The recent decision of the Victorian Civil Administrative Tribunal in Ross Mitch Property Group Pty Ltd v Port Phillip CC (No.2)¹ has important implications for certain Councils in deciding whether a mandatory Cultural Heritage Management Plan (CHMP) is required under the Aboriginal Heritage Act 2006 (Act) and Aboriginal Heritage Regulations 2007 (Regulations).

The proposal submitted by the permit applicant, Ross Mitch Property Group, was for the construction of a three storey building containing three dwellings, including a basement car park, on Marine Parade, Elwood. The Tribunal ultimately refused the permit on the basis of built form, policy and amenity considerations.

However, the Tribunal also considered whether the proposal, which was wholly within an area of cultural heritage sensitivity, required a CHMP or was exempt due to Regulation 8A, which states:

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 or the Murray River; and

(b) less than 0·11 hectares

The proposal was on a lot less than 0.11 hectares (1100 m²), and clearly within 200 metres of Port Phillip Bay. Therefore, the key issue for the Tribunal was whether land within 200 metres of Port Phillip Bay is considered “within 200 metres of the coastal waters of Victoria...” or put more simply, whether Port Phillip Bay is considered to be “coastal waters of Victoria” under the Regulations.

Ultimately, on the basis of a complex set of definitions under State and Federal legislation, the Tribunal found that Port Phillip Bay does not fall within the meaning of “coastal waters of Victoria”, and the exemption in Regulation 8A applied to the proposal. In basic terms, the various legislative definitions have the effect that the meaning of “coastal waters of Victoria” differs from “sea within the limits of Victoria”. As a result, Port Phillip Bay is considered “a sea within the limits of Victoria”, but differs from waters such as Bass Strait, and does not fall within the definition of “coastal waters of Victoria” which is referred to in Regulation 28 (Coastal land).

The consequence of the decision is that applications within 200 metres of the high water mark of Port Phillip Bay, and possibly other enclosed bays in Victoria (and that are for three or more dwellings on a lot less than 0.11 hectares), will not require a CHMP due to the exemption in Regulation 8A.

Importantly, the Tribunal’s decision is inconsistent with the views of Aboriginal Victoria. Aboriginal Victoria’s view is that the exemption in Regulation 8A should not apply to land within 200 metres of Port Phillip Bay, which it submitted has particular sensitivity for Aboriginal cultural heritage.

Councils located adjacent to Port Phillip Bay and near Victoria’s coastal waters now have some guidance from the Tribunal when deciding whether the exemption in Regulation 8A applies to relevant permit applications.