No CHMP No Tick-Tock

Regular permit applicants and readers of our TidBits will be aware of the requirement for Cultural Heritage Management Plans (CHMPs) to accompany planning permit applications for high impact activities proposed in areas of 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.

For projects that do trigger a CHMP, legislation provides that a CHMP must be provided to Council prior to a decision being made on the planning permit application. In some instances Council’s 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 the 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).

A recent VCAT decision has further clarified the potential conflict created by Council indicating they have all the information required to decide the application and progressing to advertising even though a CHMP has not been provided.

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 matter 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) and prohibits the Tribunal using its discretion to provide flexibility to a permit applicant on this issue.

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.

This case provides Council’s with unequivocal support from VCAT that no appeal will be entertained until 60 statutory days after a CHMP has been provided to Council. Clause:1 is hoping this case will assist permit applicants to convince Council to advertise planning permit application prior to the CHMP being supplied. Council now has nothing to lose.

Seek Professional Advice
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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