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Planning – How Close is Too Close?

In-House Memorandum


Proximity of Development

A recent VCAT case, Golden Seven Star v Port Phillip[1], involved a unique argument that positioned ‘proximity’ as a key element of ‘social effects’. Social effects are now mandatory for consideration on any planning permit application (s60(1)(f) Planning & Environment Act 1987). The case considered Council’s refusal of a nine-storey mixed use building, with a restaurant on the ground floor and 62 dwellings above. Resident objectors, and an adjoining child care centre, argued that the proposal would reduce the amenity of the area and would have a significant social effect due to its impact on the child care centre. The Tribunal, finding that the proximity of the proposed development to the child care centre was undesirable, focused on three key elements: (i) Separation distance is a reasonable community expectation Responding to an argument that overlooking of the child care facility may facilitate paedophilia, the Tribunal rejected possible behaviour as a relevant social effect. It found that:

‘… the proper approach is to assume that residents would abide by usual social codes or standards of behaviour, and if they transgress, be subject to prosecution under appropriate laws.’ (at [96]).[2]

Interestingly, (in line with Dixon v Burwood Council (2002) 123 LGERA 253), the Tribunal merged notions of amenity (cl. 65) with “social effect” and “reasonable community expectations”, finding that:

‘…a development that comprises nine storeys with at least sixteen dwellings located 0.6 metre from a common boundary provides a potential for overlooking that exceeds reasonable community expectations, and hence would adversely affect the amenity of the child care centre. We think the many windows and balconies would create the perception that observers may be hidden, and observe for extended periods. The separation distances [create] a perception of undue and uncomfortable proximity. We consider that people would reasonably feel the amenity of the child care centre would be compromised by this development.’ (emphasis added, at [99]).

(ii) Failure to meet reasonable expectations constitutes unreasonable adverse impact The Tribunal, again considering amenity (Clause 65), and with reference to Clause 15.01, ‘Built Environment and Heritage, had regard to a reasonable amenity expectation. It found that, where a component of the neighbouring land use was integral to that land use, with no opportunity to use another part of the land for that use, (ie a child care play area), a development that severely impacted that component was insufficiently responsive and therefore constituted an unreasonable adverse impact upon a reasonable amenity expectation. (iii) The social effect must be objective and evidenced The Tribunal heard submissions and lay evidence that:

‘the location of the child care centre assisted [parents’] participation in the workforce, which in turn assists their financial and personal wellbeing. If the child care centre closes in response to the development, they say their wellbeing would be adversely affected.’ (at [111]).

The Tribunal gave only ‘some limited weight’ to this submission, as, because assertions the child care centre would close or be affected were not sufficiently evidenced:

‘We are not persuaded this information comprises a sufficiently rigorous assessment of the likely social impacts that would enable us to conclude with a high level of certainty that they would arise if this development is approved.’ (at [113]).

Thus, any submission regarding social impact needs to go beyond personal assertion to include ‘a sufficiently rigorous, possibly objective, assessment’. Whilst the legitimacy of social and economic effects as proper planning considerations has been established by Victorian courts and tribunals for many years[3], individual dislikes or social deviance will not be relevant unless tied to broader, robustly evidenced effects upon reasonable community expectations. The community in question needs to show particular characteristics that demonstrate that impact on it will be greater than on other communities[4]. Golden Seven Star is important as it describes how reasonable community expectations of proximity, given existing and proposed uses, may be relevant in the, now, mandatory consideration of significant social effect.   Kellehers Australia 4 April 2014


[1] Golden Seven Star Pty Ltd v Port Phillip CC [2014] VCAT 30
[2] This is in keeping with New Century Developments v Baulkham Hills Shire Council [2003] NSWLEC 154, which requires consideration of the use rather than user of a property.
[3] Eccles, D & Bryant, T, Statutory Planning in Victoria, (Federation Press: Sydney, 4th ed., 2011), p.127
[4] Ibid, p.130