What’s New at VCAT ?

1. What’s New at VCAT ? Mark Dwyer, VCAT Deputy President VPELA ‘Hot Topics – Key Issues in Planning’

2. What’s New at VCAT ? • Departure of Justice Iain Ross as President • Interim arrangements • Judge John Bowman is acting President • “business as usual”, but in caretaker mode • ‘Transforming VCAT’ roll-out continues • February 2012 : “Taking it to VCAT – Planning” DVD (with VPELA help) • March 2012 : new Practice Notes commenced • April 2012 ? : assisting self-represented parties (VPELA pro bono scheme for Practice Days) • May 2012 : new VCAT website scheduled to go live • Some new full-time and sessional members in Planning List, plus a new Deputy Registrar (Planning) position

3. Hot Topics in this presentation • New Practice Notes – consistent procedures, but a shift in culture ? • Interim Decisions – MIA ? • Hearing Delays – what can really be done ? • The Future ???

4. HOT TOPIC #1New Practice Notes • 5 Tribunal-wide practice notes commenced 15 March 2012 • Aim to facilitate fairness and efficiency through greater consistency across all VCAT Lists • PNVCAT-1 Common Procedures • Cls 7-11 : ‘Keeping costs down’ - represents a shift in culture, with more pro-active case management, and less tolerance of delay and non-compliance. (see also cl 65) • includes targets : 90% of all cases to be finalised within 6 months • for Planning List, some changes to procedures e.g. withdrawals • includes small but important changes e.g. forms, filing of documents • PNVCAT-2 Expert Evidence • updated. Some changes from previous PN on content/format of expert witness statements. Need to provide updated PN to experts. • extra provisions for joint reports, ‘hot tubs’, concurrent evidence etc

5. New Practice Notes (cont.) • PNVCAT-3 Fair Hearing Obligation: retained with minor updates • PNVCAT-4 Alternative Dispute Resolution • new, deals with mediations and compulsory conferences • PNVCAT-5 Directions Hearings & Urgent Hearings • new, Planning List will retain its Practice Day arrangements • 8 List-specific practice notes redundant and revoked, inc PNPE -5 • Changes to other List-specific practice notes, inc for Planning List • PNPE-1 General Procedures in Planning and Environment List : substantially modified, so consistent with Tribunal-wide practice notes • PNPE-2 Information from Decision-makers : still to be updated • PNPE-7 Short Cases List : likely to be revamped

6. HOT TOPIC #2 Interim Decisions • Acknowledge recent comment from HIA and others critical about reduced use by VCAT of interim decisions in Planning List • Use of interim decisions consciously scaled back in use: • still being used regularly where form of development very close to acceptable, but changes can’t easily be resolved through conditions. • in general, won’t be used where development plans not acceptable and require substantive redesign. • Role of VCAT to review a decision within justice system, and make a decision on the plans and material before it. • VCAT stands in shoes of RA for this purpose, and opportunities exist for ADR, and amending plans under PNPE-9, within this process. • if substantive redesign required, not the role of VCAT to oversee what is really a new or highly modified permit process.

7. HOT TOPIC #3 Hearing Delays in Planning List • As at end of February 2012: • 2,024 cases with $2.998 billion development value filed and ‘pending’ • median time from filing to decision for non-MCL/SCL cases = 23 weeks • but 20% of these cases > 33 weeks, and 6% > 41 weeks • Delay is unacceptable, but … • there is a minimum time required to deal with an application (cf MCL pilot) • parties (inc. permit applicants) partly responsible for delays • ‘Transforming VCAT’ efficiency gains can only go so far • impacts of increased (and unfunded) jurisdiction at VCAT • ultimately limited by budget and resources within justice system • $1 million extra funding from DPCD is great, but only a short-term ‘fix’

8. $1 million funded blitz on backlog • First cases heard last week – 100 cases heard in Planning List (a record!) • Funding used exclusively to increase use of sessional members to hear more cases sooner • Estimated to fund > 800 cases • Focus on previously ‘parked’/unlisted half day and one day cases • Opportunity to bring forward some cases already listed • information on website about this – need consent or practice day • bringing forward not guaranteed • preference to half day & one day cases

9. Major Cases List • Re-started 3 January 2012 • Approx. 70 applications in 2012 Q1 • Very few transitional issues; little resistance to user-pays system • Trial of ‘standard orders’ – considering opportunities in rest of List • Hearing after 14 weeks (first case next Wednesday) • payment arrangements (by 9:30am on each hearing day at ground floor counter, can pre-pay, form on website, will be receipted) • accompanied site visit is a ‘hearing’ • Decision within a further 4 weeks (resource implications) • ADR • mediation not compulsory, overall % mediations down compared with pilot • usually a single mediation only

10. Other initiatives • Blitz on ‘aged’ pending cases > 41 weeks • as at March 2012, 98 cases > 41 weeks, 50% of these > 67 weeks • for most of these aged cases, delay is caused by factors outside of VCAT’s control - enforcement, adjournments etc • aggressive case management to finalise : no rolling administrative mentions, list for practice day or hearing, strike out? • Some initial success – cases > 41 weeks down from 125 to 98 in a month • Short Cases List revisited • slow take-up in SCL since list started – needs support from profession • being revamped – more & broader range of cases to be listed sooner • need to deal with RA information, expert evidence, right of reply etc • SM Hewet lead role

11. Other initiatives (cont) • More Practice Day listings – often 2 or 3 ‘lists’ running on a Friday • Getting ready for ‘Code Assess’ cases in SCL or at Practice Days, but unlikely to have significant resources impact for VCAT • Greater use of ‘standard orders’ beyond MCL • PNVCAT -1 : Less tolerance for non-compliance, adjournment or delay (The profession needs to take some responsibility for the solution …) • Working party has been established between VCAT and DPCD to consider longer-term funding and resourcing issues for VCAT’s Planning List. • Broad focus, nothing ruled out. • ‘Policy’ and the ‘demand’ for VCAT services a matter for DOJ/DPCD/govt. • VCAT focus on the ‘supply’ side – funding, process, and procedure …

12. HOT TOPIC # 4The Future ??? • Can the system ‘afford’ the present level of service that VCAT’s Planning List is attempting to provide, or is required to provide? • Funding: • Dedicated case-mix funding, rather than appropriations? Industry levy? More user-pays fees (cf access to justice)? Dealing with the MCL ‘opt in’ conundrum? • Process & Procedure: • How to create better acceptance of VCAT’s role and jurisdiction in planning? • How to deal with increasing ‘failure’ (s 79) and permit amendment (s 87A) matters? • What is an acceptable VCAT hearing timeframe? How do we achieve it? Less Registry steps? More standard orders? Less opportunity to amend plans? More or less ADR? • What is a ‘fair’ hearing? Time limits on parties? Site visits? Can VCAT limit its review role only to key issues in dispute? (cf s 84B P&E Act etc) • What is a ‘sufficient’ decision for particular types of matters? Dot-point decisions? • Changes would require legislation and/or buy-in from stakeholders • Role for VPELA