BRAG & PLANNING BACKLASH Recommendations for VCAT Review

Recommendations for VCAT Review Submitted
to Justice Bell by  BRAG & PLANNING BACKLASH – meeting 14th July 2009.
These recommendations respond to the invitation of the President of VCAT, the Honourable Justice Kevin Bell, to inform his review of the operations and efficacy of the Tribunal. As previously indicated, our focus is on the Planning & Environment List.
1.      VCAT should be the appeal body monitoring proper implementation of prescribed planning requirements.
If councils provide prescriptive planning regulations and guidelines derived from a properly conducted consultative process, taking account of the Planning Act and approved by the Minister, then the role of VCAT should be to adjudicate whether or not the council has made it’s decision in line with these planning requirements.
If VCAT decides the council is in error then the matter should be referred back to Council for correction.
2.      VCAT should not be a Planning Authority.
Currently VCAT in hearing an appeal considers most propositions as if they were  new applications.
Depending upon the make-up of the Tribunal, it generally has less expertise, fewer resources and far less local experience or knowledge of the area and previous precedents than council.
3.      Therefore, VCAT tribunals should be made up of members with a legal/planning expertise.
Currently VCAT tribunals are generally made up of planners and/or architects (or similar professions but rarely do they have  a legal background).
How can we expect independence from a profession that relies upon the development industry for its income?
If the Tribunal is considering only correct process then a legal background should be the primary requirement for choosing Tribunal members but, depending upon circumstances, some planning experience may be required.
          *This could be decided at the directions hearing.

      4    Legal representation for applicants, councils or objectors.
Currently, applicants engage high priced legal representation which councils and resident objectors are usually unable to match due to their scarce resources. Developers build these costs into their business plan and the cost compared to the likely benefits makes it worthwhile. This makes it an unfair playing field.
Each party should make their own case without representation.
*However, if all parties agree to be represented then this could be decided at the directions hearing.
5    Expert Witnesses
Currently paid expert witnesses are regularly engaged to provide sympathetic argument which often leads to evidence that is finessed to provide a “best case scenario”. Expert witnesses that are called only to provide subjective opinions upon architectural merit or design or compatibility with surrounds, etc should not be allowed. However, expert witnesses providing objective evidence on traffic, geotechnical or other technical issues would be acceptable.
*Again the need for such specialist assistance could be considered at the directions hearing where applicants/objectors should justify technical/legal representation on specialist issues that they cannot address adequately themselves.
       6 Consistency of Decisions.
     Decisions have varied according to the make-upofthe
     Tribunal.  Many decisions seem to be the result of the leanings
     of particular tribunal members and there are considerable
     variations in decisions. We expect members to be
    independent, their own particular leanings should not intrude.
7   Equal weight to M2030 Principle 5.  
Members may make sympathetic comments about amenity, urban design, cultural identity and a sense of place etc. as in Direction 5,  but their decisions are mostly all about development following only the requirements of Direction 1.
8   Applicant to present their case first.
     Currently council and resident objectors are required to make
     their cases first which is against all principles of fairness and
     justice and normal legal practice.  How can objectors  
     reasonably make a case against a proposal that is yet to be
     presented? The only fair way is to reverse the order of
     In some cases Councils may require to go first to argue the
     reasons for their decision to refuse a permit but we believe that
     they should also have the right of reply after the applicant has
     presented their current proposal.
9   No last minute amendments.
This practice has been regularly used to throw objectors off guard and should not be allowed unless the amendments have gone through council first.
   10. Form B’s to be given proper weight.
Objections lodged by residents who are unable to attend, appear to be given little weight, especially if they are ‘pro-forma’ or repetitive. To devalue such objections is a denial of natural justice and leads to unrepresentative decision-making and lack of transparency
   11. Presenters to face both the tribunal and the audience.
Too often those making verbal presentations to the tribunal cannot be heard by the attending audience, mainly because they tend to speak only to the tribunal and have their back to the audience.
Therefore the seating arrangements should allow presenters to face both groups and there should also be an adequate sound system.
        12 Elitism & Bullying.
 Quite often legal representatives speak directly and very
  quietly to the tribunal members in a manner which conveys to
  others that only counsel and the tribunal would understand
 the point they are making. This elitist attitude should be
 Bullying tactics are used by applicants’ legal
 representatives when they take up apermanent  
 position at the table presenting an arrogant and menacing
 stance to overpower resident presenters. Quite often the legal
 representatives are reluctant to provide sufficient space at
  the table for other presenters from opposition parties.
 There is often an impression of getting the resident objectors
 out of the way first and then they can get down to the real
 business. These are additional reasons  for each party to
  make their own case without legal representation. We are not
 aware of any member taking action on these practices.
Submitted by BRAG PO Box 1034 Camberwell 3124
President, Jack Roach tel 9882 2829