In 2015 we discussed The Planning and Environment Amendment (Recognising Objectors) Act 2015 which came into effect on 12 October 2015. The Act amended the Planning and Environment Act 1987 to require the Victorian Civil and Administrative Tribunal (the Tribunal) and responsible authorities (where appropriate) to have regard to the number of objectors to a permit application in considering whether a proposed use or development may have a significant social effect.
A number of Tribunal cases have since addressed this issue, which provides guidance on how the changes should be implemented in decision making. In particular, Backman & Company Pty Ltd v Boroondara CC [2015] VCAT 1836. The case concerned an application for an apartment building with 16 dwellings, drawing 453 objections to Council. The permit applicant appealed Council’s failure to make a decision within the prescribed timeframe, whereupon 80 statements of grounds were received from people and organisations wishing to become parties to the proceeding. This is a significant response to this type of proposal and the Tribunal considered the extent of community response to be relevant under Section 60 of The Act which states:
(1) Before deciding on an application, the responsible authority must consider—
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(f) any significant social effects and economic effects which the responsible authority considers the use or development may have.
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(1B) For the purposes of subsection (1)(f), the responsible authority must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect.
A similar requirement is set out at Section 84B(2)(jb) of the Act.
Two of the objecting parties submitted that the proposal would have significant social effects, being the safety impact on children at a nearby school, change to the structure of the neighbourhood, demands on and access to community facilities and parking. In relation to these concerns the Tribunal noted:
In assessing these potential social effects, it is important to remind oneself as to why a permit is required in this proceeding. This is a proposed residential land use within the General Residential Zone, and as such the use of the land does not require a planning permit. What requires a permit is the proposed development, expressed as the construction of two or more dwellings on a lot. In this proceeding, that is the only permit trigger that applies.
That makes the substantiation of a significant social effect a difficult task. Many of the effects alleged by [submitters] relate to the nature of the people who will reside on the site, and whether they will match the socially cohesive nature of the community, and place demands on community facilities that serve particular social groups, such as the local primary school. However, as a permit is not required to use the land for residential purposes, I cannot turn my mind to the way the proposed apartment building will be used, or who the likely occupants are, including their demographics or family type. These are aspects that relate to the future use of the land, not to the proposed construction or development that requires a planning permit.
In making its decision the Tribunal considered the second reading speech for the Planning and Environment Amendment (Recognising Objectors) Bill 2015, which included the following:
In making a decision about whether to take into account the number of objectors, the decision-maker may be influenced by:
- what the objectors have said in their written objection about the proposed use or development;
- whether the issues raised in the objections are relevant planning considerations and relate to the reasons why the proposal requires a permit;
- whether the issues raised in the objections point to a significant social effect on the communitywhich is supported by evidence.
It will be for the responsible authority and VCAT to determine this based on the particular circumstances of the case.
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The new requirement is likely to be particularly relevant where a proposal may reduce access to or enjoyment of community facilities or services or adversely affect public health and safety. The number of objectors, and the consistency of views expressed by objectors, may demonstrate that the community or a section of the community may be significantly affected.
The Backman case refers to an earlier case Rutherford & Ors v Hume CC [2014] VCAT 786 in which the Tribunal set out six “hurdles” to be overcome in identifying that a proposal will cause a significant social effect, summarized here as:
- the effects to be considered are those that the responsible authority (or the Tribunal on review) considers to be significant;
- the significant social and economic effects must have a causal connection to the use or development proposed in the permit application under consideration, and having regard to the broader objectives of planning under thePlanning and Environment Act 1987;
- significant social and economic effects are recognised as those that affect the community at large, or an identifiable section of the community, rather than affecting an individual or a small group of individuals;
- a consideration of social effects should be based on a proper evidentiary basis or empirical analysis, preferably through a formal social impact or socio-economic assessment. There must be objective, specific, concrete, observable and likely consequences of the proposed use or development.
- the social or economic effect must be sufficiently probable to be significant. Both the positive and adverse effects must be considered.
- a significant adverse social effect, if there is one, must be considered by the decision-maker. That does not mean that it will necessarily be determinative in itself and lead to the refusal of the permit. The social effect must still be balanced alongside all other relevant planning considerations, as part of an overall assessment of the proposed use or development in deciding whether or not to grant a permit.
The Tribunal in the Backman case also found that opponents of the proposal had not demonstrated that a social effect would likely result from the proposal “….let alone whether any social effect is significant, or not offset by the social benefit of providing more diverse and affordable housing in this desirable location”.
The Department of Transport, Planning and Local Infrastructure (DTPLI) has prepared Planning Advisory Note 63 which details the particulars of the recent Act. Interested applicants can read more at www.dtpli.vic.gov.au.
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