The Major Cases List was introduced in 2011, with a goal to expedite the resolution of larger development projects that could contribute materially to economic activity in Victoria. The List was initially piloted with 391 cases worth a total of $6.66 billion (about 90% of all development value of all cases heard at VCAT) determined before funding for the pilot ran out.
During that time applications made for developments with a cost of;
- $5 million +, if the proposal does not include a ‘dwelling’
- $10 million + in any other case
could be heard in the Major Cases List at the request of the applicant for review. Appeals made under Section 82 or 82A could be transferred to the List at the request of the permit applicant.
The Major Cases List has recently been reintroduced along with some interesting changes.
Any non-residential application (regardless of its value) can be heard under the Major Cases List (previously this was limited to applications over $5 mil for non-residential development) It is somewhat perplexing to see that matters containing a ‘dwelling’ cannot be considered under the Major Cases unless the value of the works exceed $10 million. Obviously, this provision stems the tide of multi-unit developments and apartments which make up a large proportion of the matters heard by the Tribunal, and with them, the inherent issues of neighbourhood character and residential amenity, however in other instances, it appears this is an oversight which unfairly prejudices some permit applicants. A large scale commercial premises which includes a caretakers’ residence is excluded from using the Major Cases List if the value is less than 10 mil, however a use permit for a gymnasium fitout with a value of $40K could access the Major Cases List if it does not contain a residential component and the applicant was willing to invest the required application fees. Currently, no ability for the Planning Registrar to waive or amend the criteria for the Major Cases List exists.
We are Clause 1 are not convinced this set up/segmentation is fair or reasonable.
The application fee for the Major Cases List is $3338.40 as opposed to $805.10 on the standard List. A hearing fee of $3306.30 per day is also payable for matters heard on the Major Cases List, which is reduced for the second and subsequent days if the matter is anticipated to take longer than one day to be heard. The timeframes for having an application heard on the Major Cases List are approximately 14 weeks from lodgement until the hearing, and another four weeks until a decision is issued. By contrast, current applications on the standard VCAT Planning List are waiting approximately 7 – 8 months for a hearing.
If the application is brought to VCAT as a s 82 appeal (appealing a decision to grant a permit) by the objectors, the permit applicatn can apply to have the matter transferred to the Major Cases List but you will be required to pay all additional application fees as the permit applicant and meet the minimum cost of works tests (above).
Using the Major Cases List will allow the application to be heard more quickly but will not affect the way in which the hearing is run, neighbours and other parties can still to be involved in the hearing, and will not affect the outcome of the hearing, when compared to an application on the standard List.
The following timelines will generally apply to Major Cases List proceedings:
- 5 weeks – from date of lodgment to practice day hearing.
- (A practice day hearing will generally be listed on the Friday following the elapse of 5 weeks from the date of lodgment.)
- 8 weeks – from date of lodgment to mediation (if required).
- 14 weeks – from date of lodgment to commencement of final hearing.
- 6 weeks – from last day of hearing/final submissions to decision
In the relevant Practice Note, PNPE8, the Tribunal is quick to note, ‘Given the expedited Major Cases List hearing timelines, the applicant and primary decision maker must comply promptly with any directions about the giving of notice.’ Any applicant considering taking this track needs to be very cognisant of the issues involved in their application, and ensure that matters such as expert witness statements and amended plans be clearly resolved very early in the process. For this reason, Clause: 1 advises applicants to proceed with caution and only seek a matter to be heard on the Major Cases list after qualifying exactly what their obligations are likely to be.