In Victoria, assessments of the environmental impact of proposed development projects are conducted through the Environmental Effects Statement process under the Environment Effects Act
In this audit, the Victorian Auditor General examined if the Department of Environment, Land, Water and Planning is managing the Environment Effects Statement process effectively.
It makes eight recommendations for the Department of Environment, Land, Water and Planning. Candobetter.net has included below the video the observations and recommendations on the hearing processes in public reviews. They will be very interesting for groups like Planning Backlash and Protectors of Public Lands, whose members have so often complained of how difficult and unfair the process of objecting to constant damaging development has become.
4.3 Public review process
The Ministerial Guidelines provide a range of consultative options for the public review stage of an EES. These include:
an inquiry by written submission
an inquiry by submitter's conference
an inquiry by formal hearing where proponents and submitters can present their cases and expert witnesses can be called.
We examined seven projects with referral decisions since September 2011 that have progressed to the public review stage. We found that public consultation occurred through inquiry by formal hearing in all cases. The department has not recommended the minister use the alternative consultation options to the formal hearing.
4.3.1 Appointment of panel members
Inquiry panel members are appointed by the Governor-in-Council, based on advice from Planning Panels Victoria (PPV). PPV prepares a brief outlining the names and qualifications of the proposed chair and inquiry panel members. Prospective panel members are drawn from a pool of members maintained by PPV.
Appointments to EES inquiries are in accordance with Department of Premier and Cabinet Appointment and Remuneration Guidelines. Probity checks are mandatory, and panel members must complete a Declaration of Private Interests to enable any conflicts of interest to be determined before their names are submitted to the minister.
4.3.2 Inquiry terms of reference
The inquiry terms of reference enable the panel to enquire into any aspects of the project they consider necessary. They also allow the panel to seek advice from experts as needed, including using the expertise of panel members themselves. The terms of reference directly refer to the areas of focus specified in the minister's EES decision.
The terms of reference for inquiry panels appointed for projects over the past five years have been drafted to enable the panel to ensure that potential significant environmental effects are examined with sufficient rigour.
Terms of reference for inquiries also include clauses that aim to encourage public input into the inquiry process, including:
requiring the inquiry to consider public input
requiring the inquiry to conduct a public hearing
stating that hearings are to be conducted with minimal formality and without the need for legal representation
restricting cross-examination and adversarial conduct
requiring that parties without legal representation will not be disadvantaged.
Our audit found that of the seven projects that have had an inquiry by formal hearing, six of the inquiries' terms of reference were based on a template provided in the department's quality management system (QMS) documents, with content individualised to suit specific projects.
One project has more tailored terms of reference—the Melbourne Metro Rail Project (Metro Tunnel). The scope of the Metro Tunnel project includes five new underground stations, two of which are new city stations directly connected to Flinders Street and Melbourne Central. As identified in the 2011 Parliamentary inquiry, terms of reference for inquiries by formal hearing for high-profile projects that generate significant public interest have deviated from the QMS template.
The key differences included:
removal of the clause in the template that requires the panel to ensure people appearing without legal representation are not disadvantaged
an additional clause for the panel to limit the time allowed for presentations
an additional clause for the panel to exclude attendees who behave inappropriately.
4.3.3 Barriers to public participation
There can be significant imbalances between proponents and community participants. In all projects within the audit scope, proponents had legal representation, and several proponents used the same representative. In contrast, members of the community were usually self-represented, seldom using a lawyer or other advocate. Legal representatives with expertise in planning law and EES inquiry panels have a marked advantage over members of the public when presenting their case at hearings.
In the public review stage, all projects in the audit scope conducted reviews through an inquiry by formal hearing. The department did not advise the minister to consider any other inquiry options available under the Ministerial Guidelines.
The intent of the hearings is a minimum of formality and no requirements for legal representation. Yet proponents in all projects had legal representation. One inquiry specifically addressed the concerns of submitters who felt disadvantaged by having no access to experts or legal representation. The inquiry panel denied a submitter's request, supported by other submitters, for an adjournment to review materials.
The independence, powers and knowledge of the panel members—who are often experts and experienced in conducting planning panel hearings—is intended to ensure that proponents do
not unduly or falsely influence the proceedings. Despite this, the imbalance between proponents represented by lawyers and self-representing community members creates perceptions of unfairness.
4.3.4 Advice to the minister
The Ministerial Guidelines enable the department to recommend options to the minister that can reduce the formality of the EES inquiry stage. This aims to improve the ability of local communities and individuals to participate in inquiry processes and reduce perceptions of unfairness.
Although the Ministerial Guidelines provide the flexibility for the inquiry process to differ in depth and formality depending on the complexity of the project, we did not find significant
differentiation in the variety of projects that we examined. For those projects, the department's consistent advice has been to recommend formal hearings. Less intensive options of inquiry by written submission or inquiry by submitter conference were not presented as options to the minister.