VCAT has made a decision about cultural heritage management plans which provides guidance about how they should be prepared to ensure that they are flexible enough to allow for variations in proposed developments (Lake Park Holdings Pty Ltd v East Gippsland SC & Ors (Red Dot)  VCAT 826 (Lake Park Holdings).
In 2011, Lake Park Holdings Pty Ltd (LPH) applied for a permit in relation to a residential subdivision which was ultimately refused. LPH amended its development proposal for the same land and applied for a new planning permit. The revised proposal altered the subdivision layout and area, by reducing the number of lots and the development footprint. In the revised application, LPH sought to rely upon the previously prepared and approved CHMP. At the commencement of the hearing, and without prompting form any of the parties, the Tribunal raised a preliminary legal question concerning whether the previous CHMP could be relied upon for the amended development proposal. Importantly, the CHMP approved the same activity, being a residential subdivision and within the same activity area, as the application before the Tribunal.
The previous test - Three Pillars Property Group v Brimbank CC (Red Dot) VCAT 368 (Three Pillars)
Prior to Lake Park Holdings, Three Pillars was the leading decision on circumstances where a previously approved CHMP for a development proposal would satisfy an amended development proposal.
In Three Pillars, the Tribunal held that:
- a CHMP applies to high impact activities generally, rather than a specific development proposal, and;
- the activity for which a CHMP is prepared should be interpreted broadly, having regard to the ‘real and substantial purpose’ of the development and/or use of land.
The new test - Lake Park Holdings
The Tribunal in Lake Park Holdings departed from the decision in Three Pillars, considering the approach too broad and “generic.” In particular, the Tribunal held that a ‘one size fits all’ approach was inappropriate, as a CHMP must be approved in respect of a particular activity.
The Tribunal reformulated the test as:
“whether, on a fair and objective reading of the pre-existing CHMP as a whole, the CHMP still reasonably covers or contemplates the activity now proposed in the amended development proposal that requires a new permit.”
This may involve comparing the activity proposed in the revised permit application, with the activity proposed in the original application, for which the pre-existing CHMP was prepared. Comparison may be done in the context of:
- the assessment undertaken, for instance, whether it was simple or complex, and/or;
- recommendations made in the pre-existing CHMP, and/or;
- whether the CHMP itself provides guidance regarding its intended scope and what may remain covered by its assessment and approval.
Overall, the Tribunal held that it was necessary to apply a purposive, flexible and dynamic approach to the question, recognising that modest changes to a development proposal should be reasonably contemplated over time and included in the CHMP.
What are the practical implications of the decision?
Hall & Wilcox acted for the permit applicant in this case and successfully argued that the CHMP obtained in relation to an earlier permit application, was valid for the purposes of the current application. To avoid such arguments in the future, we recommend that:
- proponents give careful consideration to the way in which the CHMP describes a proposed activity.
- the activity should be described as broadly as possible to ensure that any variations or alterations to the development proposed, that are reasonably contemplated or foreseeable, will fall within the CHMP’s purview.
- the activity area should be clearly defined
- if the CHMP is not confined to a particular development proposal or conditional on a particular development outcome, then it should clearly say so. It should also note that it will apply to all development within the area save for any articulated exceptions.
- developers take heed of the Tribunal’s implicit request for more specificity. For instance, the CHMP should articulate whether the CHMP or its recommendations are tied to a specific development proposal or whether there is flexibility to allow for certain changes. If there are no qualifications to the activities that it approves, then it should say so.