When new or amended permit applications to which section 52(1) of the Aboriginal Heritage Act 2006 applies are lodged, councils must determine whether an approved Cultural Heritage Management Plan (CHMP) relating to an earlier development concept can be relied upon.
The 2012 'Red Dot' case of Three Pillars Property Group v Brimbank CC (Three Pillars) has provided guidance to this determination.
Last week, however, the Tribunal delivered a decision in Lake Park Holdings Pty Ltd v East Gippsland SC & Ors (Lake Park Holdings), which has narrowed the Three Pillars test.
The Tribunal (per Deputy President Dwyer) expressed the issues to be determined in the Lake Park Holdings case in two dot points:
- does the decision in the ‘Three Pillars’ case state the correct test for considering when a new or updated CHMP is required for an amended proposal within the same activity area?
- even on a different test, which takes into account the actual development proposal in the context of the pre-existing CHMP, is the approved CHMP in this case a sufficient CHMP in respect of the activity now proposed in the current permit application?
The Three Pillars test
Deputy President Gibson formulated the robust test to be utilised in considering whether a new or updated CHMP is required for an amended proposal in the same activity area in the Three Pillars case. In essence, the Three Pillars case stated:
- A CHMP applies to high impact activities generally, rather than to a particular development proposal. Once a CHMP is prepared for an activity area for one high impact activity, it should suffice for any other high impact activity provided the activity area is the same and the proposed activity is not inconsistent with the CHMP.
- The ‘activity’ for which a CHMP must be prepared should be interpreted broadly, having regard to the essential character of the development and use of land. A ‘real and substantial purpose’ test should be used to ascertain this character.
Implications of the Three Pillars test
In a number of recent cases, a view has been expressed to the Tribunal that the Three Pillars test may lead to unintended outcomes.
An example of the type of unintended outcome of the Three Pillars test was given by Deputy President Dwyer:
To take an extreme example, what if there is an approved CHMP for a large activity area in an area of cultural heritage sensitivity, within which 50 percent of the land is proposed for a residential subdivision and 50 percent is proposed for open space? Both the area to be subdivided and the open space form part of the ‘activity area’. However, in assessing aboriginal cultural heritage and approving a CHMP, the RAP (Registered Aboriginal Party) may have concentrated on the 50 percent of the site where buildings and ground disturbance were to occur. The CHMP may contain no recommendations for protective works on the balance of the activity area proposed for open space, and be largely silent in relation to that part of the land in the expectation that it is not being disturbed as part of the proposed development. However, under the ‘Three Pillars’ test, the broad activity of a ‘residential subdivision’ would be enough for the CHMP to be relied upon for any amended activity that requires a new or amended statutory authorisation without reference to the RAP. For areas where the CHMP is largely silent, or contains no material recommendations, the amended activity would not be inconsistent with the CHMP for the purposes of the ‘Three Pillars’ test. This could include, for example, a new or amended planning permit for an extension of the subdivision into the open space area, or a complete transposition of the areas of subdivision and open space, or the use of the open space area for another high impact activity.
Such an outcome was considered by Deputy President Dwyer not to support the intent or purpose of the Aboriginal Heritage Act, 2006.
The reformulated test
While still actively discouraging an inflexible or rigid reading of a CHMP, Deputy President Dwyer has reformulated the 'real and substantial purpose' test, creating in its place a more nuanced approach set out at paragraph 19 of the Lake Park Holdings case:
If a new statutory authorisation (i.e. a new permit) is sought for a different development proposal, the question should simply be posed as to 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 the new permit. This may involve an examination of the extent of any amendment to the particular development or use comprised in the activity, compared with the activity for which the pre-existing CHMP was initially prepared, in the context of the assessment undertaken, and any recommendations made, in that pre-existing CHMP. It may involve looking at whether a simple or complex assessment has been undertaken, and whether the CHMP itself provides any guidance about its intended ambit and the scope of any changes to the activity that might still be covered by its assessment and approval.
Applying the new test, Deputy President Dwyer found that the existing approved CHMP relating to Lake Park Holding's land was sufficient to cover not only the earlier development concept, but the proposal which was the subject of the 2014 Tribunal proceedings.
'Future proofing' CHMPs
The current legislative framework of the Aboriginal Heritage Act 2006 does not contemplate a process for amending existing approved CHMPs.
The Lake Park Holdings case offers advice to the authors of CHMPs to turn attention to the dynamic nature of planning approvals, including where possible building flexibility into the CHMP. Within paragraph 21 of the decision, it is stated:
At the Tribunal, we see many CHMPs that have been prepared generically. Many include development plans, without indicating whether the assessment and approval is tied to that development. Some do not define the ‘activity’ or the ‘activity area’. Many do not provide a clear indication of the extent to which an assessment of aboriginal heritage has been undertaken in parts of the activity area beyond the areas of the specific impact of a particular development footprint. It would be helpful if those who prepare CHMPs expressly deal with these sorts of issues – for example, by indicating in a CHMP whether the CHMP or particular recommendations are for some reason tied to a specific development proposal or layout, or whether the CHMP is a complex assessment of the whole of the activity area for all purposes. It would also be helpful if the CHMP expressly indicated what flexibility exists for certain types of changes, or what are the areas of sensitivity or change that might trigger the requirement for further assessment or a new CHMP.
While the Tribunal in Lake Park Holdings had in mind subsequent permit applications for similar development concepts impacting the same activity area, there is good reason not to overlook this issue when councils consider applications to amend permit applications (whether made prior to the ultimate determination of the permit application, or by reference to substituted plans after review proceedings are on foot at the Tribunal) and applications to amend existing permits.