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, , citing New Century For further information or legal advice on any Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 253, 316;  issues raised in this newsletter contact: NSWLEC 154 - (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  VCAT 693 (Tabcorp), , VCAT stated that ‘attitudes to gaming are primarily determined … by philosophical or moral values, sometimes even 1 (2008) 29 VPR 271;  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  VCAT 1432 (HGC), -  HCA 42. Section 4 of the PE Act refers to , 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  4 Diglio v Melbourne CC (1983) 1 PABR 337, 340. VCAT 925, , 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, , 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, ; New Century, -. 22 , the Court referred to the NSW LEC’s decision Romsey Hotel, , 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,  (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, . Chadband v Murrundindi SC  VCAT 1039. 12 Romsey Hotel, . (Chadband), . 25 13 Broad v Brisbane City Council  2 Qd 317, 326; Chadband, . 26 (1986) 59 LGRA 296 (De Jersey J) (Broad). Rowe v Wangaratta Rural CC  VCAT 1472 14 Broad, 319-20 (Thomas J); applied in Novak v (Rowe). 27 Woodville City Corporation (1990) 70 LGRA 233, Rowe, -. 28 236 (Full Court of the Supreme Court of South Rowe, -. Australia) (Novak). 15 Romsey Hotel, ; citing Broad, 326 (De Jersey J).