In the decision of Minawood Pty Ltd v Bayside CC (Red Dot) [2009] VCAT 440, the Tribunal addressed the weight to be given to significant community opposition as a 'social effect' and the heritage significance of a building not covered by a Heritage Overlay.
BACKGROUND
The proceeding concerned the redevelopment of the historic Khyat's Hotel (hotel) site in Brighton and involved an application by Minnawood Pty Ltd to the Tribunal under section 87A of the of the Planning and Environment Act 1987 (Vic) (P&E Act) to amend an existing planning permit.
The existing permit allowed the redevelopment of a site for 21 dwellings in a three storey development which retained the front portion of the existing hotel building (permit). A request was made to the Tribunal for an amendment to the permit which would have allowed the remaining portion of the hotel to be demolished and replaced with a further five dwellings (amendment).
The Tribunal was told the hotel was an iconic local landmark and watering hole and had existed on the Brighton site since 1865. The building had also been extensively altered and renovated in the 1950's.
The hotel was not within a Heritage Overlay and the Minister for Planning had refused a request from the Bayside City Council (Council) to place an interim Heritage Overlay over the site prior to the hearing.
The amendment was opposed by the Council on grounds including (among other things) that the amendment 'did not respect the social, cultural and historic associations and significance of the site'. The Tribunal also received some 4,300 statements from members of the community in opposition to the amendment.
The Tribunal, presented with expert heritage and urban design evidence by both sides, considered whether it could refuse the demolition of the remaining portion of the hotel on heritage considerations, despite there being no specific demolition controls.
THE ISSUES
Social heritage value
The Tribunal rejected arguments put forward by Minnawood that it was confined to only considering the appropriateness of the new building. The Tribunal concluded that it was entitled to consider whether the balance achieved through the existing permit should be changed, particularly in terms of neighbourhood character and heritage protection.
The Tribunal ultimately relied on the State Planning Policy Framework (SPPF) and the Local Planning Policy Framework (LPPF) to conclude that the hotel possessed heritage values worthy of protection, including social heritage value:
'Therefore, although [the hotel] may lack the formal protection of a Heritage Overlay, we consider that it still possesses heritage values, which under the planning scheme should be considered and protected.'
A 'social effect'
The Tribunal also considered whether the significant community opposition to the proposal could amount to a 'social effect' for the purposes of 60(1)(a) of the P&E Act. The Council referred to the Supreme Court decision of Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45. In Macedon, the Court held that community opposition was a relevant consideration that the Tribunal was bound to take into account under the Gambling Regulation Act 2003 (Vic). Ultimately, the Tribunal rejected the relevance of the Macedon decision and distinguished the legislative context provided by Gambling Regulation Act 2003. The Tribunal concluded that:
'For the reasons given, we do not agree with the proposition that the number of objections alone creates a significant social effect or that the number of objections alone should be given any weight...'
CONCLUSION
The Tribunal held that for social effects to be relevant in the context of the P&E Act 'the proposed use or development must give rise to demonstrable social impacts on the community (as distinct from individuals) of an identifiable scale or extent'. Whilst the Tribunal did not give weight to the sheer volume of objections, it did find that they raised consistent objections to the amendment on cultural significance and heritage grounds which were nevertheless relevant considerations. As a result, the Tribunal refused to grant the amendment to the permit.
Therefore, parties need to be aware that the social impacts of the development of landmarks and iconic buildings or places may be relevant, even in circumstances where the building is not protected by a heritage overlay.
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