A question of time: calculating statutory time limits

Statutory time limits for taking action are described in different ways within legislation, making (what should be) simple maths complicated for lawyers and decision-makers.

The Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) includes the following two examples of statutory time limits:

• a Ministerial call-in notice is of no effect unless it is given no later than 7 days before the day fixed for the hearing of the proceeding (cl 58(2), Sch 1, VCAT Act);
• a request to a decision-maker for a statement of reasons must be made in writing within 28 days after the day on which the decision was made (s 45, VCAT Act).

These examples alone could cause confusion. Does 'no later than seven days' mean one week, or more than a week? Does 'within 28 days' include the 28th day? What if the final date falls on a weekend?

The laws on statutory time limits

Luckily, we do have some guidance on how to count these time periods. Section 44 of the Interpretation of Legislation Act 1984 (IL Act) sets out rules for counting days under Victorian legislation. For example:

• If a time limit for 'doing' something falls on a Saturday, Sunday or a public holiday, the time limit should extend to the next day that is not a Saturday, Sunday or a public holiday. This is sometimes called the 'extension rule'; 
• If a period of time ends on a specific day, that day is included in the period;
• If a period begins on a specific day, that day is not included in the period.

Waterfront Place Pty Ltd v Minister for Planning [2019] VSCA 156 

Section 44 of the IL Act was directly at issue in the recent Supreme Court of Appeal decision of Waterfront Place Pty Ltd v Minister for Planning [2019] VSCA 156.

The facts

The Applicant (Waterfront) owns land in Port Melbourne. On 24 October 2016, Waterfront applied to Port Phillip City Council (Council) for a planning permit to develop its land for the purpose of a 10 storey development.  The application was refused. On 12 September 2017, Waterfront commenced proceedings in the Victorian Civil and Administrative Tribunal (Tribunal) to review the Council's decision.

The Minister for Planning (the Minister) 'called in' (i.e. 'intervened in') the proceeding, pursuant to the power under cl 58(2) of Schedule 1 of the VCAT Act.

To be valid, a call in notice must be submitted no later than 7 days before the date of the hearing. In this case:

• the hearing was listed on Monday, 30 July 2018; and
• the Minister called in the proceeding on Monday 23 July 2018.

The issue was whether the call in notice was submitted in time. The Court of Appeal held that it was, and so the Ministerial call in was valid.

The Court reasoned as follows:

• as a first step, 'no later than 7 days before' Monday 30 July 2018 meant that the last date for the call in notice to be filed was Sunday 22 July 2018 (all parties agreed with this first proposition);
• under s 44 of the IL Act, Sunday is a 'holiday' and, applying the extension rule, if the last day for doing something falls on a holiday, the time extends to the following day;
• therefore, the last day that the Minister was permitted to call in the proceeding was Monday 23 July 2018.

The Court rejected Waterfront's arguments that the extension rule in the IL Act did not apply to the statutory time frame in this case, due to the phrase 'no later than' and the adverse impacts on the Tribunal and the parties arising from a 'late' call in notice. In particular, the Court emphasised that the extension rule should be the 'general rule', and, because it is a rule of 'practical common sense', it should only be displaced where the legislation expressly intends for it to be displaced. The Court found there was no such express intention in this case.

Key takeaways

The decision is a reminder that calculating statutory time frames can be more complicated than you might think. There will be rules in other statutes dictating how to calculate those particular timeframes, some of which may lead to surprising results. The Waterfront decision is a perfect example of this - as a matter of law, applying the extension rule to the phrase 'no later than 7 days', the time to file a call in notice was seven days before the hearing.

For further information, please contact:

Annette Jones
Principal Solicitor
8684 0431

Lisette Stevens
Solicitor
8684 0475

The Victorian Government Land Transactions Policy and Guidelines

The Victorian Government has recently released its new Land Transactions Policy and Guidelines (Policy and Guidelines).

The Policy sets out what is required of Victorian Government agencies when they buy, sell or lease land. It also sets out what is required when agencies provide compensation under the Land Acquisition and Compensation Act 1986 and Part 5 of the Planning and Environment Act 1987.

The Guidelines provide information and guidance to assist agencies to comply with the Policy's requirements.

The Policy's requirements apply to:

• Victorian Government departments;
• public statutory authorities;
• legal entities established under State legislation for a purpose of the State (including those independent of government control);
• companies in which the State has an interest; and
• organisations, other than councils, which require statutory authorisation and/or ministerial approval, especially where public funds are involved in a land transaction.

Background

The Policy and Guidelines replace the Victorian Government's Policy and Instructions for the purchase, compulsory acquisition and sale of land (Instructions), which were adopted by then-Minister for Planning, the Hon John Thwaites MP, in August 2000.

The Instructions were intended to ensure that Victorian Government agencies adopt 'a consistent best-practice approach to their property transactions.'

Introduction to the Policy

The core elements of the Policy are consistent with the old Instructions. Agencies generally must not sell any land at a price less than its current market value, or buy any land at a price greater than its current market value. For this purpose, agencies must obtain valuations from the Victorian Valuer-General (VGV). Agencies also require the approval of the Victorian Government Land Monitor (VGLM) for any transaction (or group of related transactions) where the value of that transaction is $750,000 or more. There are a range of procedural requirements for the sale of land. Agencies generally may only sell land through a public process, and must provide clear information to prospective purchasers as to potential uses to which the land may be put.

Key differences from the old Instructions

The Policy and Guidelines introduce some important changes, and provide greater clarity or renewed emphasis about particular matters.

First, the Policy now regulates leases. Agencies may only grant or acquire leases or other interests in land at market rental value or better, as determined by the VGV. An agency also must not grant a lease of land which contains an option to purchase, unless the lease is granted to another government agency. However, the Guidelines exempt significant categories of leases (at section 10.2). The Policy also does not apply to licences.

Secondly, the Policy places clearer assurance obligations on agencies to ensure that all transactions are conducted to achieve accountability and transparency. In relation to accountability, the Guidelines state that an agency must ensure that:

• it has the legislative power to undertake the land transaction;
• it has obtained all necessary approvals to proceed with the transaction;
• appropriate delegation is in place where it is proposed an authorised officer of the agency approve and execute the transaction; and
• roles, responsibilities, authority and accountability of agency officers involved in the transaction are clearly articulated and well understood.

In relation to transparency, land transactions must be supported by processes that provide evidence of transparency of actions, equity in dealings, confidentiality, probity assurance and management of conflicts of interest.

Third, the Policy and Guidelines provide more detailed guidance on the requirement for agencies to conduct an appropriate level of due diligence. Prior to the disposal, acquisition or lease of land, agencies must conduct an appropriate level of due diligence to ensure they are fully informed of the status and attributes of the land. The depth of due diligence required will vary from transaction to transaction, but the Guidelines cover the following areas:

• legal (specifically, ownership of and authority to deal with the land, and any encumbrances on the land);
• public land values (in respect of Crown land);
• survey;
• planning;
• contamination and pollution;
• cultural heritage; and
• Native Title and Traditional Owner Rights.

The Guidelines provide a helpful due diligence checklist in Appendix 1, to assist agencies in becoming fully informed as to the status and attributes of the relevant land. Appendix 2 contains a VGLM checklist, to assist agencies in deciding when to seek approval or assistance from the VGLM.

Fourth, the Policy sets out clearly the circumstances in which it does not apply to particular transactions. The Policy provides a list of exempted transactions in section 2(d).

A full copy of the Policy is available on the website of the Department of Environment, Land, Water and Planning at http://www.dtpli.vic.gov.au/property-and-land-titles/valuation/government-valuations/government-land-monitor. We understand that the Department of Environment, Land, Water and Planning and the VGV will be promoting the Policy and Guidelines in coming months.

In the mean time, if you would like further advice on the new Policy and Guidelines, please contact:

Anthony Leggiero
Managing Principal Solicitor
Property Team
9947 1430
anthony.leggiero@vgso.vic.gov.au

Mark Egan
Acting Managing Principal Solicitor
Land Acquisition, Planning and Environment Team
8684 0489
mark.egan@vgso.vic.gov.au

Margaret Marotti
Managing Principal Solicitor
Property Team
9947 1410
margaret.marotti@vgso.vic.gov.au

Elizabeth Wortley
Senior Solicitor
Property Team
9947 1433
elizabeth.wortley@vgso.vic.gov.au

Plan Melbourne 2016

What are the issues of relevance to me?

The Victorian Government has released a discussion paper on the refresh of Plan Melbourne.

Plan Melbourne 2016 will be published in the first half of next year, and will build on Plan Melbourne 2014.  On 18 June 2014, we reported on the adoption of Plan Melbourne which was subsequently incorporated into the Victoria Planning Provisions.  The Ministerial Advisory Committee that advised on Plan Melbourne has been reappointed to advise on the refresh.

The discussion paper reflects the Government's commitments and priorities and canvasses options for changes in planning policy and strategy.  It covers a range of key issues including housing and investment.  Of particular relevance to our clients is the discussion of improved environmental sustainability and planning for transport.

Environmental sustainability and climate change

The discussion paper emphasises sustainability as a key concept in the Plan Melbourne refresh.  Driving this part of the commentary are the CSIRO and Bureau of Meteorology[1] projections of increases in temperature and changing patterns of rainfall and more extreme weather events such as drought and bushfires, heatwaves, flooding and increased coastal inundation. 

The discussion paper suggests that a 'more sustainable polycentric city model' is preferable to contain urban growth within a permanent urban growth boundary.  It is also suggested that Plan Melbourne 2016 might support the 'greening' of the city, by structuring planning, local policies and overlays to promote more vegetation cover and cool hard surfaces.  Clarification of the limits to the 20-minute neighbourhood is also expected in Plan Melbourne 2016.

Once finalised, Plan Melbourne 2016 will sit alongside other key components of current and existing legislation, policy and plans in Victoria on the topic of climate change and environmental sustainability, many of which are under review:

·         Climate Change Act 2010, under review by an Independent Panel;

·         Climate Change Adaptation Plan, for which consultation is planned in early 2016;

·         Victorian Energy Efficiency Target Act 2007, recently amended;

·         Renewable Energy Action Plan, currently being developed;

·         Energy Efficiency and Productivity Strategy, to be released later this year;

·         revised Draft Victorian Floodplain Management Strategy, released in June 2015 and expected to be finalised by the end of 2015;

·         State Water Plan, to be released in 2016.

Transport Planning

Plan Melbourne 2016 will reflect the Government's transport priorities and commitments, including:

·         the Melbourne Metro Rail Project;

·         the removal of 50 metropolitan level crossings;

·         the Mernda Rail Extension; and

·         commitments to expand the bus network.

The discussion paper recognises that potential road initiatives such as connecting the Eastern Freeway and the Metropolitan Ring Road require further assessment.

Although Plan Melbourne 2014 committed to a second container port at Hastings, Plan Melbourne 2016 will leave open different options for the most appropriate site for a second container port, including locations at Bay West and Hastings.  Infrastructure Victoria will independently advise the government on this.

What are the next steps?

We will continue to update clients on this process.  Comments and submissions on the refresh of Plan Melbourne are invited until Friday 18 December 2015.  Please contact us if you would like assistance with preparing your submission.

Natasha Maugueret

Managing Principal Solicitor

8684 0402

natasha.maugueret@vgso.vic.gov.au

Eliza Bergin

Principal Solicitor

8684 0267

eliza.bergin@vgso.vic.gov.au

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[1] Bureau of Meteorology (2014) 'State of the Climate 2014'.

Lease vs Licence - What difference does it make? (Part 2)

Based on the public and personal feedback, our blog topic from September 2015 on the differences between leases and licences certainly seems to have been quite topical.

One reader requested that we provide some more examples for Government practitioners of circumstances where a lease or a licence might be appropriate.  Of course, the particular circumstances of the transaction will determine the form of tenure that is appropriate for the intended use of premises.  With that in mind, we provide some further examples of where a lease or licence might be appropriate for the intended use of the premises.

Lease examples

In short, a lease will be appropriate where the tenant requires exclusive use of land and/or premises for the permitted use.  Where government is the tenant, such uses include delivery of long term projects and services, for example prisons, hospitals and police and court house facilities. 

Where government is the landlord, such uses would include:

• commercial or trading purposes where the operator will undertake a fitout and install furniture, computers, etc;
• sensitive and important community services such as the provision of child care facilities; and
• provision of education services, such as by a TAFE institute.

Licence examples

The granting of exclusive possession and other leasehold rights is not necessary for all land uses.  Common examples of where a licence of land may be appropriate include:

• installation of power line infrastructure by an electricity generation company;
• special event licences for community, cultural or sporting events;
• site investigations for development proposals;
• construction licences or licences for the installation of services and utility infrastructure; and
• cutting or taking away fallen or felled trees for domestic use as firewood.

If you would like further advice regarding land use arrangements and other property issues, the VGSO Property Team is well placed to assist you.  Please contact:

Margaret Marotti
Managing Principal Solicitor
9947 1410
margaret.marotti@vgso.vic.gov.au

Anthony Leggiero
Managing Principal Solicitor
9947 1430
anthony.leggiero@vgso.vic.gov.au

Elizabeth Wortley

Senior Solicitor
9947 1433
elizabeth.wortley@vgso.vic.gov.au

Reform to the development contributions system

In 2012, the (then) Minister for Planning announced a preferred framework for the development contributions system in Victoria in A New Victorian Local Development Contribution System - A Preferred Way Forward. Issues such as the cost and time taken to prepare a development contributions plan and the level of detail required to justify a contributions levy were identified as reasons that the existing development contributions system in the Planning and Environment Act 1987 should be changed.

The Standard Development Contributions Advisory Committee was appointed by the Minister for Planning in 2012 to review and report on the new system. It did this in two reports: Report 1; Setting the Framework (2012) and Report 2: Setting the Levies (2013). The Advisory Committee examined the existing development contributions system and recommended reforms to it. These included using standard levies that could be applied in all Victorian municipalities in various development settings, to make the process for producing development contributions plans less costly and more efficient.

Recently, the Planning and Environment Amendment (Infrastructure Contributions) Act 2015 (Amending Act) was passed. It is expected to commence early 2016 and will implement some of the recommendations of the Advisory Committee, including setting a standard levy to raise revenue to pay for infrastructure which is needed because of the development of land for residential and other purposes.

What is an Infrastructure Contributions Plan?

The new Infrastructure Contributions Plan (ICP) system will operate in a similar way to the existing development contributions plan (DCP) scheme, with some significant differences. Similar to DCPs, ICPs are a mechanism to raise and distribute money required to pay for certain infrastructure.

Like DCPs, an ICP can be included in a planning scheme to levy financial contributions (an infrastructure levy) to fund the construction of infrastructure (works, services and facilities), the need for which is generated by the development of land. The levy is payable when a person seeks to develop land.

ICPs cannot be used to levy contributions for State infrastructure in areas where the growth areas infrastructure contribution (GAIC) applies.

What levies can be required under an ICP?

Unlike DCPs, the infrastructure levy imposed under an ICP can consist of a standard levy or a supplementary levy.

Although not explicit in the Amending Act, it is proposed that the Minister for Planning will make directions which will state that the standard levy is to be used to fund 'basic and essential' infrastructure items selected from a pre-set list of 'allowable' items for residential, retail and commercial development. The allowable items are to be defined in the Ministerial directions and are likely to include items such as transport, community and recreation facilities, and a public land component. The standard levy can be picked 'off the shelf' from the allowable items list for certain areas.

The supplementary levy can be imposed to fund infrastructure that cannot be funded from the standard levy. The use of the supplementary levy (and the rate at which it will be set) will need to be justified each time it is used, unlike for the standard levy.

Where do ICPs apply?

Although it is not explicit in the Amending Act, it is expected that the Minister's directions will initially permit ICPs to be used in greenfield growth areas and strategic development areas in metropolitan and non-metropolitan areas. Greenfield growth areas will accommodate Melbourne's urban growth and are usually located on the periphery of urban areas. Strategic development areas are generally identified in Plan Melbourne and are located on sites that provide development opportunities close to public transport and other infrastructure.

Who are the levies paid to?

The levies are paid to local councils, and relevant State agencies who will be responsible for constructing the infrastructure specified in the ICP (such as VicRoads for certain roads and intersections). With the agreement of the State agency or council, land can be set aside on which infrastructure such as roads, community facilities and parks can be constructed.

How is this relevant?

Once the ICP system is operating, State agencies who have a role in providing works, services and facilities to meet the infrastructure needs of new development in greenfields growth areas and strategic development areas will need to be aware of the differences between the existing DCP system and the new ICP system.

This will include familiarity with the types of State infrastructure that can be funded under ICPs (such as public transport improvements). Funding for State infrastructure is expected to be raised via the supplementary levy (and only for areas where the GAIC does not apply).

State agencies can be expected to have a role to play when a supplementary levy is required to fund the cost of providing State infrastructure, including having input into the justification for a supplementary levy for these purposes.

Victorian Government clients seeking advice on land, planning and environment issues can contact:

Juliette Halliday

Managing Principal Solicitor

8684 0299

Mark Egan

Principal Solicitor

8684 0489

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
eliza.bergin@vgso.vic.gov.au

Juliette Halliday
Acting Managing Principal Solicitor
T: 8684 0299

juliette.halliday@vgso.vic.gov.au 

Plan Melbourne Overview: Your Quick Guide to the Final Plan Melbourne

Plan Melbourne is the new metropolitan planning strategy, setting out the Victorian Government's vision for Melbourne in 2050. 

The final version of Plan Melbourne was published in late May and now incorporates a planning scheme amendment and an updated ministerial direction to give Plan Melbourne statutory effect. Most notably, the final version incorporates the higher population projection of 7.7 million Melbourne residents in 2050, an increase of an additional 1.1 million people from the draft plan! This is a huge jump from Melbourne's current population of 4.3 million. 

Initiatives Already Actioned

Planning initiatives that have also already been actioned as part of the strategy include the establishment of the Metropolitan Planning Authority (the MPA), additions to the growth boundary, reformed zoning, new processes for planning permit applications, reforms to the growth areas infrastructure contributions, and reforms to developer contributions.

The Metropolitan Planning Authority (MPA) 

Plan Melbourne's planning objectives are now overseen by the newly created MPA. This government body supersedes the Growth Areas Authority to advise on, and overseeing the implementation of, Plan Melbourne. The MPA is designed to work closely with councils and government departments, while also supervising land use and infrastructure planning on state significant sites.

Plan Melbourne's Seven Planning Objectives

Plan Melbourne has seven planning objectives designed to respond to expected growth and demands of the city. These objectives are: 

1. Delivering Jobs and Investment: by creating a city structure that drives productivity, investment and job creation
2. Housing Choice and Affordability: by providing diverse housing options close to jobs and services
3. A More Connected Melbourne: through integrating and improving transport accessibility, infrastructure and options
4. Liveable Communities and Neighbours: by maintaining Melbourne's existing suburban layout and creating new peripheral suburbs
5. Environment and Water: improving water, energy and waste management systems and managing growth 
6. A State of Cities: creating numerous activity centres around metropolitan Melbourne
7. Delivering Better Governance: achieving clear results through better governance, planning, regulation and funding mechanisms

Plan Melbourne Summary

The seven planning objectives are supported by 41 directions which have not been changed in the final version. At a glance the directions culminate in the following overall scheme: 

Administration: 

• Plan Melbourne establishes five new metropolitan sub regions as the basis for planning coordination (Central, Northern, Eastern, Southern and Western); and
• the MPA, as discussed above, will oversee the implementation of Plan Melbourne. 

Activity Centres:

• There will be a strong focus on activity centres to accommodate growth, with less emphasis being placed upon developing areas of existing detached housing; however
• this said, 57% of the expected 1,046,000 new dwellings will be in established areas.  

Urban Renewal Precincts: 

• Plan Melbourne will encourage residential growth in previously announced urban renewal precincts such as Arden-Macaulay, E-Gate and Fishermans Bend; and
• Plan Melbourne will create numerous urban renewal precincts including Cremorne, Collingwood, North Richmond to Victoria Park, and also at Hampton, Jewell, Alphington and Essendon Stations.

Permanent Boundary:

• Plan Melbourne will develop a mechanism to lock in a permanent settlement boundary around Melbourne’s built-up metropolitan area;
• This permanent metropolitan urban boundary will replace the Urban Growth Boundary; and
• In determining the boundary, the MPA will take into consideration input from local governments, the November 2011 report by the Logical Inclusions Advisory Committee, Melbourne's values and topography, and boundaries formed by major infrastructure.

Decentralising Excess Growth into Regional Towns:

• Excess growth will be diverted into regional Victoria once growth areas in the metropolitan region are filled. These regional towns and urban centres include Bacchus Marsh, Ballan, Broadford, Kilmore and Wonthaggi. 

Infrastructure Projects: 

• Plan Melbourne will create an 'Integrated Economic Triangle' which expands the Central City. This triangle will connect the Hastings-Dandenong corridor with the Hume corridor to the north and the Wyndham-Geelong corridor to the south-west. This development utilises existing infrastructure, such as the Ports of Hastings and East West Link. The intention is to make Melbourne the largest commercial and residential centre in Australia by 2040;
• Plan Melbourne will implement the Metro 2 Project whereby the Epping and Hurtsbridge lines are rerouted via a tunnel to Melbourne University and Fishermans bend;
• There will be a continued expansion of the freeway network including the East-West link. The possibility of a North East Link, linking the Eastern Freeway to Greensborough, will also be investigated; and
• Plan Melbourne contemplates the possibility of building a new airport in Melbourne's outer south east. 

Code Assessment Approach:

• A "Code Assessment Approach" will be taken to multi unit development. This means that some developments, in areas such as the new Residential Growth Zone, may be exempt from notice and third party appeals if they meet certain enhanced "ResCode" standards. 

What does this mean for the VPS?

Plan Melbourne brings with it changes in the approach to Melbourne's future development and planning, the implementation of which may have significant impacts on decisions made by Departments and Local Governments. 

If you would like to know more about how Plan Melbourne may specifically impact on you or your department, the VGSO is ready to provide legal advice through our Land, Planning and Environment team:

Juliette Halliday

juliette.halliday@vgso.vic.gov.au

8684 0299

Eliza Bergin

eliza.bergin@vgso.vic.gov.au

8684 0267

Planning enters the fast lane at VCAT

The new Victorian Civil & Administrative Tribunal Amendment Act 2014 (the Amendment Act) will come into operation on or before 1 February 2015.  The purpose of the Amendment Act is to enhance the Tribunal's powers and efficiency, and both formalise existing practices and expand the regime for management of expert evidence at VCAT.  These new measures aim to ensure the Tribunal can efficiently manage and resolve cases brought before it, particularly in its planning jurisdiction.

These substantial reforms introduced in the Amendment Act will empower the Tribunal to:
1. Invite original decision-makers to reconsider a decision at any time in a proceeding (s 51A);
2. Order a person to cease to be a party to a proceeding if they are not an affected, proper, or necessary party (s 60A);
3. Order the reimbursement of VCAT fees from one party to another (s 115B). This entitlement will be presumed in certain matters where a party substantially succeeds (s 115C) and is distinct and separate from the Tribunal's power to make an order for costs (s 115D);
4. Delegate certain functions of the Tribunal to its registrars (s 157A); and
5. Actively manage expert evidence used in proceedings (Schedule 3).
This note discusses the first and last points in particular.

Council to reconsider its decision
New s 51A allows the Tribunal to invite the original decision-maker (eg, a council) to remake the decision under review during the course of a proceeding.  This may enable faster resolution of planning review proceedings.  This new provision gives a local council 'the opportunity to consider a proposed resolution to the dispute' rather than requiring a local council to find or make specific delegations or authorisations to give effect to a settlement.

Expert Evidence Directions
The Amendment Act also elaborates on existing powers and formalises current Tribunal practice in relation to expert witnesses and expert evidence.

The Tribunal accomplishes this by including in the Amendment Act the power to:
1. Call for the preparation of an expert report;
2. Limit expert evidence to specified issues;
3. Limit the number of expert witnesses called;
4. Provide for the appointment of a single joint expert or Tribunal appointed expert; and
5. Give any other direction that may assist expert witness functions in a proceeding.
Expert Witness Conferences & Joint Expert Reports

The Amendment Act formalises VCAT practice in relation to expert conferences and the preparation of joint expert reports.  The Amendment Act formalises the Tribunal's practice of ordering experts to enter a 'hot-tub'.  This is aimed at identifying areas of agreement between multiple experts and, therefore, narrow the issues in dispute.

A conference of experts can be held without the presence of the parties to a proceeding, the practitioners, or an independent facilitator.  Joint expert conferences may also lead to a joint expert report setting out areas of agreement and disagreement between experts.

Anything said or done during a conference of experts is confidential.  What occurs during the conference must not be referred to during a related hearing or proceeding without the agreement of the parties or by order of the Tribunal.

Single Joint Experts
The Amendment Act preserves VCAT's power to appoint an expert to assist VCAT in the proceeding or, alternatively, order an expert to be engaged jointly by the parties.

In making such a decision, the Tribunal must consider:

• the proceeding's complexity;
• the amount in dispute;
• whether the issue falls in a substantially established area of knowledge;
• the necessity of a range of opinions;
• the likelihood of expediting or delaying the proceedings; and
• any other relevant considerations.

Formalising Expert Evidence Provisions? 
The Amendment Act suggests a move towards formalising the approach to expert evidence at VCAT and a departure from a previously more informal process.  This is reiterated by the adoption of a definition of expert witness and a regime consistent with the Civil Procedure Act 2010, which does not currently apply to VCAT.

That said, the VCAT Practice Note PNVCAT2 - Expert Evidence remains unchanged and we understand that there are no plans to update it at this time.  It is worth also noting that the Practice Note adopts a definition of 'expert witness' which is more detailed than the definition in the Amendment Act.

Take home points 
1. The Tribunal will have new powers to improve the efficiency of managing cases brought before it.
2. In particular, in review proceedings, the Tribunal will be able to invite original decisions makers to
directly reassess their decision at any time during a proceeding.
3. The Tribunal's power to invite decision makers directly to reassess decisions will be particularly relevant to the planning jurisdiction.  Importantly, it may provide more options for developers and those engaged in major planning matters to seek faster resolution of their disputes.
4. The expert evidence provisions, for the most part, formalise current VCAT practices.
5. Although the extent to which the reforms will improve Tribunal functioning has yet to be seen, it is anticipated that these provisions as a whole will generally save time and money if factored into your case
preparation and instructions to experts.
6. Get in contact with the VGSO to assist and prepare you for these new reforms!

For advice on this topic please contact:

Eliza Bergin
Principal Solicitor
t 03 8684 0267
eliza.bergin@vgso.vic.gov.au

Juliette Halliday
Principal Solicitor
t 9032 3034
juliette.halliday@vgso.vic.gov.au