Cultural Heritage Management Plans
A recent VCAT decision alters the Tribunal’s previous interpretation relating to when an Cultural Heritage Management Plan (CHMP) is required on land for which a CHMP has previously been prepared.
As regular permit applicants and readers of this column would be aware Cultural Heritage Management Plans are required, as part of the planning permit process, when a ‘high impact activity’ is proposed on land within an area of ‘Aboriginal cultural heritage sensitivity’.
Areas of Aboriginal Cultural Heritage Sensitivity are generally mapped by Aboriginal Affair Victoria. What constitutes a ‘high impact activity’ is defined by the Aboriginal Heritage Act 2006.
In 2012, Clause 1 represented the planning permit applicant in Three Pillars Property Group v Brimbank CC (Red Dot) [2012] VCAT P368 and was successful in arguing that the applicant could rely upon a CHMP prepared and registered in 2003 for a previous development proposal and that an additional CHMP was not required for the current/new application. In supporting our position the Tribunal interpreted the relevant regulations liberally and found that a CHMP could apply to a high impact activity ‘generally’, rather than only to the specific development proposal for which it was written.
More recently in Lake Park Holdings Pty Ltd v East Gippsland SC & Ors (Red Dot) [2014] VCAT 826 the Tribunal has watered down the earlier finding by stating:
19. If a new statutory authorisation (i.e. a new permit) is sought for a different development proposal, the question should simply be posed as to whether, on a fair and objective reading of the pre-existing CHMP as a whole, the CHMP still reasonably covers or contemplates the activity now proposed in the amended development proposal that requires the new permit. This may involve an examination of the extent of any amendment to the particular development or use comprised in the activity, compared with the activity for which the pre-existing CHMP was initially prepared, in the context of the assessment undertaken, and any recommendations made, in that pre-existing CHMP…
20. …
21. It would also be helpful if those who prepare CHMPs pay more attention to this issue. At the Tribunal, we see many CHMPs that have been prepared generically. Many include development plans, without indicating whether the assessment and approval is tied to that development. Some do not define the ‘activity’ or the ‘activity area’. Many do not provide a clear indication of the extent to which an assessment of aboriginal heritage has been undertaken in parts of the activity area beyond the areas of the specific impact of a particular development footprint. It would be helpful if those who prepare CHMPs expressly deal with these sorts of issues …
22. This is particularly the case given the current legislative framework where the Aboriginal Heritage Act 2006 does not provide a process for a CHMP to be amended. Unless the CHMP expressly provides some in-built flexibility, or deals with different development or activity scenarios, the unfortunate consequence for some proponents is that a new CHMP will be required to deal with an amended development proposal that falls outside the ambit of a pre-existing approved CHMP.
Permit applicants should brief third party consultants with the above decision in mind. It is critical that your CHMP expressly articulates the flexibility required to allow for expected (and unexpected) changes to the proposed activity/development. Applicant’s that do not provide CHMPs with this flexibility may find themselves having to endure the cost and delay of preparing such reports anew, if the proposal changes – as they inevitably do.
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Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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