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What is “amenity” Introduction What is amenity How does amenity

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					                                                                            Planning and Environment Law




Client Newsletter
What is “amenity”?
August 2008


Introduction                                         Summary
In this newsletter we examine ‘amenity’ under
planning law. We state what it is and what           Amenity is a fundamental but sometimes elusive
aspects of amenity can and cannot be considered      concept in planning law. In the recent Romsey
in decision making. We then consider the             Hotel case, the Court of Appeal discussed the
implications of the Court of Appeal’s recent         concept of amenity in deciding what factors
decision in Macedon Ranges Shire Council v           needed to be considered in determining the
Romsey Hotel Pty Ltd.1                               social impact of a gaming venue under the
                                                     Gambling Regulation Act 2003. The Court has
                                                     provided useful insights into the scope of
What is amenity?                                     amenity under planning law. Responsible
                                                     authorities should be aware of the Court’s views
Considering the effects of land use and
                                                     so that legal errors are not made in considering
development upon people has been a
                                                     amenity.
longstanding feature of land use planning.

Amenity is an elusive concept. It has its usual
meaning of pleasantness,2 but also has a wider       relation to amenity directly arises under, the
ambit. It has a physical (or tangible) component,    Planning and Environment Act 1987 (PE Act).
which could include character and appearance of      However, a responsible authority (RA) must
building and works,3 proximity to shopping           consider ‘as appropriate … [t]he effect on the
facilities,4 quality infrastructure and absence of   amenity of the area’ in deciding a permit
noise, unsightliness or offensive odours. It has     application or approving a plan.6 It must also
been said to embrace all the features, benefits      consider the objectives of planning,7 one of
and advantages inherent in the environment in        which is securing a pleasant working and living
question.5 It also has a psychological or social     environment.8 A pleasant environment equates
component.                                           with amenity.

                                                     The social and economic effects of proposed use

How does amenity feature in                          or development of land are relevant to the
                                                     concept of amenity.9 This is consistent with
planning law?                                        provisions of the PE Act that, in deciding an
                                                     application, a RA must consider any significant
Amenity is not defined in, and no requirement in
                                                     effects a proposal may have on the environment
                                                                                                     Page 2
or the environment may have on the proposal           What factors are included in
and may consider any significant social effects of
the proposal.10                                       amenity?
                                                      The Court adopted interstate appellate authority

How did the question of                               that amenity (of a neighbourhood) was a ‘wide
                                                      ranging’ and flexible concept.13 Some aspects are
amenity arise in the Romsey                           ‘practical and tangible such as traffic generation,
Hotel case?                                           noise, nuisance, appearance and even the way of
                                                      life of the neighbourhood … but others are more
The Romsey Hotel (the Hotel) applied to the
                                                      elusive such as the standard or class [or
Victorian Commission for Gambling Regulation
                                                      reasonable expectations] of the neighbourhood’.14
(the Commission) for an approval under the
Gambling Regulation Act 2003 (the GR Act) to
install 50 gaming machines. The GR Act required       May subjective criteria be
the Commission to refuse the application unless       considered?
it was satisfied that ‘the net economic and social
                                                      The Court held that the amenity of a place
impact of the approval will not be detrimental to
                                                      includes a resident’s subjective perceptions of the
the wellbeing of the community of the municipal
                                                      place, and involves subjective judgments for
district in which the premises are located’.
                                                      which it would be difficult to offer a ‘rational
                                                      concrete foundation’.15
The Macedon Ranges Shire Council (the
Council) informed the Commission that its
                                                      However, the Court referred to the remarks of
community survey showed the local community
                                                      the NSW Land and Environment Court (LEC)
was strongly opposed to gaming machines. At a
                                                      which cautioned a decision maker not to ‘blindly
subsequent VCAT hearing, the Council did not
                                                      accept … subjective fears and concerns … [and]
rely on the survey. Although VCAT was aware of
                                                      whilst such views must be taken into
the survey, it did not take it into account because
                                                      consideration, there must be evidence that can
the Council no longer relied on it. The only
                                                      be objectively assessed before a finding can be
negative impact VCAT considered was a
                                                      made of an adverse effect upon the amenity of
potential increase in problem gambling.
                                                      the area …’.16

The Court of Appeal found that VCAT’s failure
to consider the survey was an error of law. The       May questions of morality be
Court held that to consider the net social impact     considered?
of the approval required consideration of wider       This issue sometimes arises for certain proposals,
community concerns, consistent with the               such as brothels, sex bookshops and gambling
community consultative objectives of the GR           premises. In Victoria, the position has been that
Act.11 The Court held that objections based on        morality does not form part of amenity, except
philosophical, moral or religious grounds were        possibly in very narrow circumstances.17
relevant under the GR Act.12
                                                      The Court adopted the remarks of the LEC that
The Hotel had relied on the concept of amenity        matters of morality must not be disregarded and
in planning law in support of a restricted            that proposals might be refused if they cause
approach to social impact. In rejecting the           ‘great offence to a significantly large part of the
Hotel’s approach as too narrow, the Court             community’.18 However, the LEC emphasised
considered the current state of amenity in            that a Court must not allow its personal views of
planning law. It adopted a broad view about           ‘matters of taste or sexual morality’ to substitute
social impact under the GR Act.                       for the evidence.19

                                                      The Court also referred to another LEC case
                                                      which held that if a proposal ‘causes antagonism
                                                      or affront to an immediately affected and
                                                                                                   Page 3
identifiable group because of their particular
religious or cultural values or practices and        The Court’s reasoning does not affect the
beliefs then a detrimental social impact may be      requirement that a person who may object on
demonstrated’ and, that if a church community is     amenity (or other) grounds must be ‘affected’ by
the identifiable group, the moral and sexual         the grant of a permit.23 However, this does not
standards of the group will be relevant.20           require direct and personal effects. An objector
                                                     whose community is potentially affected suffers
The Court of Appeal stated that the decisions in     that effect, even if it is only in the same way and
Broad, Novak, Venus and Perry had been               to the same extent as other members of the
adopted by the LEC in holding that issues of         community.24 A person is not, however, affected
‘taste and morality are not necessarily set aside’   if their interest is one of a busybody or they are
in assessing public concern.21                       barrow-pushing.25


Are the Court’s remarks                              VCAT consideration of the
about interstate authority                           Romsey Hotel case
about amenity binding in                             VCAT recently considered Romsey Hotel in a
                                                     planning case concerning a sex bookshop.26
Victoria?                                            VCAT confirmed it could not reject all sex
We emphasise that the Romsey Hotel case is not       bookshops on the grounds that pornography may
a planning law case. It concerned the meaning        be ‘immoral or socially harmful in all
and scope of social impact under the GR Act. The     circumstances’ because the sale of specified forms
Court’s remarks about amenity would not strictly     of pornography was lawful. VCAT stated ‘it was
be binding on a judge of the Supreme Court or        entitled to acknowledge social concerns and
VCAT in a planning law case, but would be            sensibilities associated with’ access to forms of
accorded considerable weight. This is emphasised     pornography that could not be sold in Victoria
by the Court’s view that the interstate authority    (eg X-rated media).27 Opponents to the grant of a
on amenity is similar to the approach in Victoria    permit tendered a petition that was said to be
under planning law.22                                evidence of community opposition of the type
                                                     required to be considered in Romsey Hotel. The
What does this mean for                              petition was considered but given no weight
                                                     because it was not conducted or obtained in the
Responsible Authorities?                             same way as the plebiscite in Romsey Hotel and
VCAT’s (and its predecessors’) authorities that      because PE Act did not have the same social
questions of morality are irrelevant                 impact test as the GR Act.28
considerations or relevant in very narrow
circumstances should not now be relied upon.
                                                     Conclusion
Responsible authorities (and their planning          The Court of Appeal has provided useful insights
officers) should now take into account such          into the elusive concept of amenity under
questions of morality (and evidence on such          planning law. The Court has confirmed that
questions) in relevant circumstances.                amenity is a wide ranging and flexible concept;
                                                     that subjective views need to be considered; and
Those circumstances will change over time. To        that matters of morality must not be disregarded.
date, the questions have arisen mainly in relation   The decision tends to widen the concept of
to mortality (funeral parlours), sexual services     amenity.
(brothels) and gambling (gaming venues).
However, in the future, they may arise more          The application of the Court’s views by the
commonly in relation to animal welfare (eg           Supreme Court and VCAT will be watched with
broiler farms), public health (eg liquor and         interest.
tobacco premises) and unsustainable use of
resources (eg refuse disposal).
                                                                                                                Page 4

For further information                                    16
                                                               Romsey Hotel, [64], citing New Century
For further information or legal advice on any                 Developments Pty Ltd v Baulkham Hills Shire
                                                               Council (2003) 127 LGERA 253, 316; [2003]
issues raised in this newsletter contact:                      NSWLEC 154 [60]-[61] (New Century). New
                                                               Century was a planning case concerning a Moslem
Jonathan Smithers on 8684 0411                                 place of worship.
                                                           17
Assistant Victorian Government Solicitor                       In a funeral parlour case, Hande v City of
                                                               Broadmeadows (1973) VPA 66 (Hande), 68, the
                                                               former Town Planning Appeals Tribunal, accepted
Geoff Code on 8684 0412
                                                               that ‘psychological disturbance’ or ‘mental aversion’,
Principal Solicitor                                            if reasonably held, forms part of amenity. The former
                                                               Planning Appeals Board, in a brothel case, held that
Domenic Cristiano on 8684 0476                                 morality is not a town planning consideration (Lintan
Managing Principal Solicitor                                   Bistro Pty Ltd v City of South Melbourne (1985) 18
                                                               APAD 212, 221-2). The approach in Hande was
                                                               doubted, and tentatively accepted only in narrow
Christopher Wiseman on 8684 0478                               circumstances in Brook v City of Brighton (1986) 4
Senior Solicitor                                               PABR 50, 58 (Brook). The three cited circumstances
                                                               were religious adherents’ concern with certain
The VGSO is the primary source of legal services               butchers, reformed alcoholics’ or gamblers’ concern
to the Victorian State Government and its                      with new liquor or gambling outlets, and lung cancer
                                                               sufferers’ concern with tobacco outlets. Brook was
statutory authorities, providing strategic advice              followed in Bertucci v City of Box Hill (1986) 10
and practical legal solutions.                                 APA 274 and by the former Administrative Appeals
                                                               Tribunal in Peterson v Melbourne CC (1988) 36 APA
                                                               338, 342. In Tabcorp Holdings Pty Ltd v Moreland
                                                               CC [2004] VCAT 693 (Tabcorp), [13], VCAT stated
                                                               that ‘attitudes to gaming are primarily determined …
                                                               by philosophical or moral values, sometimes even
1
    (2008) 29 VPR 271; [2008] VSCA 45 (Warren CJ,              religious values’, but in exercising planning powers,
   Maxwell P, Osborn AJA) (Romsey Hotel).                      it is inappropriate ‘to simply apply [such] values’. In
2
    Allen Commercial Constructions Pty Ltd v North             HGC Administrative Services Pty Ltd v Greater
    Sydney Municipal Council (1970) 123 CLR 490, 492;          Shepparton CC [2005] VCAT 1432 (HGC), [10]-
    [1970] HCA 42. Section 4 of the PE Act refers to           [11], the statements in Tabcorp were adopted in the
    pleasantness.                                              context of the social effects of a sex bookshop, and
3
    It includes heritage character (Doug Wade                  VCAT confirmed a long line of cases that ‘moral
    Consultants Pty Ltd v City of Melbourne (1984) 2           values’ were irrelevant in sex bookshop cases. In the
    PABR 221, 237).                                            brothel case, Cahill v Greater Shepparton CC [2006]
4
    Diglio v Melbourne CC (1983) 1 PABR 337, 340.              VCAT 925, [42], VCAT rejected claims of increased
5
    Lobb v City of Waverley (1967) 14 LGRA 193, 196;           illegal prostitution as a ‘moral viewpoint’.
                                                           18
    Zerbe v Donaster and Templestowe CC (1984) 12              Romsey Hotel, [61], citing Venus Enterprises Pty Ltd
    APA 201, 214; Editorial 12 AATR 3.                         v Parramatta City Council (1981) 43 LGRA 67, 69-
6
    Victoria Planning Provisions cl 65.01.                     70 (Cripps J) (Venus). Venus was a planning case
7
    PE Act s 60.                                               concerning a sex bookshop.
                                                           19
8
    PE Act s 4(1)(c).                                          Venus, 69-70.
                                                           20
9
    Kentucky Fried Chicken Pty Ltd v Gantidis (1979)           Dixon v Burwood Council (2002) 123 LGERA 253
    140 CLR 675. Section 60(1) of the PE Act expressly         (Pain J) (Dixon). Dixon was a planning case
    allows these matters to be considered.                     concerning a brothel near a church.
                                                           21
10
    PE Act s 60(1)(e); s 60(1A)(a). In Romsey Hotel at         Romsey Hotel, [64]; New Century, [60]-[61].
                                                           22
    [62], the Court referred to the NSW LEC’s decision         Romsey Hotel, [65], where the Court cited City of
    in Perry Properties v Ashfield Council (No 2) (2001)       Camberwell v Nicholson (unreported, Supreme Court
    113 LGERA 301, 318, [64] (Perry). In Perry, the            of Victoria, 2 December 1988) and five decisions of
    Court adopted a wide view of amenity, although             VCAT between 1998 and 2003 (see Romsey Hotel at
    social impacts (not amenity) are directly invoked          footnote 76).
                                                           23
    under NSW planning law.                                   PE Act s 57(1).
                                                           24
11
    Romsey Hotel, [57].                                       Chadband v Murrundindi SC [2005] VCAT 1039.
12
    Romsey Hotel, [58].                                       (Chadband), [10].
                                                           25
13
   Broad v Brisbane City Council [1986] 2 Qd 317, 326;        Chadband, [11].
                                                           26
   (1986) 59 LGRA 296 (De Jersey J) (Broad).                  Rowe v Wangaratta Rural CC [2008] VCAT 1472
14
    Broad, 319-20 (Thomas J); applied in Novak v              (Rowe).
                                                           27
    Woodville City Corporation (1990) 70 LGRA 233,            Rowe, [63]-[64].
                                                           28
    236 (Full Court of the Supreme Court of South             Rowe, [44]-[50].
    Australia) (Novak).
15
    Romsey Hotel, [60]; citing Broad, 326 (De Jersey J).

				
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