Last year a number of changes were made to both the Aboriginal Cultural Heritage Act and Regulations. The changes impact the Cultural Heritage Management Plan (CHMP) processes and obligations for Victorian planning permit applicants. The following outlines some of the changes of most relevance to applicants.
Exemptions
Prior to the recent changes, development that included 3 or more dwellings was considered a ‘high impact activity’ and a CHMP was required to accompany a planning permit application when proposed in an area of cultural heritage sensitivity.
The amended regulations (r.8A) now include the following:
The construction of 3 or more dwellings on a lot or allotment is an exempt activity if the lot or allotment is—
(a) not within 200 metres of the coastal waters of Victoria or the Murray River; and
(b) less than 0·11 hectares
Providing the requirements outlined above are met, the construction of 3 or more dwellings on a lot or allotment no longer requires a CHMP.
Amendable CHMPs
Previously, a registered CHMP could not be amended. Rather an applicant was required to provide an entirely new CHMP if small changes were made to a proposed use or development once the original CHMP had been completed.
The 2016 amendments now allow registered CHMPs to be amended. This is a welcome change that will assist in reducing duplication and unnecessary red-tape.
Preliminary Aboriginal Heritage Test (PAHT)
Regular permit applicants will be aware that on some projects it is unclear as to whether a full-blown CHMP is required. Previously, it was common place to engage a Heritage Advisor to undertake a ‘Desktop Assessment/CHMP’, as a first step. The findings of that desktop assessment could then be used to confirm that a full CHMP was needed or used to convince Council that no CHMP was required.
In circumstances where Council accepted that no CHMP was required it was possible for VCAT (on appeal) to overturn that position, causing significant delay and cost late in the planning process.
The new sections 49B & 49C of the amended act introduces a Preliminary Aboriginal Heritage Test (PAHT). The purpose of the PAHT is to remove this discretion (as to whether a CHMP is or is not required) from the decision maker and provide an opportunity for definitive confirmation, that a CHMP is or is not required, from Aboriginal Victoria (AV).
Applicants can now apply directly to AV to ‘certify’ that a CHMP is not required. AV have 21 days to issue a decision, however they can stop that clock with a request for information. The requirements and costs of preparing an PAHT application are expected to be similar to the old ‘desktop assessments’. Applicants should also be aware that failure to diligently pursue your PAHT application may see it lapse.
Clause 1 considers that the above changes are a welcomed reduction in the requirements for and uncertainty associated with Cultural Heritage Management Plans on smaller projects.
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