VCAT update: Recent Tribunal decision limits developers’ ability to rely on Cultural Heritage Management Plan exemptions

04 November 2019

A recent decision of the Victorian Civil and Administrative Tribunal (Tribunal) raises questions on how the exemptions from the need to provide Cultural Heritage Management Plan’s (CHMP) under the Aboriginal Heritage Regulations 2018 (AHR) for applications that cover multiple lots are to be applied.

In 104-105 Station Street Pty Ltd v Kingston CC (Red Dot) [2019] VCAT 1546 Senior Member Rickards concluded that applicants seeking to rely on Regulation 10 of the AHR to exempt themselves from providing CHMP’s must now show that the entirety of the land subject of a development proposal is below 0.11 hectares rather than the previously held approach that required each lot to be below 0.11 hectares. The decision is a deviation from the previously held interpretation in Hartland Group Pty Ltd v Mornington Peninsula SC [2018] VCAT 1722 (Hartland).

The legislative framework to the AHR:

The proposed development was within an area of cultural heritage sensitivity and was also a high impact activity. Therefore as a starting position, a CHMP was required.

Regulation 10 of the AHR provides an exemption to the provision of CHMP’s. It states that:

The construction of 3 or more dwellings on a lot or allotment is an exempt activity if the lot or allotment is:

  1. Not within 200 metres of the coastal waters of Victoria, any sea within the limits of Victoria or the Murray River; and
  2. Less than 0·11 hectares.

The development in the proceeding consisted of a three-storey building containing 19 dwellings and a basement car park over two lots. The Applicant sought to rely on Regulation 10 to exempt itself from the requirement to provide a CHMP.

The applicant submitted that reference to ‘a lot or allotment’ in Regulation 10 was reference to a singular lot, and therefore as each lot was less than 0.11 hectares, the proposal met the exemption’s requirements. This argument was rejected by Senior Member Rickards who found that reference to ‘a lot or allotment’ included the plural and therefore, as both lots combined together were greater than 0.11 hectares the exemption did not apply and a CHMP was required.

Statutory interpretation – the purposive versus textual approach

Senior Member Rickards’ decision stands in direct contrast to that in Hartland where Member Whitney concluded that the reference to ‘a lot or allotment’ in Regulation 10 referred to land, that is a distinct and separately disposable parcel. The ‘small lot exemption,’ in the opinion of Member Whitney, was therefore to be read in the singular form.

The difference in the two judgements lies in each Member’s approach to statutory interpretation.
Senior Member Rickards adopted the purposive approach in interpreting the AHR. She noted the purpose of the AHR was to protect aboriginal cultural heritage, and therefore the legislation and subordinate regulations must be interpreted in line with that purpose.

In support of this Member Rickards pointed to the definition of an ‘activity area’ under Regulation 7, which was defined as ‘the area or areas to be used or developed for an activity.’ The activity area in the application comprised of two lots. As the application’s activity area related to the entirety of the two lots, it made sense, in the opinion of Member Rickards, that the exemption should apply to the entirety of the activity area. On this basis, as the entirety of the activity area was greater than 0.11hectres, the exemption under Regulation 10 was not met.

In contrast to this, Member Whitney in Hartland chose to focus on the text of the Regulation. Member Whitney concluded the text of Regulation 10 displayed a clear intention to refer to ‘lot or allotment’ in its singular form. This was because:

  • ‘Lot’ in the AHR had the same meaning as ‘ lot’ in the Subdivision Act 1988, which adopted a singular meaning;
  • No reference was made in Regulation 10 to an activity area, which in contrast has a plural meaning; and
  • The language of Regulation 10 focused on the characteristic of the lot, via size and distance whereas the language of Regulation 7 focused on the planning unit.

All the above displayed to Member Whitney a clear legislative intention that ‘lot or allotment’ in Regulation 10 meant each singular lot and therefore, for an applicant to satisfy Regulation 10(b) it was sufficient that each lot was below 0.11 hectares rather than each planning unit.

Moving forward – what does this mean for you?

The effect of this decision creates some uncertainty on the application of Regulation 10.

Whilst Tribunal Members are not required to follow decisions of other Tribunal Members, the Red Dot note does indicate an intention by the Tribunal that Member Rickards reasoning be followed. Tribunal Members will consider this issue again, and it will be interesting to see what decisions arise in the coming months.

In the meantime, developers should consider the timing of their planning applications and lot consolidation and how the timing may impact the exemptions available to them.

How can we help you?

If you are concerned that a proposed development may be affected by the above decision or you are a member of Council and uncertain on how to assess planning applications moving forward, HWL Ebsworth can help you. HWL Ebsworth Lawyers acts on behalf of a variety of clients, including applicants, responsible authorities and objectors in a range of planning, environment and government matters. Our breadth of experience allows us to provide insightful advice to all permit application matters.

If you would like to discuss how this decision affects a proposed development, or any other matter, please do not hesitate to contact us.

This article was written by James Lofting, Partner, David Vorchheimer, Partner and Chantelle Radwan Law Graduate.

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