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) [2015] 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.

Stanley Pastoral Pty Ltd v Indigo SC

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