Wednesday 28 January 2015

Changes to the operation of the VCAT Planning & Environment List are imminent!

What is the issue?

At the end of 2014, the Victorian Civil and Administrative Tribunal  announced changes proposed to be implemented to its Planning and Environment List from
2 February 2015 which will affect the way this List operates for all applicants, respondents and responsible authorities.

What does it mean for me?

All clients with exposure to the jurisdiction of VCAT, including as proponents, objectors, referral authorities and responsible authorities will be impacted by these changes which we consider will streamline this List to follow a similar mode of operation to the Major Cases List, a subset of the Planning and Environment List.

VCAT advised of the following four key changes in a recent media release.
  1. Initiating orders will be sent out for all matters in the Planning and Environment List.  These orders will specify hearing dates and any compulsory conference or mediation dates.  This changes from the current position where parties are not advised of a hearing date until later in the process.
  2. Alternative dispute resolution using the expert services of the mediators at VCAT will be further encouraged by notification of the date for attendance at a compulsory conference or mediation at the outset of proceedings.  The current position relies on solicitors advising their clients of the method and process of mediation at VCAT in order to attempt to resolve the dispute by mutually acceptable terms for all parties.
  3. Email is proposed to be the 'preferred method' of communication with parties and their advisors, rather than posting orders and hearing dates out in hard copy by ordinary post.
  4. New application forms will facilitate the early provision of required documentation and additional details. This includes a copy of the planning permit application, plans and supporting material lodged by the applicant for permit,  detail regarding objectors and whether a cultural heritage management plan has been prepared.

These changes are reflective of the new Major Cases List process, whereby applicants are provided with standard initiating directions setting out all relevant hearing dates together with a timetable for other procedural steps.  In our experience, this new method significantly expedites the hearing and determination of a matters, and if possible the early resolution of a dispute without jeopardising the allocated hearing date. 

These changes will predominantly affect applications for review of the decision to grant (or not to grant) a permit, failure to decide appeals and applications for review of conditions of permit.  Enforcement matters will instead be referred to an initial practice day hearing.

What are the next steps?

Until 2 February 2015, VCAT advise that the old methods and procedures will be applied to applications for review.  At that time, finer details regarding the new procedures will be clarified.  Parties should seek legal advice regarding the impact of the announcement on any future matters proposed to be filed in VCAT. The following staff can assist you:

Principal Solicitor

Acting Managing Principal Solicitor

Tuesday 20 January 2015

Unlicensed to chill - why an esky was deemed a motor vehicle

A man was recently fined almost $1,500 for apparently operating an unregistered vehicle, without a licence.

So, why did that become a story, in The Age, the Herald Sun and the ABC?
Answer: the vehicle was an esky, and the man was riding it along a footpath.

But there is no need to panic - it is still possible to safely and lawfully transport cold beverages, whether by esky, 'chilly bin', or other preferred type of beverage conveyance.

Under the Road Safety Act 1986, it is an offence to use an unregistered motor vehicle on a highway (s 7) and to drive a motor vehicle on a highway (s 18) (unless there is an applicable exemption).  Conventional use of an esky will not contravene either provision, but as this recent news shows, the Road Safety Act can apply more broadly than the public might expect.

First, a footpath can be a highway under the Road Safety Act. A highway includes both 'roads' and 'road related areas'. A footpath or nature strip, which is adjacent to a road, is a road related area (as is, for example, an area that is open to the public and is designated for use by cyclists or animals).

Secondly, any vehicle with a motor may be a motor vehicle, should it be used on a road or road related area. A motor vehicle is any 'vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle'.  So even if  you attach a motor to your esky, it will still only be a motor vehicle if it is used, or intended to be used, on a highway. That needs to be considered in relation to each particular vehicle or esky (rather than motorised eskies as a class). While it is doubtful that any motorised esky is intended to be used on a highway, it will generally be sufficient if it is actually used on one.

There are also exemptions which could be useful for prospective operators of motorised eskies (and like vehicles) to know about. For example, if one walks with one's motorised esky, rather than rides it, and it has a maximum speed of less than 7 km/h, it would be exempt by an order that has been made under s 3(2) of Road Safety Act. The same order also exempts certain scooters and bicycles. Motorised wheelchairs are exempt under the Act itself.

This case is (hopefully) somewhat unusual. That said, public authorities often have other issues arising under the Road Safety Act (such as in relation to land under their control), or under the Road Management Act 2004, Transport Integration Act 2010, or about roads generally, with which we can assist.

For such road related queries, please contact:

Mark Egan
Principal Solicitor

Anthony Leggiero
Acting Managing Principal Solicitor

Thursday 8 January 2015

Running short on time? Seven key principles which guide decisions on planning permit extensions

There are seven key principles that guide Departmental responses to a request for an extension of time of a planning permit.  As outlined below, the Victorian Civil and Administrative Tribunal has recently applied these principles in Hotel Windsor Holdings Pty Ltd  v  Minister for Planning (Red Dot) [2014] VCAT 993.  The proponent of the redevelopment of the Hotel Windsor was refused a planning permit extension beyond 10 January 2015.  The permit allows part demolition of the existing hotel and construction of a new 26 storey tower and north wing extension.  If construction is not commenced by 10 January 2015, the developer will have to apply for another permit in circumstances where there have been changes to height controls in the Scheme.  This issue may arise for you or your agency if there has been, or will be, a significant change in planning policy.

The Tribunal in Hotel Windsor considered an application to review the failure by the Minister for Planning to grant an extension of time.  The Minister opposed the extension and submitted that the Tribunal should refuse the Hotel's application for a range of reasons.  One reason was that there had been a change in the planning policy since the permit was last extended.  The recent change to the planning controls specifically targeting the Bourke Hill precinct and the need to protect its low scale have resulted in the introduction of a mandatory height limit of 23 metres (well below the 93 metre development allowed by the permit).  This weighed against a decision to extend the permit and shifted the balance of planning considerations in favour of protection of Bourke Hill as a low scale precinct.

The Tribunal considered and applied the long-standing principles in Kantor v Murrindindi Shire Council (1997) 18 AATR 285 (Kantor principles).  The Tribunal noted that the implications for redevelopment of the Hotel Windsor were significant.  The Kantor principles are:
  • whether there has been a change in planning policy;
  • whether the landowner is seeking to warehouse the permit;
  • intervening circumstances which bear on the grant or refusal of the extension requests;
  • the total elapsed time;
  • whether the time limit originally imposed was adequate;
  • the economic burden imposed on the landowner by the permit; and
  • the probability of a permit issuing should a fresh application be made.

The Kantor principles, while not definitive or exclusive, have been applied by the Tribunal consistently including recently in the case of Naroghid Wind Farm Pty Ltd v Minister for Planning [2012] VCAT 1203 (Naroghid).  In Naroghid, the change in planning policy was the introduction of the 2 kilometre rule.  This new rule requires wind farm proponents to obtain written consent from landowners within a 2 kilometre radius of a proposed turbine.  In Hotel Windsor, the change in planning policy specifically targeted the Bourke Hill precinct and the need to protect its low scale.  Balanced against the countervailing Kantor principles including no evidence of warehousing, intervening circumstances, the adequacy of the time limit and the implications of not granting an extension, the Deputy President found that the request for an extension of time to commence construction of the redevelopment of Windsor Hotel should be refused.

This decision and the Kantor principles may be relevant to you or your agency.  If there has been a change in planning policy, such that a permit may not be granted if it was applied for afresh, then potential requests from developers for extension of the time for the commencement of works are to be expected.  Accordingly, the seven Kantor principles are relevant considerations for agencies preparing  new or amended planning policies.

If you are in the Victorian Government and would like more information about this area of law, please contact:

Eliza Bergin
Principal Solicitor
T: 8684 0267

Juliette Halliday
Acting Managing Principal Solicitor
T: 8684 0299