Costly path to protest

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The high legal cost of protest is the latest stumbling block to face residents angry at plans for concrete paths at Somers.

Faced with unforeseen fee increases at VCAT (Victorian Civil Administrative Tribunal), the owners of about 25 per cent of properties in the town were yesterday (Monday) facing the prospect of only being represented at half of the scheduled four-day hearing.

This week’s hearing was the latest instalment of a long running campaign against the footpaths by three groups associated with the Somers Village Community Association (SVCA).

The fight has already highlighted deficiencies in the shire’s use of special charge schemes to finance footpath construction, prompting an internal  investigation that recommended abandoning one scheme, reviewing others and deferring nine.

However, the shire has given the Somers pathway project high priority and proposes an exposed aggregate shared pathway along Camp Hill Rd and the northern end of South Beach Rd with an exposed aggregate narrower meandering footpath along Parklands Av, Tasman Rd and the south end of South Beach Rd.

On Monday the Somers protesters were “left with uncertainty” when their application for a waiver of fees was turned down by the principal registrar at VCAT.

Dr Chris Atmore, advocate for two of the three applicant groups, said increased VCAT fees had exceeded their budgets.

She said legislative changes introduced by the previous Liberal-led state government which took effect on 1 July had “drastically increased” the cost of VCAT hearings.

“They [increased costs] knock out what can be done by a lone objector who also needs to be represented by a lawyer,” she said.

The hearing began with the shire putting arguments for the footpath scheme, including a video taken from a moving car of trees earmarked for removal.

Dr Atmore said two of the three groups of objectors from Somers would be unable to afford to attend the final two days of the hearing.

She said the costs of mounting an appeal could “put a lot of people off and yet, here on the wall [at VCAT] is the motto Fairness for all Victorians. It’s supposed to be friendlier and cheaper than going to court; this really is an indictment of the previous state government”.

Dr Atmore said the groups representing more than 300 Somers property owners say the footpaths as planned by the shire “will destroy vegetation, compromise habitat for wildlife including koalas, and will detract from the character and amenity of Somers”.

“Each of the three applicant groups has in the last few days been told by VCAT that we will have to pay $783.90 each for each day of the four-day hearing,” she said last week.

“This comes to a total of $3135.60 for each group and a grand total of $9406.80 for the community. The council is not required to pay hearing fees.”

Dr Atmore said the groups budgeted for their legal costs in August after the failure to reach agreement at a compulsory case conference.

“As a community group with limited funds, we had sought confirmation of the costs at each stage of the VCAT process,” she said.

“On 24 September we sought and received clarification about the daily fees for the expected four-day hearing – $341.50 a day, totalling $1366 each for the proposed four days of the hearing. There was also a possibility that this cost would be shared among the three groups, but as we weren’t sure, we budgeted for $1366 for each group and hence sought funds from individual donors – mainly the signatory applicants – to cover this.”

Dr Atmore said it had since been confirmed that the costs would have been shared “if the proceedings hadn’t been reclassified as complex”.

“However, on Friday 14 October we received an email from VCAT informing us that the matter had been deemed a complex case, which attracts much higher fees.

“The new total of $9406.80 is nearly double what we have expended on legal advice, while council pays for its two lawyers out of our rates, and up to nearly five times the cost of what we might have expected to pay after being informed by VCAT on 24 September.”

David Gill, a candidate for the Red Hill ward in the current council elections, said the footpath protesters “want a delay with the hearing”.

“This [fee rise] is an example of how difficult it is for ordinary people to win at VCAT,” Mr Gill said. “For them to win is almost a miracle.

“The price has been put up at short notice and I believe the council has used the system to stop the residents from having a fair hearing.”

First published in the Western Port News – 25 October 2016

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