Most Read Contributor in Australia, September 2016
Cultural Heritage Management Plans (CHMP) under the Aboriginal
Heritage Act 2006 (AHA) (Vic) are often required for developments
in areas of aboriginal cultural heritage sensitivity and they can
be expensive to prepare. A CHMP will not be required if an area has
been subject to 'significant ground disturbance'. It is
therefore not uncommon for there to be debate around whether a
development area has been subjected to significant ground
disturbance, and hence exempt from the need for a CHMP. That was
the case in Stanley Pastoral Pty Ltd v Indigo SC (Includes Summary)
(Red Dot)  VCAT 36.
Stanley Pastoral Pty Ltd (Stanley Pastoral)
sought a planning permit to develop a water transfer station to
transfer water from a ground water bore to an offsite water
bottling plant. Stanley Pastoral sought review in the Victorian
Civil and Administrative Tribunal (VCAT) on the
basis of a failure by the Council to decide the application within
the required 60 day timeframe. Shortly before the hearing the
Council's lawyers advised VCAT that they considered that a CHMP
was required. At that point, a CHMP had not been prepared.
It is well established by a number of VCAT decisions, and by the
clear wording of the AHA, that if a CHMP is required, a VCAT review
cannot proceed in relation to the substantive merits of a
development application until such time as a CHMP is prepared and
approved. As such, if a CHMP were required, not only would this be
costly to Stanley Pastoral, it would also result in delay for the
determination of its permit application.
Stanley Pastoral argued a CHMP was not required on the basis
that the activity area had been the subject of significant ground
disturbance. It relied upon a cultural heritage advisor's
report to support its submissions. In what appears to have been
quite an effective exercise in cross examination, the cultural
heritage advisor conceded she had not visited the site prior to
signing her report, had relied upon work undertaken by another
staff member but had not mentioned that in her report, and that
there were a series of inconsistencies in her report.
VCAT described the advisor's evidence as essentially
supporting a 'pre-determined conclusion, rather than the
evidence being fairly assessed...' VCAT decided that in
the absence of sufficient evidence to establish significant ground
disturbance, a CHMP was required.
The question then arose as to whether the review proceeding for
the water transfer station could continue. All of the parties
submitted to VCAT that it should exercise its general discretion to
allow the merits review to proceed. VCAT declined, stating that it
could not use its general discretion to confer jurisdiction upon
itself. As a CHMP was required, the review could not proceed.
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