In previous editions we have discussed the requirements of the Aboriginal Heritage Act 2006 as they relate to planning permit applications, that is, where a Cultural Heritage Management Plan (CHMP) is required prior to a permit being issued.
A recent “red dot” decision from the Victorian Civil and Administrative Tribunal (VCAT) has confirmed this requirement in Bayview on Hesse Pty Ltd v Queenscliffe BC [2013] VCAT 1772. The proposal involved the construction of a hotel and eight dwellings with basement parking. Shortly before the Tribunal hearing, the permit applicant accepted it needed to prepare a CHMP for the activity. In this case the Tribunal held the merits hearing, and at the end of the hearing reserved the decision allowing the applicant 3 months to file a CHMP. The applicant filed a CHMP within that time, however a different basement configuration was needed to ensure to protection of Aboriginal cultural heritage at the land. The applicant requested leave to amend the plans, which was refused by the Tribunal and the application dismissed, on the basis that the change was sought after the merits hearing. The decision noted that to require VCAT to consider a different proposal “would be contrary to the efficient conduct of proceedings before the Tribunal and would be likely to put the parties to additional effort and expense in additional hearings”.
Notwithstanding the fact that in the above case VCAT conducted the merits hearing without the CHMP having been prepared and registered, the decision notes that a permit must not be granted for a proposal that is an activity that requires a cultural heritage management plan until that plan is approved.
On a related note, VCAT has recently updated their practice note on The Aboriginal Heritage Act 2006 and the Planning Permit Process. The practice note provides a 7 step process plus a more detailed description of the legislative requirements. For further details see Practice Note 45 in the Planning and Environment List on the VCAT website http://www.vcat.vic.gov.au/resources