The Planning and Environment (Recognising Objectors) Bill 2015 (the Bill) was introduced to Parliament on 26 May 2015.

As promised by the Labor government prior to the Victorian State election, the Bill proposes to require consideration of the number of objectors in planning decision making by amending sections 60 and 84B of the Planning and Environment Act 1987. The proposed amendments provide that responsible authorities and the Victorian Civil and Administrative Tribunal (VCAT):

must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect.

The proposed amendments do not indicate what level of weight (if any) must be given to the number of objections in assessing social effect. They also allow the decision maker discretion as to whether it is appropriate to have regard to the number of objections in a particular case.

As a general principle, the content of an objection may be some indication or evidence of a possible social effect. A large number of objections may indicate that there is a significant degree of concern, which may warrant closer analysis in an appropriate case. This much is confirmed by the Explanatory Memorandum to the Bill which provides:

New sections 60(1B) and 84B(2)(jb) recognise, as was recognised in Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505, that the number of objectors may be a relevant fact (together with other facts) that indicates that a proposed use or development may have a significant social effect.

For example, the number of objectors may be indicative of the significance of a social effect that a proposed use or development may have on the community or of the presence of a specific social need in the community that may be affected by a proposed use or development.

The Tribunal and responsible authority must have regard to the new consideration ‘where appropriate’. It will be a matter for the decision maker to decide whether it is appropriate for the number of objectors to be considered in a particular case.

For example, if a proposal requires a permit for development for heritage reasons but the objectors to the proposal are concerned about the operation of the proposed use (which does not require a permit under the planning scheme), it may not be appropriate for the decision maker to consider the number of objectors in that case.

However, if a proposal requires a permit for use, the impact of that use on the safety or amenity of the community is a matter required to be considered under the planning scheme, and a large number of objectors raise issues that point to a detrimental effect on the safety of the community at large, it may be appropriate to consider the number of objectors in that case.

A large number of objections does not necessarily equate to evidence of a social effect. The likelihood of a social effect will depend on whether the objection has merit, or is supported by other evidence. Responsible authorities should not confuse the concept of evidence with the number of objections.

An objection or submission can always be given weight, if appropriate. A large number of submissions in an appropriate case can be given greater weight. But an objection is not, without more, evidence of an effect (whether social or otherwise). It may have persuasive value if it is a well-crafted objection. Some objections may be irrelevant to the matters that bear on the planning discretion. One good objection may outweigh 100 irrelevant or poor objections.

As presently worded, we doubt that these amendments will have a material effect on the approach to objections in the Victorian planning jurisdiction. The Bill can be seen as codifying the existing approach recognised by the Supreme Court.

Nonetheless, it is timely for planning officers to refresh themselves with the applicable principles in this area, given that the proposed changes are sure to generate considerable public interest.