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.
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.
For further detail about the boundary, you can:
- refer to the detailed description, containing specific boundary parcels and location co-ordinates, in Schedule 2 of the LUAA itself(opens in a new window)
- obtain the GIS data to show the LUAA boundary as a layer in your mapping system.
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.
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(opens in a new window).
If a road had been built by 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(opens in a new window) (even if it is within a road reserve) or
- Road Works(opens in a new window) (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(opens in a new window) and New Vehicular Road(opens in a new window).
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(opens in a new window)
- 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(opens in a new window) 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.
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.
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.