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4 April 2012 What’s New at VCAT ? Mark Dwyer, VCAT Deputy President VPELA ‘Hot Topics – Key Issues in Planning’

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Presentation on theme: "4 April 2012 What’s New at VCAT ? Mark Dwyer, VCAT Deputy President VPELA ‘Hot Topics – Key Issues in Planning’"— Presentation transcript:

1 4 April 2012 What’s New at VCAT ? Mark Dwyer, VCAT Deputy President VPELA ‘Hot Topics – Key Issues in Planning’

2 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 3 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 ???

4 4 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

5 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 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 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 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 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 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 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 12 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


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