Updates – As They Happen
Clause 52.18 – Planning exemptions to assist in hospitality recovery
Yesterday Amendment VC193 introduced new planning permit exemptions into Clause 52.18 of all planning schemes to assist in the recovery of the hospitality and associated industries due to the COVID-19 pandemic.
In particular, no planning permission is required for:
- Use, buildings and works for temporary or moveable buildings on public land or land adjoining a food and drink premises, function centre or winery associated with those uses provided the requirements of Clause 52.18-7 are met;
- car parking required for the above uses or the existing use of land for a food and drink premises, function centre or winery.
Today VCAT announced that all matters currently scheduled for remote conferences and hearings can continue to be facilitated
The Head of Jurisdiction, Justice Michelle Quigley, has determined that all matters which are now listed can continue to be heard as they are priority matters. Therefore, unless no Tribunal Member is available, or an adjournment is sought by the parties and granted by the Tribunal, Planning and Environment Division matters can be expected to continue as they have been since 18 May 2020 – that is, via an online platform or teleconference, in accordance with orders made by the Tribunal in each matter.
This is excellent news for our jurisdiction.
New VCAT Practice Notice PNPE9 – Amendment of Plans and Applications
Amongst a number of changes introduced to the Planning and Environment List is the introduction of a new Practice Note PNPE9 – Amendment of Plans and Applications. The new Practice Note takes affect from 1 July 2020 and makes a number of procedural changes to the previous version of PNPE9 issued on 13 December 2018.
Virtual Witnessing and Electronic Documents
Due to the ongoing challenges presented by the COVID-19 pandemic, some of the requirements under the Oaths and Affirmations Act 2018 (the Act) have been amended by the Victorian Parliament by the introduction of the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (the Regulations) which will remain in place until 12 November 2020.
Roll Out of North East Link Acquisitions Commences
The Department of Transport has commenced the acquisition process for land affected by the North East Link project. Several clients of our firm have already been issued with Notices of Intention to Acquire Land under the Land Acquisition and Compensation Act 1986.
Maximising the Development Potential of Land
Whilst COVID-19 has changed the manner in which we work and operate day-to-day, our office is still receiving decisions from the Tribunal which are of relevance to our client’s applications which may be before Council for assessment or awaiting the outcome of a Tribunal decision.
VCAT progressing currently listed matters using telephone or video
From today, VCAT will be progressing currently listed matters using telephone or video conferencing where they can reasonably proceed. VCAT will contact all parties to confirm whether their matter will progress on the listed date and by what medium it will use.
Witnessing and Signing Documents Goes Virtual!
The Victorian Parliament has temporarily changed part of the Oaths and Affirmations Act 2018 by passing the COVID-19 Omnibus (Emergency Measures)(Electronic Signing and Witnessing) Regulations 2020 (the Regulations). Until 12 November 2020, it is acceptable to use electronic signatures on deeds, statutory declarations and affidavits, be in the “presence” of an authorised witness by audio or audio visual link and treat electronic documents as original (if correctly certified as same).
VCAT Update from Deputy President Bisucci
Following a VPELA webinar this morning with Deputy President Bisucci, we provide the following updates in relation to the Tribunal’s relisting of adjourned matters and key updates moving forward.
Covid-19 – A little bit of positivity goes a long way
Us lawyers, whether we like it or not, are professionally trained pessimists. We are risk averse by nature and are taught to consider the worst case scenarios and to plan for them in a contract to avoid them becoming a dispute. I doubt even the best legal minds in the country if locked in a room would have considered and planned for something like the Covid-19 crisis and its impacts. But is the outlook really as bleak as some are saying and should off-the-plan purchasers be worried?
Resumption of vacated hearings
Our firm has begun receiving orders for matters which were vacated because of COVID-19 prior to 15 April 2020. Hearing dates we are receiving are for the week of 10 August 2020. We will keep you updated in this regard together with any developments on the Tribunal’s electronic hearing platform.
Attendance at Online Practice Day Hearings
Our office participated in a number of Practice Day hearings via telephone last week. Whilst the Practice Day hearings were scheduled for half an hour, in some instances they went for much longer. Nevertheless, it was certainly better than not having one at all and overall it went as well as could be expected. In our view, not having a visual makes it more difficult and the attendees will need to exercise the significant discipline of not talking over each other. On balance however, whilst a visual conference would be preferable, we think this is a workable arrangement and welcome the development by the Tribunal and look forward to the roll-out of further e-hearing facilities over the coming weeks.
Leasing Update: New Regulations Place Onus on Tenants
After much anticipation the Commercial Leasing Regulations were passed on 1 May 2020 and are relevant to all landlords and tenants of commercial property in Victoria. We have summarised the Regulations and their practical application in our latest article available at the link below.
The Regulations provide guidance to small-to-medium enterprises to negotiate rent relief in Victoria in the spirit of the National Cabinet Mandatory Code of Conduct. Surprisingly however, they do not strictly mimic the Code and have thus created some further uncertainty around landlord and tenants’ rights. If you or someone you know may require legal assistance with their lease negotiations, whether as a tenant or a landlord, we are readily available to assist.
Amendments to Corporations Act in Response to COVID-19
The Federal Government recently announced changes to the Corporations Act 2001, providing guidance on compulsory company operations can continue in light of COVID-19 restrictions. Under these changes, corporations can hold compulsory meetings online (such as AGM’s) and documents requiring execution can be signed electronically by authorised company officers to the same effect as though a company seal were applied to the physical document. These changes came into effect on 6 May 2020 and will continue for six months.
Update on Short Cases List
VCAT has released on update on its website regarding the revamped Short Cases List. Importantly, cases suitable for inclusion in the Short Cases List must meet the following criteria:
- Suitable for hearing within 3 hours (2 hours allocated to presentation of submissions and 1 hour allocated to the Tribunal delivering a decision);
- Have limited parties;
- Have issues which are limited in number and extent;
- Site inspection unlikely to be required;
- Have addressed any CHMP issues.
The Short Cases List is intended to hear matters within 12 weeks of lodgement and it will be a requirement that parties circulate an outline of submissions in advance of the hearing.
Building Victoria’s Recovery Taskforce
The Building Victoria’s Recovery Taskforce has released further information concerning the types of projects it will consider. The referral of projects for Ministerial Intervention will have a particular focus on projects which have experienced an exceptional delay in the planning approval process or have faced unforeseen impediments as a result of the coronavirus pandemic.
Key criteria includes:
- The matter warrants Ministerial intervention (i.e. it is state or regional significance, delays).
- Economic benefits including jobs, capital value, innovation
- Project delivers net community benefit (e.g. social and affordable housing and environmental sustainability).
- The project aligns with government policy.
- The views of stakeholders and in particular stakeholder support.
- Project feasibility.
- Project complexity and speed of the project delivery.
Building & Development Taskforce Briefing
Best Hooper Lawyers attended the Planning Institute of Australia’s briefing on the Building & Development Taskforce briefing. Presentations were made by Jude Munro AO, the co-chair of the newly established Building & Development Taskforce.
A criteria is in the process of being development and we expect it to be released this week, however the key messages given include:
- The taskforce is interested in “Shovel Ready” projects.
- High economic value – in respect to the project cost and job generation.
- Planning scheme amendments will not be considered.
- Applications before VCAT will be candidates for consideration.
- The Taskforce will operate for a period of 12 weeks and expects it will process between 30-50 projects.
The Taskforce will be assisted by Invest Victoria to assess the economic viability of the project.
Major Cases List Update
Further to our article yesterday, we are pleased to advise that our office has received multiple orders today for Major Cases List matters which have listed them for physical hearing at the Tribunal in the week of 28 September 2020.
We welcome this development and pro activeness on behalf of the Tribunal to keep our Planning & Environment List progressing.
Update from Justice Michelle Quigley
The Victorian Planning & Environmental Law Association held a seminar this morning in relation to the Government’s recent Omnibus bill.
Of particular interest to us was the inclusion of Justice Michelle Quigley QC, who is the President of the Victorian Civil and Administrative Tribunal (VCAT), who spoke about how VCAT is planning to use/implement the $5.2 million in funding they have received to “digitize” their functions.
Omnibus (Emergency Measures) Bill 2020
LAND TAX & COMMERCIAL RENTAL RELIEF UPDATES FOR VICTORIA: Various pieces of important legislation have been considered and passed this week in Victoria as an emergency response to the Covid-19 crisis.
Our Property Transaction and Leasing Team has published two articles with relevant updates for landlords, tenants and developers including:
- An update on the effect of the COVID-19 Omnibus (Emergency Measures) Bill 2020 on commercial leasing and a tenants eligibility for protection under the mandatory code of conduct; and Read article >
- A summary of the State Taxation Acts Amendment (Relief Measures) Act 2020 enacted yesterday and the 25% discounts and deferrals of land tax now available for landowners. Read article >
Our free Rent Relief Guide can also be accessed here for any interested party and we will continue to update landlords and tenants once the new Regulations are released.
Best Hooper is pleased to announce that the Victorian Government has today announced $5.3m funding to enable the Tribunal to digitise hearings and mediation whilst social distancing requirements are in place. The platform is expected to be rolled out over the coming 12 weeks. This is good news to our clients to ensure matters can progress in the most expeditious manner possible.
We have received an initiating order from the Tribunal on a “non-major cases” Planning and & Environment List matter which schedules the matter for hearing on 1 February 2021. We understand the Tribunal is seeking to list new matters (i.e. ones lodged just prior to the COVID-19 Tribunal closure and subsequently) in early 2021 thereby utilizing the end of this year to clear the backlog of matters which have and continue to be adjourned due to COVID-19.
Omnibus (Emergency Measures) Bill 2020 (Bill)
The Victorian Parliament passed the COVID-19 Omnibus (Emergency Measures) Bill 2020 (Bill) today. The Bill comes into operation on the day after it is given Royal Assent with most provisions having a sunset date after 6 months after its commencement. The Bill allows, among other things, VCAT and Planning Panels Victoria to conduct proceedings and hearings through electronic means. Further, it will allow Councils to make planning permit applications available for inspection via website and for it to conduct virtual meetings online. We will shortly publish an article on our website to set out the changes relevant to the planning and land development industry in greater detail. We welcome the temporary measures introduced by the Victorian Government which remove some of the barriers for Councils, VCAT and Planning Panels Victoria to perform their functions through electronic means in this unprecedented time.
We are pleased to advise that our office has begun receiving Initiating Orders from the Tribunal for matters which were lodged just before the COVID-19 outbreak. These matters were on “pause” (with some matters lodged over two months ago) but we are now receiving hearing dates for August. We welcome this positive step from the Tribunal and will continue to keep you updated as we learn more, including when matters that have been vacated due to the Tribunal closure are expected to be re-listed.
Hearings on the Papers
Today we received our first VCAT order for a hearing to be heard ‘on the papers.’ This is for a matter where there are no third parties and it is simply between the Applicant for Review and Council. The two parties responded to an administrative mention mutually agreeing to a timetable for Council to provide draft conditions, exchange of submissions and submissions in reply. There is no evidence being called. The Tribunal issued the orders as agreed between the parties and made remarks on what should be included in the submissions. We are continuing to pursue use of this platform for other matters, including those with evidence and third parties. The clear difficulty with this medium of hearing for matters with evidence is the ability for cross-examination. Notwithstanding this we are working on options to facilitate cross-examination/commentary on evidence and will continue to provide updates as they come to hand. Should you have any queries please do not hesitate to contact any of our Planning team.
Compulsory Conferences by Video
Today, our office was invited to partake in our first video compulsory conference with 8 participants plus the assigned VCAT Member. There were three parties in total, being the Applicant for Review, Council and one other party. The platform is Immediation and the IT facilitator from Immediation was online the whole time to sort through any technical teething issues. The facility enabled Member Carew to allow the parties to enter into ‘break out rooms’ to allow for discussion directly with our client in the same manner as a normal Compuslory Conference held at 55 King St. We welcome the technology for both compulsory conferences and hearings to assist the jurisdiction in processing live applications in the planning and environment list whilst adhering to social distancing recommendations.
Vacation of Hearings
VCAT has recently announced that all non-urgent matters in the planning and environment list which were scheduled for a hearing or conference prior to 15 May 2020 will be vacated. VCAT is developing solutions to hold hearings and compulsory conferences via an online platform, Immediation, providing a virtual hearing room. VCAT began a trial of the online platform in the week beginning 30 March 2020 for matters identifies as being suitable for such a platform. During the initial trial of the platform, each individual hearing or compulsory conference will be supported by a dedicated virtual bench clerk who will be on hand to assist the presiding member and participants. Our office is partaking in the online platform next week and will provide an update on its capability. VCAT is confident that use of this technology will enable a gradual return to be able to hear and determine a range of matters while physical face to face hearings are impossible. We will keep our client base updated with any respective updates we receive from VCAT.
Update for Landlords and Tenants
Best Hooper Lawyers has recently released a three-part legal overview for landlords and tenants in response to the changing environment due to COVID-19.
Part 1 – Overview of the Legal Perspectives Read article >
Part 2 – Government Assistance and Stimulus Packages Read article >
Part 3 – Practical Solutions Read article >
A Letter to our Developer Community
To Our Developer Community,
In these unprecedented times, we cannot predict how this will look for all of us when we come out the other end. Some of you will have incomplete sites, others may have lost sales, and most will be trying to make sense of their feasibilities. Although we are a resilient community, innovative solutions are, and will be, required to adjust to COVID-19.
We remain open for business to provide to you that innovative and strategic advice. We are also working with lead industry groups, key stakeholders and Government to make sure that we are best placed to provide the advice that you need. Our community is too important to stand still.
Many of you are continuing to undertake due diligence on new sites, engage consulting teams to prepare new applications, negotiate outcomes, and keep relationships with builders and the community at large. We can assist you in all of those tasks. It is important not to miss deadlines in current applications or referral periods. While VCAT has currently adjourned non-critical hearings up to 17 April 2020, the industry is actively looking at ways to enable hearings to continue in the future and there is still other work to be done.
Best Hooper has been serving our community since 1886. We have survived through recessions, wars, depressions and pandemics. We are the oldest and certainly most prominent developer focused law firm in Victoria – it is what we know and what we do best.
Let’s continue to work together as Victoria will once again be relying on our community to prosper.
Amendments to Corporations Act in Response to COVID-19
On Tuesday 5 May 2020, the Treasurer announced changes to the Corporations Act 2001 and Corporations Regulations 2001 by the introduction of the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (the Determination) which seeks to guide compulsory company operations in light of COVID-19 restrictions.
The Best Hooper version of “Business as Usual”
Along with the majority of other service providers in Australia, we are guilty of professing to our clients that we are ‘continuing to operate business as usual’. The truth is that there is nothing usual about how we are continuing to engage with our staff, clients and industry professionals. Any person saying that everything is unchanged has not left their home in 4 months nor opened a newspaper.
Update on VCAT Hearings
The Victorian Planning & Environmental Law Association held a seminar on the 30th April in relation to the Government’s recent Omnibus bill. Of particular interest to us was the inclusion of Justice Michelle Quigley QC, who is the President of the Victorian Civil and Administrative Tribunal (VCAT), who spoke about how VCAT is planning to use/implement the $5.2 million in funding they have received to “digitize” their functions.
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