SUBMISSION TO VCAT REVIEW JULY 2009

P L A N N I N G B A C K L A S H
Protecting our liveability today for tomorrow      
      
INTRODUCTION
 
Planning Backlash network of 150  groups across city coast and country are pleased to have the opportunity to be part of a Review of VCAT.   It is no secret that resident groups everywhere are very disillusioned with VCAT.    We feel it is not fair as there appears to be justice for the rich only.      We feel VCAT is just an arm of government to push unwelcome development anywhere developers want to build.     We feel the members are biased and not interested in residents views, but only in the paid professional who are prepared to say anything for their high paying clients.
In the end we all start to feel we are just wasting our time.
In fact we hope that putting in these submissions is not a waste of time too and that there just may be some improvement in the end.    We are, by sad experience very cynical about community consultation and feel it becomes just another box to tick.
 
 SUGGESTIONS FOR MAKING A FAIRER SYSTEM.   
 
1.      VCAT should be an appeal body not a planning authority
 It is excellent to have a body to appeal to if it appears Councils do not 
 follow their own properly instituted Planning Scheme.   VCAT should decide if councils have followed their own rules, if not send it back to council.
 
It is wrong when VCAT become a planning authority and takes this power
away from Councils.   This happens when the applicant brings amended plans at the last minute. In this case they should be sent back to council to consider.       Also, it seems often that VCAT ignore local policy and use their own judgment or only State policy, eg read the words in the recent ruling for Camberwell Railway Station exactly proving this point.
 

2.      More prescription needed in making decisions, so there is more equality in decisions.

Currently, we all know that the outcome of the case depends largely on        which member you get.  There was a study done on this for a year by one of our groups and this has been widely circulated. We all hope to land the fairer members, we know who they are. There is something intrinsically unfair in this, it is a bit like a lottery.  If VCAT were really only an appeal body this would not happen as it would be more clear cut and not up to the bias of the individual members.  
 
3.     M2030 not used fairly.
At hearings we constantly appeal to Principle 5 in M2030, and the rulings invariably give weight to Principle 1 and ignore Principle 5.
This is not as M2030 tries to portray this policy and seems grossly unfair on communities who value their environment..    They both should be given equal weight.   As it is, the residents feel angry and helpless and ignored.
An absolute case book study of this came last week with   the ruling on the Camberwell Railway Station.   It is spelt out perfectly in para 36 “the low scale, low intensity, minimalist option for the site, supported by objectors and which is primarily reflected in the 2008 structure plan, responds to the cultural and heritage significance of the site but in doing so it completely ignores, and in the final analysis conflicts with, the overwhelming direction of State Policy”  So VCAT chooses Principle 1 in M2030 and ignores Principle 5. So they are not using State Policy, just a selected part of it.   Even the Heritage status of the station and the surrounding   residential area are ignored. Just one sentence of dismissal after 6 years of community effort to have the station protected.    No community has been more actively determined to save their area and VCAT wipes them out in one sentence.   QED.     This happens on a regular basis and is not fair or just.    The residents don’t count, we are just an irritating side issue.
No wonder that people who are effected hate M2030 and despise VCAT.
 
4.    Composition of tribunal
There is a feeling that there should be at least 2 members each hearing to try to get some fairness and balance.
Further there is much discussion about what sort of professions are needed.

The consensus seems to be that both a lawyer and a planner are needed.   A lawyer for the legal issues involved and the planner who understands all the rules and regulations.     Other professions are usually looked upon as being        
too subjective   - eg architects.    The important outcome is to make sure that council has followed its own rules, not to make up something new.
 
5.    Order of Presentations
The way this is done at present is grossly unfair to the defense.    It should be like a court of law, those bringing the case go first and those against go second.       Then   both sides should be able to sum up at the end, with defense speaking last.   One wonders how on earth it has happened like it is now, it is so in favour of the developers.  
 
6.   Last minute changes to the plan
This is done consistently and it is unfair.    Change should be sent back to the council for further consideration by council and residents.      We suspect producing last minute new plans is  a deliberate tactic of the developers.   It throws people off balance and puts residents and councils at a disadvantage.
Changes should be considered by council not on the run in VCAT.  
 
7.   Feeling is growing against high priced legal and other  representation at hearings. 
Many councils are at a great disadvantage about the cost of high priced lawyers for hearings.    The developers always have high priced barristers and it is impossible for most councils to match this, even for more affluent councils to keep doing it.    It is simply not a level playing field and there is a feeling of there being justice for the rich. Many councils just give permits instead of refusing because they cannot afford VCAT or they think there is no chance for them to win.   Naturally people on the whole cant afford this type of expense themselves, unless they are a prestigious school with rich old boys able to pay thousands for a barrister.
The fairer way would be for each party to speak for themselves, otherwise it will always be unfair.    
Along the same lines, residents feel angry about the so called expert witnesses, who we call guns for hire.    When you are regularly in VCAT you are aware that you keep seeing the same people and they obviously and inevitably build up a cosy relationship with the members.    
It appears to put the residents at great disadvantage.

These representatives present the most unbelievably convincing picture of whatever unsuitable development they are being paid to promote that day.   This appears very unfair to the residents listening to it.
 It is getting harder for councils to get expert witnesses as the so called expert witnesses would rather have the steady work from developers.    
Naturally at times expert witnesses are necessary for eg when it is an environmental issue, especially along the coast or in bush fire prone areas.
You might say traffic experts are necessary but we have never been aware of them ever saying there was too much traffic even if the subject road is at standstill most of the time.
Having heard many so called heritage experts at VCAT for developers, has taken away any confidence in their credibility.
Architects are too subjective when working for developers and appear to have no appreciation of heritage.  
 
8.     Layout of the hearing rooms
The way the seating is organized makes the residents feel at great disadvantage. A number of factors. First the speakers on the whole sit facing the Members with their backs to the rest. This means the residents can neither see them well nor hear them.    
One part of the solution is to have a speaker system, and at the same time have a section for people with hearing aids. 
The other part of the solution is to have the speaker sit at the end of the table so he can see and be seen by both the Members and the residents, and everyone else sits in the normal seats at not at the table.
The Members would then  have full connection to all those seated without a row of people sitting at the table in front of him.
 
An advantage to this seating arrangement would be to get rid of the bullying which goes on from time to time in VCAT, and unfortunately we have not been aware of Members stopping it.
Because of the current seating, the barristers take up prominent positions along the table with papers spread everywhere and great bags all over the floor, making it difficult often to walk past, and there they stay and often it is difficult for the resident to get to the table and find room for their papers.   They invariably feel like second class citizens treated in this way, often sitting around the corner from the opposing barrister making them feel inferior and unwelcome.    It is very unpleasant. No doubt the barristers would laugh and deny it, but it happens too often to be chance. 
 
9.   Objections lodged by residents
It is very unfair that because an objection is pro-forma it is not taken seriously.  Many people want to object and for many people it is easier for them to sign   something they agree with rather  than writing their own.   They don’t sign unless they agree and should be treated seriously and not brushed aside.   Also because they don’t have time or ability to come to a hearing and speak their objections should carry equal weight and not dismissed.  For some people it is impossible to appear at VCAT because of work pressure or health or age.
 
10.   Developers run to VCAT claiming council out of time.
This may not be something in VCAT’s hands, but it is unfair that the 60 day period often expires before council has made a decision and council gets blamed by the developers and government.     This is usually not councils fault but the developers fault as when they are asked for more information they drag their heels   so that eventually they can run to VCAT and blame council. If council has evidence that it is really the developers fault then VCAT should send them back to council.
Further some of these big applications take more then 60 days and it is this 60 day period that should be changed.   
The fact is that the developers prefer to run to VCAT because they know that they will likely be refused by council so will end up in VCAT anyway so may as well go straight there and experience has taught them they will most likely win at VCAT. In the same way, the residents know through experience, they will most likely lose because of the unfairness of the system.   
 
FINALLY
I would be very happy to debate, discuss, defend these points with Justice Bell at any time.
What has been written here covers what I think after sitting through many VCAT hearings over the last 10 years.  It is also a fair coverage of what most resident groups experience.     There is a great sense of unfairness by residents and no confidence at all in the system.   We go through the motions because there is no other way to go.   Many are so disillusioned they will have nothing more to do with VCAT or even objecting, as we always lose and developers always win.   We see them as the enemy to our way of life and VCAT as their supporters.
We understand full well that it is government policy which you must follow, but we resent when in following government policy you follow only part of M2030 and not the part that promises to protect resident’s interests, hence we have no respect for VCAT, we see you as a tame tool of bad government policy.
We sincerely hope that you will really listen to our recommendations in an effort to improve the standing of VCAT in the Victorian community.
As I said I am willing to discuss anything with you about the points.      
 
Mary Drost OAM
Convenor
PLANNING BACKLASH network of 150 groups across city coast and country 
34 Prospect Hill Road
Camberwell
Tel   9882 4453 0401 834 899
WWW.MARVELLOUSMELBOURNE.ORG