This sort of appeal is very different to an ordinary s82 objectors’ VCAT appeal against a council decision to approve a planning application. Once a planning permit has been issued, an objector who wasn’t notified of the granting of the permit for some reason can only appeal against the permit under s89 of the Planning and Environment Act. Continue reading
From this update: SOS New Year Planning Update – 31 Jan.2014
VCAT makes Hearing CDs available again after SOS lobby effort
VCAT finally reinstated the availability of audio CD’s of hearings last November, at only slightly greater cost. On 26.11.12, VCAT had decided to terminate access to audio records of hearings, allegedly because some confidential legal comments might be picked up on the continuous recording Continue reading
The new VCAT Practice Note on amended plans that comes into effect on July 11 is an improvement but ignores one huge fundamental flaw.
The mere existence of the opportunity to amend plans guarantees that speculative developers will continue to lodge ambit claims with councils They know if there’s too much opposition, they can always scale back plans at the last minute at VCAT to partly meet council and objector concerns.
But if developers just had to stick with their initial plans, it’s highly likely that they’d make the effort to lodge compliant plans at the outset.
Result: quicker, fairer, more efficient, cheaper for taxpayers and ratepayers, more certainty for all parties in the whole planning process – and better planning outcomes! (but no speculative windfall profits for private developers).
SOS has handed a list of requests for reform of VCAT to new Attorney-General Robert Clark at a meeting at the end of January organised by Planning Backlash.
Serious reforms are needed to improve permit application decisions, to increase the certainty and efficiency of the planning system and to reduce the high costs (especially to residents) associated with its current operation. Ambit claims by developers must be minimised by more prescription in planning guidelines, restrictions on amended plans and by introducing VCAT review of council decision-making instead of just merits reviews.
Attached below are:
– SOS SUMMARY OF VCAT REFORM POINTS (1 page)
– SOS DETAILED SUBMISSION (6 pages)
13 March 2010:
The long-awaited VCAT Review Report focuses mainly on operational and administrative issues and makes some very timely and useful recommendations, including more staff and even a new logo! But it has not come to grips with most community complaints about planning issues.
The Report was finally released at the end of February after 3 months on Hulls’ desk. One controversial recommendation is to fast-track major projects (recommendation #70), reflecting the Minister’s desire to minimise red tape by circumventing the planning assessment process. There is no mention of the earlier suggestion that VCAT might establish an ongoing advisory committee of various stakeholders, including community representatives.
But at least it addresses the need for an internal appeals process (#38, #39) and a complaints system (#44). The other main areas of negative feedback that the report responds to are unequal access for minority groups and those outside the metro area, the perception of creeping legalism that has undermined public confidence in the tribunal, and there is more emphasis on dispute resolution.
But there’s little point improving access to VCAT if nothing is done to address its current failings:
– still no requirement that Members must give priority to government-sanctioned local variations to zones and overlays which have been incorporated in planning schemes specifically to modify state policy to reflect local conditions (directly supported by Rescode requirements *see below)
– unfair differential time limits for objectors and developers for lodging appeals
– substitution of amended plans – just the opportunity for this encourages ambit claims. Reducing or removing this process would force developers to submit more accurate and compliant plans at the start of the assessment process (as the more scrupulous applicants do already) instead of allowing taxpayers’ resources to be wasted massaging non-compliant and inadequate plans through the council and VCAT process
– there must be a right of reply for all parties at VCAT hearings since developers speak last and often introduce new and sometimes misleading information after other parties have finished presenting
– no mention of the widely-acknowledged bias of expert witness reports and testimony, despite acknowledgement of the problem by the Vic. Law Reform Commission (which strongly criticised current expert witness procedures in its Civil Justice Review Report 14, March 2008: Chapt.7 www.lawreform.vic.gov.au)
– the widely-acknowledged lack of consistency in VCAT decisions has not been adequately addressed
– disproportionate weight given to Delegate (council) Reports despite the Auditor-General having pointed out in May 2008 that in 78% of council permit assessments, “officer reports did not give adequate consideration to matters specified in the Act, planning scheme, or both” (Victoria’s Planning Framework for Land Use & Development, Victorian Auditor-General’s Office, 7 May 08: www.audit.vic.gov.au/reports__publications/reports_by_year/2008/20080507_land_use_and_devt.aspx)
– VCAT members should be required to uphold compliance with state and national standards (eg for vehicle access)
– VCAT members should be required to maintain access to easements (even if councils have overlooked the inclusion of conditions to that effect in permits)
– VCAT members [and councils] should be required to use more specific wording in permits and conditions (eg, “development MUST accord with the approved plans” instead of “SHOULD GENERALLY accord”) – this is vital for effective enforcement if required later (refer Connors & Anor v Patterson  VCAT 218 (31 January 2000) para.67-69 – www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2000/218.html)
– VCAT members should be required to enforce penalties for non-compliance with VCAT orders and to use its powers under s136 VCAT Act to impose penalties when developers deliberately mislead the tribunal (as councils should similarly be required to use their powers under s48(2) PE Act to impose penalties when developers attempt to obtain a permit by deliberately making false representations or declarations)
Overall, from a planning point of view, the VCAT Review Report focuses too much on bureaucratic and administrative tinkering and not enough on resolving the specific legal issues that bedevil most VCAT hearings.
Save Our Suburbs Committee
You can access the VCAT Review Report at http://www.vcatreview.com.au/presidents-report
* Note on Rescode supporting primacy of local policy:
Zones and overlays include Schedules which may incorporate government-approved local variations that reflect local municipal planning goals (eg, larger backyards under the Residential 1 Zone).
The introduction to Rescode (clauses 54 & 55 in all planning schemes) states unambiguously under “Requirements” that these local variations take priority over state Rescode requirements:
” If the schedule to a zone specifies a requirement of a standard different from a requirement set out in this clause, the requirement in the schedule to the zone applies.”
” If the land is included in a Neighbourhood Character Overlay and a schedule to the overlay specifies a requirement of a standard different from a requirement set out in this clause or a requirement in the schedule to a zone, the requirement in the schedule to the overlay applies.”
” If the land is included in an overlay, other than a Neighbourhood Character Overlay, and a schedule to the overlay specifies a requirement different from a requirement of a standard set out in this clause or a requirement of a standard set out in the schedule to a zone, the requirement in the overlay applies.”
Furthermore, the decision guidelines for consideration of Rescode requirements specify reference only to local policies and the local neighbourhood context – there is no mention of any need to refer to state or urban consolidation policies. Common sense alone suggests that local policies should take priority over general state policy if council strategic planning research has revealed the need to tailor development to local conditions.
This intent of Rescode should have been formalised as a recommendation to Government that VCAT members should be instructed to give incorporated local policies precedence over state policy in the minority of cases where these apply. Otherwise, there is no point in Councils bothering with local variations in their planning schemes.
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.
Malvern East Group member Remy Favre has reviewed written a paper that reviews many of the VCAT decisions of 2005 – in his own words – With the help of my daughter, we reviewed all VCAT Planning List decisions published during the 2005 calendar year that were concerned with medium and high density housing planning applications (1480 relevant decisions ), and grouped outcomes according to Member, and Council, and calculated the number of times developers won, and the number of times Council’s decisions were upheld/reversed/varied. We found that VCAT find in favour of developers 63.1% of the time. We found that Developers are nearly 4 times more likely to get full satisfaction at VCAT than residents. We found that 13 members find in favour of developers more than 70% of the time (record being held by Richard Walter with 91.7% pro-developer outcomes) whilst only 4 Members find in their favour less than 50% of the time, all this within the same legal framework, and with cases than are monotonously similar. We found that decisions by Councils were affirmed only 37.9% of the time. They were reversed 53.1% of the time, and varied 9% of the time. We exposed VCAT’s own spin and how they hide their unquestionable pro-developer bias behind an appearance of being fair and equitable by the selective use of their own statistics. We also found that VCAT members are effectively unaccountable and untouchable. Download his full presentation