Part 1: Partial CHMP = No CHMP

Regular readers will be familiar with the fact that if a Cultural Heritage Management Plans (CHMP) is required as part of a planning permit application, the statutory clock doesn’t start until such time the approved CHMP is supplied.

In a recent Victorian Civil and Administrative Tribunal (VCAT) decision, Grebe Investments Pty Ltd v Bass Coast SC [2018] VCAT 1570, the Tribunal considered whether a CHMP was required before an appeal was lodged to the Tribunal against Council’s failure to make a decision within the prescribed 60 day timeframe (AKA a “failure appeal”).

The applicant had a CHMP approved under section 65(2) of the Aboriginal Heritage Act 2006, and had supplied that CHMP to Council. However, between lodging the appeal to the Tribunal and the hearing, the applicant realised that the approved CHMP did not include ‘all’ of the relevant activity area.  The appellant decided to prepare a CHMP for that missing part of the subject site and asked the Tribunal to reserve its decision, pending approval of the CHMP for the remaining part of the subject land.

The Tribunal used the first day of the hearing to consider this request, and found that:

  • The Aboriginal Heritage Act 2006 section 52(4) provides that if the Council is required to decide a permit application within a specified period and if a CHMP is required for the activity in the permit application, the specified period does not start until the Council receives a copy of the approved CHMP;
  • The applicant had not filed an approved CHMP for the whole of the activity in this proceeding.  This had the same legal effect as there being no approved CHMP for the activity; 
  • The prescribed time for Council to make a decision on the planning permit application, after which a failure appeal can be lodged, will only run from the date a complete and approved CHMP is filed;
  • Therefore, the Tribunal could not grant a permit for the activity and could not make a decision on the appeal;
  • The appeal was therefore misconceived and the matter was summarily dismissed/struck out. 

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