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Everyone in the development industry, from developers, consultants, lawyers and Council’s had been holding their breath waiting to hear when Victorian Civil & Administrative Tribunal (VCAT) will reopen for hearings. Whilst there have been a small number of mediations held via video conferencing, in the main matters have been adjourned. This has left this section of the development approval process at a standstill whilst VCAT has been furiously working behind the scenes to work out where to from here.
We are pleased to be able to bring our clients an update as to how planning matters will be proceeding before VCAT courtesy of a VPELA webinar held this morning discussing planning updates stemming from the State Government’s recent Victorian Government Omnibus (Emergency Measures) Bill.
Of particular interest was the helpful feedback provided by the President of VCAT, Justice Michelle Quigley QC in relation to VCAT’s implementation of the recent $5.2 million funding grant aimed at digitising VCAT hearings.
This initiative will enable VCAT planning matters to be heard and kept moving in the current social distancing climate of COVID-19 with the digital technology roll out occurring over the next 12 weeks.
All current VCAT matters that have been adjourned (approx. 400) due to COVID-19, will be given priority for relisting once the digital roll out is implemented via either video, telephone conference or on the papers. We understand that these re-listings are likely to occur before the end of the calendar year.
It is possible that some matters will be heard in hearing rooms at VCAT if social distancing restrictions are relaxed. However, with only a handful of rooms having the size to achieve social distancing space requirements, these rooms are at a premium and will presumably be reserved for hearings unsuitable to be heard by other means.
There are matters that are listed for hearings post 15 May 2020, which are intended to be heard via telephone or potentially video conference, with confirmation to come on the suitability of matters for this form of hearing.
A number of matters will be determined by VCAT on the papers (ie based on submissions lodged with VCAT only) and approximately 25 requests have been received by VCAT to be considered in this manner. Other matters will be dealt with by telephone or video conferencing subject to suitability.
The backlog of VCAT appeals that have been recently lodged and yet to receive an initiating order are being processed by additional VCAT administrative staff and we are aware that initiating orders are being issued. VCAT appeals lodged after the recent VCAT closure are generally being listed for 2021, presumably to provide room for those adjourned matters to be re-listed this year.
Other key changes to current VCAT protocols include a soon to be announced revamp of the short cases list and changes to the major cases list, whereby there will no longer be an automatic practice day hearing, with applicants required to request and provide justification for a practice day hearing.
Where an NOD has been issued and the matter is bought to VCAT by an objector (Section 82 objector appeals), such hearings will be listed for a compulsory conference with the intent to expedite these matters. We see this as a positive step to resolve matters where there is consistency between Council’s and permit applicants.
The digitisation of VCAT is designed to ensure planning permit applications are continued to be heard and determined in the current COVID-19 climate. We should begin to see this take effect over the next few weeks and would imagine that should spatial distancing requirements relax in the coming weeks, the response will adjust accordingly.
Development Facilitation Task Force
In addition to the VCAT changes, Stuart Menzies, the Director of State Planning Services, also provided an insightful summary of temporary changes to the planning system to allow development applications and planning scheme amendments to move forward.
A State Government Development Facilitation Taskforce has been enlisted to help keep the state’s building and development industry running through the coronavirus crisis. The taskforce will seek to fast-track planning approvals using Ministerial powers, where decisions have been delayed due to coronavirus related impacts on the Victorian Planning System.
Planning permit applications would be ‘called in’ and determined by the Minister for Planning as a fast track process with further details on this to be announced soon. We understand that there is the potential for planning scheme amendments to be included in this process, although Council support would seemingly be essential.
Consistent with our experience of previous fast track processes, it’s likely that there will be opportunities for ‘call ins’ where existing projects are shovel-ready, have evidence of immediately available finance and can demonstrate employment generation.
If you have any queries in relation to the proposed changes to the VCAT planning list or the impending fast track Ministerial assessment process please contact our office to see how we can assist.
Author: Travis Finlayson, Director: Planning
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