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On Friday it was announced that the Government has modified key elements of the proposed new VCAT fee structure after considering community feedback from the consultation.
Phew, right?
Wrong.

Back in January, a major increase in fees was proposed for the Victorian Civil and Administrative Tribunal (VCAT).

We wrote a submission to the Department of Justice detailing out concerns that the proposed fee increases will result in reduced access to civil and administrative justice and act as a deterrent to important public interest matters coming before VCAT.

Many of our clients, who have previously used VCAT (many successfully) – also wrote submissions asking that VCAT remain accessible to all.

On Friday it was announced that the Government has modified key elements of the proposed new VCAT fee structure after considering community feedback from the consultation.

Phew, right?

Wrong.

A copy of the Regulations containing these new ‘key elements’ have now been made available.

Unfortunately, objectors in most planning disputes will be hit by fee increases from $322 to over $1000 just to get their matter listed. Then hearing fees of between around $370 and $1800 per day will be charged on top of that.

The only notable changes are that hearing fees are now discretionary. The principal registrar at VCAT now has the ability to reduce a hearing fee if he or she considers it appropriate. When considering appropriateness, he or she will have regard to the number of parties in the proceeding, plus the likely length of the hearing. There are a number of issues with this:

  1. It is unclear the extent to which fees will be able to be reduced, and whether this reduction will be significant enough to remove the barrier to access (remember applicants will still have to pay the application fee, which is drastically increased).
  2. It is unclear when or how often in practice the registrar will exercise this ability. There is no requirement for him or her to do so in order to provide access to VCAT for parties who would otherwise not be able to access it.
  3. Regardless, the registrar’s decision on hearing fees will not occur until after a case has been commenced. Therefore, applicants will have to make the decision whether to take a case to VCAT before they know whether their hearing fees will be reduced or not.

One other change is that fees for mediation (previously $305.70 per day) are no longer payable.

Here’s what the fees look like:

What proceeding relates to

Current fee

Proposed fee after 3-year phase in

Planning and Environment Act, various appeals (including objector appeal) when development is estimated at less than $1m

$38.80 or $322, depending on nature of application

$1108.10

Planning and Environment Act, developer appeal if development is more than $1m but is not entered in to the Major Cases List

$322

$2140.13

Planning and Environment Act, developer appeal when:

  1. Development has no dwelling, and developer elects for it to be entered in the Major Cases List
  2. Development is $10m or more, and developer elects for it to be entered in the Major Cases List

$1290.60 (‘major case’ list)

$3338.40

Planning and Environment Act, objectors appeal when:

  1. Development has no dwelling, and proceedings are transferred to the Major Cases List
  2. Development is $10m or more, and proceedings are transferred to the Major Cases List

$322

$3338.40

Hearing fee per day, Major Case list

$3,193.90

$3306.30

Hearing fee per day, complex case

NA

$1879.78

Hearing fee per day, ordinary hearing, days 2–4

NA

$377.50

Hearing fee per day, ordinary hearing, days 5–9

NA

$631.73

Hearing fee per day, ordinary hearing, days 10+

NA

$1054.16

ADR (mediation)

NA

NA

What will it mean?

It is likely that, under the new fee regime, a number of public interest cases the EDO has run in recent years would not have proceeded because of prohibitive cost. One example is a VCAT case that the EDO acted in last year, representing Environment Victoria (‘EV’) and LIVE, who were opposing construction of a new coal-fired power station in the La Trobe Valley. This case tested the interpretation of several provisions regulating pollution and greenhouse gas emissions that had not previously been tested by a Court or Tribunal, providing substantial assistance to future decision-makers and applicants. VCAT fees in Dual Gas v EPA would have run to around $40,000 under the new scheme. In this case, our clients were able to access reduced-rate or pro bono legal assistance from the Victorian Bar. However the length of the case meant substantial fundraising was still necessary in order to run it. On top of the costs already faced by EV and LIVE, VCAT costs of the magnitude proposed would likely have meant these parties could not have brought their case and the public interest case would never have been heard.

Photo: EDO lawyer Nick Croggon with clients Environment Victoria and LIVE at VCAT