Defending heritage: Defence land sale highlights heritage obligations and public interest
With several Defence sites earmarked for divestment, we thought it might be timely to highlight the government’s EPBC Act, 1999, obligations that are intended to safeguard Australia’s cultural and environmental heritage.
With the Australian Government considering the future of several Defence-owned sites across Australia, that were identified for potential divestment in the Defence Estate Audit report, it is timely to consider the statutory heritage obligations that guide the sale of Commonwealth heritage-listed properties.
Defence is the nation’s largest landholder and operates under Australia’s omnibus heritage legislation, the Environment Protection and Biodiversity Conservation Act, 1999 (EPBC Act). Defence’s heritage obligations are not discretionary. They require the Commonwealth to identify, assess, manage and conserve significant heritage values. See also the Defence Estate Heritage Strategy.
The Defence estate includes places of natural and cultural heritage significance, places of importance to First Nations peoples, and places central to Australia’s military history that contribute to the nation’s broader cultural life. The Defence Estate Audit recognises that many properties hold strong historical and social value, particularly for veterans, despite many being secure and not accessible to the public.
Heritage protection triggered by divestment
When Commonwealth land, including Defence bases and surplus land, is proposed for disposal, heritage considerations are governed by the EPBC Act. For prospective purchasers, understanding the heritage obligations that transfer to them, and ongoing conservation of the site’s heritage values, becomes their responsibility into the future.
Before negotiations proceed, Commonwealth agencies, such as Defence, and Department of Finance, who may also be involved in the divestment of these sites, must follow Section 341ZE of the EPBC Act, and undertake comprehensive due diligence, which should be part of any sale process and documentation. This typically includes environmental, ecological, Indigenous, and historical heritage assessments, as well as contamination investigations. From there, heritage management strategies, or updated management plans with a specific focus on policies for the sale should be developed.
Where First Nations heritage values are present, meaningful engagement with Traditional Owners is both an expectation and, in certain circumstances, a statutory requirement. This may involve cultural mapping, assessment of tangible and intangible heritage values, and the development of appropriate protection measures to inform future land use.
Managing heritage at the point of transfer
Protective mechanisms are commonly embedded within sale arrangements to ensure continuity of heritage management. These may include heritage covenants registered on title, contractual obligations requiring adherence to Conservation Management Plan (CMP) policies, and transfer to local statutory listings, or if retained in government ownership to S170 heritage and conservation registers.
While National Heritage protections under the EPBC Act continue regardless of ownership, Commonwealth Heritage protections generally cease once a place is no longer Commonwealth-owned.
Where a site leaves Commonwealth ownership and is transferred to another State or Territory, the new jurisdiction needs to protect the heritage values within the state’s applicable legislative and planning frameworks. This may include transfer to state or local statutory heritage listing, or heritage-specific development and design controls.
Restoring public trust through transparency
With the prospect of large‑scale land sales, clear communication about statutory environmental, heritage and planning requirements is essential. By openly outlining the strategic heritage processes and ensuring they are rigorously applied, the Federal Government has an opportunity to build public confidence that divested Defence sites will follow best practice and be protected into the future.
When public land is proposed for disposal it can create both risk and opportunity, particularly where new uses, private ownership, or proposed development may not conserve or complement the site’s heritage values. An evidence-based conservation approach is needed along the divestment journey.
