BRAG Submission to VCAT Review

V C A T      victorian civil & administrativetribunal
P R E S I D E N T’ S   R E V I E W
“The role of VCAT in a changing world
 A Submission from them Boroondara Residents’ Action Group (BRAG)
                         PO Box 1034 Camberwell 3124  
                                    www.brag.asn.au
                                    info@brag.asn.au
                                     tel. 03 9882 2829 
 
 BRAG is registered under the Associations Incorporation Act 1981 No A0054624J
 
Table of Contents
  • Executive Summary……………………………………………………………….3
  • Introduction……………………………………………………………………………4
  • Access Issues…………………………………………………………………………5
  • Operational issues………………………………………………………………….6
  • Legal Representation & Expert Witnesses………………………………7
  • The Role of VCAT……………………………………………………………………7
  • The Role of Government…………………………………………………………8
  • Recommendations…………………………………………………………………9
  • Appendix(extract from Miles Lewis’ The Citizens Perspective)..10
 
Executive Summary
Note:  This submission concentrates upon VCAT’s role on planning issues only.
 
There should be separation between the planning process and the appeal process.
 
If VCAT is the appeal body then it should not be making planning decisions.
The make up of Tribunal members is queried with a recommendation that members should have a legal background rather than a planning or architectural background . Planners adjudicating upon planning results in professionally biased decisions.
 
As well as raising the issue of legal representation, the use of professional “expert witnesses”is questioned and we point out that there is a strong argument for parties to make their own case without representation or using expert witnesses.
 
The role of VCAT should be a court of appeal adjudicating upon whether or not the proposal is in line with council and planning regulations .
Professor Miles Lewis in the attached “The Citizens Perspective”   makes a similar argument which also tends to support BRAG’s argument for members having a legal background rather than a planning background.
 
BRAG is concerned at the percentage of decisions which favour developers (overturning council decisions) compared with those that favour councils and resident objectors and believes that Form B’s lodged in bulk or raising similar issues are not given sufficient weight.
 
The order pf presentation is queried with a recommendation that the applicant/s should logically present their proposal first.
 
 Generally this submission expresses concern at the independence of VCAT with it being forced to rely on the Planning Act, M2030, etc.  rather than making decisions on fairness and justice.
 
Presenters should face both the tribunal and the audience so they can be better heard. Also the use of a satisfactory sound system is recommended.
 
BRAG has listed its recommendations on page 8 .
 
Introduction
 
This submission is from the Boroondara Residents’ Action Group (BRAG) which was formed in 2004 after a  large public meeting of residents protesting against a particular unacceptable government development proposal.
 
BRAG has since broadened its activities to cover   general planning issues and has an increasing number of members, currently over 500, mainly drawn from residents and small business in the Camberwell/Hawthorn districts with a good representation from the broader Boroondara area This makes BRAG one of the more significant community groups in Victoria.
 
As a result BRAG has appeared before the Tribunal on many occasions on behalf of residents arguing against unacceptable development proposals.  However, we are not familiar with other aspects of VCAT.
 
 
Therefore this submission concentrates upon VCAT guidelines and performance in relation to planning issues only.
 
BRAG has strong views on the Government’s planning policies including Melbourne 2030 and Melbourne@5million which we believe are being used to justify particular developments rather than regarding the impact of development in relation to the broader objectives in M2030 of design, amenity and space.
Also we are strongly of the opinion that VCAT is being forced to make decisions that follow this same path.
 
Access Issues
BRAG does not have too many issues with access to VCAT but we do question the fairness of decisions which we base upon the number of decisions which have favoured  the developer.
 
In the case of Boroondara  the percentage of decisions favouring large developments runs at around 70% and it has to be said that Melbourne’s resident community generally do not see that the process is fair. They see the process as providing advantage to developer applicants.
 
Over the last four years, the percentage of VCAT decisions favouring  large development proposals in Boroondara have been 100% to the developer and 0% to council and residents.
 
In answer to the question asked in the discussion paper, “is decision-making at VCAT reasonably consistent?” We have to say yes it is consistent in providing comfort to the development industry but it does not seem to provide the same degree of comfort to  councils or resident objectors.
 
We say that VCAT must place more weight upon the resident community’s views especially in the case of large developments that substantially change the lifestyle and amenity of that resident community.
Development that provides negative impact upon the community, even if it complies with M2030 or M@5million, should not be given approval.
 
Another major concern is that objection Form B’s lodged by objectors who are not able to appear at the hearing are given little or no weight.
Form B’s that are obviously organized and lodged in bulk (pro-forma style) are also given little weight.
 
We have heard criticism of pro-forma objections which we say is not relevant. The fact that some objections are pro-forma or raise similar issues is not a valid reason to disregard them.
To say they add significantly to processing costs of planning authorities is a specious argument. It is generally very difficult to engage the community in planning or development issues even when their own interests as community stakeholders are affected.
 
To devalue or discount objections from those who do get involved is a denial of natural justice and  inevitably leads to unrepresentative decision-making and lack of transparency.
 
Operational Issues
This section of the discussion paper asks several critical questions about
 VCAT transparency, fairness and flexibility as well as being too legalistic and
 how can it be improved?
 
BRAG members have raised the issue of developers being represented by senior barristers forcing councils to follow but the costs preclude community objectors from being able to be represented. This is not a level playing field placing the resident community at a major disadvantage.
 
There is a strong argument for all parties to make their own cases without legal representation. This would be much fairer to all and would save much valuable time in reaching a decision. BRAG favours this course.
 
Also we query the disadvantage in the format of hearings requiring objecting councils and residents to present their case prior to the applicant making their presentation. This allows the applicant to pick up on points raised by the objectors who do not have the right of reply except by cross examination of “expert witnesses” which is very difficult for inexperienced objectors.
 
This order of presentation defies logic,  it is normal and sensible for the applicant to present their proposal and for those who have concerns with it to follow.
 
Another concern is the practice of amended plans being produced at the beginning of a hearing. BRAG is firmly of the opinion that amendments must be considered by council first which in turn gives resident objectors time to review the amendments before having to make their case at VCAT.
 
It should be noted that in most situations, resident objectors are forced to hear evidence with the barrister, expert witnesses or presenters speaking with their back to the audience making it difficult for those behind to hear what is being said. It is often the case that some barristers deliberately try to exclude the audience sitting behind from hearing what is being said.
 
Although the Chairman, when asked, will request those giving evidence to speak up, as the hearing proceeds the voice volumes drop again. It is therefore necessary that an adequate sound system should be provided to ensure all can hear and that those speaking should be positioned to face both the Tribunal members and the audience.
 
It is our experience that, although the tribunal gives resident objectors a reasonable hearing,  it seems as though resident objectors’ submissions are given less weight than those made by legal representatives. It also seems as though resident presenters are often heard early in the proceedings to get them out of the way before the “real” proceedings start. Sometimes they are required to make their submissions as fill-ins between other presentations, which indicates the degree at which they are “valued”. The whole process is much too legalistic and we repeat that legal representation places the resident objectors at a major disadvantage.
 
Legal Representation & Expert Witnesses
 
Because developer applicants engage high priced legal representation,
Councils are having to spend more and more of their precious funds on legal representation to try and gain a reasonably level playing field so some defer making decisions and leave it to VCAT. This is an abdication of their responsibility but it is understandable in view of their slim chances of winning a favourable decision.
 
Councils often have difficulty in persuading some barristers to act for them as these barristers are concerned that, to do so, may affect their future business with the development industry.
 
This reinforces the position we have taken on legal representation and also raises questions on the use of expert witnesses.
 
Our experience is that many “expert witnesses” are commonly chosen to provide a sympathetic argument but it is very apparent that some finesse their evidence to suit the occasion and really just prostitute themselves for a few pieces of silver.
 
Councils are increasingly finding it more difficult to persuade expert witnesses to appear for them as many potential witnesses are concerned that their opportunity to appear on behalf of the development industry applicants in the future will be affected adversely.
 
This is ludicrous as it benefits the development industry and those who spend the most to gain weight of evidence. Again inexperience of residents and community objectors in cross examination places them at a major disadvantage and allows those witnesses who finesse their evidence to suit the occasion to get away with it.
If VCAT’s role was to adjudicate upon whether or not the council decision was in line with prescribed planning policy, then the need for legal representation and expert witnesses may be very different or, we say, should not be required at all.
 
The Role of VCAT 
 
There should be separation between the planning process and the appeal process. If VCAT is the appeal body it should not be making planning decisions or issuing permits.
 
Currently VCAT acts as a de-facto planning authority which over-rides council decisions properly arrived at. It is unelected and unaccountable making it just another layer of decision making without appeal.
 
If councils properly provide prescriptive guidelines for development in their area, democratically arrived at through a consultative process and based upon the State’s planning objectives,  then we say the only role for VCAT should be to adjudicate on whether or not the council has made a proper decision in line with  regulations.
We firmly believe that VCAT should not be overturning properly informed and properly arrived at council decisions.
If VCAT finds the council or local authority has erred then it should refer the matter back  for immediately rectification rather than hearing the matter again as if it was a new application.
 
However, in view of the increasing intervention by Government on planning matters for political purposes, we believe it will be necessary for the appeal body to also adjudicate upon the fairness or justice of the matter under consideration.
 
These are probably the  most important issues raised by resident and community groups and we see that it is essential these criticisms are taken very seriously.
 
We believe that the panel members of such an appeal body should be carefully selected legal practitioners; not planners, architects, etc or those who derive their income from the planning, building and construction industry. To have planners adjudicating on planners and developers results in too much professional introspection and tunnel vision and does not provide the essence of true justice.
 
Refer also to attached appendix – Prof. Miles Lewis’ “ The Citizen’s  Perspective”
In which Miles makes a similar argument
 
The Role of Government
 It is increasingly apparent that the government is taking over more and more of the planning decision-making process ( M2030, M@5million, DAC’s, New Residential Zones, changes to the Planning Act and increasing the Planning Minister’s powers). It is therefore essential that there be a court of appeal that is available to the community which is not answerable to the Government for its decisions.
 
VCAT as it is currently set up is not that court of appeal. It is just another arm of government subject to making decisions in line with the Planning Act, M2030, M@5million, etc. irrespective of the rights or justice  of a particular case or how the development proposal will impact upon the lifestyle or amenity of the community.
 
We have noted that VCAT often ignores how the proposal will overload the local infrastructure, hand passing the solution of the overload to the particular authority or council or leave it to the local community to handle the resultant detrimental issues  as best they can.
 
We also point out that Melbourne 2030 and even Melbourne@5million have virtually been superseded by recent government announcements which are aimed at boosting employment through fast tracking development projects.
 
This is planning on the run and the need for a truly independent appeal mechanism is now critical to provide real justice for the general community.
 
Recommendations
  • Planning Tribunals to be made up of legal practitioners not planners adjudicating on planners or developers.
  • Independence has to be guaranteed and seen to be clearly independent of the government as well as the planning and building & construction  industry.
  • Tribunal to only consider whether or not the council decision has been properly arrived at in line with  prescribed regulations and guidelines.
  • No legal representation for either appellants or objectors.
  • No “expert” witnesses.
  • No last minute proposal amendments.
  • All objections (form B’s) whether they be pro-forma, lodged in bulk. or individually must be included and given full weight in considerations.
  • Presenters to face both members and audience.
  • Adequate amplification so all can hear.
Note: We have included as an appendix an extract from Professor Miles Lewis’
 ( University of Melb. Faculty of Arch. Building & Planning) “The Citzen’s Perspective”,  which covers just how the whole planning system is biased against the citizen, including criticism of VCAT.
 
Miles Lewis is a former member of VCAT and we agree with most of the points Miles Lewis raises.
 
Thank you for the opportunity to have input into your considerations.
Jack Roach
President, Boroondara Residents’ Action Group (BRAG).
                                                                                           (Appendix 1)
AN EXTRACT FROM “THE CITIZEN'S PERSPECTIVE”
                        By Prof. Miles Lewis
    
     University of Melbourne, Faculty of Architecture, Building &
                    Planning and former Member of VCAT
 
The citizen's perspective is simple. The planning system is seen as biased against the citizen. And this perception is correct.
 
It is biased because:
 
·       All government bodies assume that growth is desirable and/or inevitable, whereas citizens mainly want to defend the status quo.
 
·       All planners assume that the role of planning is to manage and generally to facilitate development.
 
·       Local governments assume that they should plan for their future inhabitants, not their present constituents.
 
·       VCAT thinks it should develop planning policy, rather than oversee its correct application.
 
·       The whole system is complex and expensive, and favours professionals at the expense of the ordinary citizen.
 
Unbridled growth
 
Despite the publication decades ago of the Club of Rome's Limits to Growth report,[1] the general assumption is that continued growth is desirable and inevitable. It is not.
 
What is achieved if we drink our own urine and save 20% of water consumption, but the population of Melbourne increases 20%? We end up drinking piss, but just as short of water as we were before. 
 
The State Government has completely ignored its responsibility to plan for population – that is to limit population growth where necessary, or to redirect population to areas which are better resources to absorb it. The concept of decentralisation, which was seriously attempted after World War II, has been forgotten.
 
In the end, at some point, growth must stop. We have the choice of waiting for this to happen because of some complete environmental breakdown, or of planning for it to stop at a size and a time of our own choosing.
 
Is Los Angeles a better city than Melbourne because of its unbridled sprawl? Is Paris a worse city than Los Angeles because there are height limits over the whole central area? Why shouldn't we follow the Paris model rather than the Los Angeles one?
 
We should choose what growth we want and where, depending upon where the resources are.
 
Facilitating development.
 
Despite the assumptions of planners, the role of planning is not – or ought not to be - to facilitate development. In the developmental phases of the town planning profession, say about 1905 to 1955, it was a rather socialist activity, concerned with the just allocation of resources. 
 
That has been forgotten in an age of economic rationalism and unbridled greed. But even today the first two clauses of the Charter for Planning,[2] a document of which you are probably quite unaware, give primacy the general good of the community.
 
1. PLANNING GOALS
 
1.1 Efficiency
Planning policy must seek efficiency, in the sense of returning the greatest possible good to the community, to the extent that this may be consistent with ecological sustainability and other agreed objectives.
 
1.2 Social equity
Planning policy must aim to give all members of the community equal access to benefits and facilities, to the extent that this is practicable and consistent with their own desires and capacities.
 
1.3 Ecological sustainability
Ecological sustainability must be a primary criterion for the establishment of planning policy.
 
1.4 Quality of life
Planning policy must aim to provide quality of life through social interaction, variety of experience, cultural depth and aesthetic satisfaction.
 
1.5 Amenity
Planning policy must aim to maximise the amenity enjoyed by the relevant property owners and occupiers, neighbours, and the community at large.
 
1.6 Conservation of nature
Planning policy must protect natural assets including parkland, rural land, coasts, creeks, rivers, wetlands, flora and fauna.
 
1.7 Conservation of cultural significance
Planning policy must ensure the conservation of the cultural significance of all places.
 
1.8 Quality of design
Planning policy must foster good landscape, urban and architectural design.
 
You can see that the Charter for Planning sets out not only basic principles of planning, but an ethical approach to the practice of planning. Nothing of the sort is taught in planning courses, and you should therefore be wary of both the motives and the assumptions of professional planners.
 
The received wisdom of planners, though it is never clearly stated, is pro-development. And whatever battle we win at a federal, state or local government level, it creeps back in because the permanent planning staff are imbued with it.  They don't even realise that they are adopting an extreme position, but in a Yes Minister way they impose it upon their political masters and upon us all.
 
NIMBYISM
 
Nimbyism has become the most asinine cheap shot in the town planning debate. If I don't want something in my back yard I am perfectly entitled to says so, and I should not be accused of selfishness.
 
If I see a burglar climbing across my back fence, and I ring the police, I am doing my duty by to the community as a whole. If I kill a venomous snake on my back lawn I am not only protecting my family, but performing a public service. And if I oppose some inappropriate development I am acting in just the same way.
 
So before you call me a nimby, ask yourself just how should I react, and how would the community benefit if I did not, and crappy developments were able to proceed unopposed?
 
Most of all, why should I not call upon my local council for protection?   My Council is elected by me to serve me: not the developer, not the town planning profession, and not the Minister for Planning.

The onus on local government.
 
I am also saying that local government should not attempt to represent the interests of some hypothetical group of future residents. It should represent its present residents and ratepayers.
 
But it must also obey the law, which includes the planning directives of the state government. So far as there is need to consider wider public policy goals, those state government directives should incorporate them. The state government has the power to say whether the population should be increased, whether there should be an activity centre, and whether there should be more flats. 
 
Local government's role should decide how to achieve those things, having regard to the best interests of its constituents.
 
But it is not the role of local government to engage in social engineering outside and beyond the state's policies. 
 
And it is not the role of local government to act on behalf of people or developers who are not at present in the municipality but would like to be.
 
Planning appeals
 
VCAT makes much of the statistics which show how many cases are won by the applicant and how many by the objectors, but that is completely misleading.
 
It is commonly in the developer's interest to launch an appeal even if the planning decision has been perfectly reasonable, and if chance of success is quite small. Developers are familiar with the law, have tame consultants to help them, and have nothing to lose and much to gain in an appeal. It is worth spending $10,000 if there's a chance of gaining $100,000. The costs are factored into their profit calculations. Therefore most appeals by developers are speculative gambles, and in a just world most would fail. But they don't.
 
Residents are inexperienced, shy of the law, and slow to raise the funds for a planning appeal. They only act when they are really desperate, and their case is usually just. One would think that they should generally win. But they don't.
 
Add into this the fact that VCAT will defer hearings to suit the developer, without considering the convenience of residents, will permit changes to the application which residents cannot immediately understand, or afford to have professionally assessed, and will make arbitrary decisions dependent upon the use of planting, paint colours and trellises, which are not permanent in effect. You can understand why the citizen feels totally disempowered.
 
Most appeals should not be heard at all. Development should accord with council requirements, and council decisions should be challenged only where they are illegal, unjust, or inconsistent with council's own planning policies.   The saving in time, cost and angst would be enormous

VCAT
 
VCAT is the biggest problem on the planning scene. It surely is self-evident that there ought to be a complete separation between the planning process and the appeal system. The appeal system should be there for one purpose only - to ensure that planning is carried into effect legally and justly.
 
If VCAT is to be the appeal body, it should not be making planning decisions.   In fact it has neither the expertise nor the resources to act as a planning body.
 
For example, VCAT is supposed to have regard for state planning objectives. Why? Those objectives have already been considered in establishing council planning schemes. They should not have to be considered again. 
 
It would be far more just and far simpler if VCAT saw its role simply as to monitor the proper implementation of the council planning scheme.
 
Moreover VCAT, in hearing an appeal, considers the matter afresh, as if it were a new application. That in itself is fine. But it ignores local precedents. If the council has previously granted certain sorts of permit and refused others it will, or should, take those precedents into account in considering a new application. VCAT should do the same. But it does not do so, and therefore planning at a local level becomes less predictable, less fair, and less consistent.  
 
The simple fact is that VCAT (depending to some extent upon the individual hearing the case), has less expertise, fewer resources, and far less local experience than the council planning department. VCAT should not be overturning the informed decisions of the local authority.  
 
VCAT's role should be confined to considering cases where the council is alleged to have acted illegally or inconsistently in terms of its own planning parameters.   And where VCAT finds that the council has acted wrongly it should refer the matter back to the council to rectify – quickly – rather than make ad hoc decisions itself.
 
All this requires changes to the law, but it also goes to explain why the citizen feels disempowered and may well blame the council for his or her problems.
 
Conclusion
 
This has been a plea for reason, simplicity and consistency. And mainly it is a plea for three things:
 
·       that Melbourne 2030 be implemented properly
 
·       that VCAT powers be trimmed drastically
 
·       that resident groups adopt a coherent policy rather than engage in knee-jerk opposition.

 

 Note: a section relating to “Melbourne 2030”
has not been included partly because it is not relevant to this submission and partly due to the later introduction of Melbourne@5million and more recent changes to the government’s planning strategies. 
 

[1]           D H Meadows et al, The Limits to growth: a report for the Club of Rome's project on the predicament of mankind (New York 1972).
 
[2]           Town and Country Planning Association, Victoria, A Charter for Planning (Melbourne 1997) ['Revised and adopted by the Committee of the Town and Country Planning Association, 1 September 1997, in accordance with the recommendations of the delegated working group'].