The Law Handbook 2024

Chapter 11.3: Environment and planning law 1021 development may have and for the purposes of this consideration, the responsible authority must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect (s 60(1B) PE Act). The responsible authority may also consider – if the circumstances appear to require it – any regional or other strategy plan or amendment adopted under the PE Act but not yet approved by the Minister for Planning, policy statement, code, guideline or amendment to the planning scheme that is adopted but not yet in force, any section 173 PE Act agreement affecting the land, and other relevant matters (s 60(1A) PE Act). Newly added considerations are any environment reference standard within the meaning of the EP Act, or order made by the Governor in Council under section 156 of the EP Act (s 60(1A)(f), (fa) PE Act). Moral objections to a type of land use (e.g. as a brothel) are not proper planning considerations (see Victoria Amateur Turf Club v Mornington Peninsula Shire Council [2015] VCAT 1991 [30]). VCAT has raised the issue of gaming and liquor licensing matters that have planning considerations. Although licensing and gaming regulation have provided more subjective tests on the issue of impact assessment, the 2009 Swancom Case suggested that the consideration of cumulative impact assessment issues are also relevant to planning matters. (See Swancom Pty Ltd v Yarra City Council [2009] VCAT 923 and Romsey Hotel Pty Ltd v Victorian Commission for Gambling Regulation [2009] VCAT 2275.) Private economic impacts are not relevant. However, a permit that allows the removal of a subdivision restriction is not allowed unless the owner of the benefited land is unlikely to suffer financial loss, loss of amenity, or loss from change to the character of the neighbourhood (s 60(2) PE Act). The responsible authority may be attempting to balance various competing or conflicting objectives in the course of making a decision about a permit. Decision-making is an exercise of discretion leading to an acceptable outcome (VPPs, cl 65). The approach required to be taken is ‘integrated decision- making’ in favour of a net community benefit, and sustainable development for present and future generations (VPPs, cl 71.02–3). Consideration of the net community benefit (or acceptable outcome) in a planning application is not a ‘test’ or a mandatory pre-condition to the grant of planning approval (as was suggested in earlier cases) but rather a relevant consideration to which regard must be had (see Moreland City Council v Glenroy RSL [2018] VSC 126). In Rozen v Macedon Ranges Shire Council [2010] VSC 583, it was found that an acceptable outcome can have negative characteristics, and it may be acceptable on balance, although it achieves only some planning objectives and is contrary to others. The net community benefit consideration recognises scope for benefits and ‘dis-benefits’ in a proposal that must be jointly evaluated (see Hoskin v Greater Bendigo City Council [2015] VSCA 350). An acceptable outcome is not necessarily a perfect outcome. A responsible authority must determine whether or not a net community benefit arises under the PE Act and not simply defer to a finding of another decision- making body. In Moreland City Council v Glenroy RSL [2018] VSC 126, the Supreme Court found that VCAT had relied on a ‘no net detriment’ finding by the Victorian Commission for Gambling and Liquor Regulation, rather than making its own finding on considerations of any net community benefit. Under section 61 of the PE Act, the responsible authority may decide to grant a permit, or to grant a permit subject to conditions, or refuse to grant a permit on any grounds it thinks fit. The responsible authority: • must refuse to grant a permit if a relevant determining referral authority objects to the grant of the permit; and • may refuse to grant a permit it a relevant recommending referral authority objects to the grant of the permit. If granting a permit authorises anything that results in a breach of a registered restrictive covenant, the responsible authority must refuse to grant the permit. Recently, VCAT recognised that responsible authorities andVCAT, as public authorities, are bound by the Charter of Human Rights and Responsibilities Act 2006 (Vic). Specifically, the tribunal held that both are obliged to give proper consideration to, and act compatibly with, relevant human rights protected by the charter when determining permit applications (see Bespoke Development Group Pty Ltd v Merri-bek CC [2023] VCAT 758).