Much needed guidance on the requirements and exemptions for the preparation of a Cultural Heritage Management Plan (CHMP) under the Aboriginal Heritage Regulations 2007 (AH Regs) has been offered in three recent Tribunal decisions: Mainstay Australia Pty Ltd v Mornington Peninsula SC & Ors (Red Dot)  VCAT 145 (24 February 2009), Merrivale v Brimbank CC (RedDot)  VCAT 715 (8 April 2009) and Tsourounakis v Ballarat CC (Red Dot)  VCAT 905 (18 May 2009).
Regulation 6 of the AH Regs provides that a CHMP will be required for an activity if:
- All or part the activity area for the activity is an area of cultural heritage sensitivity; and
- All or part of the activity is a high impact activity.
Division 2 and 4 of Part 2 of the AH Regs specify the areas of cultural heritage sensitivity for this purpose (for example, sand sheets, waterways, etc).
Division 5 of the AH Regs specifies high impact activities and at Regulation 45 provides that the construction of three or more dwellings on a lot, is a high impact activity.
Several of the specified areas of cultural heritage sensitivity are subject to an exemption where the land has been subjected to 'significant ground disturbance' in the past. Where this exemption is established, a CHMP will not be required even if the activity is a 'high impact activity'.
In Mainstay, the Tribunal provides useful guidance on the meaning of 'significant ground disturbance' and the elements required to be established to rely on this exemption. In Merrivale, the Tribunal clarified that the issue of 'significant ground disturbance' will not be determinative of whether a CHMP is required in every case. Instead, a careful reading of the AH Regs and exemptions as they apply to particular facts and circumstances is necessary.
MAINSTAY AUSTRALIA PTY LTD v MORNINGTON PENINSULA SC & ORS (RED DOT)  VCAT 145
In Mainstay, the permit applicant sought to construct a 60 dwelling retirement village on a 1.2 hectare site in Rosebud. This site was in an area of cultural heritage sensitivity, being within the mapped area of the 'Cranbourne Sands'.
The applicant in this case sought to establish and rely on the exemption to the requirement to prepare a CHMP based on the argument there had been significant ground disturbance of the subject land in the past.
In their decision, Deputy President Dwyer and Member Naylor considered what activities will establish that there has been 'significant ground disturbance', the levels of investigation that will be required, and the burden on the parties where the exemption is sought to be relied on.
Meaning of 'significant ground disturbance'
The Tribunal noted that 'significant ground disturbance' is defined under the AH Regs to mean 'disturbance of – (a) the topsoil or surface rock layer of the ground; or (b) a waterway – by machinery in the course of grading, excavating, digging, dredging or deep ripping, but does not include ploughing other than deep ripping'. The meaning of 'deep ripping' is further assisted by a definition which requires the use of a ripper or subsoil cultivation tool to a depth of 60 cm or more. The Tribunal held that, by reference to the various elements of each of these definitions, that both the depth of ploughing and the type of machinery used are relevant to whether deep ripping has occurred. It considered the type of tools that may constitute a ripper or subsoil cultivation tool and found that conventional ploughing will not be enough to constitute significant ground disturbance.
Burden of proof
The Tribunal held that the burden of proving that the land was subjected to significant ground disturbance lies with the applicant and must be discharged on the balance of probabilities. The default position for a decision maker, if the land is ostensibly of cultural heritage significance, is that a CHMP is required. Hence, the Tribunal made clear that it would not be satisfied with 'inexact proofs, indefinite testimony, or indirect inferences', and that 'little weight should be given to mere assertion by an applicant or landowner'.
Level of investigation required
While the Tribunal accepted the need for caution in developing guidelines for what information would be required in each case, the Members provided a broad outline of the depth of investigation necessary. They outlined the following principles:
- When significant ground disturbance was a matter of common knowledge, none or very little additional information would be required.
- If the matter was not one of common knowledge, then publically available records may allow a reasonable inference to be drawn that the land was subject to significant ground disturbance. If that were the case, then no further inquiries are needed.
- If the above inquiries do not clarify the issue, then information held by the applicant such as land use history documents, old maps or photographs, or statements from former landowners or occupiers should be provided.
- If these inquiries still do not provide sufficient information, then expert advice or opinion should be sought. This may ultimately result in a site visit with testing.
Exemption as to part of the land
The AH Regs specify that only the part of a culturally sensitive area subjected to significant ground disturbance is exempt from the requirement to prepare a CHMP. The Tribunal made clear that this reference to 'part' is not limited by lots or titles. It can transcend boundaries or only apply to part of a lot, with the balance of the area remaining of cultural heritage sensitivity.
Consequently, the Tribunal found that the exemption for significant ground disturbance only applies where the whole of a proposed activity area was subject to that disturbance.
Unfortunately for the applicant in this matter, the evidence only satisfied the Tribunal that the existing house site, sewerage pits and drainage lines were subject to significant ground disturbance. This only constituted 25% - 30% of the property and did not cover the entirety of the activity area for the proposed development.
The potential for disturbance on the remainder of the property could only be insinuated through inconclusive tests and statements of the previous owner without sufficient evidence to bolster the suggestions. The expert report commissioned was insufficiently conclusive, and only qualified the owner's statements with respect to uncontroversial issues. The Tribunal reiterated that it could not rely on mere assertion. Consequently, a CHMP was required before the application could be considered any further.
MERRIVALE v BRIMBANK CC (RED DOT)  VCAT 715
In this case, the applicant sought a permit to construct three dwellings on a lot in Sunshine. The land was considered of cultural heritage significance because it was within 200 metres of a waterway, being Stony Creek.
The applicant argued that the proposal did not constitute a high impact activity because construction would not result in significant ground disturbance. It sought to rely on the decision in Mainstay in support of its argument.
However, the Tribunal distinguished the facts in Mainstay from the present case and held that the issue of significant ground disturbance was not relevant in these circumstances for the following reasons:
- The issue of significant ground disturbance was not relevant to the determination of whether the activity in this case was a 'high impact activity'. The fact three dwellings were to be constructed on the land meant it met the requirements of a high impact activity as defined under Regulation 45 of the AH Regs. The fact that construction will not result in significant ground disturbance is only relevant where the AH Regs specify that it is, such as in determining whether the types of construction activities listed under Regulation 44 are high impact activities.
- The issue of significant ground disturbance was relevant in Mainstay for a different purpose, that is, to determine whether the land was in an area of cultural heritage sensitivity. Regulation 38(2) provided that if part of a sand sheet has been subject to significant ground disturbance, that part is not an area of cultural heritage sensitivity.
Deputy President Gibson made clear that significant ground disturbance is not a general exemption to the requirement of a CHMP and that a proper reading of the AH Regs was required.
Unfortunately, the Tribunal did not consider the impact of Regulation 23(2) on the requirement to prepare a CHMP. This regulation provides:
'If part of a waterway or part of the land within 200 metres of the waterway has been subject to significant ground disturbance, that part is not an area of cultural heritage sensitivity.'
If the applicants were able to establish significant ground disturbance, it would seem that the application of Regulation 23(2) would have meant that CHMP was not required. This was confirmed in the decision of Tsourounakis v Ballarat CC (Red Dot)  VCAT 905 (18 May 2009) considered below.
TSOUROUNAKIS v BALLARAT CC (RED DOT)  VCAT 905 (18 MAY 2009)
The facts of this case were very similar to those in Merrivale, being a high impact activity within 200 metres of a waterway where the land had been subject to significant ground disturbance. The Tribunal held that a CHMP was not required in this case because under Regulation 23(2) the land, having been subject to significant ground disturbance, was not in an area of cultural heritage sensitivity. In determining whether significant ground disturbance had been established, the Tribunal applied the principles established in Mainstay.
In making this decision, the Tribunal held that Merrivale ought not to be followed and that in the Merrivale case, the Tribunal should have considered the application of Regulation 23(2). It noted that the Tribunal had either overlooked this regulation or it had not been brought to its attention by the parties.
These three decisions highlight the need to exercise caution in reviewing the AH Regs to ensure that they are correctly applied to particular circumstances. The decision in Mainstay (followed in Tsourounakis) also provides useful guidance on the considerations that are relevant to establishing 'significant ground disturbance' under the AH Regs.
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