4 April 2012

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

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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

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Hot Topics in this presentation

1. New Practice Notes – consistent procedures, but a shift in culture ?

2. Interim Decisions – MIA ?

3. Hearing Delays – what can really be done ?

4. The Future ???

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HOT TOPIC #1 New 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

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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

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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.

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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’

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$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

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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

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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

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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 …

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HOT TOPIC # 4 The 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