Review of VCAT?

As reported in the media today, Attorney-General Rob Hulls has announced an ‘audit’ of VCAT. The Age Article SOS President Ian Quick on Jon Faine (774, wed 20th Feb) The first thing to note is that the terms of reference for the ‘audit’ seem to be quite narrow (a common trick by this State Government), and won’t include issues such as whether VCAT should oversee council planning processes rather than taking over the role of councils and determining planning applications itself, as it does now. Also note that the ‘audit’ is being conducted by the new head of VCAT (Justice Bell) – typically, reviews are better undertaken by an external independent body (another thing this State Government doesn’t like). That said, from what we have heard so far, we believe that Justice Bell is likely to be a good president of VCAT. However, there are still many issues even within the limited scope of the ‘audit’ that can be addressed, and we urge everyone who has been to VCAT and been unhappy with the process (ie, most people who have ever been party to a VCAT planning hearing) to put in a submission. In the official invitation to participate on the forums you will note that community groups will be heard last (13th October 2008) – probably after everything has been decided! So don’t wait till then, write up a submission and send it in now! Here’s a non-exhaustive list of VCAT processes we would like changed –

  • 1 “Independent” expert witnesses are paid for currently by the proponent of the proposal and not surprisingly, always support the development! It is also quite common for expert witnesses to be senior members of the same planning consultancy hired as the proponent, yet VCAT doesn’t consider this to be an obvious conflict of interest. Some witnesses do not even include the “mandatory statement” at the end of their report.

Solution: VCAT Practice Note 2 states that an expert witness has a paramount duty to assist the Tribunal, not the party retaining the expert. Therefore witnesses should be engaged and paid by VCAT itself and report objectively to the Member(s) presiding. The permit applicant/proponent would request witnesses expert in particular areas and pay a fee to VCAT, which would hire from an authorised pool of professionals. A witness would not be able to have financial ties or other conflicts of interest in relation to other parties associated with the development.

  • 2 Despite its practice note, VCAT regularly allows developers to circulate expert witness reports later than the 2-week/10 business day “minimum”, and occasionally allows substitution of plans later than the required 4-week/20 business days.

Solution: Any expert reports or modified plans used in a hearing must be circulated at least two weeks or four weeks in advance respectively. If not, the hearing must be automatically adjourned with the developer/proponent liable for the administrative costs of VCAT for the extra hearing as well as any costs sought by the other parties due to the delay. These deadlines were established for good reason – some developers were allowing other parties insufficient time to consider new plans or expert evidence. But since such a requirement has been promulgated by VCAT, like any other legal rule it should be enforced with penalties for non-compliance or it will be abused and not be adhered to.

  • 3 Objectors and Councils always have to present their case before the developer and often get no right of reply, despite the proponent being able to hear opposing arguments first and add verbally to their original submissions by addressing the criticisms of the proposal (sometimes with half truths or worse). False representations stand unchallenged unless objectors and Councils can respond to any such new “information”.

Solution: Objectors (and Council) should be guaranteed a minium right of reply.

  • 4 Despite its own practice note, VCAT sometimes grants developers an adjournment or changed hearing date without requiring the developer to go through the normal adjournment process of informing other parties of what is sought and why, and then waiting for their responses before applying to VCAT for the adjournment. This can be a denial of natural justice and a great inconvenience for other parties.

Solution: If a request to change a hearing date is made by any party, all other parties to the case must be notified in advance (as per VCAT Practice Note 1, part 6) and given the opportunity to state their reasons for supporting or opposing the proposed adjournment

  • 5 VCAT members often trivialise clauses in local planning schemes that conflict with urban consolidation, despite these clauses (eg, on local neighbourhood character) having been extensively canvassed with the local community, passed by a state planning panel and approved by the minister as appropriate guidance for that council area.

Solution: VCAT Members need clear direction on how to prioritize competing elements in planning schemes so as to acknowledge local variations in circumstances that have in turn been reflected in incorporated local policies. If a council develops protective local policies in consultation with their communities that are then endorsed by the Minister, these local policies should take priority over default state policy in the limited specific instances where they apply. Otherwise, councils should be told not to waste their time and ratepayers’ money on futile window-dressing exercises which only lull communities into a false sense of security. Policies or rules are useless if not adhered to and enforced.

  • 6 VCAT members occasionally waive compliance with state or national standards (including building standards) dealing with issues such as easement access, exhaust flue clearance distances, parking space sizes, etc, stating that these issues can be dealt with at the building permit stage. However, this can be impossible if the building envelope or dimensions allowed by the planning permit don’t provide sufficient scope. But there is little point in national engineering and safety standards to maintain community amenity if VCAT allows them to be waived for the convenience and profit of developers trying to extract the maximum return from a proposal.

Solution: VCAT should not be able to approve a planning permit where any aspect of the development concerned does not conform to the appropriate safety and amenity standards not only of the Building Regulations but also of the Building Code of Australia and Standards Australia. Section 64(4) P&E Act should be strengthened to read: The responsible authority must not include in a permit or approved plans a condition or any matter which is inconsistent with— (a) the Building Act 1993; or (b) the building regulations under that Act; or (c) a relevant determination of the Building Appeals Board under that Act in respect of the land to which the permit applies; or (d) the Building Code of Australia, or (e) Standards Australia MORE SUBSTANTIAL REFORMS:

  • 7 Lack of consistency in VCAT decisions – this highlights the injustice and inherently flawed nature of the exercise of discretion in planning matters.

Solution: The more easily quantifiable planning controls (eg zone, overlay and Rescode amenity standards) should be made mandatory, removing the ability of either councils or VCAT to vary or ignore them. This will not only improve the consistency of VCAT and Council decisions, it will increase certainty (which all parties desire), reduce the workload of councils and VCAT and thus reduce the time taken for DA assessments – as well as improving planning outcomes and reducing the scope for corruption. This change would only stop or modify the relatively small numbers of proposals that are non-compliant. The only detriment would be less employment for planning consultants and lawyers!

  • 8 Oversight of council processes. Currently and historically, there has been little or no pressure on councils to improve their administration of the processing of planning development applications (or enforcement). Even when Council DA decisions appealed to VCAT are obviously flawed, the strongest action taken is that VCAT may occasionally award costs against a Council if one of the other parties seeks costs. However, Councils just pay the bill – there are no other repercussions such as the initiation of reforms to avoid any recurrence, or demotion or re-training of incompetent staff.

Solution: It is common sense that poor decisions should not only be reversed but also result in improvements to the system to militate against repetition, so Councils are under pressure to improve their operations, which they were supposed to be doing anyway under Best Value legislation. Hence the role of VCAT should be changed so that it assesses Council processes involved in individual DA and enforcement decisions, instead of taking over the role of the Responsible Authority and conducting de novo hearings.