QS 17 Pty Ltd v Knox CC [2023] VCAT 132 involved a proposed subdivision of land. Prior to the Hearing Council circulated an expert witness statement by one of its own officers. The permit applicant sought for this to be excluded on the basis the officer was not independent as well as lacked appropriate qualifications and experience having never appeared as an expert witness prior. The Tribunal found:
8. Having heard from both parties on this issue, I found that the evidence of Mr Rowlands should not be excluded, on the basis of submissions provided by the responsible authority and for the reasons given orally at the hearing. At the conclusion of the hearing, Mr Hughes requested written reasons for my decision. What follows is an edited version of the transcript of my findings with respect to the application to exclude the evidence of Mr Rowlands:
9. On balance I am going to allow the evidence in, and it will then be a question of weight to be given by the Tribunal to the evidence. To use the term used by Mr Hughes, he will be subject to “bracing” cross-examination. The fact that he is a Council officer is a question of independence which will come out in cross-examination and the weight to be given to the evidence will be on that understanding. However, to deny an opportunity for a Council officer to be called as a witness will go contrary to a number of practices the Tribunal has had over a number of years to hear evidence from Council officers such as drainage engineers and traffic engineers. Whilst the field is a perhaps a little less technical than those disciplines, arboricultural landscape evidence does have a number of technical aspects to it such as calculations of incursions into tree protection zones and the like.
10. Turning to his qualifications to appear before the Tribunal as an expert witness in his field, I accept that he has a degree that perhaps isn’t directly related to landscape architecture or arboricultural evidence but when balanced with his experience over 20 years working for Knox City Council in that role, I find that the two coupled together are sufficient to find that he does have appropriate qualifications and /or experience to appear as an expert before the Tribunal. Again, it will be a question of weight and the balancing of his evidence before the Tribunal. The permit applicant may wish to call their own arborist given we now have the break, and then the Tribunal would need to consider both witnesses but that is a matter for the permit applicant. I am following Doyle in terms of what qualifies a witness to be an expert and it is not just the bit of paper or qualification from a university it is also experience and I am satisfied that this person has both those aspects. I will therefore be allowing the witness to be called but obviously it then comes down to a question of weight to be given by the Tribunal when I hear from him when this matter continues in June.
Moser v Baw Baw SC [2023] VCAT 234 concerned a Practice Day Hearing to address in part a request by the applicant to provide an unredacted copy of the Council delegate’s report. The Tribunal found:
20. Part 6A – Publication and inspection of documents and register requirements of the Planning and Environment Act 1987 (the P&E Act) applies to provision of certain documents on registers required to be maintained by responsible authorities under that Act.
21. Section 197F provides that responsible authorities must not disclose certain personal information about a person on a permit without that person’s consent.
22. Section 197G provides that a responsible authority must not disclose certain personal information about a person on an electronic register under s. 49 or s.56A without that person’s consent.
23. Nothing in Part 6A of P&E Act applies to the provision of documents to the Tribunal in a proceeding. To be clear, where the Tribunal orders a party to provide documents in a proceeding, such documents must be provided in an unredacted form unless otherwise specified by the order of the Tribunal. This applies equally to the documents provided by a responsible authority as part of the required ‘PNPE2 – Information from Decision Makers’ as it does to all other parties in a proceeding.
24. In this proceeding, Council has provided the delegate’s report to the Tribunal as part of its ‘PNPE2 – Information from Decision Makers’ in an unredacted form, however the permit application has the name of the applicant redacted on its face.
25. Council is required to resubmit all its ‘PNPE2 – Information from Decision Makers’ material to the Tribunal in an unredacted form and is required to provide a complete copy of that material (inclusive of attachments) to all the parties in this proceeding. As a matter of procedural fairness, all parties should have access to all the material before the Tribunal unless the Tribunal specifically otherwise orders.
26. I note that the applicant seeks an unredacted version of the delegate’s report because she says that all decisions of Council should be transparent to the public.
27. Section 4(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 provides that for the purposes of that Act and an enabling enactment such as the P&E Act, a person makes a decision where a decision that purports to be made under an enabling enactment is in fact, made. In short, whether a person made a decision as an authorised delegate of Council in this matter, is of no relevance to the exercise of the Tribunal’s review jurisdiction in determining the application for review.
28. It follows that my reasons for requiring Council to provide unredacted version of the documents in its ‘PNPE2 – Information from Decision Makers’ material is based on the requirement to afford all parties procedural fairness in this proceeding and not for the reasons relied upon by the applicant.
New Merger Pty Ltd v Boroondara CC [2023] VCAT 190 concerned a property at 76 Wattle Road, Hawthorn which had been the subject of some media coverage around whether the property should be heritage listed. As stated by the Tribunal:
2. The application that is before the Tribunal proposes the construction of nine, three storey townhouses on the review site at 76 Wattle Road, Hawthorn. While this development would necessitate the demolition of the existing dwelling on the review site, that demolition is not before me, as the review site is not covered by a Heritage Overlay or any other Overlay that would require a planning permit for demolition. The only permit that is required is to construct the new dwellings and a front fence on the review site, and I would be erring in law if I were to turn my mind to the demolition that is required to facilitate this proposal.
3. It is beyond my role to investigate why the review site is not covered by a Heritage Overlay, and whether that is by reason of a series of deliberate decisions, or by accident. However, it is relevant to note that a recent request for Ministerial approval for a Heritage Overlay to be applied to the review site has been refused…
Glossop Town Planning enjoyed another busy month appearing before the Tribunal either as an advocate (Hew Gerrard) or expert planning witness (John Glossop). If Glossop Town Planning could potentially be of assistance with any VCAT related matters, please contact our office on 9329 2288 or via email at mail@glossopco.com.au.
