«December 2011 Victorian Planning System Ministerial Advisory Committee Initial Report. Geoff Underwood, Chair. Catherine Heggen, Member. David ...»
While some submissions are complimentary of the independent role that VCAT plays, other submittors take issue with the adversarial environment, the use of legal practitioners and expert witnesses.
Supporters of VCAT, of which there are many, see VCAT as the only truly independent player in the planning process. For example, Ms Lesley Dalziel (Submission No.
162) expresses support for the operation of VCAT:
“The public right to protest and appeal adverse decisions must not be diminished. The appeal process through VCAT seems fair and is trusted by the community. It is important that the Panel is impartial and above corruption, for the community to maintain its trust. I have had only positive experience with and respect for VCAT and the appeal process.” This opinion is replicated by submission of Friends of Mallacoota Incorporated (Submission No. 159) where the right to be heard and seek enforcement
actions by an independent body is emphasised:
“Third Party rights are essential. Over the years our group and individual members have been involved in planning disputes at VCAT.
It is essential that the public have recourse to bodies such as VCAT to challenge planning applications and decisions and have breaches of planning requirements enforced. It is important that this is not dependent on financial resources, and that there is no possibility of having to pay costs if a challenge is lost. The ability of the public to do this must be retained and strengthened.” There is also support for VCAT and its operations put forward by the Local Government sector with the Victorian Local Governance Association stating (Submission No.
“VCAT has its detractors, but its role as a review body more accessible than the court system is an important enabler of democratic participation and good governance in the planning system”.
This view of support for VCAT is echoed in the submission of Towong Shire
Council (Submission No. 119):
“Council favours the retention of a planning tribunal for planning appeals and enforcement matters rather than a shift to a court based process. This will ensure greater access for all parties with less overall cost.” There were contrary views. In the submission of Hobsons Bay City Council (Submission No. 229), probably more relevant to other aspects of the planning system rather than VCAT per se, it is suggested that too many matters are allowed to proceed to VCAT without appropriate levels of scrutiny or
“the degree of access to VCAT by objectors and applicants requires revision with consideration of it being reduced. A review of the responsible authority’s decision at VCAT should not be a ‘second role of the dice’, on a discretionary matter. Local government professionals are in a better position than VCAT members to make decisions on locally based discretionary matters.” The view put forward by Hobsons Bay City Council, is reiterated in the submission of the Municipal Association of Victoria (Submission No. 299), in which it seeks to more clearly define the type of matters VCAT should be
“VCAT should limit scope of consideration to the application (& plans) at the time of council decision and only the issues that are in dispute.” With the average waiting time for a matter to be heard at VCAT being between six and nine months, a number of submittors observe that the system is in need of either further resourcing or reform.
Mr Pin Zheng of Garden City Developments (Submission No. 270) identifies some of the issues encountered by his firm at VCAT and makes recommendations to improve the process, as well as commenting on the level
of involvement VCAT should have in considering applications:
“The VCAT backlog needs to be addressed. Most VCAT cases we have been involved with do not involve legal issues, usually just traffic, design, privacy and building bulk issues. At VCAT it seems that the industry professionals (lawyers, planners, expert witnesses etc) feel compelled to analyse every issue in great detail. We believe this is unnecessary and a waste of resources for everyone involved. In fact Initial Report - December 2011 59 Victorian Planning System Ministerial Advisory Committee we believe the review process could be conducted without hearings in 90% of cases. Perhaps a higher fee could be charged for those parties insisting on a hearing. Providing the ‘reviewer’ is independent of any of the parties involved, then we believe the development industry would embrace permit decision reviews that did not involve mandatory hearings.” Likewise, the Urbis Consulting Group (Submission No. 216), representing
clients in the development sector noted:
“During the program of consultation we undertook prior to preparing this submission, we heard strong and consistent criticism of delays and lack of timely decision making associated with existing VCAT processes.
Many of our clients had experienced high economic costs associated with listing and decision delays. It was also suggested that preliminary hearings could play more of a role in ascertaining main issues of contention, in order to streamline considerations at the full hearing stage.
We also consider that there is a lack of certainty around VCAT timeframes, particularly with the removal of dedicated funding from the Major Cases List. We firmly believe the Major Cases List funding should be re implemented. It allowed a greater degree of clarity around timeframes for significant projects (worth $5M+), by enabling industry to bank on the timing certainty of a 16 week process. Based on the current waiting times, and uncertainty for large developments, the overwhelming majority of our major clients stated that they would support a ‘User pays’ VCAT system, provided that there is certainty around dates and timeframes for this service. We agree that a user pays system, if implemented correctly, could be an excellent alternative to the current VCAT system.
We are also strongly in favour of the retention of mediation services.
The informal and cost effective service the mediation system plays is considered to be a huge asset to the system in terms of dispute resolution. VCAT mediation is an important service that should not be lost.” While both of these submissions highlighted some of the issues associated with VCAT and its associated processes, there is strong support for the retention of VCAT as an independent decision making authority within the planning system provided it is adequately resourced. This point is made clear in the City of
Greater Geelong submission (No. 102):
“VCAT works well but needs better funding to use all members and avoid delays.” Initial Report - December 2011 60 Victorian Planning System Ministerial Advisory Committee The Victorian Planning and Environmental Law Association (Submission No.
541) suggests that the recent piloting of the Major Cases List delivered significant efficiencies to the system. The association would appear to agree with the allocating of additional resources to VCAT to improve efficiency across
the matters the Tribunal deals with:
“The Tribunal serves all of these functions with apparent resource constraints and when one considers the amount of money associated with the disputes come before VCAT; the Association suggests that the Advisory Committee consider whether additional resources should be allocated to VCAT. The Association suggests that if additional resources were given to VCAT, that criticisms associated with delay and the need for lists like Major Cases list would largely be overcome.” The Committee considers that VCAT should be adequately resourced for the work it is required to undertake. However, the better way to relieve the congestion caused by long waiting times at VCAT is to relieve it of as much of its workload as is possible. In this regard, initiatives such as the introduction of a Code Assessment tool and identifying those uses and developments that should not require a planning permit has the potential to reduce the number of applications that are referred to the Tribunal. Similarly, the streaming of planning applications (discussed in Part 10.1.1 of this Report) should also remove part of the current ‘failure to decide’ workload of the Tribunal.
KEY FINDINGS The Role of VCAT
The Committee considers:
The role of an independent umpire is an essential part of the planning system;
VCAT should be adequately resourced to reduce the current waiting time for all matters in the Planning and Environment List; and Action in response to other findings set out in this report (such as the proposal that seeks to stream permit applications) should result in fewer matters being referred to VCAT for determination.
7.6 The Role of Planning Panels Victoria This section focuses on the role of Planning Panels Victoria rather than the planning scheme amendment process, which is dealt with in Part 10.2 of this report.
The role of PPV, the conduct of hearings and the way that PPV go about their tasks were the subject of many favourable submissions.
The Environment Defenders Office (Victoria) summed up the sentiment of
most submissions. It states:
“People generally report a good experience of planning panels (open, consultative, expert based)...”.
Submissions from councils as well as individuals and groups compliment the relatively informal way that hearings are conducted and how comprehensively subject matter is dealt with by panels.
Negative comments are few among the 100 or so submissions that refer to the operation of PPV. The submissions that were critical are largely based on personal circumstances where the outcome was unfavourable to their
position. However, one submittor (Submission No. 371) writes:
“At PPV we were made to feel as interlopers into what presented as an old boys club of planners.”
Submission 21 from another individual makes a similar comment:
“It is difficult for local residents who appear at a planning panel, representing themselves, when the Planning panel Chairperson and the Developers representative seem to know each other extremely well.” The Committee notes that some submissions conveying critical comments do
not develop a line of argument to substantiate the proposition. These include:
Residents 3000 Incorporated (Submission No. 210) argue that panel decisions should not override the responsible authority;
Planning Backlash Inc (Submission No. 427) consider that panels and Planning Committees should be scrapped;
The Eaglemont Neighbourhood Conservation Association Inc. (Submission No. 421) urge the ‘scrapping of undemocratic Panels and planning committees’.
Many municipalities, especially country councils, comment on the cost of panels, saying that costs are too high. Such comments came from Alpine Shire Council, La Trobe City Council, Campaspe Shire Council, Moorabool Shire Council, Mansfield Shire Council and Baw Baw Shire Council. Councils
submitted a number of ways of reducing the costs of panels. They include:
Having hearings ‘on the papers’ (that is, for PPV to consider submissions and report on a case without the need for a hearing with attendances of parties, including expensive advisors and so save);
Requiring parties to focus their submissions, including expert evidence, and to pre circulate material;
Initial Report - December 2011 62 Victorian Planning System Ministerial Advisory Committee The conduct of practice day hearings, through which PPV should identify the key issues to be addressed and direct timelines in which submissions will be received; and Panels to have the right to disregard submissions not based on planning grounds or submissions made for a commercial or vexatious motive.
Moorabool Shire Council states:
“The compulsory requirement to conduct a planning panel, even when the submissions have no planning merit is onerous, time consuming and can be a financial block for the completion of planning scheme amendments. The planning panel process should be streamlined so that Councils have the ability to move through the amendment processes where submissions have no relevance to the Planning and Environment Act 1987 or where there are only a minimal number of submitters. State Government should enable local Councils to pursue planning scheme amendment which have received submissions but are of clear strategic relevance. Moorabool recommends that a process be put in place where a body such as Panels Victoria review the merit of an objection and determine whether a panel is required. Where doubt exists, the Panel should be empowered to dismiss an objection at a directions hearing for instance.” The DLA Piper submission advocates for more a proactive approach from PPV
ahead of a full hearing:
“...Panels taking a stronger role in sorting out issues in the lead up to hearings. Directions hearings are frequently mechanical procedures with no attempt to sort out the issues and force submitters to focus on the key issues. Panels should take a stronger role, if necessary with the Act being changed to make it clear that they have this role.” Engaging PPV early in the amendment process would require legislative change to Part 8 of the Act which regulates the conduct of panels and to those sections of the Act in Part 3 that currently direct the responsibilities and activities of planning authorities.
Submissions noted that some proposed planning scheme amendments ignore previous panel reports and advice. Such instances raise the question whether participants in the planning system take sufficient note of the recommendations of PPV, especially in relation to policy development at the
broad level. On this subject, one submittor (Submission No. 371) states:
“VCAT and Planning Panels Victoria must be required to have regard for relevant precedent.
The fact that decision making at these bodies is so inconsistent as to be a lottery severely diminishes the regard with which they are held.”