1. Application for Review No. P2803/2009 is allowed. The decision of the Responsible Authority is set aside. No changes are to be made to Permit 719/2006/06P.
2. Application for Review No. P3002/2009 is not allowed.

Mr C Wren SC instructed by Mr M Croft of Gadens lawyers. Expert evidence was called from Mr T Marks, acoustic engineer of Marshall Day; Ms C Heggen, town planner of Fulcrum Town Planners; and Mr I Catt, lighting engineer of Catt Consulting Engineers. Evidence was also called from Dr D R Warner, principal of Eltham College.

Mr M Townsend of counsel for S A & J A Banks, B Fiit & H Moore and P & D Thomson. Evidence was called from Mr S Banks, Ms J Seed, Ms C Thompson & Mr B Fitt (all residents).

Ms J Gregory for Jenny Seed and others. Evidence was called from Mrs D Gregory and Mr J Salman (residents).

Application under Section 82 of the Planning and Environment Act 1987 (PEAct) seeking review of a decision to amend Permit 719/2006/06P.

Application under Section 80 of the PEAct seeking review of conditions included by the Council in its Notice of Decision to amend Permit 719/2006/06P.

• four additional floodlights to the hockey pitch (to achieve a total of eight x 18 metre lights);
• staging to allow installation of the lights prior to 31 January 2011;
• to increase the operating hours of the floodlights;
• to remove a condition that currently limits use of the hockey pitch to be in conjunction with the school purposes directly involving students from Eltham College.

Rural Conservation Zone. Environmental Significance Overlay (ESO1) (part).

The College is located on Main Road, just outside the Urban Growth Boundary, in Research. The hockey pitch is on the south side of the School campus, cut into the topography.

3 March 2010 including Nos. 51 & 55 Bells Hills Road. The locality was subsequently re-visited in the evening.

1. Eltham College sought approval from the Nillumbik Shire Council to amend a planning permit that allows the construction of a hockey pitch including the installation of four light towers at the College's campus. The hockey pitch has been installed on the formerly grassed McKechnie Oval. Two lights illuminate the pitch but these are not any of the four light towers authorised by Permit 719/2006/06P. Four bases for towers are positioned adjacent to the corner of the pitch but no lights have been erected.
2. The College has requested amendments to Permit 719/2006/06P to:
   • Construct four additional floodlights to the hockey pitch (to achieve a total of eight x 18 metre lights);
   • Stage the installation of the lights prior to 31 January 2011;
   • Increase operating hours of the lights as follows:

• Remove a condition that limits use of the hockey pitch to be in conjunction with the use of the site as an educational centre and to be used for School purposes directly involving students from Eltham College.[4]

1. The hockey pitch services the College and is made available for sports training and teams in local associations. The proposal seeks a level of illumination that would allow competition play. Hockey competitions typically occur on a Friday evening. We were told that the four approved light towers would need to be some 28 metres high to achieve the required level of illumination for competition hockey.[5] The College proposes a fairly standard arrangement of eight towers; this is typical of many synthetic hockey pitches seen in Melbourne and other locations.

What are the site's physical context and planning contexts?

1. Before turning to the key issues in these proceedings, we briefly refer first to the physical and planning contexts that are relevant to our consideration.
2. The College was established in 1973. It sits atop a ridgeline and its campus extends for some distance to the north, east and south. The hockey pitch is set within a valley and, we understand, was constructed with some considerable cut and fill. Rural living properties are in the immediate and wider environs of the College. The Banks' residence is the closest, around 60 metres from the edge of the hockey pitch. Other dwellings sit among the topography and vegetation; often homes are elevated in response to the slope and to take advantage of views.
3. The College and the closest residential properties to the hockey pitch in Bell Hills Road (Banks and Seed) are in a green wedge at a short distance from the outer edge of the urban growth boundary. They are zoned Rural Conservation[6] which has among its purposes protection and enhancement of the natural environment and development that takes into account the conservation and environmental sensitivity of the locality. Part of the site in this case is in an Environmental Significance Overlay[7] which similarly stresses landscape and environmental values. Some residential properties within range of the school are in a Low Density Residential Zone within the urban growth boundary such as residences in Linden Strike Drive.
4. State policy[8] gives weight to the role of educational facilities. Non-school use of facilities is a well established acceptable practice. It is a practice adopted by the College since its inception. Enhanced facilities to encourage further non-school use of infrastructure such as a hockey pitch (that can also service other sports such as soccer) is, we find, acceptable in principle.
5. There is little local policy to directly assist our consideration of the planning merits of the proposal. However, there are clear principles with respect to development in this locale. Policies in Clauses 21 and 22.04 reinforce the directions with respect to buildings and works in rural and low density residential areas to maintain the landscape character, to maintain landscape and environmental values, and to limit landscape and habitat impacts. The provisions of Clauses 57 and 65, plus the decision guidelines of Clause 35.06, bring into consideration questions of compatibility of use and development with non-urban character and whether development would have an unreasonable adverse impact on surrounding land uses.
6. An assessment of impact is contextual. Here, residential properties enjoy a high standard of amenity, day and night, as a result of the bush setting - with a sense of space and respite, landscape, topography, wildlife and quiet. That is consistent with the purpose for which the land is zoned.

How has the Tribunal approached the question of existing use rights?

1. The question of existing use right is relevant to the proposal to amend the permit so as to facilitate non-school usage of the pitch. This is relevant in the application of Clause 63.05. If an existing use right is established, a permit would be required under the first dot point of this clause for the building and works in the proposed amendment to the permit. The building and works would need to be for the continuation of the existing use.
2. The Council and College argue existing use rights apply for third parties to use sporting facilities as this has occurred for many years. Both give weight to a statutory declaration[9] that lists usage of the McKechnie Oval since 1980. At the hearing, Mr Townsend stated that he would not press an argument about existing use rights[10] whereas Ms Gregory challenged the basis upon which the Council accepted existing use rights exist as usage has not been continuous or regular and does not extend to the hours now sought. She gave weight to the Council's view in 2007 that rights had not been established when considering permit application 719/2006/06P.
3. The grassed sports oval was constructed in 1980. We understand that in or around 1992, the two existing floodlights on the north side of the oval were constructed. In 2008, after Permit 719/2006/06P issued, the hockey pitch was completed replacing the grassed oval. The statutory declaration states, among other things, that various groups of non-students have used the oval and continue to use the oval (including the hockey pitch since 2008) for specified sports and other activities, during the day and early evening.
4. Determination of existing use rights must be tackled with considerable care. The Tribunal would need to determine the date at which the 15 year period started (this being the basis of the claim for the right), the nature of the activities at that date and continuing since that date, and the identification of the planning unit to which it applies. An increased intensity of use is not fatal - the use to which land may be put and the activity on it may change, increase or decrease, so long as the same purpose is served. [11]
5. The existing use right might on full analysis be properly characterised as a wider College use, including sports and other use of the McKechnie Oval by students and non-students. It might be properly characterised as two separate uses, one for the College (for student use) and a form of use encompassing private or non-student use of the College, including the Oval. The latter was put as a possibility by the College.
6. The planning unit question is also not straightforward. The Council, College and Mr Townsend agreed that any right would probably apply to the whole of the College land, and not just the McKechnie Oval. However:
   • parts of the College north of Yarra Glen Road were not part of the original College property;
   • part of the original College property south of Yarra Glen Road is undeveloped and appears to not be used for sports purposes.
7. We appreciate that authorities[12] on the planning unit for existing uses envisage that a right might apply to part of a parcel of land. On that basis, it may be appropriate to consider use of the McKechnie Oval alone.
8. The College and Council both impressed on us other Tribunal decisions about the flood lighting of sport facilities not being held to constitute a new use or a change of use of those facilities. We are aware of those authorities.[13] However, their application depends on the initial characterisation of the existing use right. In this case, is the right properly characterised to include hockey training and competition?
9. Having regard to our findings on the planning merits, we do not intend determining the nature of an existing use right or whether that use (as characterised) may continue provided an amendment to the permit is granted under Clause 63.05 for the additional lights. The matter may need to be re-examined if a new application to amend the permit is pursued. It may be something that can be simply satisfied with additional information and may not be the insurmountable hurdle contended in Ms Gregory's submission.

Would the additional light towers, hours of operation and potential non-school use of the hockey pitch create unreasonable amenity impacts?

1. The ambit of our consideration is confined to the four amendments that have been requested to the permit, as we have set out above. The staging component of the request is non-contentious. We have concentrated on the three other elements that, individually and in varying combinations, must be assessed in terms of potential off-site amenity impacts. This is relevant to the question of compatibility we have previously identified and is considered in the context of the high amenity of the locality.
2. Ms Heggen sought to emphasise the site's proximity to the urban growth boundary and the same proximity of dwellings in the Rural Conservation Zone. We do not accept that amenity expectations for Mr & Mrs Banks, Ms Seed and others in the Rural Conservation Zone are lessened for reasons relating to the transitional nature of the land between the designated urban area and the heartland of the Zone and green wedge. There is nothing in the Scheme to give weight to that position in the context of this site. Moreover and importantly, the physical context of these residential properties is such that there is a sense of detachment from the urban area albeit we agree that they are close "as the crow flies" to the township edge.
3. The primary amenity impacts identified by Mr Townsend and Ms Gregory were noise from hockey, spectators and cars; light glare and glow from the lighting towers; and headlight glare from cars moving through the College. Other matters included trespass onto the Banks' property and unauthorised use of his dam, litter, and lack of higher fencing. Of these matters our primary concern is additional noise associated with later hours of operation as we address next.

1. The proposal involves longer hours than currently authorised. Putting aside mornings, which were not debated at the hearing, the additional hours would be ½ hour Mondays to Thursday, Fridays to 10pm (plus ½ hour for departure), and an additional 2½ hours on Saturday evening to 9.30pm. Competition hockey is expected to occur on Friday evenings. Competition and training could be expected on other evenings but competitions on Saturdays are not likely based on Dr Warner's evidence. We have no evidence with respect to the number of persons likely in competition circumstances or training. With junior teams, 11 players per side, one might expect two teams and two more teams around changeover. Spectator numbers would vary but not be as high as, say, Australian Rules football.
2. Mr Mark's assessment of background noise at 9-10pm on a Friday shows low background levels. While we have no information about wind conditions, we accept that background levels are low in this setting. Mr Marks also measured noise over half an hour during an inter-school game.[14] Typical maximum measures (Lmax) were between 57-59dBA for voices and game play, 62-63dBA for coaching (yelling) and 63-65dBA for whistles. We were advised that there were around 20-30 spectators at this time.
3. In absence of any specific noise standards for an illuminated hockey pitch, Mr Marks assessed the proposal in terms of sleep disturbance criteria. He applied an Lmax of 60-65 outside an open bedroom window as unlikely to cause awakening reactions. While the criteria are applied typically after 10pm he said it would be prudent to apply in the evening period here, that is, after 6pm. He also said it was appropriate to adopt the lower measure of 60dBA Lmax given the low background noise levels.
4. The predicted noise levels at the Banks residence were determined by Mr Marks to be between 55-57dBA for voices and game play, 60-61dBA for coaching (yelling) and 61-63dBA for whistles. He observed the whistle to be blown some 20 times over a 20 minute period. Noise levels would be around 6dBA less at the Seed residence. Mr Marks concluded that sleep disturbance criteria would be exceeded for whistles and could be "annoying" to nearby residents in the evening. He suggested an alternative whistle be used. The data also give an average or Leq measure. Mr Marks said this would be 54dBA, 18dBA louder than background at 9pm.
5. Mr Wren drew attention to the side bedroom wall and a small balcony at the Banks' residence and their orientation away from the pitch. We find these spaces have some aspect to the pitch. Further, there are upper level balcony and living room windows Mr Banks identified that directly face the pitch as well as the lower level terrace. We observed these on inspection. We received lay evidence with respect to greater distances at which noise is considered a nuisance by residents although it is plain that the Banks residence is the most exposed to noise. The degree of noise intrusion and nuisance would diminish with distance and intervening topography.
6. The evidence demonstrates that noise from later hours across the greater number of days as sought by the proposal before us could cause sleep disturbance at the closest residence. It would be annoying earlier in the evening, say 8.30-9pm, given the low background levels measured in the acoustic evidence, and low levels referred to in lay evidence and in our own experience.
7. The assessment does not include any form of amplification such as a megaphone or public address system which would add to noise levels (some 5dBA based on Mr Mark's estimate when we asked about a megaphone at the hearing) although this could potentially be limited by permit condition. We are also mindful that the lack of standards means that the sleep disturbance assessment might not sufficiently take account of the specific noise qualities associated with sports equipment such as whistles.
8. The additional hockey pitch usage would allow for up to five nights per week to 9pm and one night to 10pm. We appreciate that it may be unlikely to always be used at this full capacity but that is the basis of the permission that is sought for the additional lights and to allow non-school usage. Whether at this full capacity or something less, the degree of impact upon the amenity of the Banks residence in the evening would be considerable.

1. We do not consider the potential for light glare from the additional lights and the visibility of those lights to be unreasonable because of the extent of vegetation and topographic conditions. Some landscaping was required under the permit as shown on the currently endorsed plan but more could be directed so as to filter light. Based on the evidence of Mr Catt, and compliance with applicable standards notably AS4282 - 1997 Control of the Obtrusive Effects of Outdoor Lighting, the impacts could be managed to a level that is reasonable. The lights would be baffled and angled downward, unlike the existing two lights that several residents described as being a nuisance. We do not consider the lights to be a traffic hazard such as for drivers along Bell Hills Road.
2. We similarly consider the impact of car lights from the one-way road can be managed. Neighbours would be aware of the facility but headlights would be experienced at considerable distances. Additional planting on the school site, alongside the driveway, might reduce the visibility of car lights.

1. We expect new and higher wire fencing could limit the extent to which the Banks property might be subject to trespass and rubbish. These are not matters which cause the proposal to fail but they do fairly require consideration and attention.

Would the additional light towers, hours of operation and potential non-school use of the hockey pitch create traffic and parking problems?

1. Residents referred to concerns about increased traffic and parking in the narrow section of Bell Hills Road as a result of additional usage of the hockey pitch as would occur with later hours. Mr Townsend submitted parking management remains unresolved. We note Ms Heggen's evidence that the boom gate off Bell Hills Road should be left open when activities are occurring on the pitch under lights and that an automated system has been installed that could assist traffic and parking management.
2. It is clear that there is some overspill in parking into Bell Hills Road on occasion although on the evidence available to us that seems to be mostly associated with use of the Early Learning Centre (based on Dr Warner's evidence). This road is wider at its northern end and then narrow and winding beyond that point. Parking is not permitted, based on signage.
3. Mr Wren submitted that there is an abundance of after hours parking on the College's land to provide for those attending activities at the hockey pitch. We observed the parking areas on our inspection as well as the one-way road system from Bell Hills Road through the College's property to Main Road. The closest spaces to the hockey pitch are on the eastern and southern parts of the campus, for example, around the southern (one-way) road where there is angled parking near to the performing arts centre.
4. We have little information about the extent of, and co-ordination associated with after hours activities at the College including use of the McKechnie Oval (hockey pitch), Early Learning Centre, tennis courts, pool and gym, and performing arts centre. The facilities are scattered but the coincidence of usage of facilities around this southern part of the campus is most likely to have an off-site impact such as resulting in parking in Bell Hills Road. Better control over the boom gate is one step to ensure access into the College's parking areas but there is nothing before us to demonstrate how traffic and parking will be managed in a coordinated fashion to ensure the spaces are efficiently used at the required times and what arrangements can be made if, for example, there is more than one Friday evening activity (eg. tennis, performing arts centre and hockey).
5. During the hearing, the suggestion of a traffic management plan was raised. We are not persuaded to defer this to a permit condition. The additional hours and non-school traffic associated with the proposal requires us to be satisfied that traffic and parking can be managed in an orderly manner and, with respect to parking, contained within the College's property.
6. We need to be satisfied as to what parking allocation can be made available for the additional use arising from the current application and other activities that may demand parking at the same, or overlapping, times. We have not been satisfied on these matters based on the information available.

Would the additional light towers create unreasonable landscape and environmental impacts?

1. We do not consider eight x 18 metre light towers would create an unreasonable adverse impact having regard to the provisions of the Rural Conservation Zone, ESO1, and relevant policies and provisions such as Clauses 21, 22.04 and 57. The setting of the hockey pitch within a valley, and the ability to add landscaping around the perimeter of the property, would ensure that the physical presence of the light towers would be limited during the day. The presence of lighting would be evident at night but we do not consider that to be unreasonable or excessive in the context of the College's property and other lighting, such as that servicing tennis courts at the school and on numerous residential properties in the locale. The proposed extra lights might be used more than the approved four lights, or other lights in the area. They might add to lighting of the night sky if used at the same time as tennis court lights abutting Bell Hills Road within the school. Nonetheless, we do not consider this provides a basis to reject the proposal before us.
2. In reaching this conclusion, we are aware of concerns raised by residents of impacts upon wildlife and the work of Dr Barry Clark tendered by Mr Townsend. We are not persuaded that the matters arising from these submissions and the tendered material justify rejection of the proposal before us. The impacts upon wildlife as a result of the additional lights and usage of the hockey pitch beyond the current permit limitations, if any, are likely to be negligible or minor. The matters raised by Dr Clark address wider health and other impacts associated with exposure to artificial lighting although it is relevant to point out his conclusion that the proposed lighting is generally in accordance with good lighting practice and efforts have been made to minimise light spill into residential properties. Some (not all) of the other concerns which Dr Clark raises are issues that the Tribunal has noted on other occasions[15] will be the subject of analysis and discussion that are well beyond our ambit in these proceedings and, at this time, cannot provide grounds to reject the requested amendments.

1. For the above reasons, we will set aside the decision made by the Council.
2. On the information and material presented, we have not been satisfied that the proposal would produce an acceptable outcome.
3. We do not consider four extra lights, resulting in eight x 18 metre light towers, is unacceptable in principle. Rather, we have not been persuaded that more intense usage of the pitch, resulting from increased hours and additional training and matches, can be undertaken without unreasonable impacts on the closest residential properties and particularly the Banks' dwelling. Noise is our primary concern although we also find that practical and operational considerations as we have cited should be planned for to support any revised proposal.

[1] In reaching a decision we have considered all submissions, expert evidence, lay evidence and other material tendered and filed by the parties. We do not, however, recite all of that material in these reasons.