The first major question to ask before considering what type of activity is proposed is whether the Land Use Activity Agreement (LUAA) applies to the relevant land.
'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, or to recreation reserves vested in a local council. In these areas, the Aboriginal Heritage Act still protects sites, but DJAARA does not have procedural rights under the LUAA.
Unlike native title, the LUAA does not concern itself with the history of the land, and no tenure history searches are needed. This is one of its streamlining benefits.
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 of the Dja Dja Wurrung agreement area, as shown on the overview map.
Dja Dja Wurrung Land Use Activity Agreement map
For further detail about the boundary, you can:
- download detailed maps(opens in a new window) showing each section of that boundary
- refer to the detailed description, containing specific boundary parcels and location co-ordinates, in Schedule 2 of the LUAA itself
- obtain the GIS data from DEECA to show the LUAA boundary as a layer in your mapping system.
Exclusions from the LUAA
Infrastructure
The LUAA does not apply to land covered by certain kinds of infrastructure on the date the LUAA came into effect (25 October 2013).
Roads
If a road was already built before 25 October 2013, then that road and the whole road reserve (typically, "fence to fence” in practice) is excluded from the LUAA. Any activity can proceed without notifying DJAARA, unless the activity is upgrading the road.
“Upgrade” is not defined in Schedule 2 of the LUAA, which lists the exclusions. Upgrades might therefore include lane widening, rest areas, junction improvements, road realignment or duplication, pedestrian or cyclist facilities. This is one area where considering the purpose and spirit of the LUAA may be important when determining precisely how to implement it.
Schedule 3 of the LUAA prescribes which activities fall into which category (Routine, Advisory, Negotiation).
It distinguishes between:
- “maintenance of grounds, roads and tracks” (Routine)
- “road improvement (from one class to another)” (Advisory)
- “construction of new roads, tracks and bridges where there is no existing footprint” (Negotiation Class B).
Again, these terms are not further defined. In particular, road improvement (from one class to another) will need to be interpreted in light of the purpose and spirit of the LUAA. However, it is clear that road maintenance and repairs are Routine activities.
Councils may also contact the Victorian Government’s Land Justice Unit for further advice, if necessary.
Railways and tramways
The whole reservation is excluded from the LUAA, if it existed before 25 October 2013.
Public recreation facilities for organised sporting activities
These facilities are excluded from the LUAA if they existed before 25 October 2013 and were designed "for organised sporting activities".
The exclusion covers the facilities themselves, together with land that is “necessary or incidental to” the use of the facilities. For example, land needed for parking, or for maintenance access, might be necessary or incidental to the use of sporting facilities. Where the sporting facility is on leased land, all of the leased land is excluded from the LUAA.
Cemeteries and crematorium reserves
The exclusion only applies to that part of the reserve or other public land “that is being utilised as a cemetery or crematorium”. There may be other, unused parts of the land that are subject to the LUAA.
Infrastructure which has the effect of excluding or restricting public access
Infrastructure is broadly defined in the LUAA, and not all infrastructure is excluded.
Infrastructure is excluded from the LUAA if it existed on 25 October 2013, and it excludes or restricts public access:
- permanently or from time to time
- practically or by regulation.
The LUAA also specifies that all "Major Public Works” that existed on 25 October 2013 are infrastructure excluded from the LUAA. For example, educational, health or emergency service facilities, or certain facilities built by Utilities. See What kind of activity is it? for a further explanation of "Major Public Works".
In any of these cases, the land on which the infrastructure is built, along with land that is “necessary or incidental to the operation of the infrastructure”, is excluded from the LUAA. In each case, it is usually a practical question as to what is “necessary or incidental to the use of” the infrastructure.
For example, where a council has a works depot with a shed on public land, the depot is excluded, if it existed at 25 October 2013. If it was fenced around, the fence line would likely 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, would presumably be excluded for that reason, an area that was vacant and unused might come under the LUAA.
If the infrastructure is on leased land as of 25 October 2013, the whole of the leased area is excluded.
Specific parcel exclusions
The LUAA lists a number of parcels of land that are specifically excluded from the LUAA. These were planned for future use at the signing of the Recognition and Settlement Agreement in 2013. Few (if any) of these will be relevant to local government but it is important to check this list for any potential exclusions.
Planned future use (as at March 2013)
A list of parcels that was, at the time of signing the LUAA, intended for use for:
- a residential care facility for children in out-of-home care in Bendigo
- the former Bendigo gaol site
- the new Bendigo hospital
- a parcel in Inglewood that was to be sold to fund a new medical practitioner’s residence.
Projects that were being negotiated under the Native Title Act (if concluded by March 2015)
Several of these negotiations concerned the sale of Crown land, so the land is now excluded as it is not public land. The two other projects listed under this category are:
- a grant of a Lease in relation to Crown Allotments 2037 (P377367) and 2038 (P377368), Parish of Castlemaine
- a grant of a Public Land Authorisation in relation to works at Mt Moliagul, parts of Crown Allotments 55A and 55C, Section 10, Parish of Moliagul.
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