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COVID-19 Planning and Development Update – the Building Recovery Taskforce, Courts and Tribunals go Online, Funding for VCAT

Measures to address the implications of the COVID-19 pandemic (COVID-19) have been constantly evolving with government initiatives and legislative changes designed to assist the areas of planning and development and associated industries.

In our earlier blog “COVID-19 Planning Law and Property Development Implications” we provided an update on measures being implemented and the advocacy work of key industry bodies in response to COVID-19 challenges.

Further ground has been made in the form of new temporary legislation and a positive response by the Victorian government with respect to funding and decisions to ensure the continuation of projects.

The collaborative work of many industry representative bodies has greatly assisted in positive responses to progress business and public administration for the period of COVID-19.  We report on new measures implemented and announced in recent weeks that will affect the areas of planning, local government, environment and property development.

While much has already been published, Burke & Associates Lawyers is here to assist clients with planning, local government or development issues during COVID-19, as the government and industry respond and we move into a new phase of easing restrictions and recovery.  We can advise you on the specific issues that impact your matter or project in the spirit of sustaining and progressing the property development and other industry sectors.

Establishment of Building Victoria’s Recovery Taskforce (Taskforce) and key criteria

Side by side legislative changes to assist the ongoing administration of the functions of the courts, tribunals and local government is the establishment of the Taskforce.  The Taskforce will significantly help to move the system along and see the determination of planning permit applications by priority within a nominated timeframe and with reference to criteria.

By now the industry is well aware of and has welcomed the government’s announcement on 23 April 2020 of the establishment of the Taskforce and the approval of four new projects of significant $ value.  See the Premier’s media release. It states that the Taskforce will:

  • oversee the fast-tracking of planning approvals using Ministerial powers where decisions have been delayed due to COVID-19; and
  • give advice to the government on building and development projects that are in the pipeline including initiatives to expand social housing options.

The Government will also seek the advice of the Taskforce on a pipeline of building and development projects over the longer term, including initiatives that further expand social housing options.

We have heard from industry representatives through helpful webinars about the Taskforce  and the intention to fast track projects of value based on a variety of criteria including economic value, shovel ready projects and considering a range of projects with reference to not only $ value but also those of value in regional areas where fast-tracking may be appropriate.

A copy of the DELWP criteria for the assessment of a priority project can be found here.

If you need assistance reviewing the criteria or completing an application form, please contact Burke & Associates Lawyers.

Legislative measures

COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic)  (Omnibus Act)

The Victorian government passed the COVID-19 Omnibus (Emergency Measures) Bill 2020, on Thursday 23 April 2020, relating to a range of legislative schemes, including temporary measures allowing the continuation of planning and court and tribunal processes in Victoria.

The Omnibus Act contains amendments to certain acts and temporarily empowers the making of regulations to ensure that functions of state and local government and the courts can operate during COVID-19. Most provisions have a sunset date after 6 months after its commencement.

Planning and Environment Act 1987 (Vic) (PE Act) – planning documents available online and remote hearings for Planning Panels Victoria (PPV)

Temporary amendments to the PE Act relate to the introduction of online measures to satisfy existing requirements under the PE Act. Key changes are:

  • The requirement under the PE Act for documents to be physically available, such as planning scheme amendments, planning permit applications, submissions and objections, is satisfied if they are available online to the general public on the designated entity’s website; and
  • The requirement under the PE Act that PPV must conduct its hearings in public is satisfied if the hearing is available to the general public electronically, so participants are able to be heard using remote technology.

PPV has been on the front foot adapting to the challenges faced in continuing to conduct hearings by putting in place arrangements during COVID-19 to consider matters based on the submission of documents and by using videoconferencing platforms.  The PE Act now allows all persons wanting to participate to do so via electronic means (PPV providing access to hearings streamed live or by video after the hearing).  We understand that PPV is producing guides to the conduct of hearings and public participation electronically, including new protocols for the provision of expert evidence.

Local Government Act 2020 (Vic) (LGA) – virtual meetings and information available on websites

The amendment of the LGA provides for the following changes to meetings, applicable unless it is decided under the LGA that it is necessary to close the meeting to the public:

  • any legislative requirement that a person attend meetings of a council, including meetings of a certain committees and of regional library meetings is satisfied if the person attends by electronic means. This means that councillors are now not required to attend a meeting in person;
  • any requirement for a council meeting or joint meeting of a Council to be made public is satisfied if it is livestreamed on the Council website; and
  • any requirement that a meeting of a delegated committee, joint delegated committee or special committee be made public is satisfied if the meeting is live streamed on the council website or a recording is made available on the website after the meeting.

Open Courts Act 2013 (Vic) (Open Courts Act)

The new Part 6A inserted into the Open Courts Act provides that any prescribed court or tribunal, including the Victorian Civil and Administrative Tribunal (VCAT), may hear a matter upon an order being made, with or without the appearance of the parties or by audio or visual link.

Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act)

The VCAT Act is amended so that VCAT can meet remotely to make rules about the practice and procedure of VCAT hearings, including the procedure for filing appeals, inspection of documents and expert evidence.

Supreme Court Act 1986 (Vic) (Supreme Court Act)

The Omnibus Act introduces temporary amendments to the Supreme Court Act so that the Court may decide any issue in any proceeding or determine any proceeding, entirely on the basis of written submissions and without the appearance of the parties.   The Court must be satisfied that it is in the interests of justice to do so and whether or not the parties consent to the Court doing so.

Environment Protection (Amendment) Act 2018 (Vic) (EP Amendment Act)

Part of the measures in the Omnibus Act addresses the commencement dates of the provisions of the EP Amendment Act which will introduce significant changes for environmental regulation in Victoria.  The government has delayed commencement until 1 December 2021, unless proclaimed earlier. This relieves both business and the relevant authorities of the immediate need to prepare for and implement the new scheme during COVID-19.

VCAT

On 28 April 2020 the government announced new funding to the tune of $5.2 million for VCAT to enable it to change its process and adopt a digital strategy in response to COVID-19 to be rolled out over the next several weeks.  There will be upgrades so that VCAT can hear planning and other matters remotely.  Upgrades include project management software, software programmers and licenses, IT hardware and digitisation and scanning of paper files.  See The Premier’s media release.

This will relieve some of the practical hurdles of VCAT mentioned in our previous blog, including the restraints of the hard-copy based system.  While matters in the Environment and Planning List were previously on hold, the upgrades and legislative changes mean some matters will be able to be listed for hearing on the papers if appropriate and by remote hearing as VCAT transitions and resumes operation.  We expect to receive updates from VCAT as well as new guidelines and practice notes. The VCAT website posted an announcement on 28 April on the digital project and VCAT moving forward .

The establishment of the Taskforce, the positive changes to legislation and the timely transition of VCAT administration and processes are all welcome initiatives to promote business and ongoing development. We will come across any number of issues arising along the way, including meeting Taskforce criteria and the effective participation in online hearings in both VCAT and PPV.  Please contact our team with any queries,  Kristy Muhlhan, Principal, who heads our Property and Property Development Team or, Annabel Viner, Special Counsel, Planning Law at Burke & Associates Lawyers on kmuhlhan@burkelawyers.com.au and aviner@burkelawyers.com.au respectively, or +61 3 9822 8588.

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