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6 May 2019

‘Net Community Benefit’ – what is it, and how do you measure it?

Overview

The town planning system does not call for ‘perfect’ or ‘ideal’ outcomes. Rather, it requires ‘acceptable’ outcomes based on a balance of relevant, and sometimes competing, town planning objectives and the principles of ‘net community benefit and sustainable development’. In a literal sense, ‘net community benefit’ means when the benefits (pro’s) arising from a proposal to the community out-weigh any identified disbenefits (con’s) arising from a proposal to the community.

In other words, when considering any town planning application, decision-makers must consider the ‘benefits’ and ‘disbenefits’ of a proposal, ‘balance’ and ‘weigh’ them and then decide on which side of the ledger the proposal falls.

A couple of additional matters to note:

  • ‘Net community benefit’ can still be established even when a proposal is contrary to a relevant planning provision, and/or results in detrimental impacts. However, in such cases, it needs to be demonstrated that these disbenefits are outweighed by other benefits associated with the proposal.
  • ‘Net community benefit’ should not necessarily be weighted in favour of more localised and specific planning provisions, notwithstanding that these are invariably more targeted. There may be circumstances where broader State or regional planning provisions out-weigh or at least counter-balance such provisions.

‘Net community benefit’ is not to be confused with other vernacular that is creeping into the planning scheme – including ‘significant community benefit’, ‘public benefit’ and the ‘no net detriment test’.  These are separate, albeit, related principles, suitable for discussion on another day.

In undertaking this ‘balancing’ exercise, Clause 71.02-1 of planning schemes identifies environmental’, social’ and ‘economic’ factors as being relevant. For further guidance on these and other relevant matters, it is then appropriate to have regard to all of the relevant town planning inputs – policy, controls, background documents, amendments and the like.

But how do you ‘weigh’ relevant inputs? 

The following seems reasonably clear:

  • Planning controls are given substantial weight and effectively determine whether there is discretion for a proposal.
  • Planning policy is given great weight but cannot fetter the discretion provided by the planning controls.
  • Incorporated documents are given similar weight to policy because they are effectively part of the planning scheme and cannot be changed without a planning scheme amendment.
  • Reference documents are given some weight, but this is diminished because they can be amended from time to time.
  • Proposed planning scheme amendments are given some weight and more weight if they have been scrutinised by an Independent Panel (i.e. – they are ‘seriously entertained’).
  • Other adopted matters are given limited weight and are at the bottom end of the scale because they have not gone through an Amendment process to reference them in the planning scheme.

It is also apparent that some matters are easier to quantify than others. For example:

  • Character - what constitutes ‘good design’ will vary from person to person, but many planning schemes seek to provide some guidance on this.
  • Amenity - assessments of amenity (internal and external) can vary from person to person, but the planning scheme provides good (measurable) guidance for some matters (typically associated with multi-dwelling construction).
  • Economic - there is sometimes reasonable agreement on the economic impacts of applications (good and bad), although economists are often pitted against one another in hearings.
  • Social – social considerations are generally subjective, but depending on the issues, there can be various accepted indices and benchmarks which can assist with assessments in this regard.
  • Environmental – impacts on the environment are often the subject of separate legislation, but there can reasonably be some divergence of views on this (including the impacts of developments on the habitat of some endangered species and the impact of noise, odour or dust on sensitive receptors).

The Assessment

Having reviewed and assessed the details of a proposal (including its nature and potential impacts), and then reviewed all relevant town planning inputs, it is then appropriate to undertake a ‘net community benefit’ assessment.

However, applications can have entirely different fates depending on the specific nature of the proposal and the context of a site. Take the following as an example:

  • A house within a Heritage Overlay is proposed to be demolished to enable a new development:
    • Greater weight would typically be given to a site-specific Heritage Overlay compared to a precinct-based overlay.
    • Greater weight would typically be given to the retention of a heritage building if it is deemed to be individually significant as opposed to contributory or non-contributory.
    • Counterweight would typically be given to the achievement of other (competing) policy objectives if there are strong zone or policy directives for these outcomes to occur. For example, the benefits or urban consolidation (housing supply, diversity and affordability) would typically be given less weight if, for example, a site is in a Neighbourhood Residential Zone (where minimal and incremental housing change is typically anticipated) as compared to a site in the Residential Growth Zone (where substantial housing change and intensification is typically encouraged).
    • Significant counterweight would typically be given to a proposed replacement building if it can be demonstrated that it will have substantial benefits to the community (e.g. – the construction of hospitals or schools for which there is an identifiable community need).

There are many variables associated with any proposal that requires consideration of its specific nature and context (locational and policy), and a balancing of its associated benefits and disbenefits. 

Applying the above principles, it may be concluded that the demolition of an individually significant heritage place does not satisfy the ‘net community benefit’ requirement if it is simply proposed to be replaced with two new dwellings, but it may be satisfied if it is proposed to be replaced with a required new regional hospital that will generate significant employment and provide access to health care for thousands of people.

Other examples where ratio: has been involved with include:

  • Solar panel farm in a rural zone – it was deemed that the benefits to the community (environment and local economy) out-weighed concerns regarding loss of agricultural land and local amenity considerations. This was particularly the case given the planning scheme specifically sought to encourage developments of this nature in the locale, and the land was not deemed to be of high agricultural value.
  • Intensive animal industries in the farming zone – it was deemed that the proposed agricultural use was entirely appropriate in a working rural zone and that the associated economic (employment and down-stream economic) benefits out-weighed concerns regarding loss of opportunities for soil-based agriculture and impacts on local amenity and landscape values. This was particularly the case given policy encouraged industries of this nature in the locale; the proposal met relevant policy guidelines/codes with respect to design and separation distances, and character concerns could be addressed by setbacks and landscaping.
  • Vegetation removal for a new bridge – it was deemed that the community benefits associated with a new bridge (which would improve road safety and efficiency) out-weighed disbenefits associated with the removal of significant endangered vegetation. It was relevant that road fatalities had occurred in this location (noting it was agreed maximum weighting should be given to the preservation of human life), and offsets for the vegetation to be removed were to be provided (well in excess of the legislative requirements).
  • Five storey retirement village in a Neighbourhood Residential Zone/minimal change area – it was deemed that the community benefits associated with the proposal (such as supply and enabling persons to age-in-place) out-weighed concerns regarding local amenity and character. The assessment was assisted by the planning scheme acknowledgement that facilities of this nature can be taller and more intense; the abuttal to the PPTN, and the site’s substantial size (which enabled it to graduate in scale at its edges/interfaces).
  • A multi-level mixed-use development that would have substantial detrimental impacts on the amenity of a neighbouring dwelling – it was deemed that the community benefits associated the development would out-weigh the substantial amenity impacts on a neighbour given all land in the area was zoned for higher density housing and the inevitability that the adjoining land would be developed at some point.
  • The rezoning of land for commercial development, including a supermarket – where it was deemed that the social and economic benefits of an additional supermarket into a region that was significantly undersupplied with access to groceries, out-weighed any disbenefit to the retail hierarchy.

Summing Up

There is no single accepted methodology or approach to undertaking a ‘net community benefit’ analysis. It is not a ‘tick box’ exercise or even ‘number in a box’ exercise, and each assessment must adapt to the specific issues of the proposal.

Whilst the assessment of relevant inputs and impacts should be reasonably objective; invariably, there is a degree of subjectivity associated with the amount of ‘weight’ that is given to such matters.

The important thing is that all relevant matters (‘for’ and ‘against’) are identified and given due consideration. 

As to what ‘weight’ one gives to each matter, given the subjectivity associated with many town planning matters, there will reasonably but invariably continue to be a divergence of views on this. 

What is clear is that the often-held view and emphasis on economic benefits needs to broaden to include social and environmental considerations.

ratio: has extensive experience in dealing with matters focussing on net community benefit and other broad range of matters before VCAT, Panels Victoria and the like on evaluating impacts on proposals on the community. 

If you have any queries or require assistance, please feel free to contact David Crowder or your existing contact at ratio:

Author: David Crowder, Director: Planning

 

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