Legal Issues Open Forum – Social Impacts and Section 79C: Sex, Drugs and Rock & Roll

The Courts have traditionally been cautious in the consideration of social impacts in the determination of development applications.  The material impacts of development on things like traffic, parking, solar access, noise, smells and so on are readily weighed up by consent authorities and the Court in the evaluation of development proposals.  However, despite there having been specific references to “social effects” or “social impacts” in the Environmental Planning and Assessment Act 1979 since its enactment nearly 40 years ago, a certain amount of mystery still surrounds the particular social issues that are treated as being relevant to the consideration of a development application.

Upon its enactment, the EP&A Act in section 90(1)(d) required a consent authority to take into account the social effect and the economic effect of the development in the locality.  When the Act was substantially amended in 1997, section 90(1)(d) was replaced by section 79C(1)(b) which requires a consent authority to take into consideration “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”.  It is also worth noting that some environmental planning instruments also require consideration of specific social impacts in relation to the development of some land.  For example, the Lake Macquarie Local Environmental Plan 2014 expressly provides that development consent must not be granted for the purpose of a bottle shop unless the consent authority has considered has considered information on the community social profile, the social impact of the proposal and any proposed mitigation measures and is satisfied that the development will not have a significant adverse impact on the surrounding area[1].  Similarly, the Yarrowlumla Local Environmental Plan 2002 requires a consent authority, in the assessment of a development application for land within the floodplain, to consider “the social impact of flooding on occupants, including the ability of emergency and support services to access, rescue and support residents of flood prone areas”[2].

In this presentation I am going to discuss some of the ways in which the Court has taken into account different kinds of social impact as a relevant matter in the consideration of a development application.  This is not an exhaustive discussion and I have selected themes that seem to me to be either interesting or novel.  The cases fall into these categories:

  • Sex – brothels and adult book shops
  • Alcohol – bottle shops and hotels
  • Mining
  • Group homes/boarding houses

Before looking at the case, something needs to be said about the evidence necessary to demonstrate that a development will or is likely to have an adverse social impact.

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[1] Clause 7.11(2)(a)

[2] Clause 40(1)(d)