VCAT Decision Small Lot Exemption Aboriginal Heritage Regulations

Best Hooper
26 November 2018

The Aboriginal Heritage Regulations 2018 (“AH Regs”) commenced on 23 May 2018. The Tribunal in the recent decision in Hartland Group Pty Ltd v Mornington Peninsula SC [2018] VCAT 1722 (“the Hartland Group Decision”) considered Regulation 10 of the AH Regs. Regulation 10 provides an exemption from the requirement to prepare a Cultural Heritage Management Plan (“CHMP”) for “small lots”. Regulation 10 states that the construction of three or more dwellings on an allotment is an exempt activity if the lot or allotment is:

a. Not within 200 metres of the coastal waters of Victoria, any sea within the limits of Victoria or the Murray River; and

b. Less than 0.11 hectares.

In the Hartland Group decision, the application comprised of two separate lots, which were located side-by-side. The permit application proposed to develop both sites for 7 dwellings. In this case, it was not in dispute that:

1. That the site was within an area of Cultural Heritage Sensitivity; and
2. That the site was not within 200 metres if coastal waters of Victoria, any sea within the limits of Victoria or the Murray River.

The key issue in dispute was whether the land which was the subject of the planning permit application, was for the purposes of Regulation 10 less than 0.11 hectares in area. Individually, each lot was less than 0.11 hectares. However, when combined, the land that was the subject to the application was in excess of 0.11 hectares.

The Tribunal disagreed with Council’s submissions that the exemption in Regulation 10 did not apply, on the basis that the land that was the subject to the application was in excess of 0.11 hectares. The Tribunal accepted that as each lot was then 0.11 hectares in area, the exemption was Regulation 10, which exempted the need for a CHMP, could be relied upon.

The effect of the decision means that irrespective of the size of the planning unit, if the land that is the subject of a permit application comprises individual lots, which are each less than 0.11 hectares in area, the exemption at Regulation 10(b) will apply.