COVID-19: What does it mean for planning matters?

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By David Passarella, Partner and Hannah Wilson, Lawyer

COVID-19, otherwise known as Coronavirus, is undoubtedly the most talked-about topic in the world right now and the impacts that the pandemic is having on both our personal and professional lives in unlike anything we have ever seen. As the State of Victoria enters its second week under Stage 3 Restrictions, we thought it would be useful to provide a summary of the alternative measures being implemented by our relevant decision-making bodies in a time when face-to-face encounters are being strongly discouraged, and in some circumstances altogether prohibited.

Victorian Civil and Administrative Tribunal (VCAT)

Of its 38 hearing locations, VCAT is currently only able to operate video or teleconferencing facilities from two; Melbourne (King Street) and Oakleigh. As a result, the only matters which are presently being heard are those in the Guardianship and/or Residential Tenancies Lists. All other matters listed up to and including 15 May 2020 have been adjourned for the foreseeable future, unless the matter is part-heard or involves an application for an injunction, in which case we understand exceptions are being considered.

While VCAT is working to improve its technologies and increase the number of matters being heard by alternative means, there is no indicative timeframe for when these facilities might be up and running. In some cases, where there is agreement from all parties, VCAT is open to hearing and determining a matter on the papers. However, this approach will obviously not be appropriate for all proceedings.

As a by-product of the difficulties that it is encountering with respect to conducting hearings, VCAT is also experiencing significant delays at an administrative level. As we understand it, it is unlikely that initiating orders for new applications (or, in fact, some applications that were lodged as early as February) will be issued prior to the 15 May date. This date has already been extended once and may be extended again. Alternatively, VCAT may soon overcome its technological hurdles and begin offering video and teleconferencing options to the Planning and Environment List.

Planning Panels Victoria

Planning Panels Victoria has issued directions to parties that upcoming face-to-face panel hearings may be rescheduled, postponed, cancelled, or otherwise facilitated via video or teleconferencing arrangements where feasible.

Where considered appropriate, and as far as is reasonably practicable, Planning Panels Victoria is also conducting some panel hearings on the papers. In these circumstances, if a party wishes to present its submissions or evidence or to cross-examine any witness by video/teleconference, it is required to submit a detailed proposal to the relevant panel, outlining the logistics of how that will occur (including suggested timetabling, technology platform and how other parties can participate). Following a review of any such proposal, and taking into consideration matters of procedural fairness, the panel will then issue a final timetable and directions for the hearing.

Our understanding is that some proponents have already expressed concerns about conducting panel hearings in this manner and requested adjournments, which, if granted, may lead to an accumulation of unheard panel matters on the other side of this pandemic.

Supreme Court of Victoria

The Supreme Court has introduced a suite of changes, across all its divisions, to minimise in-person attendances.

In its Common Law Division, which is often utilised in compulsory land acquisition matters, both trials and mediations are being heard via Skype, telephone or videoconferencing facilities unless a judge directs otherwise. Where in-person attendance is considered necessary, listing times are being staggered and strict time limits are being imposed.

For the most part, interlocutory and case management hearings are being conducted and determined on the papers.

Moving forward

The health advice and recommendations relating to COVID-19 are constantly evolving and we appreciate that this makes it almost impossible to carry on ‘business as usual’. That said, we consider it is critical for our decision-making bodies to continue exploring constructive ways in which they can alter their processes and ensure that planning matters are being progressed. The construction industry is a key driver of the State’s economy and it is imperative, now more than ever, that we keep the wheels in motion.

For further information, please do not hesitate to contact us.

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