Individuals who could be Researched or Further Consulted

9.1Background to Heritage Planning Policy in Victoria

Early planning studies focussed on producing overlays for planning schemes and local planning policies for Aboriginal archaeological sites (for example Rhodes 1990; Ellender 1994). These studies generally did not consider Aboriginal historic places and were not necessarily integrated into planning schemes after mergers of local government boundaries occurred.

In 1996 the Victorian Government passed the Planning Schemes Act (1996) which amended the Victorian Planning and Environment Act (1987). Part 2 of the 1996 Act amends the 1987 Act to introduce the Victoria Planning Provisions (VPP), a new planning scheme format and a combined permit and amendment process (Department of Infrastructure 1999: 33). The VPP, new planning scheme formats and permit/amendment process only apply to new planning schemes and not to planning schemes established under the 1987 Act.

The VPP provide a framework of planning provisions to direct local government planning in Victoria. They include the State Planning Policy Framework (SPPF) the State standard zones, overlays, particular provisions, general provisions and definitions (Brown & Lane 1997: 59). The VPP’s provide a document from which to construct new format planning schemes. The SPPF sets out State policy for planning and development in Victoria and replaces policies in State and regional planning schemes (Department of Infrastructure 1999: 3).

The SPPF contains a State Heritage Policy whose objective is:

To assist the conservation of places that have natural, environmental, aesthetic, historic, cultural, scientific or social significance or other special value important for scientific and research purposes, as a means of understanding our past, as well as maintaining and enhancing Victoria’s image and making a contribution to the economic and cultural growth of the State (VPP: Section 15.11)

To implement this policy, the SPPF states that:

Planning and responsible authorities should identify, conserve and protect places of natural or cultural value from inappropriate development. These include;

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  Places of Aboriginal cultural heritage significance, including historical and archaeological sites.
  
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  Planning and responsible authorities must take into account the requirements of the Victorian Archaeological and Aboriginal Relics Preservation Act (1972), the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act (1984) and the views of local Aboriginal communities in providing for the conservation and enhancement of places, sites and objects of Aboriginal cultural heritage value. (VPP: Section 15.11.1)
  

To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

One of the overlays included in the SPPF is a Heritage Overlay. The purpose of the Heritage Overlay is:

To conserve and enhance heritage places of natural or cultural significance.

To conserve and enhance those elements which contribute to the significance of heritage places.

To ensure that development does not adversely affect the significance of heritage places.

To conserve specifically identified heritage places by allowing a use that would otherwise be prohibited if this will demonstrably assist with the conservation of the significance of the heritage place.

The requirements of this overlay area apply to heritage places specified in the schedule to this overlay. A heritage place includes both the listed heritage item and its associated land. Heritage places may also be shown on the planning scheme map. (VPP: Section 43.01)

The schedule of the Heritage Overlay is a listing of places to which the Heritage Overlay is applicable.

There have been some difficulties encountered in applying the Heritage Overlay to the protection of Aboriginal archaeological sites. One is that Aboriginal sites are protected by different sets of legislation to non-Aboriginal historic sites - the Victorian State Archaeological and Aboriginal Relics Preservation Act (1972) and the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act (1984) (see Section 9.2.). These Acts require a different statutory process and permit application system to that required under the Victorian State Heritage Act (1995), including the active involvement of local Aboriginal communities.

Brown and Lane (1997: 60) have argued that the permit requirements and exemptions in the VPP and the Schedule to the Heritage Overlay are geared more to the mechanisms of protection offered by the Heritage Act (1995), which directly protects historic places/buildings/archaeological sites of state significance, with an assumption that places of local value will be protected through planning schemes. (Brown and Lane 1997: 60; Marshall 1998: 3). Aboriginal heritage legislation does not, however, apply the same significance assessment methodology as that defined by the Heritage Act (1995), nor does it assign the same statutory value to ‘State’ significance. In addition, State Aboriginal heritage policy as defined in the AAV Guidelines for Conducting and Reporting Upon Archaeological Surveys in Victoria is different in many respects to that applied to non-Aboriginal historic places and sites and is more closely geared to the statutory requirements relating to Aboriginal archaeological sites. Although the SPPF acknowledge these Acts, there is no mechanism by which they can be effectively implemented within the State Heritage Overlay.

Another difficulty lies in the fact that it is not always possible to accurately map the ‘boundary’ of an Aboriginal archaeological site or area/landform of potential archaeological sensitivity, except by sub-surface testing or excavation, which is not desirable if the site is to remain undisturbed. Brown and Lane (1996: 60) state that the Decision Guidelines in the VPP (Section 43.01-5) which set out what must be considered by a responsible authority before determining an application are generally applicable to Aboriginal places. However, the Decision Guidelines are inappropriate for dealing with landforms or landscapes of known or potential archaeological or cultural sensitivity (Marshall 1998: 38). This is because both Aboriginal archaeological sites and their landscape context can form part of the significance - and cultural values - of the site. Actions governing the operation of other heritage layers - for example, the Significant Landscape Overlay, may also impact on Aboriginal archaeological sites or areas of potential archaeological sensitivity.

For these reasons, several local government bodies have made submissions to the Department of Infrastructure and the Minister for Planning, calling for the development of a separate Aboriginal Heritage Overlay within the SPPF. This was most recently done by the City of Frankston, which attempted to write a Schedule for an Aboriginal Heritage Overlay (Marshall 1998). Attempts to include a separate Aboriginal Heritage Overlay in the SPPF have, to date, been rejected by the Department of Infrastructure and by the advisory committee on the Victoria Planning Provisions, following a submission by Brimbank City Council.

Negotiations between Aboriginal Affairs Victoria and the Department of Infrastructure have been on-going about the latter issue. Aboriginal Affairs Victoria have pointed out that the sheer numbers of Aboriginal archaeological sites recorded in Victoria prevent most of these from being listed in the existing State Heritage Overlay. At this stage, AAV are proposing to list Aboriginal archaeological sites identified in the Aboriginal Affairs Victoria Key Sites Programme, on an Aboriginal heritage layer within the SPPF (Jane Kierce, Planning and Development Officer, AAV: pers. comm). Aboriginal sites and places identified in the Key Sites Programme are those which are determined to be of special significance by or to an Aboriginal community).

It has been considered inappropriate in other Aboriginal heritage studies (eg. Marshall 1998, Brown and Lane 1996) to apply other overlay controls to the protection of Aboriginal archaeological sites, such as the Significant Landscape Overlay. This is primarily because these overlays do not provide specific mechanisms for protection and management of Aboriginal archaeological sites.

At present, AAV advise that most Aboriginal sites will need to be incorporated into Local Planning Policy Framework (LPPF) which is the second strategic base incorporated in the VPP. The local planning policy framework comprises the Municipal Strategic Statement (MSS) and specific local planning policies (Department of Infrastructure 1999: 7). The MSS is a vision statement for the future development of a local government area and is a clear, concise statement of the key strategic land use and development issues within the area (Department of Infrastructure 1999: 8). An MSS must also be consistent with the SPPF. The City of Maribyrnong has only recently developed an MSS.

At a meeting held with Council planning staff on 1 July 1999, it was apparent that there is a need within the City of Maribyrnong, not only to identify Aboriginal sites and places, but to develop a culture of awareness and understanding of Aboriginal heritage issues. The recommendations contained in this report are therefore also Statements of Local Policy in relation to Aboriginal heritage issues. There are several aspects to the development of local policy;

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  Ensuring that Council and developers comply with statutory requirements in relation to Aboriginal heritage sites.
  
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  Ensuring that Aboriginal archaeological sites, Aboriginal places (prehistoric and historic) are clearly identified in the planning scheme and that clear processes for dealing with activities which may impact on Aboriginal sites and places are adopted.
  
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  Ensuring that the local Aboriginal community is actively consulted and involved in the management of Aboriginal heritage places.
  
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  Ensuring that appropriate government Aboriginal heritage agencies (AAV in Victoria and the Australian Heritage Commission in relation to Commonwealth land) are consulted about actions which impinge on Aboriginal heritage sites and places.
  
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  Ensuring that Council officers are educated about the Aboriginal history of the City of Maribyrnong and there are special relationships which Aboriginal people share with the landscape.