Section 139(4) excavation permit exceptions

These general conditions apply to use of all of the exceptions and must be complied with.

• a. These general conditions apply to each of the exceptions to subsections 139(1) or (2) of the Heritage Act 1977.
• b. The exceptions are self-assessed. It is the responsibility of a proponent to ensure that the proposed activities/ works fall within these exceptions.
• c. These exceptions do not apply to relics of State heritage significance or to a relic that is subject to an interim heritage order or a listing on the State Heritage Register.
• d. These exceptions do not apply to Aboriginal objects under the National Parks and Wildlife Act 1974.
• e. If any Aboriginal objects are discovered, excavation or disturbance is to cease and notification in accordance with section 89A of the National Parks and Wildlife Act 1974 is required. Depending on the nature of the discovery, additional assessment and approval under the National Parks and Wildlife Act 1974 may be required prior to works continuing in the affected area(s).
• f. Proponents must keep records of any activities/ works for auditing and compliance purposes by the Heritage Council. Where advice of a suitably qualified and experienced professional has been sought, a record of that advice must be kept. Records must be kept in a current readable electronic file or hard copy for a reasonable time.
• g. Anything done under these exceptions must be carried out by people with knowledge, skills and experience appropriate to the work. Some exceptions require suitably qualified and experienced professional advice/ work as set out in the guidelines Relics of local heritage significance: a guide for archaeological test excavation published by Heritage NSW and Relics of local heritage significance: a guide for archaeological monitoring published by Heritage NSW.
• g. A person who is aware or believes that he or she has discovered or located a relic, in any circumstances (including where works are carried out in reliance on an exception under section 139(4)), must notify the Heritage Council in accordance with section 146 of the Heritage Act 1977. Depending on the nature of the discovery, additional assessment and approval under the Heritage Act 1977 may be required prior to the recommencement of excavation in the affected area(s).
• h. Authorised persons under the Heritage Act 1977 may carry out inspections for compliance.
• i. Activities/ works that do not fit strictly within the exceptions described above require approval, by way of an application under section 140 of the Heritage Act 1977.
• j. It is an offence to do any of the things listed in section 139(1) or (2) of the Heritage Act 1977 without a valid exception or approval.

These exceptions were made under the Heritage Act 1977, published in the NSW Government Gazette, Number 59 (PDF 1.2MB) and must be complied with.

The following disturbance or excavation of land does not require an excavation permit under subsections 139(1) or (2) of the Heritage Act 1977 provided that it falls within one or more of the exceptions described at clauses 2(a) to (f) below, and is undertaken in compliance with the General Conditions:

1. Any disturbance or excavation of land that has limited archaeological research potential, as demonstrated by a heritage management document, such as an Archaeological Assessment, completed within the last five years.
2. Any disturbance or excavation of land that constitutes minor works involving limited impact to relics of local heritage significance, in accordance with the guideline Relics of local heritage significance: a guide for minor works with limited impact published by Heritage NSW.
3. Any disturbance or excavation of land that constitutes minor works involving limited impact to relics of local heritage significance as demonstrated by a heritage management document, such as an Archaeological Assessment, completed within the last five years.
4. Any disturbance or excavation of land for archaeological test excavation of relics of local heritage significance completed in accordance with the guideline Relics of local heritage significance: a guide for archaeological test excavation published by Heritage NSW.
5. Any disturbance or excavation of land for archaeological monitoring of relics of local heritage significance completed in accordance with the guideline Relics of local heritage significance: a guide for archaeological monitoring published by Heritage NSW.
6. Any disturbance or excavation of land:
   1. for the purpose of exposing underground utility services infrastructure which occurs within an existing service trench and will not affect any other relics
   2. to carry out inspections or emergency maintenance or repair on underground utility services with due care taken to avoid effects on any other relics
   3. to maintain, repair, or replace underground utility services to buildings which will not affect any other relics
   4. to maintain or repair the foundations of an existing building which will not affect any associated relics, or
   5. to expose survey marks for use in conducting a land survey.

An excavation permit or exception under s139(4) is required where a person person wanting to carry out excavation or disturbance of land:

• has discovered or exposed a relic
• knows or suspects that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed.

Consider the following questions to understand the significance of relics that may be at your project site (where the activities or works are proposed).

Is your project site:

• a locally listed heritage item in a local environmental plan?
• identified in a heritage management document such as an archaeological management plan, archaeological zoning plan, or heritage conservation management plan as containing or likely to contain archaeological relics?

These documents may contain information on the significance of the archaeological relics. They may indicate that your project site has relics of local heritage significance and a section 139(4) exception may be possible. If the document indicates the relics are of State heritage significance an exception will not apply.

However, not every area in NSW with potential for archaeological relics has an archaeological management plan or archaeological zoning plan. If there is information available on the significance of the relics, use other resources to investigate such as heritage studies, local environmental plan heritage listings and local histories (published or unpublished). Older maps or plans may be available in existing documents such as Land Title information or online.

Pages 18–21 of Assessing Significance for Historical Archaeological Sites and Relics contain information on areas where the likelihood of significant archaeological relics is higher in NSW.

A professional historical archaeologist can also investigate and assess your project site. See our professional consultants directory for people to contact.

Once you have determined that only relics of local heritage significance may be present at your project site move to Step 2.

Your research must also understand if the site is likely to include relics and where they may be present. Areas that are unlikely to have relics include:

• sites previously excavated for basements or utilities
• original road and rail alignments
• areas of modern road and rail construction which are likely to have removed evidence of relics.

If your investigation shows your project site is not likely to have archaeological relics, and you do not otherwise know or suspect relics, your works or activities can proceed with caution.

If you have identified that relics of local heritage significance are likely to be at your project site move to Step 3.

Before commencing any works or activities you must self-assess whether they can be done under an exception. Refer to the general conditions, list of exceptions and guidelines.

In accordance with the general conditions, anything done under these exceptions must be carried out by people with knowledge, skills and experience appropriate to the work.

Some exceptions require suitably qualified and experienced professional advice and work as set out in the guidelines:

• Relics of local heritage significance: A guide for archaeological test excavation
• Relics of local heritage significance: A guide for archaeological monitoring.

See our professional consultants directory for people to contact.

If you consider your activities or works are minor and have a limited impact on relics of local heritage significance, you must document this decision and the activities or works completed.

Use the record of use form (DOC 2MB) as a guide for documenting your work, your decisions and any professional advice you received. Some exceptions have additional record keeping requirements. Keep your records for a reasonable time in accordance with the general conditions.

You only need to notify us or the Heritage Council if relics are found. If no relics are found, keep your records and proceed with your works.

If you are working under an exception and you find unexpected relic/s, all work must stop until you can understand the find and the impacts you may have. You may need to add information to your exception or apply for an excavation permit. You must also notify us within a reasonable amount of time. This is outlined in the General conditions.

See Notify discovery of a relic for what to do.

Use available information sources to understand the history and nature of your project site, for example:

• heritage study
• local environmental plan heritage listing
• local histories (published or unpublished)
• old maps or plans which may be available in existing documents such as Land Title information or online.

Many of these sources are available in our online heritage library:

• interim and final reports completed as part of archaeological investigations
• archaeological studies
• archaeological assessments
• conservation management plans
• archaeological management plans for towns, and some specific sites
• archaeological zoning plans.

A summary of basic history to include with your documentation should not involve detailed new primary research. It can be presented as an historical summary or a timeline or chronology of key dates or events.

Key questions to ask:

• is it likely that your project site contains historical archaeological relics?
• are relics likely to be present across the whole project site or only in certain locations?

Many places in NSW also have archaeological management plans which may also provide useful historical and archaeological information. Archaeological management plans identify areas of European occupation where high concentrations of potential archaeological remains are expected to be present. They contain management recommendations and policies for the archaeological resource and identify procedures to be followed which help to avoid project delays and unexpected finds later.

Archaeological management plans and zoning plans exist for many parts of NSW to help identify places where significant archaeology may survive and to guide future management and development e.g. Parramatta, Sydney, Port Macquarie, Newcastle, Richmond, Goulburn, Bathurst, The Rocks and Millers Point and Pyrmont.

Use available sources such as a heritage study or local environmental plan heritage listing.

Check these guidelines for assessing the significance of historical archaeological sites and relics in NSW:

• Heritage Council of NSW criteria for State heritage significance
• Archaeological Assessment Guidelines
• Assessing Significance of Historical Archaeological Sites and Relics
• Investigating heritage significance

Statements of significance outline why the relics are important. A succinct statement of significance should be prepared based on the criteria above and indicate whether relics are present and whether they are of State or local significance.

Key question to ask:

• what information might be found from archaeological study of this place?

Describe the proposed works or activities for example: trenching for installation of new services, other excavation, or ground disturbance such as site levelling, cut and fill, removal of topsoil, landscaping.

Key questions to ask:

• What impact would the proposed works have on the identified significance of the place and its relics?
• What measures are proposed to mitigate negative impacts?
• Have other solutions been considered for example the redesign or repositioning of the works?

The strategy to be used to manage the intended works will derive from the information gathered including:

• the overall nature of the site
• the likelihood of relics
• the nature and degree of impact from the proposed works.

If relics are unlikely an appropriate strategy might be to undertake the works with an unexpected finds procedure outlined in the guideline Relics of local heritage significance: a guide for minor works with limited impact 

If during works an historical archaeological relic is found, all work must stop, and a formal notification is required under section 146 of the Heritage Act 1977. A permit application and approval may be required to continue your project.

If relics are likely to be present and would be disturbed by the works then it will be necessary to complete works under a section 139(4) exception or a section 140 excavation permit.

If in doubt, a professional archaeologist will be able to assist you in the preparation of documentation to show how the archaeology at the site will be protected and recorded.