The Law Handbook 2024

1024 Section 11: Rights, activism and fair treatment at work or a planning scheme amendment. The agreement is registered on the title and binds future owners of the land (ss 173–182 PE Act). These agreements can cover issues that are not technically regarded in the law but are related to the permitted development. These agreements have been used to, for example, protect native vegetation, and require the management of land and groundwater contamination. In Bass Coast Shire Council v Tew (Red Dot) [2012] VCAT 658, VCAT noted that ending a section 173 agreement requires the consent of all people who are bound by any covenant to the agreement. (See also s 60(2) PE Act.) Minister for Planning’s power to ‘call in’ decisions The Minister for Planning can intervene at various stages of the decision-making process about planning permits, planning schemes and appeals about planning permits. The Minister for Planning can ‘call in’ a planning permit decision (i.e. make the decision themselves) if they believe that the application raises a major policy issue or the decision has been unreasonably delayed (s 97B PE Act). The Minister for Planning can call in an application if it appears to the minister that: • the application raises a major issue of policy and that the determination of the application may have a substantial effect on the achievement or development of planning objectives; • the decision on the application has been unreasonably delayed to the disadvantage of the applicant; or • the use or development to which the application relates is also required to be considered by the minister under another Act or regulation and that consideration would be facilitated by the referral of the application to the minister. A responsible authority can ask the Minister for Planning tomake a decision about a permit application (s 97C PE Act). There are different requirements about public notice, rights to object, and rights to appeal if the Minister for Planning is the decision- maker (s 97D–97M). Where an application is to be decided by the Minister for Planning, the minister must (unless certain exceptions apply) appoint a planning panel and refer submissions and objections to the panel. The panel must give anyone who has made a submission or raised an objection, or any other person affected by the permit application, a reasonable opportunity to be heard, and must consider the submissions and objections (s 97E PE Act). There are no appeals to VCAT from permit decisions made by the Minister for Planning (s 97M PE Act). However, such decisions are subject to judicial review on matters such as errors of law (e.g. East Melbourne Group Inc v Minister for Planning [2008] VSCA 217). Aboriginal cultural heritage protection Proposed developments must comply with obligations to protect Aboriginal cultural heritage under the Aboriginal Heritage Act 2006 (Vic) (‘ AH Act ’). A range of offences apply to any person who harms, or is likely to harm, Aboriginal cultural heritage (ss 27, 28 AH Act). A person who unlawfully damages Aboriginal cultural heritage may be ordered by a court to pay for its restoration. Also, it is an offence to possess an Aboriginal object unlawfully. Harming Aboriginal cultural heritage is only permitted – with a cultural heritage permit or approved cultural heritage management plan – when it is necessary because of an emergency or in accordance with Aboriginal tradition. The AH Act (ss 36, 46) and the Aboriginal Heritage Regulations 2018 (Vic) set out when a cultural heritage management plan ( CHMP ) or cultural heritage permit may be necessary, and what should be contained in these plans and permits. CHMPs aim to protect and manage Aboriginal cultural heritage – with the involvement of registered Aboriginal parties – while allowing development to proceed. Registered Aboriginal parties are legally recognised parties, established under the AH Act, who are responsible for managing and protecting cultural heritage on Country. Registered Aboriginal parties are the primary source of advice and knowledge on matters relating to Aboriginal places and Aboriginal objects in their regions. The core functions of registered Aboriginal parties include: • evaluating cultural heritage management plans; • assessing cultural heritage permit applications; • making decisions about cultural heritage agreements;