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New Ideas for Significant Social Effect in Victoria

Hubert Algie is an environment and planning lawyer at Kellehers Australia. He was awarded the VPELA Young Professional of the Year Award in 2016 to advance his research into Significant Social Effect within the planning permit process and consider how it can be operationalised.

‘Significant Social Effect’ (SSE) is a mandatory consideration in every permit application, s60(1)(f) of the Planning and Environment Act 1987.

Understanding and considering the human dimension, in social and cultural terms, allows full and proper assessment of planning permit applications whilst providing the community-at-large an opportunity at large to embrace the goal of Significant Social Effect to improve the total quality of life, for both now and into the future. [1]

Victoria’s planning system faces real difficulties in measuring, responding to and adopting SSE. Since this provision became mandatory no SSE cases have succeeded. A handful of Council’s developed policies and guidelines in an attempt to embrace and manage SSE[2].

CASES

A review of nineteen recent SSE cases[3] reveals useful principles for establishing and measuring SSE. These principles are collated into a list below. It is not exhaustive but usefully summaries key case principles.

List of Principles for establishing and measuring Significant Social Effect.

  1. Must be objective and evidenced. Requires a ‘proper evidentiary basis’.[4]
  2. It is open to the Responsible Authority to determine no formal assessment is required. [5]
  3. Must be of sufficient extent. [6]
  4. Town Planning is not a panacea for all social ills. [7]
  5. Is ‘objectively ascertained through the decision maker’s expertise’. [8]
  6. Must have a causal connection to the development and the objectives of [9]
  7. Needs to affect community more than an individual or a small group of individuals. Could potentially include the whole [10]
  8. SSE can be positive and/or negative. Assessment must consider both. [11]
  9. SSE (and all s60(1) considerations) whilst mandatory are not determinative. [12]
  10. Must be balanced with other significant effects ie economic.[13]
  11. The Responsible Authority [and VCAT] determines whether something constitutes a SSE and what weight it should be given.[14]
  12. SSE involves an evaluative judgment of fact and degree.
  13. PE Act does not place responsibility for determining what constitutes a SSE with the Supreme Court.
  14. SSE is not defined by stipulated criteria.
  15. Social effect is ‘necessarily protean’ – ie frequently changing.
  16. The mode of assessing a SSE is not prescribed by the P&E Act.
  17. Determining if an effect is significant is a question of fact.
  18. The effect must be sufficiently probable to be significant.
  19. ‘Significant’ is informed by the possible gravity of the effect, including consideration of the ‘postulated consequences’.
  20. Assessment should have regard to: planning scheme definition of the use sought, the applicant’s disclosed intentions and the capacity to confine and control the proposed use by permit conditions.

Of those cases, only the Rutherford & Ors v Hume CC [2014] VCAT 786 case found an ‘arguable’[15] social effect. Kellehers Australia contested his first ‘test’ case of s60(1)(f) and VCAT acknowledged a social effect existed, but found that it was not significant enough to outweigh the proposal’s potential benefits. No cases refused or amended a permit based on SSE. Interestingly, a handful of cases before the mandatory prevision did establish SSE sufficiently to partially or wholly defeat a permit application[16]. However, these cases often conflated ‘social’ issues with, impacts such as ‘economic’.

POLICY AND GUIDELINES

In the course of his research, Hubert identified a possible template to improve SSE policy and practice. This is outlined in ‘How to Ideas’ section below.

PERMIT CONDITIONS

Permit conditions also need skilled attention. If a permit is issued with or without undertaking a SIA, but SSE condition is imposed it:

  1. Ought not trade social benefits and burdens between different communities;
  2. Ought not trade social benefits and burdens between different members within a community;
  3. Should take into account that dealing with a community as a homogeneous entity may reinforce established patterns of exclusion and inequity;
  4. Should take care trading off disparate social burdens and benefits. Benefits can be quite dissimilar to burdens and not tradeable.
  5. Ought not trade social benefits and burdens (eg increased employment) against environmental benefits and burdens (eg loss of a threatened species).[17]

‘HOW TO IDEAS’:

Define ‘Social Effect’ along the lines of:

is experienced or felt, in a perceptual or corporeal sense at the level of an individual, social unit (family/household) or community/society.[18]

Defined ‘Significance’ along the lines of:

Has a demonstrable probability of consequences resulting, including duration, extent, sensitivity and severity[19]

Define ‘Social Impact Assessment’ along the lines of:

The independent, adaptive and precautionary assessment of a Significant Social Effect.

Adopt in full (IAIA) principles and guidelines as foundational source/reference documents. Defining the goal of SIA along the lines of:

“to bring about a more ecologically, socio-culturally and economically sustainable and equitable environment’ [which] ‘promotes community development and empowerment, builds capacity and develops social capital (social networks and trust).”

Identify impacts using IAIA Recognised to including:

  • Way of life;
  • Culture;
  • Political systems;
  • Environment;
  • Health and wellbeing;
  • Personal and property rights; and
  • People’s fears and aspirations.[20]

‘Guiding Principles’ should include:

  • understand, predict, develop and monitor[21]
  • Recognise unqualifiable data[22]
  • The developer pays approach[23]
  • Equity-sensitive[24]
  • Inclusive
  • Integrated
  • Life-cycle focus
  • Material
  • Proportionate
  • Rigorous
  • Transparent

Ongoing operational improvements for SIA/SSE policy could generally include:

Thresholds Identify the type(s) of applications that must respond to SSE. As well as existing uses and locations which may be particularly sensitive. Providing certainty for both objectors and developers.
Reflection Councils are at the goal face of community sensibilities and are recognised as such through the planning and policy system. Regular review and active engagement with the community should help shape Council policy and guidelines, as a living document.
Pre-Emptive Develop policies to assist planning officers before commencing the permit application assessment process. Pre-application use of SSE/SIA could avoid costly objector delays and could well be marketable for developers. Mediation process should be actively incorporated, prior to the statutory timeline starting.
Management Prepare standard permit conditions for selected types of use or development projects, sensitive locations, and/or community members. These conditions would specify ongoing management and regular review of SSE expectations and status of mitigation. Information gather during this process should be made publicly available, re-entering a dialogue which would improve outcomes.
Knowledge Sharing Councils should collaborate with other Councils to reduce SSE policy development burdens. Sharing of collected information about strengths, weakness, opportunities, threats of SSE policy should be shared to improve our systems understanding and response.
Large-scale uptake Incentivise developers and Councils to embrace the pre-emptive role SIA can play to avoid negative effects and harness positive effects. The more regular SIA is the more cost effective, productive and certain it can be.

By Hubert Algie.

 Copyright © Kellehers Australia 2017 This post is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
[1] A rephrasing of comments of Simon Molesworth AO QC, ‘Has ESD had its day?’ Conference paper presented at NELA National conference, 2013.
[2] Hume City Council ‘Social Impact Assessment Planning Policy and Guidelines’ July 2016; Maribyrnong City Council, East Gippsland Shire Council, Greater Dandenong, Hobson’s Bay
[3] Tabcorp Holdings Pty Ltd v Moreland CC [2004] VCAT 693; Stonnington CC v Lend Lease Apartments (Armadale) Pty Ltd [2013] VSC 505; Minawood Pty Ltd v Bayside CC [2009] VCAT 440; Johnson v Greater Shepparton CC [2005] VCAT 1432; Hunt Club Commercial Pty Ltd v Casey CC [2013] VCAT 725; Rutherford & Ors v Hume CC [2014] VCAT 786; Angels Health Service Aust Pty Ltd v Manningham CC [2014] VCAT 1517; Carlton Football Club Ltd v Hobsons Bay CC [2015] VCAT 645; Telstra Corporation Ltd v Greater Geelong CC [2016] VCAT 1361; Empire State Holdings Pty Ltd v Kingston CC [2017] VCAT 506; Curry v Banyule CC [2017] VCAT 430; Hamm v South Gippsland CC [2016] VCAT 1253; Taylor v Kingston CC [2014] VCAT 1397; Hoskin v Greater Bendigo City Council [2015] VSCA 350; Lee v Maribyrnong CC [2015] VCAT 1857; Tuhan v Moira SC [2016] VCAT 235; Victoria Amateur Turf Club v Mornington Peninsula SC [2015] VCAT 1991; Islamic Society of Victoria Inc v Moreland CC [2015] VCAT 1847; Backman & Co Pty Ltd v Boroondara CC [2015] VCAT 1836.
[4] Minawood Pty v Bayside CC; Rutherford v Hume CC.
[5] Hoskin v Greater Bendigo CC
[6] Minawood Pty Ltd v Bayside CC.
[7] Johnson v Greater Shepparton CC, Rutherford v Hume CC
[8] Rutherford v Hume CC.
[9] Minawood Pty Ltd v Bayside CC
[10] Stonnington CC v Lend Lease Apartments (Armadale) Pty Ltd
[11] Hoskins v Greater Bendigo CC.
[12] Hoskins v Greater Bendigo CC.
[13] Rutherford v Hume CC
[14] Hoskins v Greater Bendigo CC. Items 11 – 20 on the principles list are outlined in Hoskins.
[15] Being the ‘potential for members of the congregation of St Mary’s Church to feel so affronted by the presence of the mosque immediately adjacent to their church that they will cease attending the church, and it may close’. [58].
[16] Philip Barton, “Town planning: social and economic considerations” [1998] LawIJV 138; 46.
[17] Chief Judge, Land and Environment Court of New South Wales. ‘The adequacy of the law in satisfying society’s expectations for major projects’ An article based on earlier papers presented at the International Bar Association Annual Conference, Tokyo, Japan, 22 October 2014 and the Environmental and Planning Law Association (NSW) Annual Conference, Orange, New South Wales, 15 November 2014.
[18] Vanclay, F., Esteves, A.M., Aucamp, I. & Franks, D. 2015 Social Impact Assessment: Guidance for assessing and managing the social impacts of projects. Fargo ND: International Association for Impact Assessment, p 95
[19] NSW Planning and Environment Department’s, ‘Social Impact Assessment – Draft guidelines for State significant mining, petroleum production and extractive industry and development, December 2016, 11-12 & 15
[20] Frank Vanclay, International Principles For Social Impact Assessment, International Association for Impact Assessment, 2003, 2.
[21] Vanclay, F., Esteves, A.M., Aucamp, I. & Franks, D. 2015 Social Impact Assessment: Guidance for assessing and managing the social impacts of projects. Fargo ND: International Association for Impact Assessment, p 7
[22] Chief Judge, Land and Environment Court of New South Wales. ‘The adequacy of the law in satisfying society’s expectations for major projects’ An article based on earlier papers presented at the International Bar Association Annual Conference, Tokyo, Japan, 22 October 2014 and the Environmental and Planning Law Association (NSW) Annual Conference, Orange, New South Wales, 15 November 2014.
[23] Frank Vanclay, International Principles For Social Impact Assessment, International Association for Impact Assessment, 2003.
[24] The remaining principles are sourced from – NSW Planning and Environment Department’s, ‘Social Impact Assessment – Draft guidelines for State significant mining, petroleum production and extractive industry and development, December 2016, 11-12 & 15
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