By Russell Cocks, Solicitor
First published in the Law Institute Journal
A conveyancer’s perspective
An excellent summary of the operation of the Aboriginal Heritage Act 2006 (Vic) appears in the June 2008 Law Institute Journal at page 52. This column considers the operation of the Act from the point of view of conveyancing and seeks to identify how the Act might impact on conveyancing practice.
The Act imposes limitations on the use of land – something always of interest to a conveyancing practitioner, whether acting for a vendor, purchaser or lender. From the vendor’s point of view – do I have to disclose this limitation? From the purchaser/lender’s point of view – how will this limitation impact on my ability to enjoy/sell the land?
The fundamental purpose of the Act is to require an owner to prepare a Cultural Heritage Management Plan (CHMP) if the owner proposes to undertake any activity on the land that is prescribed by the Aboriginal Heritage Regulations 2007. From a vendor’s point of view, the only ‘activity’ the vendor is undertaking is selling the land. That is not a prescribed activity, so it would appear that there is no direct affect on a vendor. But what of disclosure? Section 32 Sale of Land Act requires a vendor to disclose various facts in relation to land, including zoning, restrictions and notices. The new Act is certainly in the nature of a planning Act. It does impose restrictions and might result in the service of notices.
However s 32 only requires disclosure of things that fit perfectly into the words used in the section. The requirements of the new Act do not impact on the zoning of the land (which arises from the Planning & Environment Act) and the possible restriction on enjoyment is not in the nature of the restriction referred to in s 32 (easement, covenant or other similar restriction). However a notice served under the new Act would most likely require disclosure, although the mere possibility of a notice would not. The potential for service of a notice is in the nature of a quality defect, akin to the possibility of service of a notice in respect to an illegal structure, and this possibility is usually covered by the principle of caveat emptor or ‘let the buyer beware’.
So, what of a purchaser? From the above it will be seen that a purchaser cannot expect a vendor to disclose information pursuant to s 32 in relation to the new Act, unless a notice has been served. Caveat emptor will apply in most situations in relation to the potential for a notice, but if the vendor is engaged in trade and commerce it might be argued that the Trade Practice/Fair Trading Acts might impose an additional positive obligation on the vendor to disclose the possibility of a notice and that silence in this regard might constitute misleading and deceptive conduct. However such an argument would not apply in the sale of a domestic residence and would only be available if the vendor had knowledge of a real possibility of service of a notice and so it may be concluded that it would not apply to require a vendor to make any reference to the new Act in normal circumstances.
A purchaser is therefore left to its own devices in terms of discovery of the impact of the new Act. Essentially the purpose of the Act is to protect Aboriginal Cultural Heritage by requiring the preparation of a CHMP before certain activities are conducted on land. This is not likely to impact on residential purchasers, but may impact on purchasers of broadacres or any person proposing to change the use of land. The website vic.gov.au/aboriginalvictoria/heritage includes an Aboriginal heritage planning tool that includes maps of affected areas and a description of exempt activities (basically low level residential activities). This website also provides access to the Victorian Aboriginal Heritage Register which, whilst not available for on-line searching, may be searched by way of a written application and payment of a fee (presently $33.10). Whilst a purchaser exercising an abundance of caution might add this certificate to the plethora of other certificates available in relation to a purchase of land, it is suggested that most transactions will not require such an inquiry and that a visit to the website and application of the planning tool will generally reveal that the land is not affected.
Mortgagees have a habit of requiring certificates simply because a certificate is available. It is to be hoped that mortgagees will exercise some subjective judgment before requiring these certificates, certainly in relation to domestic transactions at least. In an environment where costs are perpetually under the microscope, it is to be hoped that another unnecessary cost is not imposed on the conveyancing process.
Tip Box
Whilst written for Victoria this article has interest and relevance for practitioners in all states.