Is a Cultural Heritage Management Plan required in this case?

1. Regulation 6 of the AH Regulations indicates that a CHMP is required for an activity if:
   • all or part of the activity area for the activity is an "area of cultural heritage sensitivity"; and
   • all or part of the activity is a "high impact activity".
2. In the present case, as in Mainstay, the application of the AH Regulations is straightforward in all but one respect. It is agreed that:
   • The development proposed by Azzure is not a generally exempt activity under the AH Act or AH Regulations.
   • The proposed development is a high impact activity. Under r 43(1)(b)(xxi) of the AH Regulations, the construction of buildings and works for use as a service station is a high impact activity.
   • Subject to the issue of significant ground disturbance, the subject land is in an area of cultural heritage sensitivity. Under r 28(1) of the AH Regulations, land within 200m of the high water mark of the coastal waters of Victoria in an area of cultural heritage sensitivity. It is common ground that the land is within 200m of the high water mark of Port Phillip Bay.
3. Regulation 28(2) of the AH Regulations however provides as follows:

28(2) If part of the land specified in subregulation (1) has been subject to significant ground disturbance, that part is not an area of cultural heritage sensitivity.

1. It follows from r 28(2) that, if all parts of the land in this proceeding have been the subject of significant ground disturbance, then none of the land will be deemed to be in an area of cultural sensitivity, and no CHMP will be required even though all other criteria for a CHMP are met.
2. In this case, the proposed activity area for the service station comprises 3 separate parcels of land:
   • 1807-1815 Point Nepean Road comprises shops and a concrete carpark;
   • 1819-1827 Point Nepean Road comprises a skating rink and amusement centre;
   • 1829 Point Nepean Road comprises a dwelling and outbuilding.
3. It was common ground that the first two parcels of land have been subject to significant ground disturbance through their past use and development. The whole of the land in both parcels has been entirely covered with buildings and paved surfaces for many years. Whilst it does not automatically follow that past site coverage by buildings and paved areas equates to 'significant ground disturbance', I am content on the facts of this case to endorse the responsible authority's acceptance of past significant ground disturbance for these two parcels of land.
4. The question in this case is thus limited to whether the land at 1829 Point Nepean Road has been similarly disturbed[5].
5. As indicated in Mainstay, whether land has been subject to significant ground disturbance is essentially a question of fact, to be determined by evidence. The burden rests with the applicant to establish (on the balance of probabilities) that land has been subject to prior significant ground disturbance. It should perhaps be emphasised that the responsible authority and Tribunal do not have a 'merits' discretion to waive a CHMP requirement even if it appears unnecessary, undesirable or anomalous in the circumstances of a particular case. In the absence of sufficient evidence to establish 'significant ground disturbance' (and assuming the other requirements of the AH Regulations apply), the default is that a CHMP is required for the proposed activity.
6. The term 'significant ground disturbance' is defined in the AH Regulations, and discussed at some length in Mainstay. It requires, for this case, that the applicant establish, on the balance of probabilities, that the topsoil or surface layer at 1829 Point Nepean Road has been disturbed in the past by machinery in the course of grading, excavating, digging, dredging or deep ripping (other than ploughing). However, apart from deep ripping, there is no 'depth' criterion set for disturbance by other means, so the past mechanical disturbance to the topsoil need not necessarily be to significant depth.
7. In this case, the applicants purported to satisfy the burden and standard of proof through the evidence of a cultural heritage adviser - Mr Andrew Long. I have no reason to doubt Mr Long's significant expertise in cultural heritage. However, as noted in Mainstay, a cultural heritage adviser may not always have the requisite experience to determine whether past significant ground disturbance has occurred as a matter of established fact.
8. Mr Long noted he had not undertaken any testing or subsurface excavation to establish past ground disturbance. Indeed, he also readily conceded that there was no 'smoking gun' evidence available from aerial photographs, public records, archaeological or geomorphological investigation, or oral testimony that firmly established past 'significant ground disturbance' as strictly defined - i.e. disturbance of topsoil by machinery in the course of grading or excavation etc.
9. Accepting the difficulties arising from the way in which the AH Regulations are formulated, Mr Long's evidence was that significant ground disturbance could nonetheless still be established to a sufficient level of satisfaction, on the balance of probabilities, from other comparative and contextual information. This included the urban context in which the land is situated; the timing of subdivision; the shape, size, topography and configuration of lots in the subdivision; the actual development of dwellings and outbuildings and the pattern of use over time; the provision of underground drainage and services; the style and configuration of the house and garden; and the extent or lack of remnant vegetation.
10. In the present case, historical records show there were 14 lots in the original subdivision, all on relatively level ground and of a similar and relatively small size. The land and immediate area presents as medium density urban land in an established urban area. 1829 Point Nepean Road is approx. 840 m² in area, with much of the land covered by a dilapidated dwelling erected on stumps, and an outbuilding. There is no remnant vegetation. There is a small front and rear yard, mostly now overgrown but with some evidence of a typical suburban yard and garden. The lot is serviced with water and sewer (indicating underground services across the block, and particularly in the front yard). The Council indicated that there is known to have been an underground septic tank on the land in the past, although its exact location is unclear. From an examination of the site, its likely location is in the rear yard (indicating disturbance in that area).
11. Mr Long's conclusion was that it is reasonable to infer from this intensive development and long use of a relatively small urban lot as a residence that there has been significant ground disturbance through grading, excavation, site clearance, digging, servicing, and development over time.
12. The key absence in the analysis thusfar, arising from the definition in the AH Regulations, is any clear evidence that the disturbance arose by machinery. Mr Long had researched this issue and was satisfied that subdivisions in this area in the mid-20th century had commonly utilised mechanical grading, and there is comparative evidence of this in a proximate subdivision. It is also likely that the installation of the septic tank, drainage lines and later services would have involved mechanical excavation. Whilst this research is perhaps 'indefinite testimony' that would be insufficient, by itself, to establish significant ground disturbance (as defined), it forms part of the overall comparative and contextual information to support the conclusion reached in this case.
13. Whilst I have some reservations with how Mr Long's approach might be applied more broadly in practice, I agree with his analysis and its application to a relatively small suburban lot in this case.
14. However, even accepting this approach, there still remains another potential difficulty or anomaly stemming from the present wording of the AH Regulations. Under several of the AH Regulations, if any part of the land has been subject to significant ground disturbance, that part is not an area of cultural heritage sensitivity. The AH Regulations provide no assistance as to what may constitute a 'part' of the land. The consequence is that even if most of a parcel of land has been significantly disturbed, but some small part is undisturbed, that undisturbed part remains an area of cultural heritage sensitivity, and a CHMP is required for the whole proposed activity. For larger sites (such as in the Mainstay or Alesci cases), this would seem to be an intended and desirable outcome - i.e. there is still a material undisturbed portion of the land that is arguably still of cultural heritage sensitivity and still warrants the preparation of a CHMP.
15. For smaller sites, such a strict approach is anomalous and potentially absurd. For example, if say 1% of the 840m2 lot here (or, say, only a few square metres adjacent to the boundary or in the middle of a suburban backyard) has no clear evidence of mechanical disturbance, should this lead to a conclusion that this small or isolated area is still an area of cultural heritage significance. The consequence is that a CHMP is then required for the whole activity on the land, leading potentially to enormous cost and delay to a permit applicant for no obvious gain.
16. I am not convinced that the legislation intended such an outcome. Adopting modern principles of statutory interpretation and a purposive and contextual approach, I think it self-evident that the reference in the AH Regulations to a 'part' of the land must read as meaning a material part of the land. In the absence of regulatory clarification, the difficulty lies in where decision makers should draw the line as to what is material, and leaves the matter in a state of some uncertainty. If say 1% is an immaterial 'part', what about 2%? Or 5%? Or three tiny areas totalling 5%? The materiality of even a very small part of land may be a matter of fact and degree in the circumstances of a particular case.
17. The use of the comparative and contextual approach for a small lot helps to address this dilemma. A reasonable level of inquiry of the contextual factors above might reasonably satisfy a decision maker on the balance of probabilities in a given case (as here) that the whole of the small lot has been subject to 'significant ground disturbance'. This standard of proof may be met without there being absolute proof beyond doubt of mechanical disturbance by grading, excavation etc of every square metre of the lot.
18. In my view, for smaller subdivided urban lots (say, up to a standard 'quarter acre' block, or perhaps 0.1 hectare in size), I think it is possible for a decision maker to be satisfied, on the 'balance of probabilities', based on a comparative and contextual approach, that there has been significant ground disturbance of that entire lot for the purpose of the AH Regulations. This does not mean that all small urban lots should automatically be considered to have been the subject of past significant ground disturbance. However, in an established urban area, where a reasonable level of inquiry establishes that a lot has have been extensively developed, serviced and used over an extended period with significant site coverage by buildings and works, likely mechanical grading or levelling as part of the subdivision, underground servicing, and with small yards or garden areas showing little or no signs of remnant vegetation or undisturbed ground, a finding of 'significant ground disturbance' of the entire lot is certainly open.
19. It is should perhaps be emphasised that this approach does not entitle the decision maker to ignore the essential elements of the definition of 'significant ground disturbance' in the AH Regulations. The comparative and contextual information must still reasonably satisfy the decision maker that the relevant land has been disturbed in the past by machinery in the course of grading, excavating, digging, dredging or deep ripping (other than ploughing). However, in the absence of a single item of proof, the contextual approach may assist in achieving this level of satisfaction through a reasonable inquiry and examination of a range of relevant information (none of which is necessarily conclusive in itself) and 'joining the dots' to reach a common sense conclusion from the available information. In this case, the site coverage of buildings and works on a small block, the research of likely mechanical disturbance through grading, the underground servicing, the old septic system etc all lead reasonably to a conclusion that the has been 'significant ground disturbance' here.
20. The acceptance of this view does not affect the principles that underscored the decision in Mainstay. Member Naylor and I had noted in that case that the level of inquiry, and information required to satisfy the decision maker, will depend on the circumstances of each case. The standard of proof is on the 'balance of probabilities' - not proof beyond doubt. There must be sufficient information, objectively considered, to persuade the decision maker to a reasonable level of satisfaction in a given case that there has been significant ground disturbance. In my view, the level of inquiry, and information required, for a small developed urban lot might therefore be relatively more limited as compared with a sparsely developed larger site.
21. As also noted in Mainstay, the Aboriginal Affairs Victoria submission in that case had supported a view that there should be no hard and fast rules on what information should be required to satisfy a planning decision maker that significant ground disturbance has occurred, and cautioned against strict guidelines that might create unreasonable obligations on permit applicants or responsible authorities. This decision, as with Mainstay, endorses and attempt to give effect to that sentiment.
22. Moreover, the land in Mainstay was very different to here. It was a large site, many hectares in size, comparatively undeveloped as a low-density residential block on the outskirts of a developed area, and where a relatively large proportion of the land was clearly undisturbed for the purpose of the AH Regulations. [Indeed, Mr Long concurred with the finding that a CHMP was reasonably required in Mainstay even on his contextual approach_._]. The differentiating factors in the present case before me are the small lot size and the intensity of development and use within a clearly urban context.
23. As indicated earlier, in this case Mr Long conceded there had been no testing or subsurface excavation as part of his investigation. That may well have been helpful. However, I do not consider it an essential part of a reasonable level of inquiry for a small developed urban lot. Given the views I have set out above, an test result indicating no significant disturbance of an isolated part of a small lot, or an inconclusive test result about whether any disturbance was mechanical, would not have changed the outcome in this case. In this case, the outcome is reached by a contextual approach to the entire lot rather than a physical examination of every square metre of the land. This outcome can be differentiated from the outcome in the Alesci case. Despite archaeological evidence there that 90% of the land had been significantly disturbed, the land in Alesci was over 2.2 hectares in size and the remaining 10% was still a material part of the land for which a CHMP requirement was warranted. Equally, in Mainstay, the test dig results were highly relevant, as objective evidence of significant ground disturbance was otherwise lacking for the large undeveloped area across the central part of that land. The limited and inconclusive test results there raised (rather than resolved) doubts about past disturbance, and thus reinforced the finding and CHMP requirement. Again, the differentiating factors in the present case before me are the small lot size and the intensity of development and use within a clearly urban context.
24. In this case, based upon the comparative and contextual response by Mr Long and the other information provided by the parties by way of submission, I am satisfied on the balance of probabilities that the land has been subject to past significant ground disturbance.
25. It follows that the specific exemption in Regulation 28(2) of the AH Regulations is made out in this case, and the land at 1807-1829 Point Nepean Road, Tootgarook is not to be characterised as being within an area of cultural heritage sensitivity. It therefore also follows, for the purpose of r 6, that a CHMP is not required for the proposed activity[6].
26. In reaching this view, I make no criticism of the responsible authority. It had reached its view that a CHMP was required, based on an earlier and less detailed report from Mr Long that had not addressed the Mainstay principles, and in a still emerging regulatory environment where the AH Regulations are difficult to apply in practice. The responsible authority had attempted to carefully apply the Mainstay principles. Had I been called upon to decide the matter based on Mr Long's limited first report, I would have reached a similar view to the responsible authority.
27. To provide greater certainty to responsible authorities and permit applicants, there is perhaps a need for some regulatory clarification to address the anomalies and difficulties exposed in Mainstay and this decision, and other practical difficulties that might be arising in practice with the AH Regulations. It may be, for example, that there should be a clear exemption created for smaller urban lots up to a certain size, or where certain criteria are met, to avoid the difficulties in establishing significant ground disturbance by machinery across an entire lot. Equally, if a stricter approach is intended by the AH Regulations, contrary to the approach adopted in this case, that too should be clarified. These are matters of policy beyond the Tribunal's decision-making role in this case.

1. The responsible authority had raised a secondary question of jurisdiction. If a CHMP was required, the responsible authority contended that the s 79 application to the Tribunal is premature and should be struck out, as the prescribed time within which the responsible authority must make its decision has not expired having regard to s 52 of the AH Act. The applicant did not address the issue at length, and sought the opportunity to do so only if a CHMP was required.
2. Given my finding on the preliminary question, it is unnecessary to decide this secondary question in this case. It is potentially an issue of some significance, and I am aware that the Tribunal may shortly be called upon to decide it as a 'live' issue in another proceeding. It is however another matter worthy of regulatory clarification to provide certainty and to avoid possibly unintended procedural consequences emerging from the new legislation.
3. Given no CHMP is required here, this s 79 application can clearly proceed, and the proceeding will be referred to an administrative mention to determine its future conduct.

[1] [2009] VCAT 145

[2] [2009] VCAT 905

[3] [2009] VCAT 1110

[4] This information was provided, in part, by the responsible authority in this proceeding. The Tribunal is also aware of this outcome, as a matter of public record, from the 'merits' hearing in Mainstay that followed the completion of the CHMP.

[5] An issue was raised by the applicant in this case as to whether part of the land at 1829 Point Nepean Road was outside the activity area, as it did not form part of the development area or 'planning unit' for the service station development. This would further limit the part of the land where 'significant ground disturbance' needed to be established. However, the activity are is not at all clear from the application material, and the land description in the permit application. Given my finding on other issues, it is unnecessary to finally decide this issue in this case.

[6] It is perhaps worth noting the likelihood of aboriginal cultural heritage existing on the land is not directly relevant to whether a CHMP is required. The obligations under the AH Act continue to apply to the land if aboriginal cultural heritage exists or is discovered on the land in the future.