1Objectives

The objectives of these Regulations are—

(a)

to specify the circumstances in which a cultural heritage management plan is required for an activity or class of activity; and

(b)

to prescribe standards for the preparation of a cultural heritage management plan including the carrying out of assessments; and

(c)

to prescribe the form for the preparation of preliminary Aboriginal heritage tests including the carrying out of assessments; and

(d) to prescribe standards for the preparation of a map included in a cultural heritage agreement; and

(e)

to prescribe fees for evaluating, approving and amending a cultural heritage management plan; and

(f)

to prescribe fees for an application for a cultural heritage permit; and

(g)

to prescribe fees for an application to the Secretary for advice as to whether a record exists on the Register in relation to a nominated area of land; and

(h)

to prescribe fees for an application for certification of a preliminary Aboriginal heritage test; and

(i)

to prescribe fees for giving notice of intention to prepare a cultural heritage management plan; and

(j)

to prescribe fees for access to the Victorian Aboriginal Heritage Register; and

(k)

to generally give effect to the Aboriginal Heritage Act 2006.

2Authorising provision

These Regulations are made under section 194 of the Aboriginal Heritage Act 2006.

3Commencement

These Regulations come into operation on

23 May 2018.

4Revocations

The following Regulations are revoked—

(a)

the Aboriginal Heritage Regulations 2007^[1];

(b)

the Aboriginal Heritage Amendment Regulations 2009^[2];

(c)

the Aboriginal Heritage Amendment Regulations 2016^[3];

(d)

the Aboriginal Heritage Amendment Regulations 2018^[4].

5Definitions

In these Regulations—

activity area means the area or areas to be used or developed for an activity;

area of cultural heritage sensitivity means—

(a)

an area specified as an area of cultural heritage sensitivity in Division 3 of Part 2; or

(b)

if Division 4 of Part 2 applies, an area specified as an area of cultural heritage sensitivity in that Division;

building has the same meaning as in the Planning and Environment Act 1987;

coastal Crown land has the same meaning as in the Coastal Management Act 1995;

complex assessment means an assessment under regulation 65;

decision maker has the same meaning as in section 50 of the Act;

deep ripping means the ploughing of soil using a ripper or subsoil cultivation tool to a depth of 60 centimetres or more;

desktop assessment means an assessment under regulation 61;

dwelling has the same meaning as in the VPP;

earth resource authorisation has the same meaning as in section 50 of the Act;

high impact activity means an activity specified as a high impact activity in Division 5 of Part 2;

industry has the same meaning as in the VPP;

lot has the same meaning as in the Subdivision Act 1988;

park has the same meaning as—

(a)

in the National Parks Act 1975; or

(b)

land described in a Division of Part 1 of the Fifth Schedule to the Crown Land (Reserves) Act 1978;

planning scheme means a planning scheme in force under the Planning and Environment Act 1987;

prior waterway means land which is identified as—

(a)

a "leveed stream course" on Geological Survey of Victoria map sheet SJ55-2 entitled "Wangaratta" (dated 1974); or

(b)

a "prior stream" on Geological Survey of Victoria map sheet SJ55-1 entitled "Bendigo" (third edition, 2001); or

(c)

a "leveed stream" on Geological Survey of Victoria map sheets SI54-4 entitled "St Arnaud" (dated 1976) and SI54-16 entitled "Swan Hill" (dated 1974); or

(d)

a "leveed stream trace" on Geological Survey of Victoria map sheet SI55-13 entitled "Deniliquin" (dated 1974);

private dam has the same meaning as in the Water Act 1989;

rail infrastructure has the same meaning as in the Rail Safety (Local Operations) Act 2006;

registered cultural heritage place means an Aboriginal place recorded in the Register;

road has the same meaning as in the Road Management Act 2004;

roadway has the same meaning as in the Road Management Act 2004;

rock shelter means—

(a)

a concave area in a cliff where the cliff overhangs; or

(b)

a concave area in a tor where the tor overhangs; or

(c)

a shallow cave—

where the height of the concave area or shallow cave is generally greater than its depth;

significant ground disturbance means disturbance of—

(a) the topsoil or surface rock layer of the ground; or

(b)

a waterway—

by machinery in the course of grading, excavating, digging, dredging or deep ripping, but does not include ploughing other than deep ripping;

standard assessment means an assessment under regulation 63;

statutory authorisation has the same meaning as in section 50 of the Act;

subdivision has the same meaning as in the Subdivision Act 1988;

the Act means the Aboriginal Heritage Act 2006;

VPP means the Victoria Planning Provisions within the meaning of the Planning and Environment Act 1987;

waterway means—

(a)

a river, creek, stream or watercourse the name of which is registered under the Geographic Place Names Act 1998 and includes any artificially manipulated sections; or

(b)

a natural channel the name of which is registered under the Geographic Place Names Act 1998 and includes any artificially manipulated sections in which water regularly flows, whether or not the flow is continuous; or

(c)

a lake, lagoon, swamp or marsh, being—

(i)

a natural collection of water (other than water collected and contained in a private dam or a natural depression on private land) into or through or out of which a current that forms the whole or part of the flow of a river, creek, stream or watercourse passes, whether or not the flow is continuous; or

(ii) a collection of water (other than water collected and contained in a private dam or a natural depression on private land) that the Governor in Council declares under section 4(1) of the Water Act 1989 to be a lake, lagoon, swamp or marsh; or

(d)

land which is regularly or intermittently covered by water from a waterway as described in paragraph (a), (b) or (c) but does not include—

(i)

any artificial channel or work which diverts water away from such a waterway; or

(ii)

an area covered by the floodwaters of a waterway; or

(iii)

an area, other than the waterway, designated on a planning scheme as being a floodway or liable to flooding or as being subject to inundation; or

(e)

if any land described in paragraph (d) forms part of a slope rising from the waterway to a definite lip, the land up to that lip.

6Purpose

The purpose of this Part is to prescribe the circumstances in which a cultural heritage management plan is required for an activity.

7When a cultural heritage management plan is required

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.

Note

See regulation 5 for definitions of area of cultural heritage sensitivity and high impact activity.

8Application

Despite regulation 7, a cultural heritage management plan is not required under these Regulations for an activity if—

(a)

the activity consists solely of a use or development of land that is specified in this Division as being an exempt activity; or

(b)

the activity consists of more than one use or development of land and each of those uses or developments is specified in this Division as being an exempt activity.

9One or 2 dwellings

(1)

The construction of either of the following is an exempt activity—

(a)

one or 2 dwellings on a lot or allotment;

(b)

an extension to one or 2 dwellings on a lot or allotment.

(2)

In this regulation, a reference to the construction of one or 2 dwellings on a lot or allotment does not include a construction that is part of a high impact activity referred to in regulation 47.

103 or more dwellings on a small lot

The construction of 3 or more dwellings on a lot or allotment is an exempt activity if the lot or allotment is—

(a)

not within 200 metres of the coastal waters of Victoria, any sea within the limits of Victoria or the Murray River; and

(b)

less than 0·11 hectares.

11Small subdivisions

The subdivision of land is an exempt activity if—

(a)

all of the land is not within 200 metres of the coastal waters of Victoria, any sea within the limits of Victoria or the Murray River; and

(b)

the total area of land to be subdivided is less than 0·11 hectares.

12Buildings and works ancillary to a dwelling

(1)

The construction of a building is an exempt activity if it is ancillary to—

(a)

an existing dwelling; or

(b)

the construction of one or 2 dwellings on a lot or allotment.

(2)

The construction or carrying out of works is an exempt activity if it is ancillary to—

(a)

an existing dwelling; or

(b)

the construction of one or 2 dwellings on a lot or allotment.

(3)

Without limiting subregulations (1) and (2), the following activities are exempt activities if they are ancillary to an existing dwelling or the construction of one or 2 dwellings on a lot or allotment—

(a)

constructing or maintaining a garden, including constructing a retaining wall, and removing, lopping, destroying or planting vegetation;

(b)

constructing and maintaining a garage, workshop or shed;

(c)

constructing and maintaining a driveway or path;

(d)

constructing and maintaining a fence;

(e)

installing a swimming pool or spa;

(f)

installing a water tank.

(4)

In this regulation, a reference to the construction of one or 2 dwellings on a lot or allotment does not include a construction that is part of a high impact activity referred to in regulation 47.

Aboriginal Heritage Regulations 2018

About this Act

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