Blaser & Ors v Manningham CC [2011] VCAT 732

1. By consent, the name of the permit applicant on the permit application is amended from Evans Planning Pty Ltd to "Vodafone Hutchison Australia Pty Ltd".
2. The decision of the Responsible Authority is varied. In permit application PL10/020883 a permit is granted and directed to be issued for the land at 2-8 Taroona Avenue, Warrandyte. The permit will allow:
   • Buildings and works associated with the construction of a telecommunications facility, including a 30 metre high monopole with a 4.5m high turret headframe (incorporating antennae and a radio communications dish) with an associated equipment shelter (incorporating an electronic scoreboard) in accordance with the endorsed plans provided for in the conditions set out in Appendix 1 which are the conditions of this permit.

Mr Markus Blaser, assisted by Ms Michelle Pini, appeared on behalf of themselves and others who signed the application for review namely, C Adins, F Corrigan, M Jameson, T Barrett, S Olson, M Colenso, P Curry, D Boell. They presented written and oral submissions.

Ms Ann-Maree Drakos, town planner and officer of Manningham City Council. She presented written and oral submissions.

Mr N J Tweedie, barrister, instructed by Corrs Chambers Westgarth, solicitors. He presented written and oral submissions and called two expert witnesses to give oral evidence in the course of which they adopted written reports that had been circulated prior to the hearing. They were:

• Mr John Glossop, town planner of Glossop town planning, and
• Mr Stephen Schutt, urban designer and landscape architect of Hansen partnership.

Various plans photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

This proposal is for a telecommunications facility.

Section 82 of the Planning and Environment Act 1987 (review of a decision to grant a permit).

• Public Park and Recreation Zone (PPRZ)
• Environmental Significance Overlay -Schedule 2 (ESO2),
• Significant Landscape Overlay - Schedules 2 and 3 (SLO2 and SLO3)
• Land Subject to Inundation Overlay (LSIO)
• Wildfire Management Overlay (WMO)

• Clause 52.19-2 - Buildings and works for a Telecommunications facility.

• Key statewide policies: Clauses 10, 11, 12.04, 13.02, 19.03-4.
• Key local policies: Clauses 21.12-5; 21.13, 22.02 and 22.14.
• Particular provisions: Clauses 52.19 and 62.02-1.
• General provisions: Clause 65.

The telecommunications regulatory framework - other relevant legislation and publications

• The Radiocommunications Act 1992 (Cwth).
• The Telecommunications Act 1997 (Cwth).
• A Code of Practice for Telecommunications Facilities in Victoria 2004[1] ("The Code").
• Telecommunications (Low Impact Facilities) Determination 1997.
• Industry Code ACIF C564:2004 Deployment of Mobile Phone Network Infrastructure.

• Maximum Exposure Levels to Radiofrequency Fields - 3kHz to 300 GHz, Radiation Protection Series Publication No. 3, 2002 ("the ARPANSA Standard").

The land is commonly known as Warrandyte Reserve. It is irregular in shape with a frontage of approximately 300 metres to the north side of the Heidelberg-Warrandyte Road and a total area of 6.1 hectares.

Connell Wagner Pty Ltd v Port Phillip City Council [1998] VCAT 606

Lucent Technologies v Maribyrnong City Council [2001] VCAT 1955

Heland Pty Ltd v Kingston City Council [2005] VCAT 2927

Telstra Corporation Ltd v Mildura RCC [2009] VCAT 1928

Optus Mobile v Macedon Ranges SC [2009] VCAT 2578

1. Vodafone Hutchinson Australia Pty Ltd (the company) seeks planning permission to erect a "monopole" to support telecommunications equipment. The responsible authority determined to grant the required planning permit. Mr Markus Blaser was an objector and he, together with other associated objectors, has applied to this Tribunal for a review of the decision of the responsible authority to grant the permit.

1. The Warrandyte Reserve is a substantial recreation reserve with a total area of 6.1 hectares located on the north side of the Heidelberg-Warrandyte Road. The Reserve also has a frontage to the eastern side of Taroona Avenue and is enclosed to its north and east by Andersons Creek. There are two sports oval on the Reserve with various pavilions and other buildings and works between them, and between the southern oval (the one nearest the Heidelberg-Warrandyte Road) and Taroona Avenue. The southern oval is the main one. There is parkland with substantial trees located between the creek and the ovals. So far as the southern oval is concerned, its eastern side can be regarded as the "far side" having regard to the location of the buildings, car parks, roads, access etc.
2. This southern oval is already equipped with floodlights on 20 metre high poles around its circumference. It is proposed to replace one of those poles, on the far side of the ground, with a 30 metre monopole to be surmounted with a 4.15 metre head frame to support three panel antenna and a radio-communications dish 0.6 metres in radius at a height of 25 metres. Thus the total new structure would be 34.15 metres in height. The floodlight equipment on the existing pole in that locality would be replaced onto the monopole.
3. A secondary aspect of the proposal would be the construction of a new shed at ground level approximately 25 metres north-east of the pole. It would measure 3.5 metres x 2.5 metres and have a height of 3 metres. The side wall facing the oval is proposed to support a new scoreboard to replace an existing one in that locality.
4. Andersons Creek runs generally south to north in this locality although it curves around the northern end of the reserve before running into the Yarra River to the north.
5. A shopping centre known as Goldfields Plaza is located on the south side of the Heidelberg-Warrandyte Road opposite the southern oval.
6. The Reserve accommodates quite a range of sporting and recreational facilities. Apart from the two ovals there are netball courts, tennis courts and clubhouse, sports pavilion and a skate park. There is also a senior citizens centre, preschool, material and child health centre, playgrounds and public toilets.

1. There is only one issue in this case. That issue is the visual impact of the proposed monopole in its proposed site and context[2].

What planning permission is required for this proposal?

1. The only planning permission required for this proposal is for the development represented by the construction of a monopole and the shed and carrying out of anything associated with those structures. No planning permission is required in relation to the use of the land or for the use of those structures. This is because the only planning control applicable to this land which deals with the matter of its use for planning purposes is cl.36.02 of the Manningham Planning Scheme. That clause contains the provisions in relation to the Public Park and Recreation Zone. Clause 36.02-1 contains a table of uses that is in three sections. The land uses in Section 1 do not require a permit. Telecommunications facility is a land use that appears in Section 1. Accordingly, no permission is needed to use land for that purpose provided that a specified condition is also complied with. That condition appears in relation to telecommunications facility and it reads:

Buildings and works must meet the requirements of Clause 52.19.

1. It can be seen that this condition applies only to buildings and works. We will refer to cl.52.19 shortly.
2. This proposal does come within the land use Telecommunications facility as defined in cl.74 of the planning scheme. That land use is defined as follows:

Telecommunications Facility land used to accommodate any part of the infrastructure of a Telecommunications network. It includes any telecommunications line, equipment, apparatus, telecommunications tower, mast, antenna, tunnel, duct, hole, pit, pole, or other structure or thing used, or for use in or in connection with a Telecommunications network.

1. It follows from this that provided the requirements of cl.52.19 are complied with, no permission is required to use the land.
2. Apart from being in the Public Park and Recreation Zone, the land is also covered by an Environmental Significance Overlay (Schedule 2); a Significant Landscape Overlay (Schedules 2 & 3); a Land Subject to Inundation Overlay and a Wildfire Management Overlay. However, none of those overlays or their relevant schedules imposes any requirement for planning permission in relation to the use of land proposed in this case. Some of them, according to their terms, require planning permission for the construction of buildings or works, although the situation in that connection appears to be complex.
3. Clause 62.02-1 of the planning scheme provides that any requirement in this scheme relating to the construction of a building or the construction or carrying out of works does not apply to, amongst other things:

Buildings and works associated with a telecommunications facility if the requirements of Clause 52.19 are met.

1. Accordingly, cl.52.19 must be complied with, and that means that any planning permit required by that clause must be obtained.
2. Clause 52.19 deals specifically with telecommunications facilities. It contains the following purpose:

To ensure that telecommunications infrastructure and services are provided in an efficient and cost effective manner to meet community needs.

To ensure the application has consistent provisions for telecommunication facilities.

To encourage an effective statewide telecommunications network in a manner consistent with the economic, environmental and social objectives of planning in Victoria as set out in Section 4 of the Planning and Environment Act 1987.

To encourage the provision of telecommunication facilities with minimal impact on the amenity of the area.

1. It can be seen that the purpose of cl.52.19 includes the encouragement and facilitation of communication facilities. That purpose is also reflected strongly in relevant statewide and local policy provisions.
2. Clause 52.19 does not impose any requirement for planning permission in relation to the use of the land. Its only permit requirement is in the following terms:

A permit is required to construct a building or to construct or carry out works[3] for a Telecommunications facility.

1. That appears in cl.52.19-2. That clause also contains some exceptions, even in relation to that requirement, but they are not relevant for present purposes.
2. Perhaps for completeness we should also mention that although the zone provisions in relation to the Public Park and Recreation Zone at cl.36.02-2 provides that a permit is required to construct a building or to construct or carry out works, cl.62 provides some exemptions in relation to buildings and works. Clause 62.02-2 overrides any requirement in relation to the construction of buildings or works associated with a Telecommunications facility if cl.52.19 is complied with.
3. All this means that it is only cl.52.19 that has to be complied with. That clause requires a planning permit, at least in the circumstance of the present case, for the construction of the building and works involved here, but there is no requirement for permission to use the land for telecommunications purposes. It follows that concerns arising from the proposed use are not relevant to this case. In particular, it means that the concerns raised in relation to electro magnetic radiation (EMR) associated with the use of the land for such purposes is not relevant.
4. There is a further provision in the planning scheme that appears to be an anomaly. We refer to cl.3 in Schedule 2 to the Environmental Significance Overlay. It provides:

A permit is required to construct or carry out a building or works specified in Clause 62.02 of this scheme.

1. On the face of it, this merely local provision purports to overrule cl.62.02-1. However, cl. 62.02-1 itself overrules any requirement in the scheme relating to the construction of a building or the construction of carrying out works in relation to a Telecommunications facility where cl. 52.19 is met. In this connection we note that Clause 3 of the Schedule refers to cl. "62.02" although the more specific reference is to cl. "62.02-1".
2. The explanation of all this is that cl.3 of the Schedule has been in the scheme since 19 January 2006 whereas cl.62.02-1 in its present form is more recent. Its current form dates from amendment VC 63 operating from 13 September 2010, although cl.62 was subject to a significant restructure by amendment VC40. It repealed the old cl.62 that operated at the time that cl.3 of schedule 2 of the overlay came into operation and replaced it with a new restructured version creating three categories of exemption in relation to buildings and works. It is the first category that is relevant to this case because the exemption in relation to telecommunications appears in that category. The explanatory note in relation to the first category is in the following terms:
   1. Buildings and works not requiring a planning permit:

To clearly detail building and works that do not require planning approval under any circumstance[4].

1. It is clear from this, and also from the terms of cl.62.02-1 that this provision is intended to have operation in accordance with its term and not to be overruled by an inconsistent previous provision in a local schedule to an overlay provision. Both cl.62 in its present form, and the overlay provision itself, are parts of the Victoria Planning Provisions, but the schedule to the overlay is not. The responsible authority might consider whether this anomaly ought to be corrected and the apparent inconsistency between the schedule and cl.63 eliminated.
2. In the meantime, we have considered the purposes of this particular Environmental Significance Overlay in terms of clauses 1 and 2 of its schedule which sets out the Statement of Environment Significance and the Environmental Objectives to be achieved by the imposition of the overlay to this land. It is sufficient to observe that the statement and objectives centre upon the maintenance of ecological processes and genetic diversity with particular reference to flora and fauna. The structures proposed here are quite minor in all circumstances, and insignificant in relation to those concerns. If permission had been required under the Environmental Significance Overlay and its schedule, we would have had no hesitation, in the circumstances of this case, in granting such permission.

1. We note that statewide policies seek to protect and conserve environmentally significant areas and to protect landscapes and significant open spaces that contribute to character, identity and sustainable environments.[5]
2. In relation to telecommunications facilities, the most relevant statewide policy[6] has this objective:

To facilitate the orderly development, extension and maintenance of telecommunications infrastructure.

1. In addition to ensuring that modern telecommunications facilities are widely accessible to business, industry and the community, strategies to achieve this objective recognise the need to "seek a balance between the provision of important telecommunications services and the need to protect the environment from adverse impacts arising from telecommunications infrastructure".
2. Through Council's local planning policy framework, these various objectives are reinforced. There is a strong emphasis on environmental sustainability and the maintenance and enhancement of areas in Manningham known for their environmental, visual and landscape character, including Warrandyte.[7] These environmental considerations are given effect, in part, through the various overlay controls that apply to the site and surrounding area.
3. The importance of minimising the visual impact of infrastructure, including telecommunications facilities, is also recognised through local policies.[8]
4. There is also local policy encouragement for home based businesses in Manningham[9] - a measure that is seen to achieve economic and lifestyle benefits while also responding positively to sustainability objectives through, for example a reduction in the need for travel given the absence of rail based travel options within the municipality.
5. Overall, we think this monopole proposal enjoys strong policy support and responds positively to the state and local policy framework by limiting off-site impacts. We consider that the establishment of the proposed facility is a good example of using technology in a way that balances other policy objectives related to sustainability and economic development including the encouragement of home based businesses. The issue has a sharper focus where more than one third of the municipality's 16,000 businesses are said to be home based.[10]
6. We also find that the proposal is broadly consistent with the decision guidelines that we are required to consider in respect of the various overlay controls that are invoked under Clause 52.19.

Is the visual impact of the proposed monopole and equipment shed acceptable on this site and in this context?

1. Mr Tweedie, on behalf of the company, was right in saying that these facilities, or at any rate the monopole, will not be invisible or insignificant. Although neither invisible nor insignificant, he submitted that they are minor.
2. Mr Blaser, on the other hand, submitted that the proposed monopole would be visually intrusive when viewed from locations within Warrandyte Reserve and from beyond its boundaries, including from the Goldfields Plaza precinct opposite, from residential properties further afield and on approach from the west along Heidelberg-Warrandyte Road. He also asserted that the facility would diminish Warrandyte's unique scenic and heritage qualities which in turn would adversely impact upon the area's tourist potential.
3. The degree of visibility will vary considerably from viewpoint to viewpoint, but overall it is a minor intrusion of a minor item when regard is had to the nature of the area and the context. That context includes the existing light pole, the other buildings and structures on the reserve and other facilities in the area.

1. While we agree with Mr Blaser that the tower will be visible from various vantage points, visibility is not the test determining the acceptability of facilities like this. It is relevant, in this context, to consider the code known as "A Code of Practice for Telecommunications Facilities in Victoria" (the code) referred to in the planning scheme, for example in cl.52.19. The code contains several principles. The first principle is that "a telecommunications facility should be sited to minimise visual impact. (This objective of minimising visual impact is not dissimilar to the policy objective of the responsible authority for "infrastructure" in cl.21.12 of the planning scheme).
2. We consider that this principle of minimising visual impact is achieved in this proposal.
3. What is striking about this site is its location within a valley floor rather than, for example on a more highly exposed location in the landscape such as on a ridge top. Mr Schutt (the urban designer and landscape architect who gave evidence on behalf of the company) described this valley location as one which is relatively small and discreet with the effect that the facility's visual impact is fairly confined. We agree with this observation.
4. We also agree with the evidence of Mr Glossop (the town planner who gave evidence on behalf of the company) that this is not a rural area, nor is it within a semi-rural area. The area has a distinctive visual quality and, in part, a bushland character, but it is nevertheless an urban area opposite an activity centre which is within a Business 1 zone, and where there are residential properties in a Residential 1 zone. It is by no means a pristine environment untouched by modern intrusions and development generally. The very obvious presence of the car wash business on the opposite side of Heidelberg-Warrandyte Road is an example of this, as is the long established engineering works at the intersection of Yarra Street and Harris Gully Road just to the east of the review site.
5. While new features tend to stand out at first, in reality this pole will be quite a minor feature in its context. Over time, any visual sensitivity to its presence is likely to diminish so that it will be read as just another piece of infrastructure that has become commonplace in both urban and non-urban settings.
6. This context must temper expectations about the introduction of elements that are part of modern urban life. We consider the proposal to be acceptable in this location.

1. The focus of our assessment is on the proposed monopole as we do not think that the equipment shed because of its design, materials, dimensions and location behind the oval's perimeter fencing, which contains an array of advertising signs, could be regarded as visually problematic. To avoid vegetation removal, some minor adjustments to the equipment shed's siting are justified. This can be easily managed through permit conditions.
2. In reviewing the acceptability of the proposal's visual impact, we have considered close range, mid-range and longer range views.
3. At close range, that is generally within the southern part of Warrandyte Reserve itself, we note that the monopole will be higher than the four existing 20m high light poles around the oval's perimeter. We consider however that the monopole will ultimately read as another vertical element amongst others. While it will partly extend above the existing tree canopy on closer range views, it is a narrow structure whose lower 20m or so will be viewed against a backdrop of tall trees and other dense vegetation. In conjunction with a suitable green colour treatment that is non-reflective (a decision guideline under the Environmental Significant Overlay, Schedule 2 and Significant Landscape Overlay, Schedule 2) we think the monopole will achieve a reasonable degree of integration with the surrounding landscape.
4. We are also mindful of the recommendations of the Warrandyte Reserve Management Plan completed in December 2009 which amongst other things prioritises and provides costings for various works at the Reserve. This includes replacing the four existing 20m high light poles with 30m high poles and the provision of improved flood lighting around the main oval. We understand that these works have yet to be funded. Nonetheless these works have been recommended following extensive community consultation during the preparation of the Management Plan.
5. Even if the new higher floodlight poles were not to be installed we would still judge this proposal to be acceptable. While the presence of the monopole will be most obvious from the Reserve itself we do not think it will be visually offensive to those visiting the Reserve. To this end we agree with the Tribunal's findings in Optus Mobile Pty Ltd v Mildura RCC[11] case where Member Rundell said:
   1. ... I consider that people visiting the recreation reserve will be focused on the recreation activities within the reserve and will notice the monopole only intermittently during their visit to the recreation reserve. Furthermore, people tend to visit the recreation reserve for limited times and will view the monopole on limited occasions. If they are visiting at night, they will see little of the monopole.
6. In relation to possible mid-range views, generally within about 500m, we have considered the proposal from a number of locations referred to in submissions. These locations include the northern parts of Warrandyte Reserve, the Uniting Church on the opposite side of Taroona Avenue (which is affected by a Heritage Overlay), the east and west approaches to the site from Yarra Street and Heidelberg-Warrandyte Road, the Goldfields Plaza and the higher ground to the south around the sports stadium and school, Stiggants Reserve and the nearest residential properties just east of Andersons Creek.
7. We are satisfied that the monopole would not be unreasonably intrusive when viewed from any of these locations or from others at a comparable distance from the proposal.
8. We make this finding having considered the particular characteristics of this part of Warrandyte which include:
   • A strong presence of vegetation within the Reserve itself, along roadways and on private land. The area's vegetation frequently has the effect of creating framed or enclosed views of the landscape with such vegetation in the foreground reading as the strongest visual element. While we accept that there are Elm trees along the southern edge of the Reserve, when not in leaf their branch structure will still filter views from the south.
   • The curvilinear road layout (as distinct from a regular grid pattern) means that views of the monopole from various road approaches would be typically just glimpsed then disappear.
   • The variable nature of the area's topography where road cuttings, buildings and vegetation frequently intervene between the viewer and the monopole.
9. We are also satisfied that the proposal would not have any unreasonable visual impacts upon any of the area's valued heritage assets. The nearest property covered by a Heritage Overlay is the Uniting Church on the opposite side of Taroona Avenue. We note that viewing opportunities of the church from the surrounding area are quite constrained. More particularly, it is almost impossible to see the church from the site. That is due to the distances involved and intervening vegetation. In any event, the proposed site of the monopole is not in a location that we expect would attract persons for the purpose of seeking to appreciate the church for its heritage qualities.
10. On a related point, we do not think that the monopole's presence will detract from the heritage qualities of that part of the Warrandyte township east of Andersons Creek or the riverine setting of Stiggants Reserve which we acknowledge are popular tourist drawcards. We expect that the monopole will not be visible from these locations given the observations we have already made about the particular physical characteristics of this area and the review site together with the township's location and distance to the north-east. Thus, we are unable to accept the objectors' submissions that this proposal may have adverse consequences for the area's tourism potential. Any such effects will be insignificant.
11. In relation to longer range views, these are typically only possible from higher vantage points in the surrounding area such as from some properties in Maree Court to the north-west and in glimpsed views from about 600m away to the west from Heidelberg-Warrandyte Road.
12. From these more distant locations, the monopole will be set against the backdrop of a treed ridge. We consider that the monopole will not be unduly intrusive given its relatively minor scale in proportion to this ridge. We do however think that the monopole would benefit from a uniform green colour treatment rather than Mr Schutt's recommendation of limiting this to its lower 20m and adopting a grey tone or similar for the remaining upper portion. While we understand the rationale for this - that is, to limit the green colour contrast against the backdrop of the sky on closer range views, the viewing experience of the monopole will not necessarily be a static one. Nor is it limited to closer range views. We will therefore include a suitable permit condition requiring a uniform green colour treatment.

1. In his extensive submissions and materials, Mr Blaser placed great reliance on argument in relation to EMR and its possible health effects. This is a topic that is frequently being raised in planning cases concerning telecommunications facilities. A number were referred to and discussed in the course of the hearing. They included the following:

Connell Wagner Pty Ltd v Port Phillip City Council [1998] VCAT 606

Lucent Technologies v Maribyrnong City Council [2001] VCAT 1955

Heland Pty Ltd v Kingston City Council [2005] VCAT 2927

Telstra Corporation Ltd v Mildura RCC [2009] VCAT 1928

Optus Mobile v Macedon Ranges SC [2009] VCAT 2578

Optus Mobile Pty Ltd v Ballarat CC [2010] VCAT 661.

1. We do not think it is necessary to analyse all these cases in detail, most of them have been decided over a period of approximately 20 years by this Tribunal or its predecessor, the Victorian Administrative Appeals Tribunal. Initially planning permission was frequently required for the use of land for telecommunications facilities, as well as for development of such a facility. Initially the Tribunal generally took the view that the relevant Australian and New Zealand Standard in relation to omissions of radiation was the relevant basis of assessment and declined to go behind it or to attempt to set up its own differing standard.
2. As previously stated, in this case only the development, and not use, that is relevant and issues about electromagnetic radiation are beside the point. If it had been relevant we would have regard to the standard contained in "Maximum Exposure Levels to Radiofrequency Fields - 3kHz to 300 GHz, Radiation Protection Series Publication No. 3, 2000 (the ARPANSA Standard). The evidence indicated that anticipated emissions would be enormously below the levels in that standard. In those circumstances we would not have considered this aspect to be a problem in any event.

1. It was obvious from the case presented that objectors had made very extensive and diligent preparations for the hearing. In doing so, preparation was made in relation to some things that were found to be irrelevant for reasons that we gave in rulings made in the course of the hearing and for reasons then given. On our assessment some other things that we judge to be quite minor or even trifling received disproportionate weight. Some matters were not reasons for refusal, and others could be satisfactorily attended to by the imposition of conditions. We do not propose to deal with every comment or everything mentioned in the course of the hearing, we have dealt with the real issue and made mention of the EMR matter which received considerable attention in the case bought by Mr Blaser. We will mention some further points raised. Other things mentioned certainly received our consideration, but none of them call for refusal of this proposal or any significant modification of it beyond what can be dealt with by means of conditions.

1. Mr Blaser was critical of the proposed location of the facility within a floodplain.
2. Because of the operation of Clause 62.02-1, permission for buildings and works that would normally be required under the Land Subject to Inundation Overlay, does not apply. Notwithstanding that, the responsible authority referred the proposal to Melbourne Water who had no objections, subject to conditions. We also considered the decision guidelines for this overlay and have no difficulty with the location of these non-habitable structures with such modest "footprints" in this floodplain.

1. Mr Blaser submitted that the proposal would potentially pose an unacceptable risk to the botanical and zoological significance of the site. More particularly it was submitted that soil disturbance and the potential impact on vegetation and local fauna could be problematic.
2. We are not persuaded that this development would have any unacceptable impacts upon the botanical and zoological significance of the area. The proposed works are fairly minor, are in a highly modified location containing mown grass and the proposed permit conditions include a number of management techniques to limit the effects of construction activity on the local environment. These include conditions recommended by the Department of Sustainability and Environment which did not object to the proposal. Also relevant is another of the recommendations in the Reserve's Management Plan for the construction of a path around the oval's perimeter. We can provide for that in conditions.
3. Upon reviewing the proposed permit conditions, we note that no allowance has been made for the re-instatement of disturbed ground surfaces following completion of the construction works. We think that it is appropriate to include such a condition.
4. The objectors also submitted that EMR emissions may potentially interfere with the echolocation abilities of the Eastern Wing Bat which is said to inhabit the area.
5. We again affirm that the issue of EMR emissions, being related to the use of the facility, is not open to our consideration.

1. The Warrandyte Reserve is designated as a Neighbourhood Safe Place that may provide sanctuary in the event of a bushfire. Mr Blaser tabled an email from the Victoria Police Air Wing[12] suggesting that the proposed monopole will make the task of using the oval for helicopter operations not prohibitive, but "more difficult, particularly during reduced visibility or night operations".
2. Future use of the nearby oval for the land and taking off of helicopters will require a degree of care. That is true whether or not this current proposal is approved. With its approval, assuming the monopole is constructed, such manoeuvres will need to take account of the increased height of the pole compared with the pole it will be replacing. The same will be true in relation to the other three 30m light poles proposed for installation. Nevertheless, with or without the monopole, helicopter pilots will have to take account of topography, vegetation, the light poles, wind directions and circumstances generally. We find the change that would be caused by this development to be quite minor and acceptable.

1. The proposal might be said to include some incidental advantages to the community or to the sporting organisations that use the oval. No doubt a new scoreboard on the side of the shed is an advantage, compared with the currently rather dilapidated one. The same might be said for the new pole as a support for flood lighting.
2. Whether that is so or not, we regard any such advantages as merely incidental. In other words, we have not given them weight in determining whether this permit should be granted. We would come to the same conclusion, even without the new scoreboard or the new support for floodlighting.

1. Conditions were discussed at the hearing on the basis of draft conditions circulated prior to the hearing by the responsible authority. Our decisions in relation to conditions have been informed by what was said at the hearing. Where not already discussed in our reasons we have:
   • deleted proposed conditions related to the use of the facility;
   • deleted references to demolition; and
   • included a condition that allows for the possibility that a new floodlight rather than the existing one to be mounted on the monopole.
2. We have ultimately made our own decision in relation to conditions. In doing so we have, in some instances, altered the wording or setting out of conditions to put them into what we consider to be a more appropriate form.

1. Warrandyte has its own particular quality that is highly valued by its local community and visitors alike.
2. We appreciate that there is a strong degree of community opposition to this proposal and our decision to grant a permit may not be a popular one. However our task is not to make decisions that are based on popularity. Rather, we are required to apply the law as it currently stands and make decisions on the basis of the planning merits of proposals based on the planning principles, purposes, policies and guidelines derived from the objectives of planning in the Planning and Environment Act 1987 and in the Manningham Planning Scheme.
3. Much of the opposition to this proposal appears to have been generated from a concern about the potential health effects of electromagnetic radiation emissions. The issue of health effects is not open to us for consideration. It is a matter that falls within the domain of other regulatory bodies. It is also a matter that is related to the use of the facility. In any event, the evidence indicates emissions enormously below the recognised applicable standards.
4. Under the current legislative and regulatory framework, our assessment of this proposal is confined to the development aspects or buildings and works proposed, not the use of the facility. The primary issue for our consideration therefore is whether the visual impacts of the proposed monopole would be acceptable for this site and its context.
5. We have found that while this development will be visible, it would not be unduly intrusive to any unacceptable degree.
6. Nor will the proposal have any unreasonable impacts upon the intrinsic environmental or heritage values of the area.
7. For the reasons we have set out, we therefore affirm the decision of the responsible authority to grant a permit subject to some modifications to conditions.

Terms and Conditions for Permit PL10/020883 (2-8 Taroona Avenue Warrandyte)

Buildings and works associated with the construction of a telecommunications facility, including a 30 metre high monopole with a 4.5m high turret headframe (incorporating antennae and a radio communications dish) with an associated equipment shelter (incorporating an electronic scoreboard) generally in accordance with the endorsed plans.

1. Before the development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be drawn to scale with dimensions and two copies must be provided. When approved, the plans will be endorsed as evidence of their approval and will thereby become the endorsed plans in relation to this permit. The plans must be generally in accordance with the plans submitted with the application (Drawing No. 33765, received by Council on 1 February 2010) but modified to show:

1. the relocation of the equipment shelter to the south to avoid the removal of vegetation other than grass; 2. the equipment shelter setback a minimum of 1.5m from the boundary fence of the oval to enable the inclusion of a pedestrian path;

1. the monopole's diameter depicted as 990mm at its base reducing to approximately 540mm at its top;

1. the location of all canopy trees within 10 metres of the telecommunications facility to include the species name of the trees; 2. details of the location, type and dimensions of any new floodlight to be mounted on the monopole and, if re-use of the existing floodlight is not to occur, including details of any baffling to limit light spill; 3. a schedule of materials, colours and finishes for the telecommunications facility including that the colour of the monopole along its full length and antennae are to be 'mist green' or similar that blends with the natural colour of surrounding vegetation, using a powdercoat finish or such suitable alternative finish as approved by the Responsible Authority, and 4. a construction management plan addressing (but not necessarily limited to): 1. hours of construction; 2. methods to contain dust, dirt and mud within the site, and the method and frequency of clean up procedures; 3. the protection measures for site features to be retained including vegetation, retaining walls, buildings, structures and pathways; 4. a liaison officer for contact by residents and the Responsible Authority in the event of relevant queries or problems experienced; 5. parking facilities for construction workers with no parking of vehicles to occur on Crown land except in designated parking areas; 6. measures to minimise the impact of construction vehicles arriving at and departing from the land; 7. an outline of requests to occupy public footpaths or roads, and anticipated disruptions to local services with all due care to public safety to be adhered to and public access to be maintained; 8. the measures to minimise noise and other amenity impacts from mechanical equipment and construction activities, especially outside of daytime hours; 9. the provision of adequate environmental awareness training for all on-site contractors and sub-contractors; and 10. details of the arrangements for any temporary storage of construction materials on the site.
2. The position and size of the telecommunications facility shown on the approved plans must not be modified for any reason without the written consent of the Responsible Authority.
3. Anyone acting upon this permit must use appropriate site management practices during construction to prevent the transfer of mud, dust, sand, slurry, litter, concrete or other construction waste from the site into drains or onto nearby roads and, in the event that a road or drain is affected, the owner must upon direction of the responsible authority take the necessary steps to clean the affected portion of road or drain to the satisfaction of the Responsible Authority.
4. Anyone acting under this permit who engages contractors/tradespersons to install services or work near the vegetation to be retained must ensure that such contractors/tradespersons are made aware of the need to preserve the vegetation and to minimise impacts through appropriate work practices.
5. Upon completion of the permitted development, disturbed ground surfaces arising from the construction works must be reinstated to the satisfaction of the Responsible Authority.
6. The telecommunications tower and associated structures and supports must at all times be maintained in a safe condition to the satisfaction of the Responsible Authority.
7. All noise emanating from any mechanical equipment must comply with the State Environment Protection Policy N-1 to the satisfaction of the Responsible Authority.

1. Pollution and sediment laden runoff must not be discharged directly or indirectly into Melbourne Water's drains or waterways.
2. Any new building must be flood proofed to withstand a 1 in 100 year flood event.
3. All electrical installations must meet the applicable standards of the relevant authority to the satisfaction of Melbourne Water.

1. This permit will expire if one of the following circumstances apply:
   1. the development is not started within two (2) years of the date of this permit;
   2. the development is not completed within four (4) years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three (3) months afterwards.

[1] An incorporated document under Clause 81 of the Manningham Planning Scheme.

[2] Mr N J Tweedie, the barrister who appeared for the company, correctly identified this as the one issue in the case in opening his case on March 2011. He observed that this was so inspite of a 57 page submission and voluminous attachments that had been presented by the objectors.

[4] Emphasis by underlining and emphasis by use of italics are both in the original. They have not been added by ourselves.

[5] Clause 12.04 of all Victorian Planning Schemes.

[6] Clause 19.03-4 of all Victorian Planning Schemes.

[7] See for example Clause 21.05-5 of the Manningham Planning Scheme.

[8] Clause 21.12 of the Manningham Planning Scheme.

[9] See for example Clause 21.05-1 of the Manningham Planning Scheme.

[10] Clause 21.02-8 of the Manningham Planning Scheme.

[11] [2009] VCAT 1928

[12] Email dated 16 February 2011 from Ray Pitts to Michelle Pini.