The importance of CHMP being approved prior to a statutory authorisation

Edward Mahony
4 February 2024

In the case of Hanson Construction Materials Pty Ltd v Greater Bendigo CC [2023] VCAT 1341, the Victorian Civil and Administrative Tribunal (VCAT) conducted a preliminary hearing to address, amongst other things, whether a resolution of Council to grant a planning permit, as opposed to the issue of a planning permit itself, constitutes a ‘statutory authorisation’ under Sections 50-52 of the Aboriginal Heritage Act 2006.

The Permit applicant argued that the Notice of Decision issued by the Council under Section 64 of the Planning and Environment Act 1987 (P&E Act) did not constitute a statutory authorisation as it was not a permit, but rather an intention to grant a permit pending any review application under the P&E Act.

However, VCAT examined the relevant sections of the P&E Act and determined that the real question in the proceeding was not whether the Notice of Decision was a statutory authorisation, but rather whether the Council’s resolution, under Section 61 of the P&E Act, was a statutory authorisation. The Tribunal found that the reference to ‘the grant’ of a statutory authorisation under section 52(1) of the AH Act must be a reference to ‘the grant’ of a permit under section 61 of the PE Act. This follows the statutory interpretation principle evinced in the High Court authority of Justice Nettle in Westpac Banking Corporation v Lenthall [2019] HCA 45 that, in the absence of any context indicating a contrary intention, legislature must be presumed to attach the same meaning to the same words when used in a subsequent and similar statute.

As such, the Tribunal found that the Council resolution was found to be a statutory authorisation for the purpose of the AH Act. The practical implication of this decision was that the Tribunal determined to set aside the Council’s decision and remit the matter back to Council for reconsideration.

This reaffirms the importance to all Permit applicants to ensure cultural heritage requirements are at the front of mind when embarking on a planning permit application as a planning permit cannot issue for certain use and developments that are defined as ‘high impact activities’ under Aboriginal Heritages Regulations 2018 that are within an area of aboriginal cultural heritage sensitivity, prior to a Cultural Heritage Management Plan (CHMP) being prepared and approved.

Please contact our planning law team with any questions you may have in relation to Cultural Heritage Management Plans and the requirements under the AH Act.