
The permit applicant or the owner can appeal against any condition in a
permit (within 60 days of Executive Director’s decision).
3.2
An appeal should be lodged with the Heritage Council, in writing, in the form “Heritage
Council Hearings Protocol 3: Permit Appeal to Heritage Council”.
3.3
In the event of a Permit Appeal Hearing, the following people will have the opportunity
to lodge detailed submissions for Heritage Council consideration:
(i)
(ii)
(iii)
(iv)
the Executive Director;
the appellant (permit applicant, owner; and, in the case of refusal, a person
with a real and substantial interest in the place/object);
the National Trust if it requested a hearing; and
any person the Committee allows in order to inform itself.
3.4
The above people will have the opportunity to verbally present their submission at the
hearing.
3.5
The Heritage Council may ask the appellant for any additional information it thinks
necessary to assist the determination of the appeal.
3.6
In the case of a permit refusal, the Heritage Council may request draft permit
conditions from the Executive Director prior to the hearing. Draft conditions will be
circulated to all people involved in the hearing to allow for comment.
3.7
Amendment of plans – the Heritage Council has prepared a protocol for the
consideration of amended plans (“Heritage Council Hearings Protocol 4: Lodging
Amended Plans”). It is for the Heritage Council to determine in its discretion whether
amended plans will be allowed.
3.8
The Heritage Council must consider the issues set out in s.73(1) Heritage Act 1995
(attached).
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4.
All hearings
4.1
Prior to the hearing:
(i)
Requests to be heard and scheduling of hearing
If persons wish to verbally present their submission to the Heritage Council
they should complete and return the form “Heritage Council Hearings Protocol
5: Request to be Heard”. A timetable for the hearing will be prepared on the
basis of information provided in this form. If it is felt a longer time is required
for the hearing than allocated, the Hearings Officer should be notified
immediately.
For complex matters, the Heritage Council may schedule a directions hearing
to assist in managing the hearing process e.g. to determine numbers of
submitters, experts, time scheduling etc.
(ii)
Detailed submissions
Detailed written submissions (A4 2 hole punched and stapled) must be lodged
with the Heritage Council 28 days prior to the hearing date. This must include
any written expert evidence and any photographic or visual evidence upon
which the person intends to rely (including visual material that may be used for
the purposes of a powerpoint presentation at the hearing).
Submissions will be provided to all other parties prior to the hearing and may
also be obtained by members of the public through the provisions of the
Freedom of Information Act 1982.
Submissions must relate to the relevant issues (see 2.6 and 3.8).
(iii)
Submissions in reply
All parties will have an opportunity to respond to other submissions and
evidence in writing prior to the hearing. The submission in reply is not
compulsory but it allows the opportunity to challenge the claims of other
parties.
A submission in reply must be lodged with the Heritage Council 7 days prior to
the hearing. These will be provided to all other parties prior to the hearing and
may also be obtained by members of the public through the provisions of the
Freedom of Information Act...
(iv)
Adjournments
If any person wishes to adjourn a hearing an application should be made
within a reasonable time, in writing, in the form “Heritage Council Hearings
Protocol 6: Request for Adjournment”. The Heritage Council requires the
person requesting an adjournment to seek the written consent of all parties to
the hearing.
The Heritage Council will determine in its discretion whether the adjournment
will be granted.
(v)
Withdrawals
A person that wishes to withdraw from a hearing must advise the Heritage
Council in writing without delay.
(vi)
Site inspection
The Heritage Council may in its discretion conduct a site inspection prior to,
during, or following the hearing. Ordinarily, site inspections will be
unaccompanied, except for the Hearings Officer. The owner may be in
attendance if it is necessary to obtain access or for security reasons. Expert
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witnesses and advocates are not to be present during site inspections, except
with the written permission of the Heritage Council. No representations to the
Heritage Council will be permitted during the course of the inspection.
(vii)
Additional information
The Heritage Council may seek additional information from any person at any
stage of the hearings process.
4.2
At the Hearing:
(i)
(ii)
(iii)
(iv)
A Committee of at least three (3) members or alternate members of the
Heritage Council will hear the appeal.
See 2.4 and 3.3 regarding who may make a submission at the hearing.
A person may be represented by another (e.g. a legal representative).
The order of hearing submissions will generally be:
(a)
(b)
(c)
(v)
the Executive Director
other parties
the owner/applicant
Photography or recording of Heritage Council proceedings
Heritage Council hearings are open to all members of the public and the
media. However, photography, as well as the video or audio recording of
proceedings is prohibited.
(vi)
Verbal submissions
Verbal submissions should be as brief as possible and should reflect the main
arguments of the written material lodged. The lengthy restatement of points
made by previous speakers should be avoided.
The Committee will monitor the length of verbal submissions given the time
set for the hearing in its discretion.
(vii)
Witnesses
Witnesses may be called to give verbal evidence at a hearing. These
witnesses may be expert witnesses (see 4.2(x)). The verbal evidence
presented by witnesses should reflect the main arguments of the written
evidence previously lodged.
(viii)
New material
Given the procedure of circulating submissions, evidence and submissions in
reply prior to the hearing, new written or visual material (including
photographic evidence, plans, maps or powerpoint presentations) should not
be introduced at the hearing. It is in the Committee’s discretion whether new
material will be allowed. In some circumstances new material may be grounds
for another party to seek an adjournment or request to respond to the new
material in writing.
(ix)
Adjournments
An adjournment may be sought at the hearing. Whether it is granted will be in
the Committee’s discretion. The Committee will have regard to any
inconvenience or cost caused to another party.
(x)
Questions
Direct questioning of an expert witness by any party to the hearing is
permitted. Expert witnesses are individuals with established or recognised
expertise in a relevant subject area who are called by a party to the hearing.
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The purpose of questioning an expert witness is to assist the Committee to
make an informed decision, bearing in mind the Committee is comprised of
persons with recognised skills in areas related to the functions of the Heritage
Council. Questions which are irrelevant, repetitive, badgering or otherwise
inappropriate shall be disallowed at the Chair’s discretion.
Questions of clarification directed to persons and non-expert witnesses by
other parties are only permitted with the leave of the Chair.
The Committee may ask questions of all parties and witnesses.
(xi)
Costs
Orders relating to costs cannot be made by the Heritage Council.
(xii)
Decision
The Heritage Council must determine a permit appeal within 60 days of the
lodging of the appeal (except where further information is sought or an
adjournment has been granted).
The Heritage Act does not specify a time within which a registration decision
must be made. The Heritage Council may indicate at the hearing when a
written decision will be available.
A written decision will be sent to all parties and a copy published on the
Heritage Council website and the Australian Legal Information Institute’s
Victorian Law Resources at www.austlii.edu.au/au/vic.
5.
Further Reference
(i)
(ii)
(iii)
Heritage Act (www.dpcd.vic.gov.au/heritage)
The Victorian Heritage Register Criteria and Threshold Guidelines
(www.dpcd.vic.gov.au/heritage)
Heritage Council Hearings Officer (phone (03) 9208 3666 or email
heritage.council@dpcd.vic.gov.au)
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Section 73 – Heritage Act 1995
(1)
(1A)
In determining an application for a permit, the Executive Director must consider—
(a)
the extent to which the application, if approved, would affect the cultural
heritage significance of the registered place or registered object; and
(ab)
if the application relates to a listed place or to a registered place or
registered object in a World Heritage Environs Area, the extent to which
the application, if approved, would affect—
(i)
the world heritage values of the listed place; or
(ii)
any relevant Approved World Heritage Strategy Plan; and
(b)
the extent to which the application, if refused, would affect the reasonable
or economic use of the registered place or registered object, or cause
undue financial hardship to the owner in relation to that place or object;
and
(c)
any submissions made under section 69; and
(d)
any decision of the Heritage Council under section 72 which has been
received; and
(e)
if the applicant is a public authority, the extent to which the application, if
refused, would unreasonably detrimentally affect the ability of the public
authority to carry out a statutory duty specified in the application; and
(f)
any matters relating to the protection and conservation of the place or
object that the Executive Director considers relevant.
In determining an application for a permit, the Executive Director may consider—
(a)
(b)
the extent to which the application, if approved, would affect the cultural
heritage significance of any adjacent or neighbouring property that is—
(i)
subject to a heritage requirement or control in the relevant planning
scheme; or
(ii)
included in the Heritage Register; and
any other relevant matter.
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7 February 2013
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