VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST	vcat reference No. P11742/2021
Permit no. PA2018/319-1	
CATCHWORDS	
Request to substitute amended plans – confine land for permit – rehabilitation post extractive industry – Aboriginal cultural heritage – potential for piecemeal application.  	

Applicant	Shinboner Nominees Pty Ltd	

responsible authority	Moorabool Shire Council	
Referral Authorities	Department of Environment, Land, Water and Planning - Grampians	
	EPA Victoria - South West	
	Head, Transport for Victoria	
	Melbourne Water	
SUBJECT LAND	181 Cummings Road
PARWAN  VIC  3340	
HEARING TYPE	Preliminary Hearing	
DATE OF HEARING	29 March 2022 & 6 April 2022 (including accompanied site inspection)	
DATE OF ORDER	2 May 2022	
CITATION	Shinboner Nominees Pty Ltd v Moorabool SC [2022] VCAT 418	

Order
1	The request to substitute amended plans in the proceeding under permit No. PA2018/319-1 is refused.  
2	The Tribunal determines that the activity area comprised by the existing permit has not been demonstrated to be exempt from the need for a Cultural Heritage Management Plan under the Aboriginal Heritage Act 2006 in respect of the proposed high impact activity. 
3	The application for review under s 79 of the Planning and Environment Act 1987 is dismissed for want of jurisdiction, and on the basis that it is misconceived having regard to s 52(4) of the Aboriginal Heritage Act 2006. 
4	The hearing listed in this proceeding on 20 September 2022 is vacated.

Dalia Cook
Member	
Appearances
For applicant	Mr Tom Pikusa of Counsel instructed by Merrylees Legal. He called expert evidence from:
•	Ms Helma Reddy, environmental scientist, 
Maddingley Brown Coal Pty Ltd 
•	Mr Chris Lovell, archaeologist, 
Andrew Long & Associates 	
For responsible authority	Ms Louise Hicks of Counsel by direct brief	
For referral authorities	No appearance	

Reasons (preliminary orders)
Introduction 
1	The subject land is part of the broader landholding of Maddingley Brown Coal Pty Ltd (MBC).  It was formerly used for coal mining, basalt mining and sand quarrying.  These uses have ceased and the land has the benefit of a planning permit allowing its rehabilitation including earthworks and vegetation removal in association with the Star Dam. 
2	The permit has been acted on and remains current and includes the following land: 

3	The permit holder (applicant) applied to Moorabool Shire Council (Council) to amend the permit to include staged rehabilitation, habitat creation including vegetation removal, fill and a rumble grid for trucks.  
4	More recently, the applicant lodged a request in this proceeding to substitute amended plans to confine the area of the land to which the permit applies.  It sought to remove the southern parcel (Lot 39), eastern parcel (Lot 23) and a small portion of the middle parcel (Lot 24A) adjacent to the Parwan Creek from the auspices of the permit.  
5	The applicant was transparent about the reason for these amendments.  It intended to separate the land for which no mandatory Cultural Heritage Management Plan (CHMP) was required from the remainder, to enable rehabilitation and earthworks to start in a more timely way. 
6	It anticipates seeking permission for works on the remainder of the land (proposed to be excised from the permit) at a later date.  This is expected to be contingent on further investigation of cultural heritage requirements and other programming objectives.  
7	The purpose of this preliminary hearing was: 
•	to determine whether a CHMP was required for the proposed activity having regard to the more confined land area; 
•	to consider the request to substitute amended plans and whether this would be consistent with orderly planning; and
•	to consider whether any additional permission would be required for the proposed activities having regard to their land use characterisation.  
8	In listing this matter for a preliminary hearing, the Tribunal identified a question about the potential effect of an Earth Resources Authorisation on the need for a CHMP.  
9	However, the parties agreed this is no longer a relevant issue since this permission has expired and is not being relied on for the works proposed. 
Key issues 
10	Key issues for my determination include: 
•	Are the proposed activities within the confined area of land depicted in the amended plans exempt from the need for a mandatory CHMP? 
•	Is it appropriate to exercise my discretion to amend the plans? 
•	Do the proposed uses of the land include the separate land use of Refuse disposal? 
•	How should this proceeding be resolved? 
Summary of party positions
11	Council submitted that the request to confine the area of the land subject to the permit was not consistent with orderly planning or the purposes of the Aboriginal Heritage Act 2006 (AH Act) or associated Regulations.  Ms Hicks submitted that the ‘tail had wagged the dog’ regarding the design of the work boundary.   
12	It also considered that the applicant had not demonstrated significant ground disturbance to the requisite degree to dispense with the need for a CHMP, even for the confined area. 
13	Council further suggested that the deposit of the proposed fill as part of the amended application would constitute Refuse disposal, for which additional permission would need to be sought under the permit.  
14	The applicant disputed these stances.  
15	The applicant called expert evidence from Mr Chris Lovell, archaeologist, who advised that the activity area he had depicted on the more confined plans was not of cultural heritage significance, principally due to evidence of significant ground disturbance.  Subsequently, in response to questions by the Tribunal, the activity area was updated by the applicant and ‘squared off’ to include the south eastern corner of Lot 24A. 
16	The updated activity area to which the permit is intended to be subject is depicted below (Revision C dated 4 April 2022). 

17	The applicant submitted it was entirely consistent with orderly planning and relevant legislation to progress with works over the part of the land without cultural heritage significance, while enabling further assessment of the balance.  
18	The applicant further submitted that the deposit of clean fill or Potential Acid Sulfate Soils (PASS) was an inherent part of the rehabilitation works.  It strenuously opposed the notion that this aspect of the activity constituted the further use of land for Refuse disposal. 
19	A CHMP has not been prepared for any part of the land.  The applicant acknowledged that further professional investigation would be required to determine if there had been significant ground disturbance within the area of cultural heritage sensitivity on the land proposed to be excised from the permit.  
20	Both parties acknowledged that if I was to find that a mandatory CHMP was required, the Tribunal would not have jurisdiction to consider the current review proceeding following case authority in Stanley Pastoral Pty Ltd v Indigo SC (Stanley Pastoral), since the time for Council’s alleged failure to grant a permit would not have started to run.  
21	If those circumstances arose, parties agreed that the amended permit application could continue to be processed by Council since it had not yet received all relevant information to make a decision on the application.  
tribunal Consideration 
22	Regulation 7 of the Aboriginal Heritage Regulations 2018 (AH Regulations) requires a CHMP for an activity if: 
a.	all or part of the activity area is in an area of cultural heritage sensitivity; and
b.	all or part of the activity is a high impact activity. 
23	The parties and their experts agreed on the following facts:
a.	The amendments sought to the permit would constitute a variation to a statutory authorisation controlled by sections 51 and 52 of the AH Act.  If a mandatory CHMP was required for the activity within the relevant activity area, this would be a mandatory precondition to proposed amendments to the permit. 
b.	The proposed rehabilitation of the land is a ‘high impact activity’ under Regulation 46 since it would result in significant ground disturbance (as this term is defined) and is associated with the former use of the land for Extractive Industry.  The Moorabool planning scheme (planning scheme) currently defines Extractive Industry as including ‘the rehabilitation of the land’.  However, this was not the case at the time the planning permit was granted, which explains why no mandatory CHMP was required or prepared for the land before the permit was issued.  
c.	Land within 200 metres of the Parwan Creek (a registered waterway) is identified as land of cultural heritage significance pursuant to Regulation 26. 
d.	If all parts of the proposed activity area have been subject to significant ground disturbance (as defined by the regulations), it will no longer be of cultural heritage significance and will be exempt from the need for a mandatory CHMP by operation of Regulation 23(2).
e.	The accepted level of inquiry and standard of proof for the Tribunal is as described in Mainstay Australia Pty Ltd v Mornington Peninsula Shire Council & Ors. While the standard of proof is on the balance of probabilities, there must be sufficient information, objectively considered, to persuade me to a reasonable level of satisfaction that there has been significant ground disturbance to the whole of the relevant activity area.  This represents a jurisdictional question of fact, contingent on the particular circumstances before me.       
24	I endorse these propositions. 
Are the proposed activities within the confined area of land depicted in the amended plans exempt from the need for a mandatory CHMP? 
25	The difference in party positions can be attributed to whether all parts of the proposed activity area had been demonstrated to be subject to significant ground disturbance (as defined).  The applicant sought to demonstrate this through the evidence of Mr Lovell, but Council was not persuaded. 
26	Mr Lovell explained the nature of all historic works within the proposed activity area in his expert evidence.  This was undertaken by reference to a series of aerial photographs dating from 1949 as well as his site observations.  
27	These works included clearing and scraping parts of the land, creation of levees, direct mining/quarrying works, creation of stockpiles or embankments and the like.  In most instances, they extended to the title boundary or beyond.  
28	However, Ms Hicks for Council submitted that the applicant had not discharged its burden of proof to show that all parts of the activity area had been the subject of significant ground disturbance by machinery. 
29	In Stanley Pastoral, the Tribunal held:
•	even if a contextual approach is appropriate in the absence of clear evidence of actual significant ground disturbance, this approach does not entitle the decision maker to ignore the essential elements of the definition of ‘significant ground disturbance’ in the AH Regulations. The comparative and contextual information must still reasonably satisfy the decision maker that the topsoil or surface rock layer has been disturbed in the past by machinery in the course of grading, excavating, digging, dredging or deep ripping. 
30	I accept the evidence of Mr Lovell that there is reasonable evidence that a high proportion of the activity area within 200 metres of the waterway has been the subject of significant ground disturbance by machinery.  Much of this is clear from the historic photographs and ‘ground truthed’ by the vastly modified topography of the land.  
31	I queried Mr Lovell about the substantial stockpile/embankment in the south western portion of Lot 24A in particular.  In his view, it was likely that the full extent of topsoil underneath this embankment would have been scraped using machinery to stabilise the spoil to be deposited.  
32	However, there was no evidence of this work method.  The applicant has not undertaken any subsurface testing or geological testing of any parts of the activity area. 
33	I also find that the delineation of the activity area by reference to the toe of this embankment has the potential to be arbitrary.  Given the extensive volume of unsecured spoil exposed to the weather for decades, it seems inevitable that the toe of this embankment will have extended beyond its original position.  This is in a particularly sensitive area of the land from the perspective of Aboriginal cultural heritage, being closest to the creek.   
34	I consider that further direct evidence of significant ground disturbance is required for this part of the site in particular.  As explained by Mr Lovell, this would involve mechanical augering and soil profile analysis.  At the hearing, I canvassed the option of directing further subsurface testing to enable me to make findings in respect of this part of the land.  
35	However, my primary finding is that it is not appropriate to exercise discretion to amend the plans to confine the activity area and planning unit as sought by the applicant.  In these circumstances, a far more fulsome investigation of the Aboriginal cultural values of the broader parcel will be required.  Further testing of the soil profile beneath this embankment should be included in the scope of this work.  
36	I find that this cautious approach is warranted having regard to the underlying objectives of the AH Act which include:
•	to provide for the protection of Aboriginal cultural heritage and Aboriginal intangible heritage. 
•	to empower traditional owners as protectors of their cultural heritage on behalf of Aboriginal people and all other people. 
Is it appropriate to exercise my discretion to amend the plans? 
37	As mentioned, the applicant seeks to substitute amended plans to confine the area of the land, compared with the permit as originally issued which pertains to four lots in their entirety.  
38	Two concepts are relevant here – the ‘planning unit’ and the ‘activity area’.  They may or may not overlap in any given planning permit application. 
39	The first term is understood in the planning industry to refer to the land that is the subject of planning permission.  
40	The second term is defined by the AH Regulations as meaning ‘the area or areas to be used or developed for an activity’.  
41	In this instance, the planning unit would now mirror what the applicant has defined as the updated ‘activity area’ for the purposes of the AH Act and Regulations.  
Parameters for the exercise of discretion
42	The request to amend plans for a planning permit amendment application is subject to the Tribunal’s discretion.  This stems from the operation of Clause 64 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998. 
43	In my opinion, this discretion needs to be exercised with the objectives of the Planning and Environment Act 1987 (PE Act) and the planning scheme in mind.  Notable objectives of planning in section 4 of the PE Act include, to provide for:
•	the fair, orderly, economic and sustainable use and development of land;
•	the protection of natural resources and the maintenance of ecological processes; 
•	to conserve and enhance places which are of special cultural value; and
•	securing a pleasant environment for all Victorians and to balance their present and future interests. 
44	An objective of the planning framework is ‘to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land’.  
45	Relevant decision guidelines in Clause 65 include orderly planning, the effect on the environment, human health and amenity.  
46	In this particular case, the objectives of the AH Act are also directly relevant, since the two legislative regimes intersect.  
Would the exclusion of areas yet to be investigated for cultural heritage significance be consistent with objectives of the AH Act and Regulations? 
47	Council submitted that:
…the separation between the Applicant Defined Activity Area and the balance of the sensitive area is an artificial attempt to avoid triggering a mandatory requirement for a CHMP and, in fact, very little effort has been made to ensure that the area of sensitivity will be separated and protected from the proposed high impact activity.
48	The applicant responded that the confined activity area had been drawn by Mr Lovell.  He had identified those parts of the land which he found had been the subject of significant ground disturbance or were outside the area identified of cultural heritage significance (i.e. beyond 200 metres from the waterway).   
49	Mr Lovell had excluded Lot 39 because he considered that it was not readily apparent there had been significant ground disturbance by machinery over the farmland portion.  He further advised the applicant to exclude the land at Lot 23 (over Cummings Road) because parts of the land were ‘uncomfortably close’ to registered Aboriginal heritage places and would otherwise potentially justify a voluntary CHMP. 
50	I asked Mr Lovell whether he was commonly asked by clients to define the activity area.  He replied that it was unusual but that he saw logic to this request, since it would adopt a risk-based approach, enabling: 
•	the part of the land that has been confirmed as having no Aboriginal cultural heritage significance to be rehabilitated without unreasonably impacting heritage values; and
•	land that requires further investigation of Aboriginal cultural heritage values to be excluded from the permission granted until this has occurred in line with the legislation. 
51	For these reasons, Mr Pikusa submitted this proposal would advance the objectives of the AH Act.  
52	With respect, I find this over simplifies the situation in respect of this particular site.  It is contingent on a number of assumptions, including the capacity to safely exclude land that requires further investigation.  
53	This is in a physical context of a natural creek system that traverses the site boundary, as well as significant topographical constraints, including an approximately 30 metre high escarpment (spoil stockpile) and highly variable landforms from abandoned sand mining activities.  The toe of the escarpment delineates the western edge of the activity area as defined by Mr Lovell.  
54	The applicant submitted that it could physically delineate the permitted activity area from the balance of the land in this location.  This is especially relevant to separating the south west corner of Lot 24A from the balance of the lot to be rehabilitated and separating lots 24A and 39 across the former sand quarry.  
55	Mr Lovell explained that any such works would need to be visible, durable, all weather and consistent with proposed subsurface impacts.  
56	Ms Reddy suggested suitable delineation could be achieved by identifying survey points and installing posts with some form of weather proof bunting or other containment with an approximate 5 metre buffer.  She discounted the need for a fence per se.  She also explained that the company’s machinery had been fitted with GPS systems and that this was also the case for some of their contractors.  She considered this would enable contractors to avoid the area of potential significance.  
57	I confirm my view that the applicant had had a reasonable opportunity to call expert evidence about the potential to delineate the activity area from the remainder of the land at both the hearing and the accompanied site inspection.  I did not consider it was reasonable to allow a further opportunity for Mr Lovell to provide a more detailed work plan in this respect (as suggested by the applicant’s solicitor without leave of the Tribunal) since I had sufficient information before me on this point.  There are also other determinative reasons influencing my decision on these preliminary matters.  
58	On the accompanied site inspection, executives/employees of the applicant explained that the work on the western escarpment would occur from the top of the mound, working down to stabilise and terrace this part of the land.    
59	Given access limitations, I requested additional drone footage to be provided along the creekline and surrounds and at its interface with the escarpment.  
60	Having considered submissions and the physical context, it would be virtually impossible for suitable, practical measures to be put in place to separate the activity area from the balance of the land at the two key ‘pressure points’ identified above.  This is because it would require all heavy earthworks (stabilising and reshaping) to occur with a workable inset from the toe of the escarpment without interfering with the river bed environs in any way. I am not persuaded that this is feasible.  
61	The situation is even more complex given the undulating and eroded topography which would intersect the area of the former sand mine on the boundary of lots 24A and 39.  
62	This is a vastly different scenario from those approved by the Tribunal in other instances where property or road boundaries, fencing, contrasting land uses or the like could support the creation of obvious and durable boundaries for the purpose of protecting potential cultural heritage values.  
63	The serious challenges of delineating the activity area as proposed is but one indication that it would not be consistent with orderly planning to bisect these parts of the site from the whole.  
64	Taking a purposive approach to interpreting the AH Act and Regulations, I find that the activity area should at least include the area of land that has been affected by extractive industry and is proposed to be rehabilitated.  This is consistent with the extent of the initial works plan prepared to implement the permit, although it also includes land beyond this within the same landholding used for farmland. 
Would it be consistent with orderly and proper planning to allow the land area to be confined as proposed in the amended plans? 
65	From the outset, I acknowledge the positive purpose of the works.  They would facilitate environmental rehabilitation including the provision of a wetland habitat for the Growling Grass Frog and the creation of additional productive farmland.  
66	The applicant is commended for embarking on this restoration plan for land it purchased in a highly degraded state.  These works have the potential to directly contribute to environmental and productivity objectives for planning in Victoria.  MBC and its associate companies appear to have substantial expertise available to it to undertake this task in a responsible way.  
67	That said, I do not consider that it is appropriate as a matter of orderly planning to impose a limitation on the scope of the permit from the outset that would enable consideration of only partial rehabilitation of this land.
68	This is especially where the proposed activity area has been confined by convenient boundaries drawn to defer legislative consequences; rather than by the nature of the proposed works relative to integrated cultural, natural or topographical features.  
69	Both versions of the works plan confirm that these areas of the land, especially on the western side, are intended for a consolidated rehabilitation and works program.  For example, this is evident in section C-C on the plan attached to both versions of the work programs, which indicates that the title of the land extends to the creek boundary and depicts a gentle grading and revegetation across the whole section.  

70	It is unclear how this could be achieved with any certainty if a critical part of this environment was excluded from the current permission.  
71	Realistically, there may also be no obligation on the applicant to complete the entirety of these works if the permit is confined to only part of the land.  
72	It is also instructive that the applicant proposes to ‘add back’ at least parts of the land to the permit at some stage to complete the rehabilitation works.  This indicates that capacity for partial permission would be either piecemeal or pre-emptive.  
73	Another relevant factor is the proposed sequencing of the works.  Stage 1 is proposed to regrade, stabilise and revegetate the western embankment.  Ms Reddy explained that this was proposed to be first in time to ensure this area would not be disturbed by later works.  It was also ready to proceed because the stockpiles already existed for the terracing works, whereas fill would need to be sourced for other areas of the land.  
74	However, the applicant proposes to exclude a significant part of the rehabilitation works along the eroded/degraded creekline from these works.  It has not been demonstrated that suitable access and construction methods would enable these works to be completed separately at a later time.  For example, integrated restoration works would be required in Area Seven which would be excluded from the permit and entirely ‘subject to further assessment’.  This is included in the pink hatched area in the updated works plan below. 

75	In terms of process, there may also be a temptation to apply for a separate planning permit to rehabilitate the remainder of the creek bed.  This would presumably need to align with the permission already granted to achieve the final vision, which indicates it should be considered holistically in the first place.  The same principle applies to the rehabilitation of the area used for sand mining, which would be bisected in the applicant’s current proposal. 
76	Arguably because the remaining area adjacent to the creek may not have been the subject of extractive industry, the works may not qualify as a high impact activity under the AH Act and Regulations and this could potentially side step further investigation of a sensitive area.  
77	Alternatively, further investigation may reveal Aboriginal cultural heritage artifacts within the undisturbed areas (as have been found on nearby land to the north east).  Given this potential, there is merit in fully investigating the Aboriginal cultural values of this land, especially in the area of closest proximity to the creek.  
78	I accept Council’s submissions that a significant objective of the legislative regime is to ‘establish processes for the timely and efficient assessment of activities that have the potential to harm Aboriginal cultural heritage’.  
79	For these reasons, I do not support the exercise of discretion to confine the land under the permit as proposed by the applicant.  This would unreasonably fetter the Tribunal hearing the merits of the proceeding and would not be consistent with its role in integrated decision making.  
80	I have also considered whether there are countervailing factors that may support a curtailment of the planning unit for the time being.  I enquired about this at the hearing, but the applicant has not persuaded me that such a reason exists.  
81	The site is secured.  It has been disused for an extended period of time - there is no significant additional erosion or other deleterious environmental processes expected that are not already apparent.  The rehabilitation works, especially the sourcing of fill for the dam and re-grading the site are likely to take 10-12 years.  
82	In this context, I do not consider there is any urgency to enable partial works to proceed in the absence of full investigation and proper management of cultural values within the whole area to be rehabilitated. 
83	On the contrary, I consider that it is more appropriate to focus on delivering a fulsome rehabilitation program that involves a comprehensive assessment of Aboriginal cultural heritage values, even if the project starts later.  
Concern about jurisdiction to amend plans in the proceeding
84	I have addressed the merits of the proposed changes above but, in reflecting on this issue, I also have serious concerns about the ability for the Tribunal to acquire jurisdiction only if the application plans are amended.   
85	In reality, the issue of jurisdiction comes first.  Time does not start to run for Council to make a decision on this application under Regulation 32 of the Planning and Environment Regulations 2015 until a CHMP is obtained, if one is required, by operation of section 52(4) of the AH Act.  
86	The application for review seeks to amend the use/development of all four lots included in the permit.  
87	It is clear that at least some areas within the four lots encompassed by the permit are within an area of cultural heritage sensitivity and are unlikely to have been subject to significant ground disturbance (or require further investigation at minimum before rehabilitation works could start without a mandatory CHMP).  This was conceded by the applicant and its expert Mr Lovell.  
88	Therefore, the application to the Tribunal for Council’s failure to grant an amended permit under section 79 of the Planning and Environment Act 1987 was premature.  The Tribunal does not have jurisdiction from the outset.  
89	Following the reasoning of Stanley Pastoral, I cannot disregard this non-compliance.  
90	It is at this point that the applicant seeks to amend plans in the proceeding.  It appears to me that a precondition for the exercise of this discretion is properly founded jurisdiction.  It would appear to be unlawful for me to purport to amend the land to which the permit is subject in the absence of jurisdiction being confirmed.  
Do the proposed uses of the land include the separate land use Refuse disposal? 
91	Council submitted that the very substantial amounts of fill and time required to undertake these works was illustrative of a separate use of land for Refuse disposal.  
92	Ms Reddy explained that the fill would be specifically sourced on demand to meet the rehabilitation requirements of the land.  The applicant’s instructions to the expert preparing the updated work plan were to use the minimal amount of fill required to enable the dam rehabilitation outcome (allowing sufficient water levels above any PASS), to gently grade the site rising from the Star Dam, to re-grade the existing stockpile towards the creek and to restore productive farmland.  
93	Council was also concerned about administrative processes to confirm that the fill was ‘clean’, as alluded to by Ms Reddy in her evidence.   
94	I agree with Mr Pikusa that the administrative arrangements for the receipt of clean fill do not bear on how the use of the land should be characterised.  They are principally a matter for regulation under the new environmental legislation.  I also note that this applicant has a registration granted by the Environment Protection Authority to receive PASS and relies on a legislative determination to accept clean fill. 
95	The parties accepted established case law principles pertaining to the characterisation of land use.  Council also accepted that if the use were to comprise Refuse disposal, the permit could be amended to include this permission since it is a section 2 permit-required use in the Special Use Zone.  
96	This issue can be disposed of simply.  It is abundantly clear to me that the real and substantial purpose of the fill (either clean fill or PASS) is to rehabilitate and restore the land.  Although it involves the deposit of fill as an activity, it is a very different use of land from Refuse disposal, such as that which is occurring within the operational landfill on adjacent land under the same ownership.  
97	The fact that vehicles containing fill may be assessed at the landfill site does not mean that the land use activity is for disposal per se.  Likewise, the fact that the applicant may obtain potential financial benefit from accepting the fill is not determinative.  
98	It is clear that the rehabilitation works on this site cannot occur without the substantial deposit of fill as proposed.  This is their key focus.  
99	On this basis, I find it is not necessary to amend the use permissions sought beyond those applied to Council and currently under review.  
How should this proceeding be resolved?  
100	Parties accepted that if I was to find that any part of the confined activity area had not been the subject of significant ground disturbance, the Tribunal would not have jurisdiction to consider the application further.  This was consistent with the reasoning of the Tribunal in Stanley Pastoral, since the application would have been lodged prematurely. 
101	Both parties agreed that there would be potential for Council to continue processing the amendment application, including an assessment of Aboriginal cultural heritage values.  
102	I consider this is the most appropriate course of action and encourage the applicant to now complete the preparatory work required for assessment and approval of this important project.  
103	In saying this, I consider that there is potential to exclude some areas of farmland from the permit (such as the separate parcel over Cummings Road), provided they have no direct connection with the program to rehabilitate those parts of the land affected by former extractive industry and related natural processes of erosion or the like.  
conclusion
104	For the reasons outlined above, I find that:
a	On the basis of the evidence at the hearing, large parts of the confined area for which permission is now sought have been the subject of significant ground disturbance.  However, I cannot be reasonably satisfied of such disturbance to the requisite degree for the western part of the land used for soil stockpiles in the absence of further sub-surface testing and analysis.  
b	I find that there is no reasonable and enduring way to physically delineate the activity area from the balance of the land to be excluded from the permit to ensure that Aboriginal cultural heritage is not put at risk as a consequence of any partial approval.  
c	It is not consistent with orderly planning or the purpose of the AH Act to allow the amendment of the permit to confine the land in the manner sought.  Accordingly, the request to amend plans in the proceeding is refused. 
d	There is no exemption from the need to prepare a CHMP claimed for the remainder of the land to which the permit applies.  None has been provided as part of the permission sought to amend the development.  On this basis, there has been no failure of Council to make a decision on the application to amend the permit within time.  Therefore, the Tribunal does not have jurisdiction to consider and determine the application. 
e	The appropriate course of action is to remit this amendment application to Council.  This will enable due process to be followed, including for the assessment and protection of Aboriginal cultural values. 
f	Had I been required to make a finding about the characterisation of the proposed use, I would have found that the deposit of fill was for the purpose of rehabilitation of the land.  It is clearly not for the purpose of Refuse disposal in the particular proposal before me even though aspects of the activity may appear similar.  

Dalia Cook
Member