In a previous edition of Planning Tidbits we discussed the case of Macedon Ranges Shire Council v Romsey Hotel Pty Ltd in which the Supreme Court of Victoria considered whether the number of objections received in response to a planning permit application should be a determining factor. In a similar case at the Supreme Court of Victoria, Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505, the court found
… Mere evidence of opposition by a section of the public is not, in and of itself, evidence of social impact or social effect. In order to constitute such evidence, the number of objections must say something about the detrimental effect on the community of approving the development.
The principles established by the above cases can be summarised as:
- The total number of objections, in itself, cannot be grounds to refuse an application;
- However the number of objections could be a relevant consideration if those objections could be shown to be evidence of a ‘significant social or economic effect’.
Broadly speaking it is these principles that are now being incorporated into legislation. The Victorian Labor Party, then in opposition, made an election promise to amend the Planning and Environment Act (“the Act”) to make the number of objections received to an application a relevant consideration in the determination of a planning permit application. The Planning and Environment Amendment (Recognising Objectors) Bill 2015 has been introduced into Parliament. It would require the Victorian Civil and Administrative Tribunal (VCAT) and responsible authorities to have regard to the number of objectors to permit applications in considering whether a proposed use or development may have a significant social effect.
Currently, section 60(1)(c) of the Planning and Environment Act 1987 (“the Act”) requires the responsible authority to consider all objections to a permit application (which have not been withdrawn), but does not expressly require consideration of the number of objectors to the permit application. The Bill proposes to insert new section 60(1B) to expressly require the responsible authority to have regard (where appropriate) to the number of objectors in considering whether a use or development may have a significant social effect.
New section 84B(2)(jb) of the Act incorporates the same requirement for the Tribunal.
The new legislation, if passed, will come into operation before 14 April 2016, unless it is otherwise proclaimed to come into effect on an earlier date.
The new provisions do not give the decision maker full discretion to simply refuse an application where there are a large number of objections. The provisions relate specifically to the consideration of significant social impacts, that is, impacts on the society or community. The decision maker must also take into account the reasons a permit is required and any components of the application which may be exempt from notice and appeal rights, in considering the social impact component.
The legislation does not explain how many objections are required to establish a ‘significant social impact’, nor the context in which the number of objections needs to be considered i.e. the size of the community from which the objections are received. Such parameters are likely to be clarified through case law in future Tribunal and Court determinations.
Community and other interest groups are likely to see the legislation as an opportunity to gain leverage in the decision making process, by encouraging objections. Such objections would need to include mention of significant social impacts to give weight to the provisions of the new legislation. However, the decision maker will need to be clear on whether the proposal will result in significant social impacts, rather than, say, purely visual concerns, or personal amenity issues.
Clause 1 expects this new legislation to be relevant for larger projects and projects affecting public land (or assets) and does suspect any objections of this kind (no matter how many are lodged) to be relevant in small to mid-scale infill projects.
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