Can a large development site, made up of multiple small lots, utilise the ‘small lot exemptions’ contained in the Aboriginal Heritage regulations? This question was put to VCAT in Hartland Group Pty Ltd v Mornington Peninsula SC  VCAT 1722 VCAT. The following provides a summary of the Tribunal’s findings:
Practitioners will be familiar with the fact that a cultural heritage management plan (CHMP) is required prior to the issue of a planning permit for a development, or activity if:
(a) all or part of the activity area for the activity is an area of cultural heritage sensitivity; and
(b) all or part of the activity is a high impact activity
Areas of cultural heritage sensitivity are mapped by the State Government and contained on property planning reports available from VicPlan. What constitutes a ‘high impact’ activity is defined by Regulation 48 of the Aboriginal Heritage Regulations, and includes
(1) The construction of 3 or more dwellings on a lot or allotment is a high impact activity.
(2) The carrying out of works for 3 or more dwellings on a lot or allotment is a high impact activity.
So, the development of 3 or more dwellings on land identified within an area of cultural heritage sensitivity requires a CHMP. However, regulation 10, provides the following exemption:
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, any sea within the limits of Victoria or the Murray River; and
(b) less than 0·11 hectares.
In the Hartland Group case, the proposal included the construction of seven dwellings over two lots. The land was not within 200 metres of the sea, coastal waters of Victoria or the Murray River. Each lot was approximately 840sqm, combining to provide a subject site of more than 1600sqm (0.16hectares).
The permit applicant argued that because each lot was less than 1100sqm (0.11 hectares) no CHMP was required.
Council argued the opposing position and sought to convince the Tribunal that the small lot exemption could not be applied, because the overall parcel (planning unit) was greater than 1100sqm.
The Tribunal noted:
40 Mindful of the focus being on the lot or allotment in question, I agree with the Applicant that it should not matter whether a development area is comprised of one lot that meets the two limbs of regulation 10 or of more than one lot that each meet the two limbs of that regulation – the main thing is that each lot that comprises the area proposed for the development of 3 or more dwellings must meet the two limbs of the regulation.
43 For these reasons, I find that the proposed activity the subject of planning permit application P18/0591 can rely on the exemption contained in regulation 10 and, as such, a CHMP is not required to be prepared in respect of that proposed activity…
Cultural heritage management plans can be expensive and time-consuming. However, the Hartland decision makes it clear that a CHMP may be avoided if your large development site is made up of lots smaller than 1100sqm.
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