Clause:1 was recently involved in an appeal before the Victorian Civil and Administrative Tribunal (VCAT) to determine whether a new Cultural Heritage Management Plan (CHMP) was required for a proposed 95 dwelling development, where an archaeological survey had been provided for a similar proposal, years earlier.
The site abuts a Creek and therefore much of the site is within an area of “cultural heritage sensitivity” as determined by the Aboriginal Heritage Regulations 2007.
Council had sought a new CHMP as part of a further information request associated with a recent planning permit application to develop the land with 95 dwellings.
On behalf of the permit applicant, Clause:1 sought a declaration from VCAT pursuant to Section 149B of the Planning and Environment Act 1987, that the previous archaeological survey met the requirement of transitional provisions of the Aboriginal Heritage Regulations 2007 and that no new CHMP was required.
The previous proposal, for which an archeological survey had been carried out and registered with Aboriginal Affairs Victoria (AAV), was in relation to a comprehensive redevelopment of the site with a similar number of dwellings. Although that survey was registered with AAV, the development did not proceed.
The old and current proposals differed substantially by way of layout, road network, lots sizes, location of public areas, dwelling types etc.
Clause:1 argued that the permit application was exempt from the (otherwise) compulsory requirement to prepare a CHMP due to transitional provisions, which recognise existing archaeological surveys prepared for the ‘same’ land and activity.
It was Council’s position that the new activity was not the ‘same’ as that for which the previous archaeological survey was registered and therefore a new CHMP was required.
The case essential hinged on the definition of whether or not the two proposals constituted the “same activity”.
The decision in this matter has been assigned a Red Dot status by the Tribunal. In finding in favor of the permit applicant Deputy President Gibson found that (in summary):
- If the references to “activity” in the regulations are to the identical use or development, this would mean that every time a new high impact activity was proposed for land, a new CHMP would be required. So long as the area of land for which the survey/CHMP remains the same, it does not matter which category of high impact activity the proposed development falls within;
- It is only if the type of measures for management and protection of cultural heritage might vary depending on the type of high impact activity that recommendations might draw a distinction and be tied specifically to a particular type of activity;
- There is no need for references to “an activity” or “the activity” to be given narrow interpretation such that component elements (such as a bicycle track) will require a new CHMP. It is enough that whatever activity proposed is a high impact activity;
- What constitutes “the activity” should be interpreted as having regard to the essential character of the development. It can be said that the real and substantive purpose of the activity for which the 2003 survey was prepared was for residential development. This purpose is not changed by the inclusion of a bike path, nor a different layout or additional dwellings;
- A CHMP can not be relied on for every subsequent high impact activity, rather only a high impact activity of the same general purpose for which the CHMP was prepared;
Deputy President Gibson made a declaration to the effect that a CHMP was not required for the planning permit application because the ‘activities’ were the ‘same’ and therefore the exemptions under the transitional provisions had been met.
As an aside, land owners should be aware they can make an application to AAV to access records (for a fee of $37.00) should they need to find out whether an archaeological survey has been lodged for their land. However, in our experience, there may be some difficulty in locating records due to historic filing issues with AAV.
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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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