This article was written by Mark Beaufoy, Tom Crompton and Michael Ashforth.
The Victorian Civil and Administrative Tribunal (VCAT) has recently reformed its Planning and Environment Division. This biggest changes is the creation of a new Environment and Resources List, which is intended to better manage cases and accommodate litigants involved in environmental and natural resources disputes.
The reforms are based on stakeholder consultation and include a dedicated Environment and Resources List and other initiatives such as new forms and hearing procedures, with associated new practice notes and fact sheets.
VCAT advises that its new initiatives were developed partly in response to the commencement of the Environment Protection (Amendment) Act 2018, which as we reported in April was delayed until 1 July 2021 (or earlier by proclamation), due to the COVID-19 pandemic.
Together with other new legislation, we expect that the new Environment Protection Act will increase VCAT's case-load, due to the various new review rights it will introduce against the range of directions, remedial notices and orders that the EPA will be empowered to issue under that Act.
New Environment and Resources List
VCAT's new Environment and Resources List will sit within its Planning and Environment Division (PED) and will exclusively hear and determine environmental and natural resources matters. This will mainly involve review applications and applications for orders and declarations under the following other legislation –
- Environment Protection Act 1970 (until it is repealed and replaced in 2021);
- Environment Protection Act 2017 (when it fully commences in 2021);
- Catchment and Land Protection Act 1994
- Climate Change Act 2017
- Conservation, Forests and Lands Act 1987
- Environment Protection Act 1970
- Flora and Fauna Guarantee Act 1988
- Melbourne Strategic Assessment (Environment Mitigation Levy) Act 2020
- Mineral Resources (Sustainable Development) Act 1990
- Petroleum Act 1998
- Plant Biosecurity Act 2010
- Water Act 1989.
New forms and procedures
VCAT has also created new forms, procedures and hearing arrangements for environmental matters, which are different from those already used for VCAT's planning and other lists.
Two new application forms were released on 1 July 2020, the first for VCAT reviews of government/regulator decisions and the second for applications for orders or declarations against a person or organisation.
A separate application form for the Major Cases List is no longer available. Instead, the new forms allow the applicant to enter the application into the Short Cases List or the Major Cases List.
VCAT has stated that these changes are intended to improve its ability "to process, hear and determine cases more efficiently".
To support this change, VCAT has also released a new fact sheet for its Short Cases List, which is intended to assist applicants to determine whether a matter is likely to proceed in the Short Cases Lists or the Major Cases List.
Typically, cases with limited parties, and limited issues in dispute that are capable of being heard and determined within three hours, will generally be allocated to VCAT's Short Cases List. Longer and more complex disputes, e.g., which require evidence, site visits or more lengthy submissions, will be allocated to the Major Cases List.
VCAT advises that Practice Day Hearings will not be listed in applications in the Major Cases List unless requested by a party and determined to be necessary by VCAT.
VCAT's other recent initiatives
Some of VCAT's other initiatives include -
- Introducing new initiating orders (which are initial case management orders about procedural steps and time-tabling to prepare cases), which VCAT intends will streamline Environment and Resources cases and be more understandable.
- Publishing a series of other new fact sheets addressing matters including amendment or cancellation of permits, enforcement orders, and environment and resources cases are also being prepared.
- Further fact sheets addressing other applications under the Heritage Act 2017, Gambling Regulation Act 2003 and Subdivision Act 1988) will be released in due course;
- Publishing guidance notes on its website for preparation of Tribunal Books (which are trial books prepared by the parties, which VCAT may from time to time require, and in other cases are discretionary and capable of being agreed between the parties);
- Drafting new practice notes for matters in the Environment and Resources List and reducing them to six, with two existing practice notes being revised. Information contained in some existing practice notes will now be provided either on VCAT's website, or in its new fact sheets.
For more information on VCAT's new Environment and Resources List and other reforms, please contact Mark Beaufoy, Michael Ashforth or Tom Crompton.
 Which will amend the existing Environment Protection Act 2017 (Vic).
 The Melbourne Strategic Assessment (Environment Mitigation Levy) Act 2020 also commenced on 1 July 2020 and provides VCAT review rights to persons who are affected by and have objected to an Environment Mitigation Levy imposed under that Act.
 Email from VCAT dated 2 July 2020.