Number of proposal objectors to be recognised in new planning Bill tabled by Minister Wynne

In brief

This week, the Planning Minister Richard Wynne introduced a Bill to amend the Victorian planning legislation to make the number of objections a planning application receives a relevant factor when considering whether a proposed use or development may have a significant social effect. Will this improve the decision-making process in the planning system, as Minister Wynne claims? Managing Associate Meg Lee and Lawyer Emily Johnstone report.

Background

If passed, the Planning & Environment Amendment (Recognising Objectors) Bill 2015 (the Bill) will amend the Planning & Environment Act 1987 (Vic), introducing a new requirement for responsible authorities and the Victorian Civil and Administrative Tribunal (VCAT).

The Bill represents the Andrews Government implementing an election promise to 'give the community a voice'. Minister Wynne says the Bill will improve the decision-making process, lead to better planning outcomes and increase community and stakeholder confidence in the planning system.

Whether these results will actually eventuate remains to be seen. Indeed, in our view, the number of objections is something that, in relevant circumstances, is already taken into account appropriately. So it is arguable that the Bill does not really change the status quo to any significant extent.

What does the Bill do?

The key changes proposed by the Bill involve amendments to sections 60 and 84B of the Act. Section 60 sets out the matters that a responsible authority must consider in relation to an application for a permit or an application to amend a permit.

Responsible authorities are already required to consider a range of issues, including the content of all objections and submissions received, any decisions or comments from referral authorities, and the objectives of planning in Victoria. Further, as well as considering any significant effects that the use or development may have on the environment (and vice versa), responsible authorities must also consider any significant social or economic effects of the proposal.

The Bill introduces a new requirement in s60(1B) that, in considering the potentially significant social or economic effects of a proposed use or development, the responsible authority must (where appropriate) have regard to the number of objectors opposing the application.¹

Further, the Bill proposes that VCAT must also take the number of objectors into account when determining an application for review of a decision made by a responsible authority, in addition to the other matters it is required to consider under s84B of the Act.²

The Bill carries on an existing mechanism of allowing a planning scheme to exempt certain classes of applications from the new decision-making consideration, both at the responsible authority and VCAT levels.³

Does this change things much?

If passed, this Bill will implement in legislation an idea that has already been recognised to some degree in VCAT and the Supreme Court: that the number of objectors may of itself be a relevant factor (together with other factors) in determining whether a proposal may have a significant social effect. For example, Justice Emerton held in the Supreme Court decision of Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505 that the volume of objections received may be a relevant consideration in the case of applications where the social impacts of a proposed use or development are also a relevant consideration. In that case, the proposal included 19 buildings between two and 12 storeys in height, designed to hold approximately 448 apartments and 18 townhouses on a large site. Council received approximately 600 objections to the proposal, and appealed to the Supreme Court after VCAT found that the extent of resident opposition to the proposed development was an irrelevant consideration, and failed to take it into account as a relevant consideration.

Justice Emerton held that the 'raw number of objections' may be relevant as a 'salient fact giving shape to a significant social effect in some circumstances, but its status as such must be established in each case'.⁴ Establishing this depends on 'identifying the significant social effect resulting from the proposal to which objection has been taken and linking resident opposition to that effect. In other words, it is insufficient to merely assert that any particular number of objections must be taken into account on the question of significant social effects.'⁵

The new Bill expressly requires that the consideration of the number of objections received is undertaken 'in considering' whether there may be a significant social effect. Further, the decision maker is required to determine whether it is 'appropriate' to consider the number of objections received in a particular case. For example, in circumstances where the requirement for a planning permit is triggered by heritage restrictions, but a large number of objections are received about an unrelated matter (eg the proposed use, where that use does not require a permit under the planning scheme), then it would be inappropriate for the decision maker to consider the number of those objections in making its decision.

What will happen next?

If this Bill passes into legislation, councils and VCAT will, where appropriate, have a mechanism to recognise the extent of community concerns about development proposals, in the form of an express requirement to consider the number of objectors to the permit application, in addition to the content of each objection, and the overall planning merits of a proposal.

Obviously a fall-out from the changes is the risk that objector groups will seek to generate multiple standard form objections (which is relatively easy to do), so as to boost the total number of objections at the application stage, whereas in reality the number of people likely to follow through and lodge grounds and attend a VCAT hearing about the matter is often significantly fewer.