The case of Hanson Construction Materials Pty Ltd v Greater Bendigo CC (Corrected) (Red Dot) [2023] VCAT 1341 (2 December 2023) concerned an application to the Victorian Civil and Administrative Tribunal (VCAT) regarding a decision by the Greater Bendigo City Council (Council) to grant a development permit under section 64 the Planning and Environment Court Act 1987 (Vic) (PE Act) and whether this was a statutory authorisation for the purposes of section 52 the Aboriginal Heritage Act 2006 (Vic) (AH Act). VCAT's decision demonstrates how amendments to local planning law can impact planning applications that have been submitted but not yet decided.

Hanson Construction Materials Pty Ltd (Hanson) operated the Axedale Quarry, east of Bendigo, Victoria. The quarry adjoined rural land owned by Axedale Rural Living Pty Ltd (Axedale Rural Living). Axedale Rural Living's land was the subject of this proceeding (Subject Land).

Originally, Axedale Rural Living lodged a permit application to seek permission to subdivide the Subject Land into five lots. This application did not seek permission to use or develop a dwelling on any of the proposed lots because, at the time, permission was not required to do so. However, before the Council decided the application, the planning scheme was amended to require permission to use and develop land for a dwelling within 500 metres of the nearest boundaries of land in respect of which a work authority under the Mineral Resources (Sustainable Development) Act 1990 (Vic) has been granted. Neither party disputed that a work authority had been granted for the Axedale Quarry.

Axedale Rural Living lodged a new permit application in response to the planning scheme amendment. On 3 July 2023, the Council issued notice of its decision to grant subject to conditions a permit for the use and development of the Subject Land for three dwellings and a three lot subdivision.

On 7 July 2023, Hanson lodged the merits proceeding. On 31 August 2023, Axedale Rural Living lodged an application to review the permit conditions under section 80 of the PE Act.

VCAT held that it has jurisdiction to determine all of the merits proceeding, including decisions related to the cultural heritage management plan and relevant provisions of the AH Act. This is because the Council's decision was deemed to be made under the PE Act even if the decision was beyond its power.

Under sections 51 and 52 of the AH Act, if a sponsor proposes to carry out an activity for which a cultural heritage management plan is required, and if a statutory authorisation is required before the sponsor can carry out the activity, the relevant decision maker must not grant a statutory authorisation unless it receives an approved cultural heritage management plan for the activity.

Axedale Rural Living is a sponsor that is proposing to carry out an activity. Thus, if the Council has not granted a statutory authorisation there can be no breach of the obligation under sections 51 and 52 of the AH Act.

Axedale Rural Living submitted that the Notice of Decision issued by the Council was not a statutory authorisation as it is not a permit, but rather a mere intention to grant a permit if there is no review application lodged under section 82 of the PE Act. VCAT rejected this submission and held that a statutory authorisation includes a permit under the PE Act to use or develop land for or part of an activity (see [22] and [29]).

Axedale Rural Living proposed to carry out an "activity". An activity is regarded as the use or development of land. It was not in dispute that the subdivision of the land is part of the proposed activity; but it was in dispute whether the use and development of three dwellings is a high impact activity. A "high impact activity" includes the construction of three or more dwellings on a lot, the carrying out of work for three or more dwellings on a lot, and the use of a lot for three or more dwellings (see regulations 48(1), 48(2), and 58(3) of the Aboriginal Heritage Regulations 2018 (Vic)).

Axedale Rural Living submitted that the activity did not constitute high impact activity as it was neither construction or carrying out works for three dwellings on a lot, or using a lot for three dwellings. Rather, the activity was construction and carrying out works for one dwelling on one lot following the subdivision of the subject land, and using each one of the lots for one dwelling. VCAT rejected these submissions (see [55] to [64]). The activity amounted to a high impact activity and the Council was therefore required to receive an approved cultural heritage management plan before it granted a permit to Axedale Rural Living (at [65]).

VCAT set aside the Council's decision and remitted the matter for reconsideration because the Council was best placed to make a fresh merits assessment of any amended permit application. However, the Council was instructed not to make a fresh decision until in accordance with section 52(1) of the AH Act an approved cultural heritage management plan is received (at [76]).

VCAT set aside the Council's decision to grant a permit subject to conditions for the use and development of the Subject Land for three dwellings and a three lot subdivision because an approved cultural heritage management plan was required. VCAT remitted the application back to the Council for re-consideration.

This VCAT decision demonstrates how amendments to local planning law can impact planning applications that have been submitted but not yet decided. Furthermore, this decision also emphasises the importance of considering whether VCAT has jurisdiction to hear a matter and how VCAT approaches the task of considering whether a cultural heritage management plan is required for activity proposed by developers.