Australia: Victorian Planning Bill makes the number of objectors a relevant consideration for decision-makers

Last Updated: 15 June 2015
Article by Sallyanne Everett and Penelope Ward

Most Read Contributor in Australia, August 2016

Key Points:

The proposed changes are a conscious step by the Victorian Parliament to afford decision-makers the express means by which to consider strong objections to a planning proposal.

If passed, the Planning and Environment Amendment (Recognising Objectors) Bill 2015, introduced to the Victorian Parliament on 26 May 2015, will require responsible authorities and the Victorian Civil and Administrative Tribunal (VCAT) to have regard to the number of objectors when considering whether a proposed use or development may have a "significant social effect".

Currently, under the Planning and Environment Act 1987 (Vic), responsible authorities are required to consider, amongst other things, "all objections and submissions which it has received and which have not been withdrawn" (section 60(1)(c)). However, they are not otherwise obliged to consider the number of objectors per se.

The Bill proposes to alter this regime by requiring responsible authorities to consider - in appropriate cases – the quantity of objections they receive in determining any significant social effects which a proposed use or development may have.

How will this work?

The Bill proposes to amend sections 60 and 84B of the Act by making the number of objectors a matter to which regard must be had (where appropriate) when considering whether the proposed use or development may have a significant social effect. This applies to both responsible authorities when determining a permit application (per the proposed section 60(1B)), as well as VCAT when determining an application for review of a decision made by the responsible authority (per the proposed section 84B(2)(jb)).

A relevant consideration only "where appropriate"

Importantly, the number of objectors is only to be considered where the decision-maker considers it is "appropriate". The Bill does not indicate how much weight should be given to the number of objectors, nor does it offer any additional guidance on what constitutes a "significant social effect". However, the Explanatory Memorandum (EM) accompanying the Bill indicates that where the objectors raise considerations which are not relevant to the permission sought, it may not be appropriate to consider the number of objections made.

For example, it will not be relevant to consider the number of objections to a proposal needing a permit for development for heritage reasons, where the objections are concerned about operation of the proposed use which does not require a permit.

Codification of the Victorian Supreme Court decision in Stonnington?

The Bill appears to pick up on the findings in the 2014 decision in Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505. In that case, Justice Emerton stated that the extent of resident opposition "may be a salient fact giving shape to a significant social effect in some circumstances, but its status as such must be established in each case".

In Stonnington, 627 objections had been made in response to a development proposal to build 19 new buildings comprising 448 apartments and 18 townhouses. Among other things, the Court considered whether the Tribunal's conduct in declining to take into account the number of objections constituted an error. In that case, the Court found that the Tribunal had not erred.

In what appears to be an attempt to codify Justice Emerton's comments, the Bill seeks to ensure consideration can be given to the extent of objection in assessing whether a proposed use or development may have a significant social effect, however, only in appropriate cases.

When will the number of objectors be a relevant consideration?

The EM provides some limited guidance on the proposed operation of the changes, including specific examples. It says that it may be appropriate to consider the number of objections where the number indicates "the significance of a social effect that a proposed use or development may have on the community" or "the presence of a specific social need in the community that may be affected by" the proposal.

The EM also gives the example of a proposal requiring a permit for use, which impacts on the safety or amenity of the community. Where a large number of objectors claim the proposal will have a detrimental effect on the community at large in relation to their safety and amenity, it will likely be appropriate to consider the number of objections.

What are the implications of the proposed changes for proponents?

Although the requirement to consider the number of objectors will only be relevant to assessing the potential for the proposal to have a significant social effect, and the requirement is conditioned by it being "appropriate" to do so, the Bill could have the practical effect of encouraging opponents to object in the expectation that the volume of objections – no matter how relevant – will influence the decision to be made on the proposal. It could also encourage objectors to use standard form objections purely to increase the number of objections made.

Despite this temptation, the Bill makes it clear that the substance and relevance of each objection remains the paramount consideration. In contrast to other Australian jurisdictions where no such comparable express provisions exists, the proposed changes represent a conscious step by the Victorian Parliament to afford decision-makers the express means by which to consider strong objection to a proposal before them.

The Bill is currently at the second reading stage before Parliament.

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