President

The last time I wrote this column, coronavirus was something being experienced only in China, we were able to physically attend Council meetings, VCAT hearings, Panel hearings and meetings with clients; many were returning from summer holidays and looking forward to another year of strong economic growth…, and I had never heard of Zoom.

Wow. What a quarter

While so much of the last few months has presented us with huge seemingly insurmountable challenges, there are also so many positives to reflect upon – even at this relatively early stage of what looks like being something we’ll have to settle into for the long haul. I have heard lots of people talk about feeling more connected with their teams and workplaces. For example, because during isolation, their workplaces have set up regular meetings with the team, run trivia quizzes and have shared, sometimes daily; perhaps, stories about their pets/children/ houses/cooking/hobbies.

Within the planning profession, some leaps forward have been possible as a consequence of these grossly unusual circumstances. Some municipalities have received electronic permit applications for the first time, others have embarked upon streamed, virtual Council meetings, requiring a show of hands over zoom as Councillors cast their votes concerning proposals.

VCAT has had to contemplate bringing forward years of digital strategy to enable the workings of the Planning and Environment Division to continue, following VCAT’s closure at the outset of the distancing requirements in March.

At VPELA, we have also fronted up to the need for a digital revolution. We had been talking for some time about filming our seminars for reproduction on our website, but we had generally found the technology to be awkward and cost prohibitive.

VPELA’s adoption of the Zoom online platform has enabled us to reach a much wider community of members than our traditional on-site seminar series, and enabled us to bring together panellists from a variety of locations in circumstances where distance may have prevented us from bringing regional members of our community physically together in the past.

The issue of online hearings has been widely canvassed since the requirements for working from home and social distancing have largely prevented face to face hearings from taking place. In particular, the new arrangements for hearings being conducted via an online platform have caused many practitioners to reflect on what it is about face to face hearings that deliver on the principles of natural justice and procedural fairness that perhaps can’t be delivered in an online format.

Tamara Brezzi President, VPELA

Certainly there are obvious immediate limitations in circumstances where one or more of the parties is unable to access the technology; either due to limitations about the necessary infrastructure (such as having a laptop with a camera and reliable and affordable access to the internet), or the inability to see all the parties in the ‘hearing room’.

Difficulties arise in the inability to properly test expert evidence having regard to the limitations imposed by conducting a hearing online or the desire to constrain the time taken to present evidence in chief. And, there are of course inefficiencies and uncertainties that arise in presenting documents to witnesses and decision-makers and the need for confidence that they are looking at the same document as the crossexaminer or the advocate.

We are finding that the capacity of an advocate or an expert witness to really engage with the decision-maker is also affected and less than ideal. When only the head of a decision maker is in view, it’s very difficult to know when to pause to allow the decision maker to take notes and it’s harder to engage freely in exchanges with the decision-maker and other parties without the feeling that one is interrupting or spending much of the hearing interrupting and talking over one another.

Most planning hearings are public hearings and the idea that it’s necessary for someone to have a link sent to them personally to be able to attend the hearing is also something that requires a new way of thinking about why our hearings are public and the benefits to society of that principle being maintained.

I am also finding that hearings are taking longer as participants grapple with finding documents electronically, sharing screens and the like. Some of that will become more efficient and seamless as people become more proficient with the technology, but a dodgy internet connection, poor video or sound quality and limitations on access and participation are not problems that will be solved with time.

Time will also not re-introduce the more intangible qualities of face to face hearings that deliver adherence to the principles of natural justice. It’s more difficult, for example, to engage with an expert witness, advocate or decision-maker when all you can see is their head and face. And, given the need for non-speakers to turn video off to preserve call and video quality in some instances, the online platform does not allow one to observe other participants as would be possible in the hearing room. So much of the art of persuasion and informed decision making lies in the capacity to observe and respond to the subtleties that arise in the hearing room, and that opportunity is obviously lost in an online platform.

Having said that, the ability to observe parts of a hearing without having to physically be present in the hearing room has certain time efficiencies associated with it for people who only need to observe parts of the hearing. Perhaps the future lies in a combination of face to face hearings and online streaming of hearings once face to face is once again available; acknowledging the benefits of access that the online platform is delivering.

It seems that a slightly philosophical approach works with the need to recognise that while the online hearing platform is far from perfect, (and there are real questions raised about the capacity of the online hearing platform to deliver on principles of natural justice and procedural fairness), it is an adequate, imperfect solution to fill a gap that arises from these most unusual circumstances.

I want to take this opportunity to thank you all for supporting VPELA so strongly during this time. So many of you have agreed at short notice to participate in webinars and hundreds have joined us online for our various events and webinars in recent months. We are always open to suggestions about how we can best serve the membership. VPELA was born of the recession in 1989 and so it’s in our DNA to find ways to keep the professions connected and supported, particular in times of such great uncertainty.

Please do get in touch if you have any suggestions about more that we can do for you. Stay safe.

Tamara Brezzi is President of VPELA and a Partner at Norton Rose Fulbright