15.05.2019

Planning Tidbits

Little bits that can make a big difference to your town planning outcomes.

These tid bits are part of the regular contribution made by Clause 1 Planning to BDAV Intersect. For more information visit www.clause1.com.au

Part 1: Partial CHMP = No CHMP

Regular readers will be familiar with the fact that if a Cultural Heritage Management Plans (CHMP) is required as part of a planning permit application, the statutory clock doesn’t start until such time the approved CHMP is supplied.

In a recent Victorian Civil and Administrative Tribunal (VCAT) decision, Grebe Investments Pty Ltd v Bass Coast SC [2018] VCAT 1570, the Tribunal considered whether a CHMP was required before an appeal was lodged to the Tribunal against Council’s failure to make a decision within the prescribed 60 day timeframe (AKA a “failure appeal”).

The applicant had a CHMP approved under section 65(2) of the Aboriginal Heritage Act 2006, and had supplied that CHMP to Council. However, between lodging the appeal to the Tribunal and the hearing, the applicant realised that the approved CHMP did not include ‘all’ of the relevatn activity area.  The appalent decided to prepare a CHMP for that missing part of the subject site and asked the Tribunal to reserve its decision, pending approval of the CHMP for the remaining part of the subject land.

The Tribunal used the first day of the hearing to consider this request, and found that:

  • The Aboriginal Heritage Act 2006 section 52(4) provides that if the Council is required to decide a permit application within a specified period and if a CHMP is required for the activity in the permit application, the specified period does not start until the Council receives a copy of the approved CHMP;
  • The applicant had not filed an approved CHMP for the whole of the activity in this proceeding. This had the same legal effect as there being no approved CHMP for the activity;
  • The prescribed time for Council to make a decision on the planning permit application, after which a failure appeal can be lodged, will only run from the date a complete and approved CHMP is filed;
  • Therefore, the Tribunal could not grant a permit for the activity and could not make a decision on the appeal;
  • The appeal was therefore misconceived and the matter was summarily dismissed/struck out.

Part 2: Struck Out but Still Alive.

Following the above findings, the permit applicant filed a new approved CHMP with Council in early 2019. However, Council advised the applicant that a new planning permit application needed to be lodged, because the Tribunal did not remit the matter back to Council as part of the previous Order.

On review of this conflict, the Tribunal held it has no power to remit a matter for re-consideration by Council (under section 51(2) of the Victorian Civil and Administrative Tribunal Act 1998) if it had no jurisdiction to determine the matter in the first place.

However, the Tribunal also found that a remittal was unnecessary because:

  • The permit application was still live with Council, that the Council still had a duty to determine the permit application;
  • The Tribunal may remit a matter only if it is determining a review proceeding (appeal) and if it is setting aside the decision-maker’s decision;
  • The Tribunal could not correct or add an order to remit the decision back to Council for consideration because it did not have jurisdiction to determine the application in the first place; and
  • A fresh failure review (appeal) could be made to the Tribunal after a complete CHMP had been lodged with Council and the prescribed time had expired from the date that complete CHMP was filed.

The key takeaway messages from the above articles are:

  • A CHMP should cover all of your activity area;
  • Council’s timeframes for processing a planning permit application do not commence until an approved CHMP has been filed;
  • The Tribunal cannot consider an application for review against Council’s failure to make a decision within the prescribed timeframe unless that timeframe has run from the date the approved CHMP was lodged;
  • A planning permit application remains live until such time it is formally determined by either Council or VCAT.

Thank you BDAV

The EB Research Foundation is extremely grateful to BDAV Members for their support at last month’s BDAV Charity Golf Day. The funds raised will be dedicated to finding a cure to the worst disease you have never heard of, epidermolysis bullosa.

For more information please visit www.ebresearchfoundation.org

To contact Clause:1 Planning, go to www.clause1.com.auorphone (03) 93709599