Victoria Cultural Heritage: The CHMP That Blocks The Permit

HERITAGE ASSESSMENT MAY COME BEFORE YOUR PERMIT.Victoria: check whether a CHMP is required.

You find a site on the edge of a Victorian regional town. It is on the fringe, close to a creek line, mostly cleared, and the zoning looks workable. Then your planner tells you the land is mapped as an area of cultural heritage sensitivity and the proposal is a high impact activity.

That means no planning permit can be issued until a Cultural Heritage Management Plan has been approved. Not lodged alongside it. Approved first.

The deal question: which approval comes first?

Victoria's First Peoples - State Relations guidance on Cultural Heritage Management Plans states the sequence without ambiguity: where a CHMP is required, planning permits, licences and work authorities cannot be issued unless a CHMP has been approved for the activity. A CHMP is a written report prepared by a Heritage Advisor that contains the results of an assessment of the potential impact of the proposed activity on Aboriginal cultural heritage and outlines the measures to be taken before, during and after the activity to manage and protect it.

So the question that decides your programme is not whether you can get a permit. It is what has to be approved before the permit decision can lawfully be made.

The two-part test: high impact activity, culturally sensitive land

A CHMP is required when a high impact activity is planned in an area of cultural heritage sensitivity. Both terms are defined in the Aboriginal Heritage Regulations 2018 (Vic), and both have to be satisfied for the requirement to bite.

Areas of cultural heritage sensitivity include registered Aboriginal cultural heritage places, and also landforms and land categories that are generally regarded as more likely to contain Aboriginal cultural heritage. That second part matters for subdivision and infill work, because it can catch land that has never had a site recorded on it. The areas are shown on the online map, and where a proposal falls inside one, the Aboriginal Heritage Regulations Planning Tool helps determine whether the activity meets the definition of high impact activity.

Run both tests at feasibility. If you are relying on the land being clear because nothing has been found on it before, you are relying on the wrong thing.

Who does what, and why the roles are not interchangeable

The Victorian framework assigns specific roles, and getting them wrong wastes time.

• The Sponsor is the person seeking to undertake the activity or seeking the plan. The Sponsor prepares the management plan and must be a legal entity, such as a person or a company, and must engage a Heritage Advisor to assist.
• The Heritage Advisor must be a natural person, not a company, and must be appropriately qualified in a discipline directly relevant to managing Aboriginal cultural heritage, such as anthropology, archaeology or history.
• The Registered Aboriginal Party makes decisions about protecting and managing Aboriginal cultural heritage on behalf of the Traditional Owners over a specified geographical area, and evaluates management plans for that area. The Victorian Aboriginal cultural heritage framework sets out that role.
• The Secretary evaluates the plan where there is no relevant RAP, or where no RAP has responded within the timeframe, or where the relevant RAPs have told the Sponsor they do not wish to evaluate.

Registered Aboriginal Party boundaries are geographic and specific. Confirm which RAP is relevant to your activity area early, because the guidance describes early involvement as critical and the RAP may take part in the cultural heritage assessment itself.

The process, and where the time goes

The published process runs in a defined order.

1. Notice of Intent. Submitted to the Secretary through ACHRIS with payment of the relevant prescribed fees, and provided to each relevant RAP, the owner or occupier of any land in the area, and the relevant municipal council. It must be given before preparation of the plan begins, including before any assessment.
2. RAP response. Registered Aboriginal Parties have 14 days from receipt to respond in writing about whether they intend to evaluate the plan, and whether they intend to consult about the assessment or the conditions.
3. Cultural heritage assessment. Three tiers, escalating on evidence. A desktop assessment is mandatory. A standard assessment, including a ground survey with systematic surface examination and examination of mature trees and caves or rock shelters, is required where the desktop shows heritage is reasonably possibly present. A complex assessment, involving disturbance or excavation, is required where its extent, nature and significance cannot otherwise be identified.
4. Preparation and submission. The Sponsor must ensure the relevant authority receives the plan together with the associated statutory fee at the time of submission.
5. Evaluation and determination. The relevant authority evaluates the plan against the objectives and requirements of the Aboriginal Heritage Act 2006 and decides to grant or refuse it.
6. Review and disputes. Disputes between a Sponsor and a RAP, or between multiple RAPs, can be managed through informal and formal processes.

Read the 14 days as a floor, not a duration. The assessment tier, the ground survey, any complex excavation and the evaluation and determination all sit behind it.

The trap: sequencing the plan behind the design

The expensive mistake is designing first, costing the build, and then testing cultural heritage. If a complex assessment is required, you are excavating parts of the site before you lodge. If the assessment identifies heritage that cannot be avoided, your layout changes, and your design work is partly wasted.

The second trap is treating the plan as a document you can influence at the end. The RAP evaluates the plan, and where it elects to evaluate, the Sponsor must consult before the assessment begins and during preparation. Consultation is a process with a timetable, not a signature. Start it early or pay for it in hold time.

The site test a student would run, in order

1. Check the sensitivity map for the activity area before you make an offer.
2. Run the Planning Tool test to establish whether the proposal is a high impact activity.
3. Identify the relevant Registered Aboriginal Party for that geography and its boundary.
4. Budget the assessment tier — desktop, standard or complex — with the ground survey and any excavation costed into the feasibility.
5. Map the sequence with the Notice of Intent, the 14 day response window, the assessment, the plan, the statutory fee and the evaluation placed ahead of your permit decision.
6. Test avoidance before mitigation. Ask whether a layout that avoids the sensitive area entirely is cheaper and faster than assessing and managing it, then compare both on numbers.

What this does to the offer

Run the feasibility with a realistic cultural heritage allowance and a realistic pre-permit programme. If the second version of the numbers only works when the heritage cost and delay are small, you have found the risk in the deal, and it belongs in your price and your contingency rather than in an optimistic assumption about the assessment tier.

Where the site is genuinely constrained, the honest conclusion may be that the yield has to change. That is a feasibility outcome, not a failure, and it is far cheaper to reach before you exchange than after.

Practical next steps

You are not expected to solve this yourself. A town planner confirms the planning permit pathway and whether the activity is a high impact activity on land of cultural heritage sensitivity. A qualified Heritage Advisor, engaged by the Sponsor, prepares the plan and carries out the assessment. The relevant Registered Aboriginal Party evaluates it, so confirm the right body for your area and engage early. Take legal advice on the sponsor's obligations, the notice requirements and the prescribed fees. The specialist does the technical assessment and the authority determines the plan.

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