Aquadonis Pty Ltd v Kingston CC (Red Dot)  VCAT 1407
The Victorian Civil and Administrative Tribunal (‘VCAT’) recently decided it may have jurisdiction to determine an application under section 79 of the Planning and Environment Act 1987 in circumstances where a Cultural Heritage Management Plan (CHMP) is required but has not yet been approved.
Section 79 of the Planning and Environment Act 1987 (‘Act’) provides that an applicant for a permit may apply to the Tribunal for review of the failure of a Responsible Authority to grant a permit within the prescribed time (60 days).
The Tribunal in Stanley Pastoral Pty Ltd v Indigo SC  VCAT 36 previously dismissed an application under section 79 of the Act by reference to section 52(4) of the Aboriginal Heritage Act 2006 which provides that the prescribed time does not start to run until an approved CHMP, if required, is provided to the decision maker. The Tribunal therefore found that the prescribed 60 days had not started to run and as such the Tribunal lacked jurisdiction to consider the application.
In Aquadonis the Tribunal distinguished the facts from that in Stanley and found that it had jurisdiction to determine a section 79 application even where there was a requirement for a CHMP. In contrast to Stanley, the requirement for a CHMP only arose after the section 79 application had been made where the newly introduced Aboriginal Heritage Regulations 2018 extended the areas of cultural heritage sensitivity to include the Applicant’s land. The Tribunal ultimately found it had jurisdiction at the time the application was made and the new regulations did not have the effect of removing that jurisdiction.
The Tribunal, in certain circumstances, is not bound by Stanley to dismiss a section 79 application where a CHMP is required but has not yet been provided. The Tribunal may have jurisdiction to determine an application as long as the requirement for the CHMP arose after the application to the Tribunal was made.
How can we help you?
HWL Ebsworth Lawyers has advised extensively on applications under section 79 of the Planning and Environment Act 1987 and the requirement for a CHMP under the Aboriginal Heritage Act 2006 and 2018 Regulations. James Lofting of HWL Ebsworth represented Kingston City Council in this hearing. Please do not hesitate to contact us to discuss the implications of this decision for your potential matter.
This article was written by James Lofting, Partner and Sarah Roberts, Law Graduate.
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