COVID-19 has temporarily stalled many facets of life. As we work from home, our fears reducing, feeling a warmth of pride that our community has prioritised public health over all else, it is dawning on us that there will be a ‘new norm’. Things change quickly in this new norm, so readers should be aware this piece was written on May 20th.
At any point in time, billions of dollars of development proposals are tied up within Victoria’s planning regime. Now more than ever, the efficient processing of these applications is critical. Victoria’s planning industry is moving to get things back on track. Here’s a brief summary of the initiatives, permit applicants should be aware of, at State Government, VCAT and Council levels.
In April, the Covid-19 Omnibus (Emergency Measures) Bill 2020 came into being and provided some small, but important, changes to legislation to ensure the ability of Council and VCAT to continue their work. The bill is expected to expire in 6 months and temporarily provides the following (among other things):
- Planning documents previously required to be physically available to view at state or local government office are now only required to be available for online inspection. This includes copies of planning scheme amendments and submissions, and planning permit applications and objections
- The requirement that Planning Panels Victoria must conduct its hearings in public will be satisfied if the hearing is available to be viewed by the general public by electronic means, either while the hearing is being held or as soon as reasonably practicable afterwards. Those entitled to or invited to participate will be able to do so using remote technology.
The Victorian government has also established a new task force that will provide advice to the government on industry issues, including barriers to building works and oversee the fast-tracking of planning approvals using ministerial ‘call-in’ powers. DELWP has released “priority project eligibility criteria”. Although no minimum project value is prescribed, the criteria sets a high bar and it is expected the task force will focus on ‘major projects’.
The eligibility criteria ensure projects (among other things):
- Are of state or regional significance
- Have experienced unreasonable processing delays
- Will deliver jobs and significant economic value to the state and
- Are shovel ready.
For more information regarding Building Victoria’s Recovery Taskforce and project eligibility please contact our office or visit: https://www.planning.vic.gov.au/policy-and-strategy/building-victorias-recovery-taskforce
VCAT has fundamentally closed its doors to the public and has been working very hard to put in place safe procedures that will allows their day to day business to continue. Permit applicants should be aware:
- The Tribunal is advocating for legislative change to bolster Tribunal Members’ ability to direct expert evidence and cross examination, presumably to make this process more efficient, and
- Allow the Tribunal to limit the issues under contest at the hearing, without such a request being made by parties.
- The Tribunal is also looking to increase its ability to strike out applications that are considered baseless and without merit.
- Objectors’ appeals are now being listed for an initial compulsory conference, in an attempt to shortcut their determination times.
- More onus is being placed on parties to ensure procedural compliance, as a result of less matters being listed for directions-hearings.
- For matters that were originally listed for hearing between March 17 – May 15:
- The Tribunal has sought to confirm if all parties consent to the matter being determined on the papers
- Where all parties have agreed, matters have been set down for determination without a hearing
- Where all parties have not provided consent, the matters will be listed for hearing between August – September. All of these matters will be heard via video or telephone conferencing and may be set down at short notice.
- All matters previously listed for hearing between May 18 – May 29 are to be re listed for hearings between October – November 2020
- Matters listed for hearing from 1 June will be heard via either video or telephone conferencing, as scheduled
- New appeals and requests for adjournment are resulting in hearing dates being reset in 2021
- The tribunal does not expect to contemplate resuming face to face hearings until 2021, at the earliest – however, there is no guarantee this expectation will not be extended.
- The Tribunal is also actively encouraging parties to contact each other and mediate outcomes or reduce the number issues under contest, in order to simplify hearing requirements.
Clause 1 recommends that permit applicants, with current VCAT matters, diligently pursue without prejudice negotiations with all parties, as early as possible and ensure that any opportunity for consent is completely exhausted, in an attempt to cut-short the expected delays.
In instances where objectors have lodged reviews against Council’s decision to grant a permit, we recommend permit applicants obtain advice to confirm whether it might be possible to have the appeal summarily struck out. A recent VCAT case, Axicom Pty Ltd v Melton CC (Red Dot)  VCAT 190, provides some useful guidance on this option.
The impact on local Councils has varied significantly. Here’s what we know some Council’s are doing:
- Allowing staff to work from home (often part-time) to ensure social distancing can be maintained within existing office areas
- Offering online or telephone pre-application and consultation meetings with applicants
- Elongating the normal 14 day public notification period
- Undertaking Council meetings via video-conferencing without a public-gallery
- Requiring any submission or questions to be submitted prior to Council meetings
- Accepting more material via email or online (electrically)
Beyond the initial onset of Covid-19 restrictions in March, our office has not noticed a significant change in the timeframes that Councils are taking to progress our permit applications. Our discussions with Council planners have revealed, some feel they are being more efficient without the daily distractions of the office-environment.
In summary, we do not expect there to be a significant change in the timeframe Council takes to process applications. We strongly recommend that permit applicants familiarise themselves with new Council-meeting protocols to ensure you have a chance to be heard in relation to your applications.
Seek Professional Advice Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances. Copyright If you would like to reproduce or use for your own purposes any part of this publication please contact firstname.lastname@example.org for assistance. Clause1 Pty Ltd Phone: 03 9370 9599 Email: email@example.com Web: www.clause1.com.au