Responsible authorities must now consider any significant social and economic effects a use or development may have when deciding on a planning application. This obligation is detailed in the new s 60(1)(f) of the further amendments to the Planning and Environment Act 1987 (the Act) which commenced on 28 October 2013.
Previously, significant social and economic effects were required to be considered under section 60(1A)(a) only if the circumstances appeared to require it.
While the Supreme Court’s decision in Stonnington City Council v Lend Lease Apartments (Armadale) Pty Ltd  VSC 505 (Lend Lease 1) was handed down before consideration of significant and economic social effects became mandatory, the decision provides valuable guidance on:
- the relevance of the number of objections for the purposes of s 60(1)(f) of the Act
- the community or geographic area by reference to which a social or economic effect may be assessed for the purposes of s 60(1)(f) of the Act
- the relevance of the number of objections for the purposes of considering the 'aspirations of the community' in the context of clause 15 of the State Planning Policy Framework (SPPF)
- the meaning of ‘the community’ referred to in clause 15
- how community aspirations might be identified for the purpose of clause 15.
In light of the Supreme Court's decision in Lend Lease 1, Councils should proceed on the basis that:
- mere evidence of opposition to a permit application by a section of the public is not, in and of itself, evidence of a significant social effect for the purposes of s 60(1)(f)
- the number of objections to a permit application is only likely to be relevant for the purposes of s 60(1)(f) where it is identified as being linked to a significant social effect resulting from the proposal
- the significance of any social or economic effects must, for the purposes of the Act, be assessed by reference to a larger community or geographic area than the municipal district
- for the purpose of clause 15, community aspirations cannot be established by objections per se, even if there are many of them
- 'the community' referred to in clause 15 means something broader than the local community
- community aspirations are most likely to be found in local policies and other provisions in the Planning Scheme.
Lend Lease 1 concerned an appeal by Stonnington City Council of VCAT's decision in Lend Lease Apartments (Armadale) Pty Ltd and Larkfield (Orrong Road) Pty Ltd v Stonnington City Council VCAT 906 (the VCAT Case).
The VCAT Case
The VCAT Case concerned a proposal by Lend Lease to redevelop a large site on Orrong Road, Armadale with a high density, mainly residential development.
After receiving more than 600 objections to the permit application, the Council unanimously refused to grant a planning permit for the proposal on a range of grounds, including its scale and design. Lend Lease appealed to VCAT.
VCAT set aside the Council’s decision and ordered that a permit be issued for the proposal. In doing so, VCAT's main finding was that after balancing and integrating the relevant policies, and having regard to other relevant matters, the development has a net community benefit, is a sustainable development and an acceptable planning outcome.
The Council appealed VCAT's decision to the Supreme Court.
The Supreme Court Appeal - Lend Lease 1
On appeal, the Court addressed three key questions of law:
- whether VCAT failed to have regard to all of the statements of grounds filed by the parties to the proceeding
- whether the extent of resident opposition to the proposal (as evidenced by the number of objections received) was an irrelevant consideration
- whether VCAT erred in its interpretation of the ‘large sites policy’ in clause 22.02-3 of the Stonnington Planning Scheme.
The Court answered the three questions in the negative and dismissed the Council's appeal. In its judgment, it described VCAT as having carried out a thorough and conventional merits review having regard to such matters as design response, amenity impacts, traffic and parking. It found no errors of law were made by VCAT.
The Court's findings in response to the second question will be of interest to all Councils.
Is extent of resident opposition a relevant consideration?
In the VCAT Case, VCAT had considered the substance of the objections received but declined to consider the extent of resident opposition as a discrete consideration. It held that the extent of resident opposition per se was an irrelevant consideration.
On appeal, the Council argued that VCAT erred in treating the number or extent of objections to the planning application as an irrelevant consideration submitting that the extent of objections was a relevant consideration pursuant to:
- section 60(1A)(a) (now repealed) of the Act which required VCAT to consider any significant social (and economic) effects of the proposal
- clause 15 of the SPFF for the purposes of considering the 'aspirations of the community'
- section 84B(2)(f) of the Act which required VCAT to consider the extent to which any person residing or owning land in the vicinity of the subject land was able to 'and in fact did' participate in the objection process.
The Court rejected each of the Council's arguments, finding no error in VCAT's refusal to consider the extent of resident opposition or number of objectors as a discrete matter.
It is the Court's conclusions in relation to the now repealed section 60(1A)(a) and clause 15.01-5 of the SPPF which will be of most interest to planners.
Extent of objections - a relevant consideration under s 60(1A)(a)?
In rejecting the Council's argument that the extent of objections was a relevant consideration pursuant to s 60(1A)(a) of the Act, the Court found that ‘mere evidence of opposition by a section of the public is not, in and of itself, evidence of social impact or social effect’. It expressed the view that to constitute evidence of social impact or effect, the number of objections must say something about the detrimental effect on the community of approving the development.
The Court found that nothing was put forward to transform the fact of the 627 objections (which were directed largely to the scale and density of the proposal) into evidence of social impact. It described the objections as evidencing only a difference of opinion as to whether the proposal would result in an acceptable outcome, not a significant social effect or impact of the type recognised in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd  VSCA 45 (Romsey Hotel case).
It further distinguished Lend Lease 1 from the Romsey Hotel case on the basis that:
- in Romsey, the evidence of community attitude (the number of objections) combined with evidence as to the character of the community gave rise to an inference of detrimental impact or significant social effect based on citizens’ diminished happiness with or contentment in their community
- for the purposes of the Act, the significant social and economic effects must be assessed by reference to a much larger community or geographic area than the community of the municipal district referred to in the Gambling Act, being the relevant legislative framework in the Romsey Hotel case.
In essence, the Court concluded that the extent of resident opposition to a proposal may be relevant, not as a discrete consideration, but as a salient fact giving rise to a significant social effect identified as resulting from a proposal.
While s 60(1A)(a) of the Act has now been repealed, the Court's findings are relevant to the new s 60(1)(f) which requires responsible authorities deciding on a planning application to consider any significant social and economic impacts a use or development may have.
Number of objections - a relevant consideration for the purpose of clause 15 in the SPFF?
On this question, the Council argued that VCAT was required to consider the extent of community opposition to the proposal in considering 'the aspirations of the community' for the purposes of clause 15 in the SPPF. It submitted that the number of persons who held a particular feeling about a development was relevant in considering such aspirations.
The Court declined to accept the Council's argument. It endorsed VCAT's observation that 'the community’ referred to in clause 15 must mean something broader than the local community.
The Court found no error of law in VCAT's reasoning that, in this context:
- community aspirations cannot be established by objections per se, even if there are many of them
- the Council is best placed to express values, needs and aspirations on behalf of its community, noting its ability to do so by identifying them in local policies and other provisions in the Planning Scheme
- if an objector wished to establish that a particular design failed to reflect community aspirations, the objector was required to identify a particular community aspiration and explain how the design failed to reflect it.
The Court was not persuaded that the number of objections was evidence of the aspirations of the community.