No CHMP no Tick-Tock Regardless of Declaration

In a previous article in BDAV News we highlighted the requirement for Cultural Heritage Management Plans (CHMPs) to accompany planning permit applications for high impact activities proposed in areas of Aboriginal cultural sensitivity. Discussions outlining the requirements for CHMPs including what constitutes a ‘high impact activity’ and an ‘area of cultural sensitivity’ can be found in previous editions BDAV News & our website.

For projects that do trigger a CHMP, legislation generally provides that a CHMP must be provided to Council prior to a decision being made on the planning permit application. In some instances Councils that request a CHMP as part of their requests for further information (RFIs) are willing to progress the application to advertising even though the CHMP has not yet been provided, in the knowledge that no decision can be made until the CHMP is supplied (and in consideration of the substantial time and cost these assessments can require to complete).

In Lynbrook Village Developments Pty Ltd v Casey CC & Others, the permit applicant lodged an appeal to the Tribunal against Council’s failure to determine their application(s) within the prescribed 60 day statutory timeframe.   The normal 60 day timeframe had expired and although the applicant had not yet completed a CHMP they were hoping to do so prior to the VCAT hearing (so as to meet the mandatory requirement to supply a CHMP prior to a decision being made).

However the Tribunal determined that the appeal had been lodged prematurely and should be dismissed as misconceived. In its determination VCAT relied upon Section 52(4) of the Aboriginal Heritage Act that states:

(4)        If the decision maker is required to decide whether to grant the statutory authorisation within a certain period, that period is deemed not to commence until the decision maker receives a copy of the approved cultural heritage management plan.

It was the Tribunal’s position that this provision (contained within the Aboriginal Heritage Act) overrides the provision contained within the Planning and Environment Act (that start and stop the 60 day statutory clock).

The impact for permit applicants (in circumstances were a CHMP is required) is that the 60 day statutory time frame does not commence until an approved CHMP is provided to Council.

In a more recent case Stanley Pastoral Pty Ltd v Indigo SC [2015] the Tribunal reinforced the above principles when it dismissed an application for review seeking to challenge Council’s failure to determine an application within the 60 day statutory timeframe. This case is interesting because the Tribunal goes on to comment on the increasing use of ‘applicant declarations’ relied upon by some Council’s to circumnavigate the CHMP process.

After determining that a CHMP was required the Stanley Pastoral decision goes on to say:

29        I am aware that many Councils now rely upon declarations from applicants about whether a CHMP is required. VCAT now commonly receives copies of these declarations, where relevant, as part of the PNPE2 practice note material provided by Councils if an application for review is lodged.

30        Many of the declaration forms are available on Council websites. All differ slightly in their wording, and some are better than others. Most are of a one-page ‘tick the box’ variety, with an applicant required to declare if a CHMP is or is not required. If the applicant declares that a CHMP is not required, some forms require the applicant to attach relevant proofs, or to attach a copy of the self-assessment undertaken through the AAV website . This at least gives the Council an opportunity to satisfy itself about the matter. Unfortunately, the form provided by Indigo Council and used by the applicant in this case is not one of the ‘better’ forms. It does not require any additional information, and it appears none was volunteered here. Moreover, for almost all the declaration forms currently used in practice, they are of little assistance in those matters that come before VCAT on review, where VCAT becomes the decision maker.

31        There is little doubt that the requirements of the AH Regulations have added to the complexity of the planning permit process, and made it more onerous for permit applicants and Councils. However, the use of a declaration form that a CHMP is not required, without more, appears to be increasingly seen as an easy way out. At worst, without more, it provides a temptation to unscrupulous applicants to avoid their obligations, or a temptation to under-resourced Councils to abrogate their responsibilities to be properly satisfied. At best, as I suspect is more the case here, it can still lead to unchecked errors or inadvertence that can have severe consequences if the matter is not addressed properly at the Council level, and only surfaces as an issue in a VCAT review.

This application was struck-out, costs awarded against the permit applicant and the matter forced to return to Council so that the CHMP issue could be properly resolved.

Permit applicants should be aware of the risk of utilising such declarations to avoid CHMP obligations. Rather, an appropriate level of investigation should be undertaken to confirm whether a CHMP is or is not required

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