Swancom Pty Ltd v Yarra CC  VCAT 923 (10 June 2009) On 10 June 2009, Deputy President Dwyer and Member Bensz of the Victorian Civil and Administrative Tribunal handed down a decision which discussed the application of the Charter of Human Rights and Responsibilities Act 2006 to local government planning decisions.
The operators of the Corner Hotel, Swancom Pty Ltd ('Swancom'), applied to the Yarra City Council ('Council') to amend an existing planning permit to, among other things, extend trading hours in its beer garden from 11:30pm until 3am, and to increase patron numbers from 750 to 1300.
The Corner Hotel is located within the Swan Street 'major activity centre', with a large number of licensed premises in the immediate area. To the immediate north and northwest of the Corner Hotel are a number of warehouses within a Mixed Use Zone. Several have been converted for residential use, and there is other residential infill in the immediate area. The area to the north and northeast is predominantly residential, within a Residential 1 Zone.
The Council refused to amend the permit and/or authorise the building works because:
- the proposal would adversely affect the residential amenity of the surrounding area; and
- the proposal was inconsistent with principles of orderly and proper planning.
Swancom applied to the Tribunal to review the Council's decision.
In defending its decision to refuse an amendment to Swancom's current planning permit, the Council highlighted its obligations under the Charter. The Council submitted that it, as a public authority, is bound by the Charter to take human rights into consideration when making decisions, developing local laws and policies, and providing services. The Council submitted that, before reaching the decision to deny an amendment to Swancom's planning permit, it considered the following human rights:
- the right to privacy, under s 13 of the Charter - in particular, the right of residents living near to the Corner Hotel to privacy from the impacts of excessive noise; and
- property rights under s 20 of the Charter - in particular, the right of Swancom not to be deprived of its property rights.
The Council also submitted that the Tribunal is bound by the Charter to consider human rights when exercising its review jurisdiction.
Deputy President Dwyer and Member Bensz held that the application to extend hours and patron numbers should fail, after balancing various competing policies and objectives against considerations of net community benefit and sustainable development.
The Tribunal agreed with the Council that they were bound by the Charter in exercising their review jurisdiction on planning applications. In light of this obligation, the Tribunal specifically considered ss 13 and 20 of the Charter and found that the refusal to approve Swancom's planning application had not resulted in a breach of rights under the Charter.
The right to privacy
Section 13 of the Charter states:
Privacy and reputation
A person has the right -
(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
(b) not to have his or her reputation unlawfully attacked.
The Tribunal held that whilst excessive noise from the hotel might amount to a breach of the privacy of nearby residents under s 13 of the Charter, the planning regulatory framework and associated guidelines for assessing sleep disturbance caused by noise, in combination, are sufficient to create an ambit of intended regulatory discretion within which some interference with the right to privacy is not unlawful. Additionally, the Tribunal was satisfied that the opportunity to implement reasonable sound attenuation measures as part of a conditional approval provides a proportionate and reasonable response, so that the interference with the right to privacy is not arbitrary.
Section 20 of the Charter provides:
A person must not be deprived of his or her property other than in accordance with law.
The Tribunal held that whilst the refusal of the application might arguably interfere with Swancom's broader property rights, s 20 of the Charter only provides that a person must not be deprived of property 'other than in accordance with law'. The Tribunal held that Swancom was not deprived of any legal or proprietary interest in the land, or the ability to use or develop its land in accordance with the relevant planning framework. Importantly, the Tribunal was of the opinion that the imposition of reasonable restrictions on the use or development of the land under the regulatory framework is in accordance with the law, and therefore is not unlawful or arbitrary.
Consideration of the Victorian Charter
The Swancom decision clearly identifies the vertical human rights obligations created by the Charter - that is, the obligations that local governments' have to consider human rights when making decisions, developing local laws and policies, and providing services. The Swancom decision establishes that where planning regulatory frameworks and associated guidelines are complied with, subsequent interference with a person's right to privacy will not be considered unlawful or arbitrary, particularly where sound attenuation measures can be implemented as part of the Council approval process.
Interestingly, both the Council and the Tribunal considered the property rights of Swancom, in assessing whether ss 13 and 20 of the Charter imposed an impediment to the decision to deny an amendment to Swancom's planning permit. This consideration was given despite Swancom's status as a company, not as a natural person.
Regardless of the status of a land owner (whether a company or a natural person), this decision indicates that from a planning perspective, the imposition of reasonable restrictions on the use or development of land in accordance with relevant planning frameworks is neither unlawful nor arbitrary, under s 20 the Charter.
The decision is available at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2009/923.html.
Melissa Gundrill is on secondment to the Human Rights Law Resource Centre from Clayton Utz