The Law Handbook 2024

Chapter 11.3: Environment and planning law 1025 • providing advice on applications for interim or ongoing protection declarations; • entering into Aboriginal cultural heritage land management agreements with public land managers; and • nominating Aboriginal intangible heritage to the Victorian Aboriginal Heritage Register and managing intangible heritage agreements. The names and details of Victoria’s registered Aboriginal parties are listed at www. aboriginalheritagecouncil.vic.gov.au/victorias- current-registered-aboriginal-parties . A CHMP is an assessment of the potential impact of a proposed activity on Aboriginal cultural heritage. It outlines measures to be taken before, during and after an activity to manage and protect Aboriginal cultural heritage in the activity area (s 42 AH Act). A person proposing an activity may also prepare a preliminary Aboriginal heritage test to determine if a CHMP will be required. Such tests must be certified by the Secretary of the Department of Premier and Cabinet (‘ DPC Secretary ’) within 21 days of receipt and can clarify if a CHMP needs to be prepared (ss 46(1)(e), 49B AH Act). A CHMP must be approved by relevant registered Aboriginal parties if they have been notified of an intention to evaluate the plan (ss 55, 62 AH Act). If there are no registered Aboriginal parties, or none have notified an intention to evaluate, the DPC Secretary may approve the CHMP. If the DPC Secretary has sponsored a CHMP, the secretary may ask the Aboriginal Heritage Council to approve it. Once approved, a CHMP binds the person who sponsored its creation. Decision-making authorities (e.g. state or local government agencies) cannot issue statutory approvals (e.g. licence or planning permits) for certain activities without first receiving an approved CHMP for that activity (ss 51, 52 AH Act). More information about whether a CHMP is required can be found at www.firstpeoplesrelations. vic.gov.au/cultural-heritage-management-plans. In 2021, the Victorian Aboriginal Heritage Council ( VAHC ) published a suite of recommendations to enable self-determined reform of the Aboriginal Heritage Act 2006 (Vic). The recommendations can be found on the VAHC’s website (www.aboriginalheritagecouncil.vic.gov. au/recommendations-reform-aboriginal-heritage- act-2006) . VCAT & environmental law VCAT’s role in land use planning Planning permit decisions may be reviewed and enforced by VCAT. VCAT considers a permit application anew, considering both the merits of the application and procedural or legal issues (s 51(1)(a) VCAT Act). VCAT also hears applications to enforce the PE Act and planning schemes, and to cancel or suspend permits. VCAT can also make declarations. At VCAT, legal representation is not required. In complicated matters, or in cases where there is much at stake, it is advisable to obtain advice from lawyers, planners or other experts. Section 62(8) of the VCAT Act sets out who may be a ‘professional advocate’ at a hearing. VCAT must act fairly and according to the substantial merits of the case (s 97 VCAT Act) with as little technicality as possible (s 98). VCAT can confine a review to the particular matters in dispute if all the parties to the review agree. The VCAT Act (ss 83–93) provides for compul- sory conferences and the mediation of disputes. While mediation is very desirable in principle, a party appealing on environmental grounds can be disadvantaged when opposed to a party that is well resourced and prepared to press the matter as far as possible in pursuit of a commercial goal and thus protract mediation. In these circumstances, legal advice should be sought (see Chapter 2.1: Legal representation, and Chapter 2.4: Legal services that can help, for details on how to go about this). Questions of law dealt with in VCAT may be appealed to the Supreme Court, if that court grants leave to appeal. Appeals can also be made to the Court of Appeal if the decision was made by the VCAT President or by a Vice-President (s 148 VCAT Act). For more information, see www.vcat.vic.gov.au. VCAT fees and costs There are set fees for VCAT’s services; these are listed at www.vcat.vic.gov.au/fees. Some fees can be waived in special circumstances. At VCAT, each party pays their own costs (s 109(1) VCAT Act). However, in some cases, VCAT may require a party to pay the costs of the other parties if it is fair to do so.