Last Tuesday I didn’t manage a Blog post. I was just too exhausted. I had been at VCAT for two days trying to help residents oppose a plan for a 4 storey building at 177A Mt Alexander Rd. It was gruelling.
VCAT is a strange place to resolve planning matters. Although I am not sure I can think of an easy alternative.
Planning decisions involve the application of planning law, but much of the ‘law’ is so discretionary that it hardly qualifies as a binding legal framework. Precedent is a disputed area of evidence, and tribunal members have developed a reputation for bringing their own views and subjectivities to questions of planning principle.
The result is a quasi-judicial set up in which residents are handicapped by a lack of legal knowledge, and applicants exploit the lack of consistency and certainty in planning law.
Lawyers pull residents up for small (or non-existent) departures from process, but protest vehemently at any suggestion of wrong-doing on their part. Without experience or confidence in the conventions, processes, practice notes, planning scheme amendments, zoning, conditions, overlays, standards, objectives…. one leaves VCAT feeling perplexed that this is the forum in which Melbourne’s future is decided.
The position seems to be that people, other than local residents, know what is best for the future of a community.
The experience at VCAT last week was not a good one. A couple of residents up against an argumentative (read belligerent) QC. We did our best, but probably could have done better if planning schemes came with a condition of certainty – or if we were experts in urban design, traffic, heritage and when-to-ask-what-and-how-at-VCAT.
I’ve only been to VCAT a few times in recent years. But every time I go, things are a little different to the time before. And the ‘culture’ of the hearing seems to be determined by the representatives from the other parties.
At least there is always something new to learn about how to best bring a planning case.
I was fortunate to have the company of Kathy Bocquet for the three days of the hearing last week. Without Kathy’s company, the hearing would have been completely intolerable – but at least we can both share a laugh about the QC spitting chips that I dared ask a question about his client’s proposal, and that I dared to speak for longer than my estimated time.
It was Kathy’s first experience at VCAT. She said she was a changed person at the end of three days, having glimpsed something new and very unexpected about the way planning decisions are made: that it depends not just on the merits of the case, but on the personalities of those presenting their side of the argument, their skills at cross-examination, and which questions someone might think to ask.
Kathy has written the following ‘how-to’ guide for people confronting a VCAT matter for the first time. She hopes it helps anyone else faced with a proposal that just might change their neighbourhood. Not all change is bad. New well-designed homes and services are essential to our growing community. Sometimes, however, change is terrible – and worth fighting.
VCAT – what I have learnt
By Kathy Bocquet
Erin Brockovich, The Castle, the Bulldogs making and winning the 2016 Grand Final … we all know the stories of the little guys up against the big ones and cheer when we see a victory for the underdog.
I have recently had the experience of accompanying Rose to VCAT in the fight for 177A Mt Alexander Rd – or more familiarly to anyone in the Flemington area, AJ’s Auto Repairs. Having survived three days of wrangling, I have been left reflecting on the experience and on what, if anything, I have learnt.
In an attempt to salvage something positive from the whole thing I would like to share with you the things I have learnt, in the hope that someone reading this and contemplating the VCAT journey may find it less daunting.
Moonee Valley seems to have come under the developer’s radar lately and sadly these cases will, if anything, become more not less frequent.
I had never been to VCAT before and have no legal background whatsoever so found myself quite flummoxed and apprehensive about the whole thing. So I hope this helps anyone else who finds themselves in the same situation.
A guide to negotiating the VCAT labyrinth
When you see the council notice regarding works to be undertaken appear, put in an objection. This has two benefits:
a) it increases the number of objections giving other objections more weight;
b) it gets you in the system so you are notified of further developments in the matter (including whether it’s going to proceed to VCAT).
If possible, attend the council meeting where the permit is discussed. You will then gain an understanding of the council’s view, the strength of their argument and the number of other objectors. If you can’t attend the meeting, minutes are available online.
The case may end here but should the matter proceed to VCAT….
You will receive notification in the mail and be asked if you wish to proceed to complete a statement of grounds. This is a written statement of the grounds on which you are objecting and can include things like height, setback from the road, overlooking, the finish of the building, heritage and impact on surrounding roads and pedestrian thoroughfares. Council documentation regarding these can be found online in the Moonee Valley Planning Scheme. The more you can link your objections to points raised in these and similar documents the stronger your argument will be.
Your statement of Grounds must be sent to
- the applicant
- the Council (Responsible Authority).
You may submit a written statement of grounds and choose not to appear at the hearing. If so, your involvement will cease and you will not be informed of further developments.
For a small fee (~$20) you are able to appear at the hearing, present you case and remain listed as an objector. If you choose to do this you must appear at a Compulsory Conference whereby there is an attempt made to mediate the case to the satisfaction of all concerned.
Should this mediation be successful and you accept the terms offered, your position as an objector ceases and the development continues under the revised terms.
Should the mediation be unsuccessful and the case continue to a hearing, because you are still listed as an objector, you will receive copies of plans and expert reports that the developer will be relying on to back their case.
You have an opportunity to revise your statement of grounds at no further cost. If there are new plans submitted, others may also come on board as objectors at this point. Again their statements need to be submitted to the three major parties.
At the hearing, you are asked to make a submission, based on your statement of grounds. If you introduce new points, you need to advise parties of this so they can respond accordingly. You will need at least four (possibly six) copies of your submission and any other supporting evidence you are relying on: one is for the VCAT member(s) who is hearing the case, one for the applicant, one for council (the Responsible Authority) and one for yourself. It is a good idea but not essential to have some extra copies available for other objectors and other people who may be present for the applicant.
The order of the hearing is as follows:
- the council presents their position;
- the objectors present their reasons for objecting to the proposal (after this point you may leave if you wish) – but it’s advisable to stay;
- the applicant presents their expert witnesses. If you are present for the testimony of the witness you are able to question them.
- The person appearing for the applicant (often a barrister) sums up their case
- Council and objectors have a right of reply to any new evidence
- The applicant’s barrister has a right of reply
- Conditions are discussed for the development should it be issued a permit to go ahead.
All of us have lives away from VCAT and to attend a hearing can be a logistical nightmare, juggling jobs, childcare and day-to-day living. If you cannot attend you are able to get another objector to act for you – you have to give them written documentation to enable them to do this, but it is something to consider and makes their position stronger.
The hearing can take between one and several days and is incredibly draining. To the applicant’s legal team it is another day in the office, to resident objectors it is their home under threat. Be aware of this and take precautions to protect yourself mentally – go with a friend, plan something nice for after the case or leave your diary free so you can completely relax. Do not be intimidated by not knowing the rules – it is the VCAT member’s job to guide you through unfamiliar territory.
Most of all know that this is really important. We cannot leave the fight to a few willing people if we want to stop the tide of unreasonable development. If nothing else, the fact that people are fighting has to say something.
After three days at VCAT I was mentally, emotionally and physically exhausted. I have thought today of all the things I wish I’d said, but the one thing I am not sorry about was that I gave it a shot.
Thank you, to all those who have supported Rose and me through this. For those contemplating their own VCAT journey, I hope the above is of some help.