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 [2000] 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.