Beginners Guide to Community Action Cases in Planning and Environment Law and VCAT

  1. I have found the part of my practice which works with objector groups to be on one hand the most challenging and on the other the most satisfying.
    1. On one hand you have a group of highly motivated residents who wish to oppose a development or use and working with these people is extremely rewarding and fun.
    2. On the other hand working with these groups requires some significant hand holding as few members are familiar with the planning, VCAT or the merit appeal process.
    3. In addition, often these types of cases are David and Goliath situations where the developer has a significant site to develop and has hired the most highly paid and senior barristers, lawyers and experts in the state of Victoria to push their case.
    4. While the community have myself, some extremely well intentioned and often incredibly capable people against a significant legal team of the developer.
    5. Tens of thousands being spent every day on one side and on the other the modest expense on counsel and some old fashion community action.
  2. Having said that the weight and support of the pillars of planning law is with community groups; that acceptable outcomes in planning and environment matters is defined as what is of net community benefit and sustainable development.
    1. This may mean an outcome may be acceptable despite some negative characteristics.
    2. An outcome may be acceptable because on balance it results in net community benefit; this might be despite achieving only some relevant planning objectives while also impeding or running contrary to the expectations of
    3. Section 60 of the Planning and Environment Act (P&E Act) specifically gives Council (or the Tribunal) the ability to consider:

(1)     Before deciding on an application, the responsible authority must consider—

 (e)     any significant effects which the responsible authority considers the use or development may have on the environment or which the responsible authority considers the environment may have on the use or development; and

(f)     any significant social effects and economic effects which the responsible authority considers the use or development may have.

(1B)     For the purposes of subsection (1)(f), the responsible authority must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect.

  1. Generally (unlike other planning matters I am involved in) the community groups want to be involved in the process of preparation and even presentation of their case at the VCAT.
    1. Whereas in all other planning matters of which I practice I am hired as the advocate and indeed that is the role I take; where I provide the client updates, advice and relevant information but don’t anticipate (from the client) any active involvement or assistance in preparing or presenting the case.
    2. Whereas with community groups cases there are members of the group who do some very serious and capable work toward preparation and presentation at the final hearing.
  2. In order to harness this energy to assist with preparation and presentation at the final hearing I start by meeting with the group and putting people into specific groups.
    1. Firstly work out who are the movers and shakers in the community group; often there is 2-5 people out of any group that is really driving it and others who have great intentions but who need some guidance to optimise their limited time or experience.
    2. I have worked with community groups of many hundreds of people yet often at most 10 people will actually do anything toward the case.
  3. Of that 2-5 people I then identify who is the driver of the group; often this is the person who contacted me in the first place but sometimes not.
    1. I allocate that person the important duty of running the group and being the group liaison with me and often the other side, council and the tribunal.
    2. I refer to them as the group liaison.
  4. Next is to identify those others within the group of 2-5 who have particular skills, motivation or time to assist in the heavy lifting preparation of the case. I call these people the 1st tier of the group.
    1. The people in the 1st tier may want to focus on planning matters associated with the permit; sometimes if there is not a 2nd tier I work with these people directly, or I set up think tanks for these areas of planning law and put these 2-5 people as the leader of each think tank group (think tank group leaders).
    2. These people will run the rest of the community objector group if there are others. It might be a think tank for traffic, parking, heritage, statutory planning, urban planning, landscaping and other planning issues that typically arise in planning review cases.
  5. I then identify the 2nd tier of contributors who are often motivated but may be time short, limited experience and better utilised to target a specific part of the planning application where they can be of assistance to the 1st tier or alternatively give the 2nd tier another task such as working with the press or fundraising.
    1. If these people work under the think tank group leader on a specific areas of planning law then they form the think tank for that group.
    2. I assist the think tanks understand the kind of material they need to navigate and generally the group meets separately and only closer to the hearing date I meet to discuss any questions or outstanding issues with their leader.
  6. I find generally that within firmly defined parameters it is useful to have these think tank group leaders taking part in the hearing as lay submissions and/or take part in cross-examination of the applicant’s witnesses)?
    1. The strategy to use lay submitters from the group is to allow lay submitter to make submissions on issues of which Counsel will be restricted; meaning Counsel will be held back by both objections of the Permit Applicant and from the Tribunal because some of the issues in question are too weak. Sometimes we need to win by a thousand cuts (no matter how shallow) and the lay submitters can assist with that.
    2. Further the benefit of lay submitters is that they will have greater access to flexibility with cross examination; the kind of flexibility that Counsel would not be allowed by the Permit Applicant or the Tribunal.
    3. In addition these think-tanks may assist Counsel in preparing the general submissions for the combined group.
    4. Further each think tank may provide Counsel with proposed questions that can be asked in cross examination should it be decided to avoid any lay cross examination by the think tank group leader.
  7. The advantage of this think tank group strategy is that it reduces the divide between the resources the permit applicant has and the objector group has.
    1. I find that more often than not these objector groups are full of skilled, motivated, passionate and interested people who with a little guidance are more than capable to navigate submissions, expert reports and plans with great success and significantly contribute to the strength of the objectors community arguments.
  8. Another strategy I like to incorporate is discussing with the community objector group at VCAT the use of ghost writing or formal experts?
    1. Ghost writers are experts who are not engaged formally to give evidence at the tribunal but instead work behind the scenes to assist Counsel prepare submissions and cross examination points.
    2. Normally I would engage a ghost writer for about 10 hours which is sufficient for them to analyse the plans, any relevant expert reports and guide me in some cross examination points and draft submissions in their area of expertise.
    3. The community gets bang for their buck in this instance without the heavy costs of a formal expert and allows the community access to an expert’s knowledge and skill but without the prohibitive costs associated with it.
  9. What I need from objector groups for planning matters when they prepare the brief to me is the following:
    1. Chronology of the planning process (no more than 2-3 pages).
    2. Print out a planning property report from the Land Victoria.
      1. https://www2.delwp.vic.gov.au/maps/maps-and-spatial-data
    3. Property Title to see if there is any Covenant on the land.
    4. Council officer’s report (delegate report)
    5. Notice of Decision and conditions or Notice of Refusal.
    6. Any expert reports.
    7. Any position paper from the compulsory conference.
    8. Plans:
      1. Site analysis plan. Conditions as they are now (first plan they produce)
      2. Design response plan (general outline of the proposal, including all details, size, etc., constraints and opportunities, where the tram is, the sun is, views are. and close private open space.
  • Existing/Demolition plan (under heritage overlay need planning permit to demolish).
  1. Ground floor proposal plan (compare with demolition plan).
  2. First floor – Proposed.
  1. Planning controls and permit triggers, zones and overlay controls.
  2. Any documentation from Council or from client to Council.
  1. Below are some images of articles associated with my community objector groups:
    1. https://www.domain.com.au/news/the-rise-of-resident-action-groups-across-melbourne/?utm_campaign=strap-masthead&utm_source=the-age&utm_medium=link&utm_content=pos2&ref=pos1
    2. http://warrandytediary.com.au/wp-content/uploads/2016/10/OCTOBER-2016-Diary-DIGITAL.pdf; on page 7 of the paper.

 

Daniel Epstein of Counsel

By Daniel Epstein

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