Applying CHMP Requirements To Two Lots

A significant VCAT decision was handed down last week that relates to the interpretation of when a Cultural Heritage Management Plan (CHMP) is required. The VCAT Case is 104-105 Station Street Pty Ltd v Kingston CC (Red Dot) [2019] VCAT 1546.

The decision relates to a proposed three storey building comprising 19 dwellings over two adjoining allotments in Station Street, Aspendale. The applicant sought to confirm that the site was exempt from the requirements of a CHMP.

Under the Aboriginal Heritage Regulations (AHR) 2018 the following exemption is provided:

Regulation 10

The construction of 3 or more dwellings on a lot or allotment is an exempt activity if the lot or allotment is –
(a) not within 200 metres of the coastal waters of Victoria, any sea within the limits of Victoria or the Murray River;
and
(b) less than 0.11 hectares.

The applicant demonstrated sufficiently that the site is 231 metres from the edge of waters of Port Phillip Bay and so exemption (a) above was met. However, in order for the exemption to apply, both conditions need to be met. The applicant argued that as the reference is to “lot” and therefore in the singular, the conditions should be applied to each lot separately. Each lot separately is under 0.11 hectares in area as well as being more than 200 metres from the water, therefore they argued that the exemption applies.

The Tribunal did not agree with this interpretation of the regulation. They relied on section 37(c) Interpretation of Legislation Act 1984 that ‘words in the singular include the plural’. They also considered that one of the main purposes of the Aboriginal Heritage Act 2006 (AHA) is ‘to provide for the protection of Aboriginal cultural heritage and Aboriginal intangible heritage in Victoria’. This is done by undertaking a cultural heritage management plan to determine if there is any Aboriginal cultural heritage present on the site. The Tribunal member considered that assessing each lot that is proposed to contain the activity individually would defeat the purpose of the AHA and AHR. Therefore the finding was that Regulation 10 should be assessed for the whole site. As the whole combined area of the two allotments was greater than 0.11 hectares a CHMP is required to be prepared for the site, prior to any further consideration of the proposed planning application.

This decision is significant as it provides additional guidance on how the exemption under Regulation 10 of the Aboriginal Heritage Regulations (AHR) 2018 should be applied.