Excavation permit Exception s139(4)

An exception from the requirement for an excavation permit can be granted for disturbance or excavation of land, provided it is for minor works that have minimal impact on relics of local heritage significance or for archaeological testing or monitoring of relics of local heritage significance.

Excavation permit exceptions

These excavation permit exceptions apply from 1 March 2022. Check the order published in the NSW Government Gazette on 18 February 2022 for the exceptions and the general conditions. The exceptions detail relevant guidelines which are:

These exceptions DO NOT apply to relics of State heritage significance. See the Excavation permit s140 webpage for information if relics of State heritage significance are predicted.

These exceptions DO NOT apply to relics that are State Heritage Register listed or subject to an interim heritage order. See the Works application s60 webpage for further information.

What are relics? 

A 'relic' means any deposits, artefact, object or material evidence that:

  • relates to the settlement of the area that comprises New South Wales, not being Aboriginal settlement, and
  • is of local or state significance.

Archaeological relics are protected under the Heritage Act 1977.  Excavation and disturbance of land may require an excavation permit under section 140 or otherwise fall within an exception under section 139(4).

Exceptions assist in the management of relics of local heritage significance. You must review the exceptions, the general conditions and the associated guidelines to use this system.

There are penalties under the Heritage Act 1977 for failing to obtain a heritage approval, excavation permit or comply with a relevant exception, such as a fine of up to $1.1 million, or in serious cases, imprisonment for up to 6 months. It is therefore important to ensure you understand the requirements that apply.

Aboriginal cultural heritage

Aboriginal cultural heritage consists of places, traditions, beliefs, customs, values and objects that represent the history of past Aboriginal generations, and the living history of current Aboriginal communities, and are of cultural and heritage significance to Aboriginal people.

When planning any work consider the potential impacts to Aboriginal cultural heritage. Management of Aboriginal cultural heritage is under Part 6 of the National Parks and Wildlife Act 1974. See the Aboriginal cultural heritage, Aboriginal cultural heritage services, and the Aboriginal objects and places webpages for further information.

Steps for using section 139(4) exceptions 

Working through the steps below can help you to:

  • decide if your activities/works can be done under an exception, and
  • comply with the exception requirements, including the general conditions and guidelines.

The requirement for an excavation permit or exception under s139(4) arises where a person wanting to carry out excavation or disturbance of land:

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

Answer the following questions to understand the significance of relics that may be in your project/works area.

Is the project site:

  • listed on the Local Environmental Plan (LEP), and/or
  • identified in a heritage management document like an archaeological management plan (AMP), archaeological zoning plan, or conservation management plan (CMP) as containing or likely to contain archaeological relics?

If yes, these documents may contain information on the significance of the archaeological relics. That may give you an idea that your project/works area has relics of local heritage significance and an exception may be possible. If the document indicates 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 no information on the significance of relics is present there are many resources you can use to investigate, such as heritage studies or LEP listing information, local histories (published or unpublished). Older maps or plans may be available in existing documents such as Land Title information or online.  

Heritage NSW also has information on areas where the likelihood of significant archaeological relics is higher; see pages 18-21 of Assessing Significance for Historical Archaeological Sites and Relics.

If you have identified that relics of State heritage significance are likely to be present these exceptions do not apply.  See the Excavation permit s140 webpage for information.

A professional historical archaeologist can also investigate and assess the site for you.  To assist landholders/owners and managers, Heritage NSW has two directories available. A Directory of Heritage Professionals and Consultants, and a Products and Services Directory of firms providing supplies and services.

Once you have answered that only relics of local heritage significance may be present, go to Step 2 below.

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:

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

If your investigation shows your project area is not likely to have archaeological relics, and you do not otherwise know or suspect relics, your works can proceed with caution. If during works you discover a relic, or suspect that you have, it is recommended you stop works and use the unexpected finds procedure in Relics of local heritage significance: a guide for minor works with limited impact.

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

It is noted that relics do not encompass all types of information that can be found under the ground. Additional information on the definition of a relic can be found in Assessing Significance for Historical Archaeological Sites and Relics.

Before commencing activities/works you must self-assess whether your activities/works can be done under an exception. Review the exceptions, the general conditions and the associated guidelines to understand if an exception may apply.  

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/ work as set out in the guidelines Relics of local heritage significance: a guide for archaeological test excavation and Relics of local heritage significance: a guide for archaeological monitoring. Refer to the Directory of Heritage Professionals and Consultants, and a Products and Services Directory.

If you consider your works are minor and have a limited impact on relics of local heritage significance, you must document this decision and the works and keep your records for a reasonable time in accordance with the general conditions. See the order published in the NSW Gazette for full details.

A template Record of Use form is available as a guide. This form provides further detail on the type of information you should record, including keeping a record of any professional advice received. The guidelines for certain exceptions have additional record keeping requirements.

You do not need to notify the Heritage Council if no relics are found. If relics are found, notification of the relic’s location under section 146 of the Heritage Act 1977 is required. As noted in general condition (h):

‘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).’

Section 146 notification should occur within a reasonable time and take the form of an email to the Heritage Council (heritagemailbox@environment.nsw.gov.au) identifying:

  • the exception used and site address (eg ‘Relics found at 10 Prince Street, Princeton using exception 2b’)
  • the GPS location of the relic
  • a photograph of the relic in its location (for context), and
  • a 500-word summary of test excavation works (only if using exception 2d).

No formal acknowledgement of the notification will be provided.

See the Excavation permit s140 webpage for information about whether the relics discovered require additional assessment and approvals. We recommend you submit any documentation relating to the exception, such as your completed Record of Use form, with your application.