Interim Heritage Orders

What are Interim Heritage Orders and how can they impact development?

1. What is an interim heritage order?

An interim heritage order (IHO) is an order that is made in relation to a place, building, work, relic, moveable object or precinct that the Minister, or local council, considers may be found to be of State or local heritage significance. The order is published in the NSW Government Gazette and takes effect from that time. No notice is required to be given to persons who may be affected by the IHO.

2. What is the effect of an IHO?

The effect of an interim heritage order is that a person cannot damage, destroy, alter or move the item, building or land without approval from the Heritage Council. 

Once an IHO is made, government authorities will usually conduct further inquiries or investigations to determine if the item has State or local heritage significance.

3. Is it simple for local councils to issue IHO’s?

No. There are directions from the Minister that local councils must abide by before making an IHO. It is critical that local councils follow these directions otherwise there is a risk that the IHO could be challenged in court proceedings, and the council could be liable for the legal costs of the challenge (see point 4 below).

4. Is there any way to appeal against an IHO?

Yes. If the IHO is made by a local council, it is possible for an owner or occupier of the effected land to appeal against the IHO in the Land and Environment Court. 

5. Is it possible to lodge a development application once an IHO has been made?

Yes. However, if consent is granted and works are proposed under the development application, you will not be able to carry out those works without approval from the Heritage Council. It is also likely that the consent authority (usually the local council) may await the outcome of further inquiries and investigations before determining what works are appropriate to consent to.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.