Originally published as an editorial under a joint by-line with Tim Westcott and Gilda Di Vincenzo in “The Lawyers’ Tribunal,” Planning News 35, no. 5 (June 2009): 4.
By the time you read this, the submission period will likely have just closed for the VCAT review.1
The Tribunal is to be commended for conducting this important review. Commenting on the Tribunal’s performance is fraught with difficulty, however. Firstly, it is hard to generalise about the performance of a Tribunal constituting many different Members; the quality of the Tribunal’s performance varies from encounter to encounter. Given the passion that often accompanies VCAT hearings, it’s also a strong test of participants’ objectivity to try to judge when they got a fair hearing and when they were dealt a legitimate stinker. Finally, one needs to filter valid grievances from the great deal of unjustified criticism that swirls around simply because the Tribunal is at the pointy end of the process and has to make hard and unpopular calls that others chicken out of.
Nevertheless, it is important that the debate about the Tribunal’s performance be had as openly possible. Here we would like to touch on two concerns arising, in different ways, from the increasingly legalistic focus of the Tribunal: accessibility, and de facto legislating.
Accessibility. The Tribunal gives up a level of procedural rigour to ensure user-friendliness, so it is vital that it remains accessible for lay people. At last year’s state planning conference, VCAT President Justice Kevin Bell noted the danger of disempowering participants through creation of a “club” mentality; that strikes us as a timely reminder. Similarly, the informality of proceedings sometimes allows a level of interruption, badgering and general bluster by lawyers and planning advocates that wouldn’t be tolerated in a Court; Members need to be stronger in kerbing such behaviour to ensure lay people are not intimidated while presenting their cases.
A related concern surrounds the use of expert witnesses. Making a case through cross-examination requires great skill; that fact, and the extended length of witness-laden cases, makes it far harder for lay people to successfully fight their case when experts are involved. The use of experts should therefore be focussed on cases requiring genuine niche expertise, rather than witnesses being an alternative tactic for general planning advocacy. When barristers call an expert planning witness to run through a case that the witness could have introduced as an advocate, we gain little in insight but lose much in terms of accessibility. This is particularly true since the in-house handball (where the expert comes from the same firm that handled the application) now attracts barely a murmur. In such cases we have seemingly given up on witness impartiality, but added to the hearing a barrister whose role, all too often, is akin to crowd control. Many in our profession have a vested interest in the expert witness industry, but it is time to ask if it is serving the interests of the community.
De Facto Legislating. One of the hoariest complaints in the popular media is anxiety about judicial activism; as those complaints are usually unfair, we hesitate to import that dialogue into the planning domain. But we feel there does need to be debate about whether VCAT – a tribunal, not a court – sometimes strays too far into the realm of making de facto case law. This is a tricky area to draw the line, as nobody wants to have to go to the Supreme Court for guidance on planning interpretation. Yet we should feel uneasy when the Tribunal turns established practice on its head.
We saw this a few years ago with the Chak Lai Li decision, in which the Tribunal held that ResCode Standards effectively worked as a series of deemed-to-comply provisions.2 That decision turned on an admittedly ambiguous phrase in Clause 55, and had the effect of reversing the clear evolution of the controls away from such provisions. Now, instead of the ResCode Objectives being the prime statement of the goal to be achieved, we can only look at them if the Standards aren’t met, despite most Standards not being written as black-and-white controls. What’s more, when the merits of a situation call for a different approach to that in the Standard, decision-makers are left to contrive circuitous grounds for their view. So, for example, a Standard-compliant setback might legitimately be found inappropriate under the Neighbourhood Character clause, but must be deemed to have met the Setback objective of ensuring “that the height and setback of a building from a boundary respects the existing or preferred neighbourhood character.”
That case at least turned on a literal reading of the Scheme; more troubling are the cases where the findings and the statute part ways. We have said more than enough in these pages about secondary consent, but it remains the definitive example of a Tribunal undoing a legislative change: a process legislated out of the Act in 2005 has been perpetuated because the Tribunal felt it still fulfilled a need. In other cases, it is Schemes that are seemingly rewritten. So, for example, we get the Tribunal saying that a permit exemption in Clause 52.24 that refers only to use should be read to apply to development as well, because it seems that the control should have been drafted that way.3 What are planners, who try to teach their junior staff that they need to be vigilant about clearly distinguishing use and development triggers, to make of such an example? More seriously, what becomes of the decision-maker who finds that the Tribunal is directing them in contradiction of the Act and Scheme? In Chak Lai Li, the Tribunal pointed out that the statute remained paramount, and all else is just interpretation: but ironically that principle applies to Tribunal decisions also. How should we approach a secondary consent application when Section 72(3) of the Act says that the application is actually bound by Division 1(A), or a proposal relying on a development exemption under Clause 52.24 when the Scheme says no such thing?
In such cases the purposive approach to statutory interpretation seems to have been stretched beyond interpreting the statute with reference to its intent; it becomes instead a judgement about what the statute should say. In such cases there is a sense of the Tribunal straining to make a creaky system work better than it does. Yet it should not be for the Tribunal to gaffer tape the broken bits of the system back together, or to become by default the custodians of the system. We need a wider dialogue about system improvement, and quicker attention to problem provisions, so that the Tribunal can return to its core business: providing accessible, timely resolutions for individual planning decisions.
Notes
1. As reported in April Planning News; see www.vcatreview.com.
2. Chak Lai Li v Whitehorse CC [2005] VCAT 1274, http://tinyurl.com/o2ob9z.
3. Department of Human Services v Maribyrnong CC [2008] VCAT 1746, http://tinyurl.com/p87lbg.