Posted 13/7/09 





Victorian Civil and Administrative Tribunal

President’s Review

“The Role Of VCAT In A Changing World”

Consultation Paper



1.   Introduction


1.1     Appreciation

Macedon Ranges Residents’ Association thanks the President of VCAT for undertaking this review, and for providing such a welcome opportunity to provide feedback on the Tribunal.  We also wish to express our appreciation to the President for allowing the Association an extension of time in which to make this submission.


1.2     About Macedon Ranges Residents’ Association Inc. [MRRA]

Established in 1995, Macedon Ranges Residents’ Association Inc is a voluntary, not-for-profit, non-party-political community group.  Its purposes include pursuing and participating in governance, planning and environmental issues at local, State and Federal levels, with a focus on such issues as they might affect or diminish the rights and interests of Macedon Ranges Shire, its residents and ratepayers.  A copy of the Association’s purposes is attached for your information.


The Association has historically taken an interest and role in a diverse range of issues and where thought necessary, has initiated or participated in a variety of campaigns.  This has seen MRRA represented at meetings, rallies and the like as well as making formal submissions, additional to its own local activities which have included amongst other things, running public meetings, petitions, surveys and rating Council election candidates.  For example, the Association has to date this year made several submissions including the new State Residential zones, review of the Planning and Environment Act, review of Environmental Regulations, and the Future Farming review of rural land use.


Our interest in this Review relates to the Planning List. Some of our members have experience of VCAT (planning list), and the Association tries where it can to support residents with information on planning matters, including VCAT cases and issues.  We also receive feedback from the local community and networks. 


The Association’s aim in this submission is to comment on issues at both grass-roots and some higher level perspectives.


1.3     Submission Context 

Planning is a “hot” issue in Macedon Ranges. The area is especially sensitive and significant, and there is strong community resistance to the suburbanization of its towns, and more broadly, the Shire.  There are also critical issues relating to rural land and environmental priorities, and major constraints, not all of which are yet fully identified in the Shire’s planning scheme.


There have also been disappointments with Council’s performances over time, for example, the strategic work needed for the Shire seems to keep falling further and further behind, and decision-making has been at times erratic, and not of a high standard.


In addition, the Association has been campaigning for some 10 years to have State level planning protection re-instated in Macedon Ranges Shire – that is, to have Statement of Planning Policy No. 8 – Macedon Ranges and Surrounds 1975 again recognized as a State level planning policy for this area (the policy is currently included in Macedon Ranges’ planning scheme as local policy at Clause 22.01, a Clause not consistently considered in decision-making).  Despite its election policy promise to protect this area, the State government has to date failed to do so.


With difficulties at both local and State level, many in our community have looked to VCAT for greater empathy, certainty and consistency, and justice.  Unfortunately, it cannot be said these qualities are, or are seen to be, consistently found and applied at VCAT.


2       The Role of VCAT

In principle MRRA supports the concept of a planning ’umpire’ - a forum where planning decisions can be professionally, knowledgeably and objectively reviewed.  At the same time, for VCAT to be considered a credible ‘arm’s length’ adjudicator, VCAT must address not only tangible issues but also damaging perceptions.  While there has been some improvement in some areas noted in recent times, overall, from a community perspective, we would say it’s well past time for VCAT to lift its game. 


3       Access Issues

3.1     Accessibility

We believe residents of rural areas are disadvantaged when it comes to accessibility. 



Part 3 Question:

Has consideration been given to increased VCAT hearings in rural and regional areas? 


4       Operational Issues

4.1     Problems With The “Generic” Victorian Planning System

4.1.1       Generic State v Local Context

In the Association’s view, there are fundamental problems with the Victoria Planning Provisions and the system that underpins them. 


Victoria is enormously diverse, yet it has a standardized planning scheme which, through generic policies and controls, says in the first instance that all places are the same by applying the same generic policies and controls across the State. 


The system gives legal priority to these State policies and controls over those which provide a local context, where there is a conflict between them. 


As the local planning policy framework needs State government approval to be included in a planning scheme, its approval and inclusion can be assumed to not represent a conflict but an expression of local context and objectives – a critically important element of any planning scheme, and the only way communities can identify their values and distinguish themselves from the rest of Victoria. 


The question then becomes why do decision-makers so often automatically treat local content as always subservient to State, and overlook local in favour of compliance with only State provisions?  It is this leaving behind of the local context (local values, issues and standards) that we see as a key cause of much community concern and anger, of poor outcomes in the local situation, and of feeding perceptions of development bias at VCAT. 


Specific skills are needed to competently administer the strategically- and performance-based VPPs.  Our experience is that many decision-makers don’t necessarily have these skills and make decisions founded on a statutory rather than a strategic basis.  For example, if there is support at broad State policy level or it’s allowed in the zone (i.e. it’s not prohibited), it’s a ‘goer’, even if the outcome is foreign to or damaging in the local context, or conflicts with a municipality’s stated strategic and policy objectives. 


4.1.2       Social Impacts

A planning scheme is a community-owned document.  Most people tend to best relate to its local content – the part that is about where they live.  When there is a failure to address and deliver local content, there is a sense that local values and issues have been ignored – that ‘the people’ have been ignored, and there is then no community ownership of decisions. This sparks feelings of not only anger and disgust, but absolute powerlessness. Some tell us their lives have been destroyed, others feel compelled to leave where they live - forced out, in their view. 


MRRA wishes it had a dollar for every time someone has asked ‘how can this happen’, or we have had someone sobbing on the other end of the phone. 


There are deep social issues as well as planning issues at play here and it should not come as a surprise that there is a strong sense of injustice and a low community opinion of and confidence in not only the system, with its apparent capacity for infinite interpretation, but those who interpret and administer it.  


4.2     How To Ensure Strategic Decision-Making?

4.2.1       Build A Better Skills Base

The Victoria Planning Provisions are complex.  Not everyone has the expertise or capacity to think strategically, including VCAT members (the same could be said of some council officers and councillors).  Without a strategic basis, decisions are just statutory ones. To say something, anything, can be approved because land is zoned a particular way and what’s proposed isn’t prohibited completely misses the point of the VPPs, and results in severely sub-standard results.


Outcomes shouldn’t depend – or even be seen to depend – on which member hears the case. 


With the greatest respect, there must be improvement in the quality of decision-making, and in who makes those decisions.


There must be public confidence that a member has the right professional expertise.  It’s surely not an unreasonable expectation that planning reviews will be made by people who are experts in planning!  Not in the first instance planning lawyers, or architects, or engineers… but planners.  Specifically, people who understand strategic planning, and how the VPP planning system is supposed to work.  Of course, other areas of expertise should be closely affiliated and called on when needed or appropriate, but part of the difficulty VCAT currently faces is the inconsistency of outcomes produced, in our view, by varying levels of skill and expertise brought to cases. 


4.2.2       More Prescription

Our Association has been promoting, in recent submissions, increased prescription in planning.  The main thrust of our argument is that there is a need to allow zone schedules to set a prescribed starting point for planning applications. 


The basis for such prescription would be the strategic and policy objectives for the land to which the schedule is applied, with the prescribed starting point being standards and requirements that will deliver local context objectives.  This would mean starting points, applications and outcomes would be strategically based.


We are also arguing this should include an ability to vary zone Tables of Uses, in line with strategic objectives.  For example, an ability to make, say, a petrol station a Section 3 use in a Residential zone schedule in rural areas where the objective is to direct commercial development to the town centre.


We feel such changes would reduce “interpretation” and improve not only social sustainability, confidence and certainty but accountability and transparency, as well as lifting the quality of planning outcomes.  We feel this would also ‘cool’ community objections as everyone would be ‘reading from the same page’.


We have also (with others) asked that a RURAL ResCode be produced, because application of the current (metropolitan) ResCode and its standards is decimating not only neighbourhood but especially rural character, along with residential amenity, and broader landscape and community values.


4.3     Introduce A Rural Perspective To VCAT

One of our key complaints with VCAT is that there doesn’t seem to be sufficient expertise, experience or understanding of rural issues and values. This deficiency adds to the problems identified above.


In our area there is wide-spread anger and frustration at the role VCAT has played in approving, over residents’ and at times Council’s objections, development which is now all too obviously inappropriate, and which has had the effect of discernibly and detrimentally altering the character of our towns from rural to suburban (Gisborne, for example).  There are some who will never forgive VCAT for this legacy. 


It is also a damning indictment that any Council could take a view that it should approve development because refusal would not be upheld at VCAT.  And perhaps they are right, for example Council recently refused to amend an approved development plan to allow 26 lots to become 43, but the following day VCAT approved the change, even though the land adjoined Low Density Residential and Rural Living zones, and despite the amendment to the approved development plan being made under a provision of the Planning and Environment Act which provides only for amendment of approved permits. Please also see comments at 4.4.3.


We believe that if VCAT wishes to claim it operates for everyone, it must understand that the needs, characteristics, constraints, values and infrastructure and servicing deficiencies of rural areas are not the same as in metropolitan areas. 


Example 1: 

Where is the water to come from?  Parts of our Shire have been on Stage 4 restrictions for years and residents struggle to cope.  Servicing authorities aren’t going to object to development applications by admitting they can’t service it!  Ever increasing demand on an already limited and fragile resource is a constant worry for local residents, particularly in a bushfire prone area like Macedon Ranges.


Example 2: 

VCAT approved a subdivision in Gisborne a few years ago where an objector raised strong concerns with the ability of the land to be sewered. The objector was told somewhat patronizingly that they could bring it back to VCAT if it didn’t work out, handing the objector responsibility for getting it right. When it eventuated that the land in fact couldn’t be sewered, the servicing authority diverted effluent to a roadside pit and collected it by truck for the many months it took negotiate and construct a new mains line.  The same solution is presently being applied in Woodend with another VCAT approved subdivision. These crude pit-and-truck arrangements are known locally as VCAT “poo-pits.”


We suggest both of these examples point to a need to more thoroughly probe boilerplate conditions and consents given by referral authorities, and for consideration to be given to including separate conditions that the proposal cannot move forward until services are actually provided.


VCAT must also try to understand that there are no formally designated Activity Centres outside metropolitan Melbourne, and that, for example, approving units in a tiny Business 1 zone in Riddells Creek because a rural train goes past maybe a dozen times a day isn’t what Melbourne 2030 is on about. 


Application of Melbourne 2030’s urban elements outside the metro area is itself questionable, and it is no comfort whatsoever to be told urban-style subdivision of our rural towns will eventually come to rival the prized leafy suburbs of Melbourne.


Poor decision-making also has real and permanent consequences for rural land and impacts on non-renewable resources – good soils, open potable catchments, rural landscapes, etc.  We can’t buy more of these if we muck them up – there’s only one chance to get it right. Yet at times the decisions from VCAT seem almost casual in approving permanently damaging use and development. 


For example, after 5 years’ work, Amendment C48 introduced a Rural Land Review and new State rural zones into Macedon Ranges planning scheme. One of the key objectives of the Review was to reduce approval of dwellings in rural zones.  Just days after new rural policies were approved by the Minister for Planning and the amendment included in the scheme, VCAT overturned Council’s refusal and approved yet another dwelling not only in a Farming zone but an open potable water catchment, saying the new policies couldn’t be used as de facto prohibitions. This re-writing of hard-won policy by VCAT sent the message that “nothing had changed” and the decision set a precedent for more of the same.


Another matter which is now prominent is bushfire, and this will need more intense consideration in future.  How compatible, how safe are Melbourne’s standards when applied to bushfire prone areas such as Macedon Ranges?  This year two of our towns were directly threatened by major fires (Malmsbury and Woodend), and embers fell on Gisborne from the Daylesford fire.  Yet proponents put forward plans they have used in Melbourne, and apply metropolitan standards, and these are usually approved as appropriate.  Appropriate to what?


Not having Wildfire Management Overlays applied ‘all over’ doesn’t mean land won’t burn or isn’t high risk, that much was clear with Marysville and the fires experienced in Macedon Ranges this year.  Applications can no longer simply be approved because they meet Melbourne’s standards.


4.4     VCAT’s ”Pro-Development Attitude”

Regardless of how well a member or VCAT may perform in individual cases, overall there is a wide-spread community perception of an attitude emanating from VCAT that almost all development is good, and shouldn’t be refused.  Indeed, VCAT’s overall record seems to support this view. 


4.4.1       It Will Be Approved

There doesn’t seem to be consistent consideration given in the first instance to whether an application should be approved (i.e. whether it delivers strategic outcomes).  That is, there is little sense of starting with a clean page at VCAT where the first question to be answered is, should or can this proposal be approved.  The decision-making process often seems to leap over this important first test.


There instead seems to be a focus on how development will be done (i.e. whether there is statutory compliance), often married to a conviction that all problems with a proposal can be dealt with by extensive if not convoluted permit conditions, which in themselves could be regarded as flagging that the development is likely inappropriate. Please also see comments at 4.4.2.


4.4.2       Permit Conditions

It seems greater reliance is being placed on approving applications on the basis that extensive permit conditions somehow make bad development good. 


This apparent reliance on being able to fix things up with conditions misses the point that (1) nothing may make some applications acceptable, (2) the conditions may not be met and (3) the more conditions that are needed the less likely it is the application will produce good outcomes.  


This dependency on conditions may also encourage ‘lazy’ planning, and in our view, it does drive perceptions of hearing outcomes being a foregone conclusion. It would be a great shame if Merits hearings came to be seen as Conditions hearings.


Another critical issue is VCAT removal of Council conditions on appeal. Councils also at times rely on conditions to ‘save the day’ (or their bacon) by including a condition which, if not included, would have resulted in an application being refused.  Bad practice, yes, but when those pivotal conditions are deleted by VCAT, an already questionable proposal can become a disaster.  We wonder if conditions should be able to be appealed or changed in isolation of a de novo review of the entire proposal.


4.4.3       Secondary Consents & Excessive Permit Conditions

These close out the community.  There is little that appears open or accountable about a Council and proponent reaching agreement without anyone else whose interests may be affected being party to that agreement.  If VCAT makes the order for a secondary consent, shouldn’t there be VCAT oversight of the quality of that outcome?   It is not unknown for secondary consents to undermine the intent of VCAT orders.


4.4.4       VCAT’s Premature Acceptance Of “Failure” Applications

Our understanding is that a failure to make a decision is measured by the time it takes Council to consider and decide on an application, less the amount of time a Council waits for ‘more information’ requests to be met by proponents.  If correct, we are puzzled as to what basis is used by VCAT to accept ‘failure’ applications when Council information requests haven’t been satisfied.


Community members are well aware of how keen proponents are to get to VCAT – particularly with ‘failure to decide’ reviews where VCAT is seen as the place to go to get away from Council and community ‘nonsense’ and obstructions.  Our experience is that proponents often abuse the ‘failure’ provisions, regarding VCAT approval under these circumstances as almost guaranteed and hardly able to wait to go off to King Street.  Our Association had an anecdotal report of one applicant who filed an application for permit with Council and an application for failure with VCAT on the same day!


Proponents aren’t shy in telling objectors they have no rights or can’t stop the proposal, either.  In our experience they are not often wrong. 


4.4.5       Inconsistent Interpretation Of Law : Development Plan Overlays

The Planning and Environment Act is silent on all matters and processes for dealing with development plans and development plan overlays.  As far as reviews of decisions about development plans go, VCAT has interpreted the Act’s silence as not endowing objectors with third party rights – that is, the Act doesn’t confer rights so there are none, this despite the State section of Clause 43.04 saying that third party rights are only extinguished for use and development applications that generally accord with an approved development plan.  At VCAT, rights are removed for the development plan itself. There is much that could be said about VCAT’s interpretation not only extinguishing third party rights, but natural justice.


On the other hand, VCAT apparently does not interpret the Act’s silence on reviewing, approving and amending development plans in the same way.  Doesn’t consistency demand an interpretation that VCAT cannot act on development plans, full stop?  Please also see comments at 4.3


4.4.6       Substitution Of Plans

Is there a more uneven playing field than one where proponents can almost at will move the goalposts by amending what they are proposing?  MRRA believes it would be of benefit to the entire planning industry, local government and communities if proponents were made to run with the first cut of their applications.  No amendments.  Get it right first time, or go away.  This would stop some of the time-wasting incurred as proponents ‘try on’ the cheapest proposals with Councils.  The pity is, some of these get approved.  It says much about the quality of the original proposal that so many proponents feel they need to keep changing it in the quest for approval from VCAT.  Unfortunately, VCAT usually accommodates them.


4.4.7       Fostering A Bullying Culture

An undesirable culture has emerged from the reality that proponents are going to ‘win’ most of the time.  While many proponents see going to VCAT as being on a good thing, many objectors see it as fighting an already lost battle.  Some proponents are so encouraged by this state of play, they seem to believe they can take their own actions against objectors.  It is almost expected that proponents will advise objectors they won’t win, but this is more and more often taken further.  Our Association has had reports of blatant bullying, intimidation and outright threats against objectors and or their property, harassment through unannounced visits and phone calls, of objectors being threatened with being taken to the cleaners and losing everything if they didn’t withdraw objections, of inducements being offered and more rarely, of physical violence or threats of it.  This is completely unacceptable from either proponents or objectors – in our experience it just happens to come much more frequently from empowered proponents.


4.4.8       Lack Of Natural Justice In Who Can Appeal And Be Party To

While not a VCAT responsibility per se, the Planning and Environment Act, while giving proponents several options for appeal to VCAT, doesn’t include equal opportunities for objectors to be party to these appeals.  An example would be Section 81 applications for extended time.  Objectors are then left to apply for joinder.  We acknowledge that VCAT applies the principles of natural justice to such applications, but having to fight for and justify being party to something that directly affects your interests can be a humiliating experience. 


Part 4.4 Question:

Does VCAT consider it does or could have a role in referring inconsistencies or administrative difficulties to DPCD?


4.5     VCAT’s “Anti-Community Bias”

Community objections are increasingly seen as obstructionist, with terms like NIMBY and BANANA used to denigrate those who demand higher standards.  In the Association’s experience, there are few in the community who could with truth be labelled anti-development, that is, against all development.  Rather, what upsets people is ‘bad’ development, the type that destroys or diminishes their interests or broader community values, and having their rights suspended or removed and being excluded from decision-making on matters that affect them.  Protest is a reaction rather than an initiative – cause and effect. 


Responses to this consultation paper will no doubt provide an array of examples of where the community considers it comes off second best at VCAT.  We would like to add some of our own for your consideration.


4.5.1       VCAT:  An Organisation That Has Lost Touch With Its Planning “Roots”

The days of there being an accessible, fair and relatively informal planning tribunal were over once VCAT was created. Instead of being a place where anyone could go to appeal against a planning decision, where everyone had an equal chance to express their views and, win or lose, feel they had a fair (and relatively comfortable) hearing, the AAT’s successor is about law, indeed it is overwhelmed by law, as are most of those who use it.  The thought of going there these days has roughly the same allure as a trip to the dentist. 


The VCAT Act itself focuses primarily on the legal activities that VCAT is charged with conducting. Some parts do, and others don’t, apply to planning but overall it establishes VCAT as more of a place of law than the AAT.  There also seems to have been some cross-over of legal protocols into planning matters.  Please see comments at 5.


One of the consequences of this shift in emphasis is the chorus line of legal representation and expert witnesses that planning proponents habitually hire to represent them.  Is saying it has gone ‘over the top’ going too far?  We don’t think so.  It’s as if going to VCAT has become sport, one of the objects being to blow objectors out of the water. 


The hours and hours of monotony as the ‘experts’ are trotted out, the disadvantage ordinary people face in not being professionally skilled in cross-examination or in the jargon. Even if they are sitting in the same room, they can feel excluded.  This chorus line also means people who lack the skills have to spend time trying to come to grips with at times technical reports, and failing to do so can increase a sense of powerlessness and being out of your depth. There are often many issues, including errors of fact, that objectors would like to raise but lack the confidence to do so in a cross-examination environment.  It doesn’t help that by the time the proponent trots out the experts, objectors have already made their submission to VCAT.  Please also see comments at 4.5.2.


We recognise that most VCAT members are cognisant of this disadvantage, but patience and kindness doesn’t remove either the disadvantage or the unfairness of even having to suffer these at times baffling and intimidating conditions.  Is that really accessibility, or natural justice?


Current practices may have become business as usual to VCAT and the ‘usual players’, but in our Association’s view it has come at a high price:  serious loss of public confidence. 


Is the time ripe for a planning tribunal that is a lawyer- and expert-free zone?  Should representation other than advocacy require leave from the President of VCAT?


Is it time to take planning out of VCAT? 


Or can VCAT become an institution of genuinely equal opportunity and accessibility?


4.5.2       Allow Objectors Instead Of Proponents To Have The Last Say 

The order in which parties present at VCAT hearings adds an additional disadvantage to objectors. 


Proponents already seem to dictate the length of hearings with their interminable ‘experts’, usually led by legal or planning professionals, both of which create a significant disadvantage for objectors, either because objectors don’t have the same ‘fire power’ or because they have had the additional expense of hiring professional assistance in an attempt to establish a more level playing field.  The amount of resources one side seems to be able to throw at winning can render the scales of justice completely out of balance.


Our experience is that so-called expert testimony and submissions made by proponents can be so far removed from reality that they demand a response if not rebuttal. It is not unknown for outright lies to be told but the problem is that these experts’ opinions are more often than not accepted and influence the decision. Opportunities to discount these are rare under the current order of presenting – by the time they emerge, objectors have already ‘had their go’. 


We strongly support a revised order:  Council first, any referral or other authorities second, the proponent third, and then objectors. 


4.6     Justice Out Of Reach

We feel a reality check is needed in looking at remedies on offer.  From grass-roots level, most are out of reach.


4.6.1       The Supreme Court And VCAT Decisions

There have been 3 instances in recent years where cases involving Macedon Ranges Shire have been taken to the Supreme Court, and the Court has upheld that VCAT has erred in law (Murone[1], Romsey Hotel[2] and Rozen[3]).  Are there other cases where errors have been made, and gone unchallenged because for most of us the Supreme Court is out of reach?  Realistically, who at community level can afford to go there?  Losing a VCAT case is one thing, losing it with question marks over it is quite another, and potential for there to have been an error fuels a heightened sense of impotence and injustice. 


We understand and accept that no-one can be expected to be perfect, but can’t help thinking a little more care may go a long way.


4.6.2       Cancellation or Amendment of Permits

While VCAT may see Cancellation or Amendment of permits as a vehicle for community action, from our perspective, who with conscience could promote this action?  Our Association certainly wouldn’t recommend people take this course other than in exceptional circumstances.  It is just too dangerous an option for most, and because of the potential legal pitfalls, at a minimum usually requires expensive legal representation.


4.6.3       Costs And Processes – Enforcement

A growing tendency to place numerous and at times undeliverable or conflicting conditions on permits, the failure of proponents to meet permit conditions, and the at times unwillingness or inability of Councils to enforce, is a source of constant community frustration.


It is all very well to say if permit conditions are not met, bring it back to VCAT.  Why should the community be left to police permits issued by VCAT, and to foot the bill in financial, emotional and time costs?  There must be a better way.


4.7     Cumulative Impacts

The Rozen Supreme Court case (Western Water v Rozen & Anor, No. 8990 of 2007) highlighted the need for the precautionary principle to be applied to planning decisions in open potable water catchments, and for regard to cumulative impacts.  This finding has now been reinforced by the release of new guidelines for planning permits in open potable water catchments (the Association has asked government to include the guidelines as provisions in rural zones). 


The principle of considering cumulative impacts could (should?) also be applied in other scenarios.  An example of what appears to be a failure to consider cumulative impacts where impacts are now being felt is traffic and parking congestion in Gisborne and Kyneton, where a succession of individual decisions by both Council and VCAT has resulted in traffic at times being at a standstill in these small towns, and where people can almost come to blows over parking spaces.


5       Alternative Dispute Resolution

Our Association does not support mediation for planning issues.


The Association met with Justice Stuart Morris in 2004, and in our issues paper we asked:


ISSUES:  An application under Section 79 of the Planning and Environment Act (i.e. a merits review) was determined at a mediation hearing.  We note that evidence given at mediation proceedings is inadmissible before the Tribunal unless agreed to by all parties.  How is mediation consistent with the principle of ‘de novo’ decisions, natural justice, and transparency in the planning system, and with section 16 of the Planning and Environment Act?


We re-ask this question here.  It is difficult to see how parties agreeing to outcomes – usually concessions or compromises aimed at getting a proposal approved (i.e. removing the obstacles) – is compatible with the concepts of ‘de novo’ decisions, and of planning schemes being binding, as per Section 16.



[1] Macedon Ranges Shire Council v Murone & Ors , No.7841 of 2004

[2] Macedon Ranges Shire Council v Romsey Hotel Pty Ltd, No 3703 of 2007

[3] Western Water v Rozen & Anor, No. 8990 of 2007