The first major question to ask, before considering what type of activity is proposed, is whether the Taungurung Land Use Activity Agreement (LUAA) applies to the relevant land.

 

This page includes additional information about

  • 'Public land'
  • The LUAA area
  • Exclusions from the LUAA

'Public land'

The LUAA applies only to ‘public land’ (often called Crown land). This means:

  • Unreserved Crown land
  • Reserved Crown land
  • Reserved forests, national parks, nature reserves and state wildlife reserves.

The LUAA does not apply to:

  • freehold land
  • land vested in VicTrack (by legislation)
  • land vested in a local council under s 16 of the Crown Land (Reserves) Act 1978.

Regardless of any use by the public, these freehold areas are not ‘public land’ as defined above. The Aboriginal Heritage Act 2006 still protects sites on that land, but the Taungurung Land and Waters Council (TLaWC) does not have procedural rights under the LUAA.

Unlike native title, the LUAA does not concern itself with the legal history of the land. No tenure history searches are needed. This is one of the benefits of the LUAA, compared with the equivalent Native Title processes.

In effect, the LUAA asks only: at the date of the proposed activity, is the land ‘public land’?

The LUAA area

The LUAA applies to all public land (subject to certain exclusions) within the boundaries now recognised as Taungurung country, as shown on this overview map.

Agreement area for the Recognition and Settlement Agreement in central Victoria with the Taungurung traditional owner group

 

Accessible description of the map showing the agreement area in Central Victoria for the Recognition and Settlement Agreement with the Taungurung Traditional Owner group

The agreement area extends approximately from the Campaspe River in the west, through to the high county around Woods Point, Mt Howitt, and Hotham Heights in the east. It extends from Woodend and the ridge of the Great Dividing Range in the south, through to areas near Rochester, Euroa, Benalla and Everton in the North.

The agreement area is generally bordered by:

  • the Yorta Yorta Nation Aboriginal Corporation Registered Aboriginal Party boundary to the north
  • the Ovens River to the north east
  • the Gunaikurnai Recognition and Settlement Agreement area to the south east
  • the Wurundjeri Tribe Land and Compensation Cultural Heritage Council Registered Aboriginal Party boundary to the south, and
  • the Dja Dja Wurrung Clans Recognition and Settlement Agreement area to the west.

For further detail about the boundary, you can:

Exclusions from the LUAA

Leases within Alpine Resorts

The LUAA does not apply to leases of land within the boundaries of an Alpine Resort, or to activities carried out under those leases.

Existing Infrastructure

The LUAA does not apply to land covered by certain kinds of existing infrastructure (see below).

Where that infrastructure has been demolished in order to replace or refurbish it, for the same purpose, the land continues to be excluded.

However, where former infrastructure has been removed so as to permit safe public access to the former footprint of the infrastructure, that land is no longer excluded.

This makes practical sense: that land is once again ‘public land’, without any infrastructure, and so it is subject to the LUAA.

Click on the following headings to show additional information. If you are uncertain whether particular land is excluded from the LUAA, you are encouraged to discuss it with TLaWC.

 

Roads

If a road had been built as at 11 August 2020, then that road is excluded  from the LUAA (subject to the exceptions below).

Also excluded from the LUAA is land adjacent to the road itself:

  • to the edges of the road reserve or reservation, where there is one
  • where there is other existing infrastructure alongside the road, such as drains and ditches, or
  • that is necessary for, or incidental to, the operation of the road.

Most activities can proceed on such land without notifying TLaWC. That includes all maintenance and repair works on the road or associated infrastructure.

However, land on which roads have been constructed is not excluded from the LUAA for the purposes of:

  • the construction of a New Vehicular Road (even if it is within a road reserve) or
  • Road Works (as defined in the LUAA), if the works extend beyond the road reserve (if any), or else more than 1m beyond the footprint of the existing road and its associated infrastructure.

For those activities, the entire area on which those works occur will be subject to the LUAA. See the glossary page for a full explanation of the terms Road Works and New Vehicular Road.

 

Railways and tramways

As noted on the Overview page, any public land vested in Victorian Rail Track by legislation is not covered by the LUAA.

In addition, where a railway or tramway has been constructed by 11 August 2020, that land is excluded from the LUAA. In that case, the whole reserve or reservation is excluded.

Where a former railway or tramway is removed so as to permit safe public access to the former footprint of the infrastructure, the land is no longer excluded from the LUAA. (See the note at the top of this section.)

 

Public recreation facilities for organised sporting activities

As noted on the Overview page, any public land vested in a municipality under s.16 of the Crown Land Act is not covered by the LUAA. It is not ‘public land’.

In addition, sporting and recreational facilities on public land may be excluded from the LUAA. Such infrastructure is excluded if it existed before 11 August 2020 and is ‘for organised sporting activities’. It will also be excluded if it was validly constructed under the LUAA since 11 August 2020.

For example, a tennis court or oval is clearly a facility for organised sporting activities. However, a cleared area within a bushland reserve or forest, used for picnics and informal games, is unlikely to be a public recreation facility for organised sporting activities.

How much land is excluded?

The exclusion covers the facilities themselves, together with land that is necessary for or incidental to the operation of the facilities.

Where the sporting facility sits within an existing lease area, all of the leased land is excluded from the LUAA.

In other cases, identifying the extent of this exclusion involves a practical, case-by-case assessment of the land and its actual use.

For example, land needed for parking, or for maintenance access, would likely be necessary for or incidental to the operation of sporting facilities. An adjacent, uncleared area that is occasionally used for informal recreation may not be.

 

Cemeteries and crematorium reserves

This exclusion relates to that part of the reserve or other public land that is being used as a cemetery or crematorium.

There may be other, unused parts of the land, such as a bushland area within a cemetery reserve but outside the fenced (or actively used) burial grounds. These areas will be subject to the LUAA.

 

Infrastructure which has the effect of excluding or restricting public access

What kind of existing infrastructure is excluded?

The word ‘infrastructure’ is broadly defined in the LUAA, including:

  • Specified Public Works
  • other buildings or man-made structures, or
  • work that has changed the natural condition or topography of the land.

Infrastructure is excluded from the LUAA if it existed on 11 August 2020, and it excludes or restricts public access. This exclusion of public access may occur permanently or from time to time. The exclusion may arise by regulation, or as a practical matter. But unless the infrastructure excludes or restricts public access in one of these ways, the land with that infrastructure remains subject to the LUAA.

For clarity, the LUAA also states that all Major Public Works that existed on 11 August 2020 are excluded from the LUAA under this category. For example, educational, health or emergency service facilities, or certain facilities built by Utilities.

How much land is excluded?

In any of these cases, the land on which the infrastructure is built is excluded from the LUAA, along with land that is necessary for or incidental to the operation of the infrastructure.

If the infrastructure is within an existing lease, the whole of the leased area is excluded.

In other cases, it is usually a practical question as to what is necessary for or incidental to the operation of the infrastructure. It should be assessed on a case by case basis.

For example, where there is a works depot with a shed on public land, the depot is excluded, if it existed at 11 August 2020. If it was fenced around, the fence line may be a reasonable indication of what land was necessary or incidental to the operation of the depot.

If not fenced, an adjacent parking area, and areas where materials are stored, might be excluded for that reason. But an area that was vacant and unused might be subject to the LUAA.

Church land

The LUAA does not apply to land that is subject to the State Aid to Religion Abolition Act 1871.

This refers to Crown land that had been granted, promised or reserved for church use by 1871. In that year, a process was established by which such land could be granted to those churches as freehold, by application to the Minister.

Land that has been acquired by churches since that time will likely be freehold land, also excluded the LUAA.

Specific parcel exclusions

The LUAA lists parcels of land that are specifically excluded from the LUAA. These were planned for future use or sale at the signing of the Recognition and Settlement Agreement (2018).

Few of these will still be public land as time goes on, but it may be important to check this list for potential exclusions.

 

Lists of parcels

One list of parcels was, at the time of signing the LUAA, required for future use by the State:

  • Parts of Allotment 14L, Section C, Parish of Bright (sale then in progress)
  • Crown Allotment 2061, Parish of Porepunkah (sale then in progress)
  • Crown Allotments 107K and Q1, Parish of Bylands (Kilmore-Wallan Bypass)
  • Crown Allotment 2004, Township of Rushworth, Parish of Moora (expansion of Goulburn Valley Health’s facilities).

A second list was also excluded due to planned sales:

  • Crown Allotment 5, Section 12, Township of Jamieson (Brown St, Jamieson)
  • Portion of Road Reserve and portion of Allotments 53 and 4J, Section C, Parish of Flowerdale (Whittlesea-Yea Road, Flowerdale)
  • Land abutting the northern boundary of Crown Allotments 10 and 11, Section B, Parish of Whroo (Collivers Lane, Rushworth)
  • Crown Allotments 2006 and 2007
    Parish of Bonn (Burnewang Road, Rochester)
  • Portion of road reserve adjoining 796 Back Eildon Road, Eildon.

Next steps

If you have assessed that the land in question is subject to the LUAA, continue reading What kind of activity is it?

If not, and you are a decision maker for the relevant land, you should make records of your assessment that the LUAA does not apply to that land. You need not read any further pages in this section.

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