Insights Library
Proceed with care: when is a Cultural Heritage Management Plan really required?
Before engaging a cultural heritage consultant, developers should first confirm whether a Cultural Heritage Management Plan (CHMP) is legally required.
The Aboriginal Heritage Act 2006 and Aboriginal Heritage Regulations 2018 establish legal thresholds on this question, and not every proposed activity within or near mapped areas of sensitivity will trigger a CHMP. The most triggered requirement for when CHMP is required is Regulation 7 of the Aboriginal Heritage Regulations, it states that:
A cultural heritage management plan is required for an activity if—
(a) all or part of the activity area for the activity is an area of cultural heritage sensitivity; and
(b) all or part of the activity is a high impact activity.
Early, careful assessment of whether both of these requirements is actually met, can avoid unnecessary time and cost, while still ensuring respect for Aboriginal cultural heritage.
The Victorian Civil and Administrative Tribunal’s decision in Westernport Marina Pty Ltd v Mornington Peninsula SC [2024] VCAT 1041 is a timely reminder. The Tribunal found a CHMP was not required, despite the land being partly reclaimed and adjacent to water. It emphasised that the concept of ‘significant ground disturbance’ must be understood in the context of the history of the land- in that decision, the Tribunal found that the land in question had been excavated, filled and reclaimed to a degree that it had been subject of significant ground disturbance despite being mapped as an area of Aboriginal cultural heritage sensitivity. This is just one, of many, examples that demonstrates that the mapping of cultural heritage sensitivity, does not mean that Regulation 7(a), above, is met.
Before commissioning cultural heritage consultants, developers should consider:
- Is the land genuinely within an area of Aboriginal cultural heritage sensitivity? Review official mapping and past disturbance.
- Can the planning unit or permit area be defined more precisely? For instance, can the “activity area” be reduced to avoid areas of aboriginal cultural heritage sensitivity to avoid the need of a CHMP.
- Does the proposal qualify as a “high impact activity”? Only specific activities meet that definition under the Regulations.
While engagement with Registered Aboriginal Parties (RAPs) and cultural heritage experts is essential where cultural values may be affected, there is widespread recognition that the CHMP system can be slow and uncertain.
The lesson from Westernport Marina is that the legal triggers have nuances and need to be applied carefully with respect to the site’s historical context. At Best Hooper, our planning law team assists developers and landowners in navigating the Aboriginal Heritage Act and Aboriginal Heritage Regulations. We can advise on whether a CHMP is triggered, providing advice on structuring planning permit applications to avoid areas of aboriginal cultural heritage sensitivity. Our team’s experience ensures developments proceed lawfully, respectfully, and efficiently, balancing compliance with practical project delivery.
