Andrea is a Principal Lawyer in DWF's Real Estate Team. Andrea is a highly experienced planning, environment and development lawyer. She has extensive experience in running large and complex planning and environment litigation relating to development and regulatory approvals, the rezoning of land and compulsory acquisition claims. Andrea's advisory experience includes planning and environment due diligence in connection with large scale property and corporate transactions, including providing advice on contaminated land, heritage issues, native vegetation offsets and development contributions. Andrea is recommended by Doyle's Guide in the area of Planning and Environment law. She was also a 2019 participant in the Property Council of Australia's 500 Women in Property program, which identifies female talent in the property industry.

There is no question that COVID-19 has fundamentally changed the way we work and the conduct of litigation (including planning hearings for development projects) is no exception to this.

Traditionally planning hearings before both the Victorian Civil and Administrative Tribunal (VCAT) and Planning Panels Victoria (Planning Panels):

• Involved multiple lawyers, experts and resident objectors attending hearings in person (including off-site physical site inspections with multiple attendees); and  

• Were very paper intensive, with trolleys of expert reports, A1 plan sets, and written submissions being printed and handed out to each individual hearing participant.

What changed in 2020?

The physical layout of both the VCAT and Planning Panels buildings makes it very challenging (if not impossible) to achieve social distancing for face-to-face hearings – particularly where there are large numbers of parties involved.  

As such, COVID-19 restrictions have seen VCAT and Planning Panels hearings conducted as online or telephone hearings through much of 2020. Telephone hearings were typically limited to directions hearing and other, less complex hearings, with a small number of parties.  

Backlogs and Adjournments

Between March 2020 and May 2020 (the first Melbourne lockdown), there was an initial backlog of COVID affected cases – largely because VCAT and Planning Panels did not have the technical capability at the outset of the pandemic. This resulted in significant hearing delays.  For example, non-major cases list matters filed in May 2020 were not being listed for final hearing until early 2021.

One positive observation from these hearing delays, is that parties were strongly encouraged to resolve issues by agreement wherever possible (even outside of the formal compulsory conference process). 

On 28 April 2020, VCAT received State Government funding to implement digital solutions to the Planning and Environment Division.  Consequently, in the second half of 2020, the COVID backlog was actively triaged (including through the introduction of a revamped short cases list in VCAT) and timetabling is now largely 'back to normal'.

Key differences between a physical hearing and online hearing

The key difference between a physical and online hearing is that all parties are not physically present together in the same room. Each individual participant will 'log in' from their individual location – whether that be chambers, a home office, or (more recently) their work office.  

VCAT hearings were primarily conducted on Zoom and Planning Panels Hearings on MS Teams. A good working knowledge of both interfaces, including screen sharing, video and audio controls and the chat function has been essential to be able to successfully participate in an online hearing.

A high quality set of headphones (with an inbuilt microphone) is helpful for participants, and the most prepared experts have also invested in magnifying glasses, making the viewing of plans on screen much less straining. 

The recording of an online hearing is prohibited. This includes any 'observers' (i.e. a development manager observing the hearing on behalf of a development company). 

Procedural Orders – Online Hearings

There are additional procedural requirements for online hearings, including that:

• The applicants prepare and maintain an electronic Tribunal / Court Book of all hearing documents;

• Expert evidence and plans be circulated to all parties electronically; and

• Part A written submissions are circulated at least 5 business days before the hearing commences.

These changes have significantly improved the efficiency of hearings, as all parties (including VCAT and Planning Panels members) have the opportunity to review relevant material before the hearing commences.

Typically, no hard copy filing of the entire Tribunal Book is required after the conclusion of a hearing. VCAT or Planning Panels will generally only require the following to be filed: 

• A USB containing the Tribunal Book documents in electronic format;

• Paper copies of select documents (typically A1 plans).

This initiative has significantly reduced double handling of voluminous hard copy documents and reduced the environmental footprint of proceedings. These procedural changes will no doubt become permanent improvements to the conduct of planning hearings.

Key challenges of online hearings   

Despite procedural improvements, online hearings do present challenges in the planning and development world.

Physical Site Inspections

Given that planning hearings are focussed on land and the appropriateness of future development, there is no substitute for a physical site inspection of the subject land and its surrounds. Site visits were very restricted in 2020, but it is hoped that these can resume in a more traditional form in 2021.

Expert Evidence

It can also be very challenging for expert evidence to present online evidence.  Many cases rest on the credibility of an expert witness. It can be difficult to gauge the credibility of an expert over the screen. For example, is a witness pausing to think – or because they are trying to avoid a line of questioning? Giving evidence online can unfortunately diminish the quality of witnesses' evidence.

There are additional challenges if evidence does not complete within the allocated hearing date and runs access multiple days, given that experts are prohibited from communicating with their clients and legal team whilst still technically presenting their evidence. This needs to be carefully managed in the remote working environment.

Teams / Zoom Fatigue

Teams / Zoom fatigue is very real.  There are concerns surrounding the amount of time parties spend in front of screens – especially during lengthy hearings. This is most challenging for advocates, who need to be 100% present and concentrating at all times.

Eye strain, headaches and increased tiredness associated with online hearings, need to be managed via regular 'technology' breaks. Unfortunately, the consequence of these breaks is often a more disjointed and ultimately longer hearing than if conducted in person.    

Technology can fail

Despite the very best systems, technology can and does fail. If a person drops out at a critical point in the hearing, this will cause disruption and delay.  

Are online planning hearings the new normal?

Quite clearly online planning hearings are here to stay and will be the 'new normal' in 2021 – albeit, hopefully in a more flexible form as COVID-19 restrictions are further relaxed.

The additional procedural orders (online Tribunal Books and the pre-filing of written submissions) should remain in place permanently. These procedures significantly improve the efficiency of hearings.

While larger hearings will remain unworkable in the immediate future (due to the number of parties involved), consideration must be given to how critical evidence can be delivered in person – at least to the relevant member – in circumstances where:

• Determination of the facts cannot occur via a screen; or

• There is conflicting evidence, which is central to the dispute. 

While the efficiency improvements associated with online hearings should be celebrated, adopting 'remote hearings' on a permanent basis should not occur if this will ultimately result in the deterioration of the quality of justice and prejudice to the parties.

2021 will no doubt see even more changes and improvements in this space – so, to be continued…  

This article was written by Andrea Towson, Principal DWF (Australia) – Real Estate (Planning & Development)

DWF's Real Estate team takes a 'whole of project' to real estate developments – providing advice across all areas of property, planning and construction. This consolidated approach allows us to partner with our developer clients and their project team, adding value and acting as trusted advisors for the entire project lifecycle.