Preliminary Aboriginal Heritage Tests - PAHT

 A plain-English guide for developers, planners and landowners wanting to understand whether their Victorian project requires a Cultural Heritage Management Plan.

If you've been told your project might need a Cultural Heritage Management Plan — but you're not entirely sure whether that's true — there is a formal mechanism under Victorian law designed specifically to resolve that uncertainty. It's called a Preliminary Aboriginal Heritage Test, or PAHT (pronounced "part"), and it may be one of the most underused and least understood tools available to developers navigating the Victorian Aboriginal heritage system.

This article explains what a PAHT is, when to use one, how the process works, what it costs and how long it takes — and critically, when a PAHT is the right tool for your project versus when you should simply proceed directly to a Cultural Heritage Management Plan.

The PAHT offered under the Aboriginal Heritage Act 2006 (the Act) was introduced to give greater clarity as to whether a CHMP is mandatory for an activity. If the PAHT is "certified", statutory exemption for the preparation of a CHMP is provided. 

In plain terms: a PAHT is a targeted assessment — prepared by a registered Heritage Advisor — that tests whether the specific circumstances of your project mean a Cultural Heritage Management Plan (CHMP) is legally required. If the Secretary to the Department of Premier and Cabinet, through First Peoples – State Relations (FPSR), certifies the PAHT as correct, you receive a statutory exemption from preparing a CHMP. That exemption can be submitted alongside your planning permit application as evidence that your heritage obligations have been formally resolved.

The PAHT attempts to remove ambiguity from the process of determining whether a CHMP is required for an activity. Previously, even when there has been some doubt, the relevant council may have accepted a planning application without a CHMP if they were satisfied one wasn't required. This position was usually supported by some form of due diligence assessment by a Heritage Advisor which determined that a CHMP was not required. The due diligence assessment process has been unregulated since 2006, resulting in the production of assessments of varying quality and veracity.

The PAHT is the formalised, regulated alternative to an informal due diligence assessment. Where a due diligence assessment represents the Heritage Advisor's professional opinion, a certified PAHT represents a binding decision by the Secretary — one that carries full statutory weight and provides genuine legal certainty.

The PAHT is established under Sections 49B and 49C of the Aboriginal Heritage Act 2006 and is governed by the Aboriginal Heritage Regulations 2018.

A Preliminary Aboriginal Heritage Test (PAHT) is a targeted assessment to determine whether a Cultural Heritage Management Plan (CHMP) is required to be prepared and approved prior to a planning permit or statutory authorisation being issued. Most often, PAHTs target the area of mapped cultural heritage sensitivity within the activity area to determine whether it has been subject to 'significant ground disturbance', as defined by the Aboriginal Heritage Regulations 2018. A PAHT can also be used to determine if a specific activity is a 'high impact activity'.

There are two main scenarios in which a PAHT is the right tool for your project:

The most common use of a PAHT is to establish that Significant Ground Disturbance (SGD) has already occurred across the mapped area of cultural heritage sensitivity within your activity area — and that, as a result, no CHMP is required.

Under the Aboriginal Heritage Regulations 2018, Significant Ground Disturbance is defined as disturbance of the topsoil or surface rock layer of the ground or a waterway by machinery in the course of grading, excavating, digging, dredging, or deep ripping (but does not include ploughing other than deep ripping). The principle is straightforward: if machinery has already thoroughly disturbed the ground in the culturally sensitive part of your site, the archaeological record that heritage legislation is designed to protect is likely to have already been destroyed. A CHMP — which is designed to assess and manage that record before disturbance occurs — would therefore serve no protective purpose.

If the entire area of mapped cultural heritage sensitivity that falls within an activity area has been subject to 'significant ground disturbance' as defined by the Aboriginal Heritage Regulations 2018, a mandatory CHMP is not required to be prepared and approved.

The critical word is entire. If even a portion of the mapped sensitive area within your activity area has not been subject to SGD, a PAHT cannot be certified on those grounds and a CHMP will be required for the undisturbed portions.

What constitutes evidence of Significant Ground Disturbance?

The burden of proof rests with the Sponsor — the person proposing the activity. The four levels of evidence that can be used to establish SGD, in roughly ascending order of persuasiveness, are:

• Historical aerial photography — showing past earthmoving, construction or other mechanical disturbance across the site
• Geotechnical reports — borehole logs and penetrometer data demonstrating that soils have been mechanically disturbed to a depth consistent with SGD
• Historical maps, planning permits and engineering drawings — documenting past construction, subdivision or civil works
• Expert opinion from a Heritage Advisor — based on field inspection of site conditions

In most cases, a field inspection alone is insufficient to establish SGD to the standard required for PAHT certification. The best evidence is typically a combination of historical aerial photographs and geotechnical data. A Heritage Advisor will advise on what evidence is available and how strong your SGD case is likely to be before you commit to preparing a PAHT.

A PAHT can also be used where there is genuine uncertainty about whether the proposed activity meets the definition of a high impact activity under the Aboriginal Heritage Regulations 2018. If the activity is not a high impact activity, no CHMP is required — regardless of whether the land is in an area of cultural heritage sensitivity.

One recent example was to seek certification on whether an activity was a high impact activity. Opinions were divided, so the question was put to the "test". While the outcome determined it was not a high impact activity, there were still grounds to believe that Aboriginal heritage may be impacted by the activity. As a result, the PAHT was refused and therefore, the best practice for management of potential heritage was the preparation of a voluntary CHMP.

This illustrates an important point: a PAHT is not simply a rubber stamp. The Secretary evaluates the PAHT on its merits and can refuse certification even where technical arguments exist. If the PAHT is refused, the Sponsor is no worse off legally — but the cost of preparing the PAHT will have been incurred, and a CHMP will still need to be prepared.

If it is clear that a CHMP is not required, there is no need to prepare a PAHT.

If a desktop review or preliminary due diligence assessment makes it straightforwardly clear that either the activity is not a high impact activity, or the land is not in an area of cultural heritage sensitivity, no PAHT is needed. Spending money on a PAHT in this situation is unnecessary.

Equally, if it is clear that a CHMP is required — the land is sensitive, the activity is high impact, and there is no credible SGD argument — proceeding directly to a CHMP is almost always more efficient than first testing that conclusion through a PAHT, which will simply be refused, adding cost and delay.

A PAHT is most valuable in the grey zone: where there is a genuine, defensible argument that a CHMP is not required, but where that argument requires formal certification to provide the legal certainty needed to support a planning permit or other statutory authorisation.

Your Heritage Advisor is best placed to advise whether your project falls into this zone. A reputable Heritage Advisor will not recommend a PAHT unless they are genuinely confident of a positive outcome.

The preparation of a PAHT is voluntary. A responsible authority (such as a Local Government Authority) cannot require a PAHT to be prepared before a statutory authorisation is issued for a proposed activity.

However, in practice, many councils will request a PAHT — or some other form of formal heritage assessment — before they will accept a planning application where there is uncertainty about CHMP obligations. A certified PAHT is the cleanest and most legally certain way to satisfy this request.

It is also worth noting that the Victorian Aboriginal Heritage Council has proposed legislative reforms that would make PAHTs mandatory for all building and construction-related planning applications that do not otherwise trigger a CHMP. While this reform had not been enacted at the time of writing, it signals the direction of likely future change and underscores the growing regulatory importance of the PAHT process.

The PAHT process moves through the following steps:

Step 1 — Preliminary assessment by a Heritage Advisor

Your Heritage Advisor will conduct a preliminary desktop review to assess the likelihood that a PAHT can be certified. This involves a search of the Victorian Aboriginal Heritage Register (VAHR) and Aboriginal Cultural Heritage Register and Information System (ACHRIS), a review of historical aerial photography, an assessment of mapped cultural heritage sensitivity across the activity area, and a review of any geotechnical or land use history information available for the site.

If the Heritage Advisor considers that a credible case for PAHT certification exists, they will advise you to proceed with preparing the formal PAHT document.

Step 2 — Ground inspection or formal survey (if required)

A PAHT must include the information necessary to establish whether a CHMP is required for a proposed activity — including a brief background assessment of the proposed activity area, including a search of the Victorian Aboriginal Heritage Register.

Where the SGD argument requires field evidence, a ground inspection of the activity area will be conducted by the Heritage Advisor to observe and document the degree of physical disturbance visible on the surface and in exposed profiles. In some cases, a formal survey in consultation with the relevant Registered Aboriginal Party (RAP) may be required — particularly where Aboriginal cultural heritage is identified during the ground inspection.

Step 3 — PAHT document preparation

The Heritage Advisor prepares the formal PAHT document. The information required to be compiled and submitted for a PAHT includes: the name of the person proposing the activity; the names of the persons involved in the preparation of the test, including the ground inspection (if any); a detailed description of the proposed activity area, including a map; a statement detailing the previous land use; a background assessment including the results of the Register search; details of the geographic region, landforms and geomorphology; and, if a survey is undertaken, the results of that survey.

Step 4 — Submission and payment

A PAHT submitted to the Secretary for certification must be accompanied by the fee prescribed in the Regulations. This is a statutory government fee, separate from your Heritage Advisor's professional fees. The fee is scaled to the size of the activity area.

Step 5 — Evaluation by First Peoples – State Relations

The Secretary must decide whether to certify the PAHT as correct within a 21-day evaluation period. During this period, the Secretary assesses whether the information provided sufficiently demonstrates that a CHMP is not required. If additional information is requested by FPSR and not provided within the timeframe given, the PAHT application may lapse.

Step 6 — Certification or refusal

If the Secretary finds that the supporting information in the PAHT sufficiently demonstrates that a CHMP is not required, the PAHT will be certified. Certification of a PAHT provides a statutory exemption from preparing a CHMP and can be included with permit applications. Refusal of a PAHT does not provide exemption and a CHMP must be prepared for the proposed activity.

If the PAHT is refused, you are in the same legal position as before you prepared it — except you have spent the cost of the PAHT and any associated time. A CHMP will still be required.

As a voluntary process there is no appeal provision — neither to the Secretary nor to VCAT. Should a PAHT be refused, the decision cannot be challenged through a formal appeals process. However, a further PAHT application can be made, typically where additional or stronger evidence of Significant Ground Disturbance has been obtained since the first application — for example, new geotechnical data or historical aerial photography not available at the time of the original submission.

This underscores the importance of only proceeding with a PAHT when your Heritage Advisor has assessed the evidence and is genuinely confident of certification. A PAHT should never be used as a speculative attempt to avoid a CHMP that is clearly required.

PAHT costs are significantly lower than CHMP costs, reflecting the more targeted nature of the assessment. Total costs typically fall in the range of $3,000–$12,000, depending on:

• The size of the activity area
• Whether a ground inspection or formal survey is required
• The volume of historical research and documentary evidence required to establish the SGD case
• The complexity of the geomorphological or land use history of the site

This includes the Heritage Advisor's professional fees for preparing the PAHT document, plus the statutory government fee payable to FPSR at the time of submission. If geotechnical reports or specialist geomorphological assessments are required as supporting evidence, these will be additional costs.

The cost of a PAHT should be weighed against the cost of a CHMP. If a PAHT is successfully certified, the saving is typically $15,000 to $100,000 or more — making the PAHT cost-effective wherever there is a genuine, well-evidenced SGD argument.

A PAHT is usually able to be completed and submitted to FPSR within four weeks. A period of 21 days is required for the certification period.

This means a realistic total timeline from engaging a Heritage Advisor to receiving a certified PAHT decision is approximately 6–10 weeks — significantly faster than even a desktop-only CHMP. For developers with tight planning permit timelines, this speed advantage is one of the PAHT's most important practical benefits.