Does the LUAA apply to this land? - Dja Dja Wurrung LUAA

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
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 cultural heritage on that land, 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. 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 of the Dja Dja Wurrung agreement area, as shown on the overview map.

Dja Dja Wurrung Land Use Activity Agreement map

Download '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.

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 DJAARA.

If a road was already built before 25 October 2013, then that road is excluded from the LUAA, unless the activity is upgrading the road.
If the road is on a road reserve, then the whole road reserve is excluded (in practice, this typically means "fence to fence”). If not, then the road itself is excluded, along with any land necessary for or incidental to the operation of the road. For example, a drainage ditch alongside the road may also be excluded.
As noted, this exclusion from the LUAA ceases to apply where the activity is upgrading the road.
“Upgrade” is not defined in Schedule 2 of the LUAA, which lists the exclusions. "Upgrades" might include lane widening, rest areas, junction improvements, road realignment or duplication, and adding pedestrian or cyclist facilities. This is one area where considering the purpose and spirit of the LUAA may be important when determining how to interpret it.
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 25 October 2013, 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.)
Note that any public land vested in a local government 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. These facilities are excluded from the LUAA if they existed before 25 October 2013 and are "for organised sporting activities". They will also be excluded if they were validly constructed under the LUAA since 25 October 2013.
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 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. An adjacent, uncleared area that is occasionally used for informal recreation may not be.
What kind of existing infrastructure?
The word ‘infrastructure’ is broadly defined in the LUAA, including:
- Specified Public Works (i.e. specified in Schedule 2 of the LUAA)
- 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 25 October 2013, or was validly built since then, 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 25 October 2013 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 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 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. But an area that was vacant and unused might still be subject to the LUAA.

Specific parcel exclusions

The LUAA lists parcels of land that are specifically excluded from the LUAA. These were identified for specific purposes at the time of signing the Recognition and Settlement Agreement (2013).

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

The LUAA (Schedule 2) lists one group 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.
A second list was also excluded due to projects 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.

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 may wish to use the template below, or other record-keeping systems appropriate to your organisation. You need not read any further pages in this section.

Land Use Activity Assessment Form

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