PO Box 2471 Fitzroy BC Victoria 3065 Australia

T (03) 9470-9222 F (03) 9416 1240

www.alassoc.com.au Andrew Long + Associates Pty Ltd

ACN 131 713 409 ABN 86 131 713 409

1

615 Warrigal Road, Ashwood

Cultural Heritage Assessment and Implications for Development

Prepared for: Mandy Wu mandy@panoramaboxhill.com.au Panorama investment (Ashwood) Pty Ltd ACN: 617 588 182 Author: Zachary Jones 27/04/17

Introduction The following statement of evidence presents an assessment of the known and predicted Aboriginal cultural heritage values, which may have implications for the proposed development of the property at 615 Warrigal Road, Ashwood. The requirements for undertaking a Cultural Heritage Management Plan (CHMP) under the Aboriginal Heritage Act 2006 and Aboriginal Heritage Regulations 2007 are assessed in detail. This assessment has been undertaken to identify any registered sites of Aboriginal and archaeological heritage significance within the project area. In particular, this assessment identifies any significant Aboriginal and heritage issues that will constrain development on the land and provide an outline of further investigations and associated costs for the future resolution of these issues. The proposed project area encompasses land within 200 m of Gardiners Creek and, therefore, is located within an area of cultural heritage sensitivity, as defined in Division 3 of the Aboriginal Heritage Regulations 2007. The development (or a component thereof) may trigger a mandatory CHMP, as per Section 43 of the Aboriginal Heritage Act 2006.

Finding This report finds that a mandatory CHMP is not required prior to council issuing statutory authorisation for the proposed activity at 615 Warrigal Road, Ashwood. This finding is based on evidence of prior works constituting significant ground disturbance to the entirety of the project area. The Project Area The project area consists of an irregularly shaped parcel of land (1.5 ha in size) located at 615 Warrigal Road, Ashwood, within the City of Monash. The project area contains three multi-storey commercial buildings and associated car parking facilities (Figure 1). Adjacent commercial properties are situated to the immediate north and east, and the Glen Waverly railway corridor is located to the south. The eastern margin of the project area abuts Warrigal Road. The geology of the project area consists of Quaternary Age alluvial flat deposits presumably related to the nearby Gardiners Creek. Underlying this alluvium, it is expected that Silurian Age Siltstone will be present1. There are no natural watercourses on the land, which is subject only to ground soaking and surface runoff.

1 http://er-info.dpi.vic.gov.au/sd_weave/registered.htm- Accessed 26/04/2017

2

Fig

ure

1:

The

pro

ject

are

a w

ith

in c

urr

ent

stru

ctu

res1

.

3

The Proposed Activity The intended development is the construction of mixed-use buildings following the demolition of current structures within the project area. Scope of Prior Assessment No prior archaeological assessments have been prepared for the current project area. A preliminary environmental site investigation including geotechnical testing was prepared in 2016 (Stain & Berry). The relevant soil profile information is presented in Appendix 1 and discussed later in this assessment. Existing Heritage Listings The following register sources were checked for existing heritage listings (both statutory and non-statutory):

• Victorian Aboriginal Heritage Register Supplementary Lists – Aboriginal Historic Places and Action File (Aboriginal Victoria);

o No listings.

• Victorian Heritage Inventory, Victorian Heritage Register and Hermes (Heritage Victoria); o Victorian Heritage Inventory: No listings o Heritage Register Listings: No listings

• National Heritage List and Commonwealth Heritage List (Australian Government Department of Environment and Water Resources); No Listings

• Local Council Heritage Overlays and/or Planning Schemes (Local Government) o No listings.

• Register of the National Estate (Australian Heritage Council) o No listings.

• National Trust Register (National Trust Victoria) o No listings.

There are no previously registered Aboriginal cultural heritage place extents within the project area for this Cultural Heritage Assessment, nor were there any listings on the Register of the National Estate or the Victorian Aboriginal Places Register. Historical development of the project area The project area has undergone a series of prior developments during the mid-late 20th-century. A summary of the development, evident in aerial photographs, is as follows:

• A 1945 aerial photograph shows that the project area was agricultural land and cleared of mature native vegetation at this time (Figure 2).

• Commercial developments are evident in a 1951 aerial image showing, with two built structures visible with the eastern portion of the project area. Ground preparation works are also indicated through soil exposure across much of the remaining property (Figure 3).

• A 1963 aerial image shows the substantial commercial development of the project area, with several built structures and car parks covering the majority of the subject land (Figure 4). Additional constructions are evident in a later photograph taken in 1972 (Figure 5). From these images, it is evident that the subject land underwent a protracted process of development during the 1960’s and 1970’s.

• Following these initial commercial developments, a process of demolition and land clearance was undertaken to facilitate the construction of the existing buildings. A 1982 aerial photograph shows the project area cleared of structures and levelled (Figure 6).

• The current multi-story buildings and car park surfaces are evident in a 1992 aerial image of the activity area.

Figure 2: 1945 aerial photograph of the project area (Stain & Berry 2016).

Figure 3: 1951 aerial photograph of the project area (Stain & Berry 2016).

PO Box 2471 Fitzroy BC Victoria 3065 Australia

T (03) 9470-9222 F (03) 9416 1240

www.alassoc.com.au Andrew Long + Associates Pty Ltd

ACN 131 713 409 ABN 86 131 713 409

5

Figure 4: 1963 aerial photograph of the project area (Stain & Berry 2016).

Figure 5: 1972 aerial photograph of the project area (Stain & Berry 2016).

Figure 6: 1982 aerial photograph of the project area (Stain & Berry 2016).

Figure 7: 1992 aerial photograph of the project area with extant structures (Stain & Berry 2016).

7

Implications for Development The following sections outline the triggers and issues which will affect the proposed works in relation to the Aboriginal Heritage Act 2006 and Aboriginal Heritage Regulations 2007, specifically as these relate to the need to undertake a mandatory Cultural Heritage Management Plan.

When is a cultural heritage management plan required? A CHMP is required for an activity if (Regulation 6)-

(a) all or part of the project area for the activity is an area of cultural heritage sensitivity; and

(b) all or part of the activity is a high impact activity.

Is the project area an area of cultural heritage sensitivity? The project area is an area of cultural heritage sensitivity, as follows:

Regulation 23. Waterways

(1) Subject to subregulation (2), a waterway or land within 200 metres of a waterway is an area of cultural heritage sensitivity.

(2) If part of a waterway or part of the land within 200 metres of a waterway has been subject to significant ground disturbance, that part is not an area of cultural heritage sensitivity.

The project area is located within 200 metres of Gardiners Creek.

Is the activity a high impact activity? Regulation 43. Buildings and works for specified uses

(1) The construction of a building or the construction or carrying out of works on land is a high impact activity if the construction of the building or the construction or carrying out of the works—

(a) would result in significant ground disturbance; and

(b) is for or associated with the use of the land for any one or more of the following purposes—

(xvia) an office;

(xx) a retail premises;

Has the project area been subject to significant ground disturbance?

Pursuant to subregulations 38(2), and in accordance with Regulation 4 – Definitions: significant ground disturbance means disturbance of -

a. the top soil or surface rock layer of the ground; or

b. a waterway –

by machinery in the course of grading, excavating, digging or dredging.

Recent VCAT ‘red dot decisions’ 2 have addressed a number of issues as to the circumstances when a CHMP is required, and the level of inquiry required by a planning decision maker to determine whether significant ground disturbance has occurred. The principles established have formed the basis for a Practice Note regarding Significant Ground Disturbance (AV 2009).

The following statements from the Mainstay decision (2009 VCAT 145) are reproduced here verbatim:

Many parts of the state are not areas of cultural heritage sensitivity, and many activities are exempt requiring a CHMP. Use should be made of the AV on-line ‘Aboriginal heritage planning tool’ to determine if a CHMP is required;

It is the fact of significant ground disturbance that creates an exception under the Regulations, and determines if a CHMP is not required. The actual likelihood of Aboriginal heritage existing in the area is irrelevant to this determination;

The timing of the significant ground disturbance is irrelevant. It may have occurred many years ago in the early history of European settlement in the state;

If only part of the land has been subject to past significant ground disturbance, and the remaining part is still in an area of cultural heritage sensitivity, a CHMP will still be required for the whole development activity;

The burden of proving that the land has been the subject of significant ground disturbance rests with the applicant. The planning decision maker (and, on review, the Tribunal) must feel an actual persuasion of the existence of that fact to its reasonable satisfaction. This should not be derived or produced by inexact proofs or indirect inferences, and little weight should be given to a mere assertion by an applicant or landowner;

In assessing whether significant ground disturbance has occurred, there are four levels of inquiry that might commonly arise, and the assessment should be dealt with at the lowest applicable level. These levels are:

(1) common knowledge,

(2) publicly available records,

(3) further information from the applicant, and

(4) expert advice or opinion;

If the decision maker is not persuaded by the applicant that there has been significant ground disturbance, the ‘default’ position is that a CHMP is required. This accords with the purpose and intent of the Aboriginal Heritage Act 2006;

‘Significant ground disturbance’ is defined in the Regulations. The disturbance must have been caused by machinery in the course of grading, excavating, digging, dredging or deep ripping. Ploughing other than deep ripping is expressly excluded. ‘Deep ripping’ is also a defined term that requires the use of a ripper or subsoil cultivation tool to a depth of 60 cms or more. By reference to these definitions, past ground disturbance caused by conventional ploughing (such as by a disc plough or a rotary hoe) does not constitute significant ground disturbance. Both the depth of ploughing and the type of machinery used are relevant to whether deep ripping (as defined) has occurred.

2 Mainstay Australia Pty Ltd vs Mornington Peninsula SC & Ors VCAT 145 (24 February 2009);

PO Box 2471 Fitzroy BC Victoria 3065 Australia

T (03) 9470-9222 F (03) 9416 1240

www.alassoc.com.au Andrew Long + Associates Pty Ltd

ACN 131 713 409 ABN 86 131 713 409

9

The disturbance of the project area can be readily demonstrated at Level 1, Level 3, and Level 4 of the hierarchy of evidence established following the Mainstay decision. The existing multi-story commercial/ warehouse structures reflect a process of ground preparation including ground clearance and levelling for the establishment of building foundation. Similarly, the bitumen paving across the greater majority of the project area may be associated with a process of extensive surface grading. Given the coverage of these surfaces, it is apparent that ground preparation works account for the entirety of the project area. The size of the project area and timing of these developments (1992), determines that earth-moving machinery was undoubtedly used in this process. The construction of the existing buildings and car parks was preceded by earlier commercial developments in the mid-late 20th century. Historical aerial photography shows an initial process of land development, including early clearance, development, demolitions, and further surface preparation, that accounts for the entire project area (Figures 2-8). The record of prior development clearly establishes a series of works that constitute significant ground disturbance. This is further supported by the existing soil profile of the project area, assessed through geotechnical testing. The results of eight bore-pits within the project area confirmed a highly-modified profile with fill deposits, up to one metre in depth overlaying a truncated natural silty clay. The fill layers comprise mixed clays with bluestone gravels, sands, and organic materials. No evidence of a buried topsoil layer was identified, suggesting that the natural soil profile was graded/ levelled prior to the deposition of fill. This process is evident in aerial photography, which shows graded surfaces cleared of vegetation prior to the construction of the extant buildings (Figure 6). The bore-pit soil profiles and reference map are included in Appendix 1. The evidence provided in this assessment conclusively demonstrates that the project area, in its entirety, has been subject to works constituting significant ground disturbance. These works are associated with two phases of large scale commercial development and are evident in historical records and within the existing soil profile across the subject land.

Do any Exemptions or other Arrangements as outlined in the Aboriginal Heritage Regulations 2007 apply? No exemptions apply. Will a cultural heritage management plan be required for the activity? According to the criteria and definitions listed above, the Aboriginal Heritage Regulations 2007 do not require the proponent to lodge a CHMP as part of an application for approval for the activity. While the project area is located within an area of cultural sensitivity, there is evidence indicating that the property has been subject to significant ground disturbance. As a result, a Cultural Heritage Management Plan is not required.

10

Conclusions and Recommendations As discussed above it is considered that the project area has been subject to significant ground disturbance. This is shown in the existing surface and subsurface characteristics of the project area, the nature and breadth of structures, and the timing of development. Based on the demonstrated occurrence of significant site disturbance, a mandatory CHMP in accordance with section 46 of the Aboriginal Heritage Act 2006 should not be required.

It should be noted that this opinion does not imply that Aboriginal cultural places are not present within the project area, or are not at risk of impact from the proposed activity. It is simply stated that that the Aboriginal Heritage Regulations 2007 do not require a mandatory CHMP in this instance.

Any further measures to ensure compliance with the blanket protection provisions of the Aboriginal Heritage Act 2006 (Sections 27-29) are at the discretion of the proponent of any future development of the land. The minimum reporting requirements may be met by implementing the attached procedure during any ground disturbing works, which is compliant with the provisions of the Act.

This Cultural Heritage Assessment does not constitute a CHMP as defined in Division 1 of the Aboriginal Heritage Act 2006.

PO Box 2471 Fitzroy BC Victoria 3065 Australia

T (03) 9470-9222 F (03) 9416 1240

www.alassoc.com.au Andrew Long + Associates Pty Ltd

ACN 131 713 409 ABN 86 131 713 409

11

Reference List Stain, S. Berry, G. 2016, Preliminary Site investigation: 615 Warrigal Road, Ashwood Victoria 3147.

Legislation Aboriginal Heritage Act 2006 Aboriginal Heritage Regulations 2007 Websites Department of Premier Cabinet, The Aboriginal Cultural Heritage register and Information System (ACHRIS)- Accessed 26-04-2017 https://applications.vic.gov.au/apps/achris/public/ Heritage Victoria Database (HERMES). Accessed 20-04-2017 http://services.land.vic.gov.au/maps/hermes.jsp GeoVic Registered. Accessed 26-04-2017 http://er-info.dpi.vic.gov.au/sd_weave/registered.htm Map Collection, Melbourne 1945 Photo-maps. Accessed 26-04-2017 http://www.lib.unimelb.edu.au/collections/maps/historical/1945melb/ Photomaps by nearmap. Accessed 26-04-2017 http://maps.au.nearmap.com/

12

APPENDIX 1

Preliminary Site Investigation: 615 Warrigal Road, Ashwood

Victoria 3147: Environmental Report

13

14

PO Box 2471 Fitzroy BC Victoria 3065 Australia

T (03) 9470-9222 F (03) 9416 1240

www.alassoc.com.au Andrew Long + Associates Pty Ltd

ACN 131 713 409 ABN 86 131 713 409

15

PO Box 2471 Fitzroy BC Victoria 3065 Australia

T (03) 9470-9222 F (03) 9416 1240

www.alassoc.com.au Andrew Long + Associates Pty Ltd

ACN 131 713 409 ABN 86 131 713 409

17

PO Box 2471 Fitzroy BC Victoria 3065 Australia

T (03) 9470-9222 F (03) 9416 1240

www.alassoc.com.au Andrew Long + Associates Pty Ltd

ACN 131 713 409 ABN 86 131 713 409

19

PO Box 2471 Fitzroy BC Victoria 3065 Australia

T (03) 9470-9222 F (03) 9416 1240

www.alassoc.com.au Andrew Long + Associates Pty Ltd

ACN 131 713 409 ABN 86 131 713 409

21

APPENDIX 2

STATUTORY REGULATIONS

PO Box 2471 Fitzroy BC Victoria 3065 Australia

T (03) 9470-9222 F (03) 9416 1240

www.alassoc.com.au Andrew Long + Associates Pty Ltd

ACN 131 713 409 ABN 86 131 713 409

23

The Aboriginal Heritage Act 2006

It should be noted that new Victorian legislation for Aboriginal heritage protection (the Aboriginal Heritage Act 2006) commenced operation on May 28th 2007.

This act provides blanket protection for all Aboriginal heritage sites, places or items in Victoria.

The main aspects of the Act in relation to the development process are as follows:

• An Aboriginal Heritage Council (AHC) has been appointed by the Minister, Aboriginal Affairs Victoria, made up of 11 Victorian Aboriginal people.

• Aboriginal community groups with traditional interests in cultural heritage are to apply to the AHC for registration as a Registered Aboriginal Party (RAP). RAPs will have the role of endorsing Cultural Heritage Management Plans (CHMP) within a given area of interest. There may be two or more RAPs for an area, provided it does not hinder the operation of the legislation.

• Under Section 48, a developer (‘sponsor’) may be required to submit a CHMP before the issue of a statutory authority by local government or other agency (‘decision maker’). A CHMP must be registered with the Secretary, Victorian Communities (AV), and all relevant RAPs notified in writing. If an RAP does not respond, AV will act in lieu. A CHMP will contain details of research, field evaluation, and consultation and management provisions in regard to the Aboriginal heritage of an area at risk from a development. A Cultural Heritage Advisor must be appointed to assist in the preparation of a CHMP. It is the role of an RAP to approve a CHMP if it meets prescribed standards.

• A CHMP will not be considered approved unless it has been approved by all relevant RAPs.

The regulations accompanying the Act specify when a CHMP will be required by law, and prescribe minimum standards for the preparation of a CHMP (Section 53). The approved form for CHMPs specifies the format in which a CHMP should be prepared by a sponsor in order to comply with the Act and the Regulations, and is an approved form under section 190 of the Act. The regulations have not been finalised to date, but their draft content has not been issued to stakeholders.

Other provisions of the Act include Cultural Heritage Permits (Section 36), as required for other works affecting Aboriginal heritage sites, Cultural Heritage Agreements (Section 68), in respect to land containing an Aboriginal heritage site, Inspectors (Part 11) appointed to enforce the Act, Cultural Heritage Audits (Section 80) to be ordered by the Secretary in relation to compliance with a CHMP and a VCAT appeals procedure.

ABORIGINAL CULTURAL HERITAGE LEGISLATION