Planning proposals must conserve environmental and Aboriginal heritage items, places and objects.
A planning proposal must contain provisions that facilitate conservation of items, places, buildings, works, relics and precincts of environmental heritage significance identified in a heritage study. It must also conserve Aboriginal objects and places protected under the National Parks and Wildlife Act, and Aboriginal areas, objects, places or landscapes identified in an Aboriginal heritage survey provided to the authority.
Direction 3.2 is a planning direction under the NSW planning system that requires any planning proposal (a proposal to make or amend a Local Environmental Plan) to include provisions that actively protect items and places of heritage significance. It covers two broad categories of heritage: 'environmental heritage' — things like buildings, works, relics, precincts, movable objects and places that have historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value — and 'Aboriginal (indigenous) heritage' — objects and places protected under wildlife legislation, plus areas and landscapes identified through Aboriginal heritage surveys.
In practical terms, when a council or other planning authority prepares a planning proposal to change land-use rules, that proposal cannot simply ignore heritage. It must carry forward or introduce protections that conserve identified heritage items. The mechanics link to the Standard Instrument LEP, which contains a compulsory heritage clause: an LEP based on the Standard Instrument should list relevant heritage items in its Heritage Map and heritage Schedule so the protections have legal force.
The consequence of inconsistency is that the proposal may not proceed on that point unless the planning authority can satisfy the Planning Secretary that heritage is already adequately conserved by other instruments, or that the inconsistency is minor. In short, it forces heritage conservation to be built into rezonings and LEP amendments rather than left to chance.
All NSW relevant planning authorities (typically councils, but also any other authority) when they are preparing a planning proposal to make or amend an LEP.
It is triggered whenever a relevant planning authority prepares a planning proposal. At that point the proposal must be tested for whether it conserves identified environmental and indigenous heritage.
A planning proposal may be inconsistent only if the planning authority satisfies the Planning Secretary (or a nominated Department officer) that either (a) the heritage significance is already conserved by existing or draft environmental planning instruments, legislation or regulations applying to the land, or (b) the inconsistent provisions are of minor significance.
Definitions of 'conservation', 'environmental heritage', 'item', 'place' and 'relic' are drawn from the Heritage Act 1977, and 'Aboriginal object', 'Aboriginal area' and 'Aboriginal place' from the National Parks and Wildlife Act 1974. It operates alongside the compulsory heritage clause in the Standard Instrument (Local Environmental Plans) Order 2006. It replaces the previous Direction 2.3 from 1 March 2022.
The proposal must contain provisions facilitating conservation of items, places, buildings, works, relics, movable objects or precincts of environmental heritage significance identified in a study of the area's environmental heritage, across historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value.
The proposal must facilitate conservation of Aboriginal objects or Aboriginal places that are protected under the National Parks and Wildlife Act 1974.
It must conserve Aboriginal areas, objects, places or landscapes identified as significant to Aboriginal culture and people in a survey prepared by or for an Aboriginal Land Council, Aboriginal body or public authority and provided to the planning authority.
An LEP that adopts the Standard Instrument should identify relevant heritage items, areas, objects or places on the Heritage Map and relevant Schedule of the LEP; heritage conservation is a compulsory clause in the Standard Instrument.
This bites directly on Kiama. As a coastal LGA with heritage towns (such as Kiama's historic terraces, lighthouse precinct and streetscapes) and Aboriginal cultural landscapes along the coast, any Kiama planning proposal to rezone or amend the LEP must carry forward heritage protections and list relevant items on the Kiama LEP Heritage Map and Schedule. Where a proposal would weaken or omit a listed heritage protection, the council would have to justify this to the Planning Secretary, either by showing existing instruments already conserve the item or that the change is minor. Housing-pressure rezonings in or near heritage areas will need to demonstrate heritage is conserved.
3.2 Heritage Conservation Objective The objective of this direction is to conserve items, areas, objects and places of environmental heritage significance and indigenous heritage significance. Application This direction applies to all relevant planning authorities when preparing a planning proposal. Direction 3.2 (1) A planning proposal must contain provisions that facilitate the conservation of: (a) items, places, buildings, works, relics, moveable objects or precincts of environmental heritage significance to an area, in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item, area, object or place, identified in a study of the environmental heritage of the area, (b) Aboriginal objects or Aboriginal places that are protected under the National Parks and Wildlife Act 1974, and (c) Aboriginal areas, Aboriginal objects, Aboriginal places or landscapes identified by an Aboriginal heritage survey prepared by or on behalf of an Aboriginal Land Council, Aboriginal body or public authority and provided to the relevant planning authority, which identifies the area, object, place or landscape as being of heritage significance to Aboriginal culture and people. Consistency A planning proposal may be inconsistent with the terms of this direction only if the relevant planning authority can satisfy the Planning Secretary (or an officer of the Department nominated by the Secretary) that: (a) the environmental or indigenous heritage significance of the item, area, object or place is conserved by existing or draft environmental planning instruments, legislation, or regulations that apply to the land, or (b) the provisions of the planning proposal that are inconsistent are of minor significance. Note: In this direction: “conservation”, “environmental heritage”, “item”, “place” and “relic” have the same meaning as in the Heritage Act 1977. “Aboriginal object”, “Aboriginal area” and “Aboriginal place” have the same meaning as in the National Parks and Wildlife Act 1974. Heritage conservation is covered by a compulsory clause in the Standard Instrument (Local Environmental Plans) Order 2006. An LEP that adopts the Standard Instrument should identify such items, areas, objects or places of environmental heritage significance or indigenous heritage significance as are relevant to the terms of this direction on the Heritage Map and relevant Schedule of the LEP. Issued to commence 1 March 2022 (replaces previous Direction 2.3)
Reproduced from the NSW Department of Planning, Housing and Infrastructure (planning.nsw.gov.au), © State of New South Wales, under Creative Commons Attribution 4.0. Text extraction may introduce minor formatting artefacts — rely on the for anything decision-critical.
This is an unofficial reproduction provided for convenience. It is not the official version of the legislation. For the official, in-force version, see legislation.nsw.gov.au.