1. The purpose of the preliminary hearing was:[5]

(a) to determine the question of law or question of mixed fact and law filed with the Tribunal in accordance with order 4 of these orders;

(b) to determine whether grounds relating to the impact of electromagnetic emissions should be struck out as sought by Indara Corporation Pty Ltd; and

(c) to consider the future conduct of the proceeding. This may include a consideration of dates, duration, hearings and/or venue, including whether the two-day hearing scheduled to commence on 2 December 2025 should be adjourned to a later date.

1. The parties were required to provide to the Tribunal an agreed question of law or question of mixed fact and law by a certain date.
2. In accordance with order 4 of the order dated 3 October 2025, on 10 October 2025 the following agreed questions of law were filed:
   1. Does the exemption from notice, decision and review in Clause 52.19-3 apply to Permit Application No. P537/2024 where there is a planning permit for the use and development of a dwelling at 127 Milburn Road, within 100m of the proposed telecommunications tower:
      1. If the permitted dwelling has not yet been constructed?
      2. If the permitted dwelling has been partially constructed but not completed?
      3. If the permitted dwelling is not yet capable of being used as a dwelling?
   2. If the answer to Questions 1a, 1b or 1c is 'yes', should the Tribunal remove the Respondents as parties to the proceeding under section 60A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)?
3. John Demertzidis was a respondent party to this proceeding. Through an email dated 28 October 2025, John Demertzidis requested to amend his grounds to remove reference to grounds 4 and 5 regarding the potential impact on birds and bees.
4. Later, at his written request,[6] John Demertzidis was removed as a party pursuant to section 60A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), which was an order made orally at the preliminary hearing and perfected by the Tribunal's written order dated 13 November 2025.
5. On 30 October 2025, Mark Battaglia, Sharon Battaglia & Others ('Battaglia'), who are also respondents to this proceeding, pre-filed submissions for the preliminary hearing and informed the Tribunal and the parties that they would not be pursuing their grounds relating to the effects of electromagnetic emission pollution on the flora and fauna in the area including the native bees.
6. The other parties, being the applicant, the Council and AME - another of the respondents to this proceeding - also pre-filed submissions for the preliminary hearing.
7. At the preliminary hearing, I heard submissions on the questions of law.
8. As a consequence of a matter that was raised by the applicant for the first time at the preliminary hearing, I provided the parties with the opportunity to file further submissions after the preliminary hearing. These submissions were required to be filed on 21 November 2025 and 28 November 2025.
9. At the preliminary hearing, I also heard brief submissions about electromagnetic emission pollution from the applicant and the Council.

1. Having considered the parties' submissions and the material before me, I have answered the questions of law and made a ruling about grounds 4 and 5 of the Refusal.
2. My answers to the questions of law are as follows:

1. Does the exemption from notice, decision and review in Clause 52.19-3 apply to Permit Application No. P537/2024 where there is a planning permit for the use and development of a dwelling at 127 Milburn Road, within 100m of the proposed telecommunications tower:
   1. If the permitted dwelling has not yet been constructed?
   2. If the permitted dwelling has been partially constructed but not completed?
   3. If the permitted dwelling is not yet capable of being used as a dwelling?

1. Yes.
2. As this situation does not arise on the facts of this case, I do not need to answer this question.
3. As this situation does not arise on the facts of this case, I do not need to answer this question.

1. If the answer to Questions 1a, 1b or 1c is 'yes', should the Tribunal remove the Respondents as parties to the proceeding under section 60A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)?

1. I have declared that the Council cannot pursue grounds 4 and 5 of the Refusal in this proceeding on the basis that those grounds are misconceived and lacking in substance on the facts of this case.
2. My reasons follow.

1. The first question of law is:
   1. Does the exemption from notice, decision and review in Clause 52.19-3 apply to Permit Application No. P537/2024 where there is a planning permit for the use and development of a dwelling at 127 Milburn Road, within 100m of the proposed telecommunications tower:
      1. If the permitted dwelling has not yet been constructed?
      2. If the permitted dwelling has been partially constructed but not completed?
      3. If the permitted dwelling is not yet capable of being used as a dwelling?
2. Question 1 refers to the exemption from notice, decision and review that is contained in clause 52.19-3 of the Scheme and the Dwelling Permit. I provide information about each of these below.

1. The second question of law is:
   1. If the answer to Questions 1a, 1b or 1c is 'yes', should the Tribunal remove the Respondents as parties to the proceeding under section 60A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)?
2. Question 2 refers to section 60A of the VCAT Act, which provides as follows:

(1) The Tribunal may order that a person cease to be a party to a proceeding if the Tribunal considers that -

(a) the person's interests are not, or are no longer, affected by the proceeding; or

(b) the person is not a proper or necessary party to the proceeding, whether or not the person was one originally.

1. The purpose of clause 52.19 'Telecommunications facility' is:

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

To facilitate an effective state-wide telecommunications network consistent with proper and orderly planning.

To support the provision of telecommunications facilities with minimal impact on the amenity of the area.

1. Pursuant to clause 52.19-1, a planning permit is required to construct the building and works for the proposed telecommunications facility.
2. Clause 52.19-3 exempts an application under any provision of the Scheme to construct a building or construct or carry out works for a telecommunications facility from notice, decision and review rights under the PE Act except in certain, specified circumstances.
3. The Council, AME and Battaglia rely on the following exception to the exemption:

1. Question 1 also refers to the dwelling that is permitted to be constructed on the AME Land under the Dwelling Permit.
2. Previously, there was a single-storey weatherboard dwelling on the AME Land, which was demolished in or around December 2021.
3. The Dwelling Permit was issued on 16 November 2022 and authorises:

Use and development of the land for a dwelling and associated dam, shed, swimming pool and sauna within a Melbourne Airport Environs Overlay Schedule 2, Land Subject to Inundation Overlay and Environmental Significant Overlay Schedule 5 in accordance with the endorsed plans.

1. The expiry provision in condition 29 of the Dwelling Permit is as follows:

1. It is common ground that on 16 November 2024 the Dwelling Permit expired as development and use had not started under the Dwelling Permit.
2. On 17 February 2025, the Dwelling Permit was extended by the Council with the result that the Dwelling Permit will expire if:
   1. the development and use do not commence by 16 November 2025; and
   2. the development is not completed by 16 November 2027.
3. The plans for the Dwelling Permit are dated 2 June 2023 and were endorsed by the Council on 18 July 2023 along with a Land Management Plan and an Environmental Management Plan.
4. The endorsed plans show the location of the proposed dwelling as follows:

Figure 5 - enlargement of extract of Site Plan of endorsed plans

1. The endorsed plans show the proposed main building dwelling house and attached garage being located 11.690 metres from Milburn Road and between 52.770 metres and 56.670 metres from the boundary with 153 Millburn Road to the east.
2. It is common ground that the permitted dwelling is located within 100 metres of the proposed telecommunications tower.

Figure 6 - extract of annotated aerial photograph from AME's submission

1. Building Permit BS-U 38620 was issued on 25 September 2025 in respect of construction of the permitted dwelling on the AME Land.
2. With respect to the buildings and works that have taken place on the Land, AME submits that:[7]
   • Setout and site preparation works have been undertaken since the Building Permit issued;
   • Machinery is on site;
   • Screw piles were installed on 17 and 20 October;
   • the screw piles (since installed) and other materials delivered to the Respondent's Land are shown in the Nearmap aerial image of 15 October 2025 (below); and
   • construction of the dwelling is expected to be completed within the next four months i.e. in February 2026 (depending on weather / any unexpected issues arising).

1. AME has provided photographs in support of the above.
2. The following aerial photograph is an enlargement of part of the aerial photograph in Figure 1 (above) and shows what existed on the Land as at 14 February 2026.

Figure 7 - extract of aerial photograph showing part of Land and part of AME Land

1. The focus of question 1 is the correct interpretation of exception to the exemption relied upon in clause 52.19-3 of the Scheme:
2. There is broad agreement between the parties as to the applicable principles of statutory interpretation to apply, with the parties referring to several cases in doing so.[8]
3. There is no dispute between the parties that the dwelling approved under the Dwelling Permit is within 100 metres of the proposed telecommunications tower.
4. It is common ground between the parties that construction of the dwelling on the AME Land under the Dwelling Permit had not commenced on 8 and 14 January 2025 when initial notice was given of the Permit Application under section 52 of the PE Act.
5. The dispute between the parties is about whether the reference to 'dwelling' in the aforementioned exception can be read to include a dwelling that is permitted under a planning permit (such as the Dwelling Permit) but not yet constructed, or whether the dwelling must be existing (either completed and being used as a dwelling, or, under construction).
6. The applicant contends that the dwelling must be an existing dwelling when notice is given under section 52 of the PE Act. As such, in the circumstances of this case, the applicant contends that:
   1. the exception does not apply; and
   2. therefore, the exemption from notice, decision and review rights applies in the circumstances,

the effect of which is that AME and Battaglia are not proper parties to this proceeding and should be removed under section 60A of the VCAT Act.

1. The Council and AME contend that 'dwelling' can include a dwelling approved under a planning permit, but which is not yet constructed.
2. Further, whilst both the Council and AME acknowledge that the Dwelling Permit had expired at the time notice of the Permit Application was given by the Council, they both submit that when the Dwelling Permit was extended this had the effect of retrospectively enlivening the exception from the date of extension. As such, both parties submit that:
   1. the exception operated;
   2. the objections lodged with the Council made the respondents valid objectors to the Council; and
   3. the respondents were then validly given notice of the application for review.
3. The Council, AME and Battaglia submit that the respondents are entitled to be parties to this proceeding and should not be removed under section 60A of the VCAT Act.

1. The applicant submits that the aforementioned exception to the exemption in clause 52.19-3 does not apply in the circumstances, with the effect that the exemption from notice, decision and review rights applies.
2. The applicant submits that this is because:
   1. the reference to 'dwelling' in clause 52.19-3 is a reference to dwelling in the development sense, compared with the land use sense;
   2. the reference to 'dwelling' in clause 52.19-3 is a reference to a physical, existing dwelling and does not include a permitted but not yet constructed dwelling;
   3. there was no 'dwelling' within 100 metres of the proposed telecommunications tower at the time when notice was given of the Permit Application under section 52 of the PE Act. Alternatively, nor was there a 'dwelling' when notice was given of this application for review;
   4. the Permit Application was and is exempt from notice and review rights;
   5. even if the term 'dwelling' included permitted dwellings, given the Dwelling Permit had expired at the date when the Council gave notice of the Permit Application, there was no valid permitted dwelling at that time; and
   6. AME and Battaglia should be removed as parties to the proceeding under section 60A of the VCAT Act and the discretion under the VCAT Act to allow persons to be a party to a proceeding should not be exercised in these circumstances where an exemption from third party rights operates.

Dwelling has its ordinary meaning and it means existing dwelling

1. The applicant submits that on a plain reading of the words in the exception, it is apparent that the reference to 'dwelling' means an existing dwelling and there is no need to read the word 'existing' into the exception. Further, there is nothing in the text to suggest that the reference to 'dwelling' in the exception includes a dwelling that is permitted to be, but is not yet, built.
2. The applicant refers to clause 73 requiring a term used in the Scheme to have its ordinary meaning unless it is defined in the Scheme, the PE Act or the Interpretation of Legislation Act 1984 (Vic) ('IL Act'), in which case the term will have the meaning given to it in those documents.
3. The term 'dwelling' is defined in clause 73.03 'Land use terms' as:

1. However, that is the meaning of the term as a land use term. Another potential meaning of 'dwelling' in a development context is using its ordinary meaning, which is:[9]

1. The applicant submits that the term 'dwelling' is utilised in the Scheme in different ways, sometimes in a land use term sense and sometimes in a development sense. As such, the applicant submits that this is sufficient to point to a contrary intention for the purposes of section 39 of the IL Act:

1. The applicant submits that a key reason for drawing this distinction is the ability to measure the exact distance between a proposal and the dwelling, noting that when the term is utilised in a land use sense it includes outbuildings and works normal to a dwelling. As such, rather than just taking the measurement from the dwelling house, the measurement might need to be taken from a shed that is associated with the dwelling use but is located some distance from the proposed telecommunications facility, or even from some other buildings or works associated with the dwelling use.
2. The applicant submits that in this exception, 'dwelling' is referred to in development terms and should be interpreted as meaning 'existing dwelling', notwithstanding that term is not utilised. The applicant submits that in other instances in the Scheme where the term 'existing dwelling' is utilised it is in a land use sense. As such, there is no need to include the word 'existing' because there is no question as to whether there is an ongoing use; all that is required is that a building exists in line with the ordinary meaning.[10]
3. The applicant submits that the wording used in this exception is not unusual in the Scheme, pointing to other instances where there is a reference to a permit being or not being required if proposed use or development is within 100 metres of a 'dwelling' in similar ownership circumstances.[11]
4. By contrast, clause 52.32 'Wind Energy Facility' specifically refers to a proposed turbine being within one kilometre of an 'existing dwelling' in identifying when a permit is required to use and develop land for a wind energy facility.[12] The applicant points to the use permission required under that clause as the reason why there is reference to an 'existing dwelling'; i.e. the impact of use is relevant in the assessment. The applicant relies on Hopkins v Minister for Planning[13] ('Hopkins').
5. The applicant acknowledges that clauses 55, 57 and 58 also refer to an 'existing dwelling' but that in these instances this is done in the context of consideration being given to existing and new residents and distinguishing between potential amenity impacts to residents already there compared with residents of a proposed development.[14]
6. In other instances in the Scheme, a distinction is made within the words of a particular clause that differentiate between a dwelling that exists and one that is permitted to be constructed. For example, clauses 35.07-1 and 35.06-1 of the Scheme with respect to use of land for Timber production, or the decision guidelines in clause 53.06 'Live Music Entertainment Venues' requiring consideration of 'existing or proposed noise sensitive residential uses'. The applicant identifies that such a distinction is not present in clause 52.19-3 and had the drafters of the Scheme intended for this exception to include proposed dwellings, this would be in the text.
7. The applicant submits that:
   1. this interpretation accords with the purpose of the provision, which provides broad exemptions from third party rights to assist in the purpose of facilitating the development of telecommunications infrastructure; and
   2. the Explanatory Report for Amendment VC226 also supports this interpretation and that clause 52.19-3 was broadened in order to facilitate the expedited provision of telecommunications infrastructure.[15]
8. Further, the applicant submits that the purpose of the exception to the general exemption is to ensure that there is minimal, rather than no, impact on residential amenity.[16] In undertaking the balance between facilitating telecommunications infrastructure and ensuring minimal impact on the amenity of the area, one must acknowledge that there will be some impact on amenity.[17]
9. The applicant distinguishes between this exception and the exceptions in the second and fifth dot points that apply to applications for different types of telecommunications facilities 'within 100 metres of a residential zone'. The applicant submits that the need to protect residential amenity within 100 metres of a tower/facility is what displaces the general exemption in those instances, and that this will minimise but not eliminate amenity impact.[18]
10. The applicant submits that there is no requirement to consider material detriment in determining whether notice should be given; rather, the correct approach is to determine the objective meaning of 'dwelling' having regard to the text, context and purpose of clause 52.19-3 and apply that to the facts.[19]
11. The applicant observes that in the facts of this case, even though AME does not have third party rights to participate in the proceeding, given the AME Land is adjacent to the Land, the decision guidelines of clause 52.19-5 require consideration of the effect of the proposed telecommunications facility on the AME Land.[20]
12. The applicant submits that if 'dwelling' was interpreted to include a dwelling that was permitted but not yet built or used, this would introduce uncertainty and undermine the clarity of the exemption.[21] The applicant acknowledges that there is a public register of permit applications that is publicly searchable and plans can be requested from the Council, however, this still might be a potentially complex exercise to determine the exact location of a permitted but not yet constructed dwelling.[22] This would be more complex if an assessment needed to be made as to whether proposed outbuildings formed part of the dwelling[23] or whether the measurement should be taken from the planning unit that was to be used as a dwelling.[24]

The dwelling did not exist at the time notice was given of the Permit Application, or, of this proceeding

1. The applicant submits that there are two key times when notice of a planning permit application may be required:
   1. when notice is given of the planning permit application pursuant to section 52 of the PE Act; and
   2. when notice is given of an application for review pursuant to section 83A of the PE Act.
2. The applicant submits that in determining whether objectors are entitled to participate in this proceeding this is assessed from the date when initial notice was given under section 52 of the PE Act.[25] That date was 8 and 14 January 2025. That is, one needs to ask whether there was an existing dwelling within 100 metres of the proposed telecommunications tower on 8 or 14 January 2025.
3. It is common ground that there was no existing dwelling on the AME Land at that time.
4. Alternatively, the relevant date is when notice of the application for review was given, which was 17 July 2025. At that date, dwelling construction had also not begun on the AME Land.
5. The applicant submits that because the Permit Application was exempt from third party rights when notice of this proceeding was required to be given, it follows that AME and Battaglia were not entitled to notice pursuant to section 83A(2) of the PE Act.
6. Given the above, the applicant contends that where a permitted dwelling has not yet been constructed, the dwelling is not a 'dwelling' in the development sense for the purposes of clause 52.19-3 of the Scheme.
7. Further, where a dwelling is permitted but not yet commenced, there is no guarantee that the relevant permit will ever be acted upon. In addition, even where construction has commenced, it might never be completed, and, plans can be changed and development altered, including in terms of location.
8. Even if 'dwelling' is interpreted in the land use sense, the applicant submits that the AME Land would still not be used for a dwelling for the purposes of clause 52.19-3 because the holding of land for the purposes of future development is not a 'use' of land.[26]
9. In terms of how this interpretation aligns with the purpose of clause 52.19, the applicant states:[27]

Where there is no dwelling as a structure or dwelling as a use, it is difficult to see how the limited exception to the notice and review exemption should apply. As set out above, the purpose of clause 52.19 generally is to facilitate the provision of telecommunications infrastructure and the exemption at clause 52.19-3 was recently expanded in order to assist in that purpose. A permit for a dwelling with no current associated use or development functioning to trigger notice and review rights to protect amenity, which is not yet enjoyed, would frustrate that purpose.

1. The applicant submits that this approach extends to where construction has commenced on a dwelling, but this is not completed, in which case there is no 'dwelling' for the purposes of clause 52.19-3.
2. The applicant acknowledges AME's submissions that works have commenced, however, the applicant maintains that there was no 'dwelling' in the ordinary meaning of the term at the time when notice was given. Further, the Dwelling Permit contains preconditions to use and occupation of the dwelling that have not occurred so it cannot be considered a 'dwelling' for the purposes of clause 52.19-3 of the Scheme.
3. Where a dwelling has been constructed but is yet to be used, the applicant submits that this is a question of fact as to whether it is a dwelling for the purposes of clause 52.19-3. The applicant acknowledges that a dwelling that has been constructed might be a 'dwelling' in the development sense even where it is not being used at the time, although this would depend on the relevant facts. This would be a more practical outcome than a situation where no dwelling has been constructed because the distance between the built form and the telecommunications facility can be measured.[28]
4. In any event, the wording in this exception does not refer to the land being used as a dwelling, as compared with other provisions in the Scheme that refer to, for instance, 'land used as a hospital'.[29]

The Dwelling Permit had expired at the time notice was given of the Permit Application

1. In addition to the above, the applicant highlights the expiry of the Dwelling Permit on 16 November 2024.
2. Although an extension to the Dwelling Permit was granted on 17 February 2025, at the time that notice was given of the Permit Application on 8 and 14 January 2025, the Dwelling Permit was expired, notwithstanding this was within the six-month period during which an application may be made for an extension of time.[30]
3. The parties agree that when the Council gave notice of the Permit Application, the Permit Application was exempt from third party notice, decision and review pursuant to clause 52.19-3 of the Scheme.
4. Notwithstanding that the applicant agrees that the effect of the extension granted on 17 February 2025 was to 'revive' the Dwelling Permit, the applicant asserts that this revival did not change the fact that the Permit Application remained exempt from notice and review rights after 17 February 2025.[31]
5. The applicant reiterates that a planning permit is not a 'dwelling' for the purposes of the exception to the exemption in clause 52.19-3.[32]
6. The applicant submits that cases where the Scheme has changed, and thereby the triggers have changed, are distinguishable from the present situation.

1. The applicant submits that given the above, AME and Battaglia should be removed as parties to the proceeding under section 60A of the VCAT Act.
2. The applicant asserts that notwithstanding it gave notice of this proceeding in accordance with the Tribunal's orders, this does not amount to an acquiescence to the provision of notice, nor a waiver of the substantive right to challenge the validity of the notice.[33]
3. The applicant acknowledges that discretion exists under section 60 and 98 of the VCAT Act to join persons or allow persons to be heard in a proceeding, however, submits that this discretion is limited by the legislative scheme intended to exclude third party participation. In this respect, the applicant relies on the comments of the Tribunal in West Valentine Pty Ltd v Stonnington City Council[34] ('West Valentine'), quoting the following parts of that decision:[35]

1. The applicant submits that a mistake by the Council in allowing notice to be given of the Permit Application should not have the effect of affording third parties rights where the Scheme provides that they do not have those rights.
2. The applicant submits that there is no 'very compelling' reason to circumvent the exemption in clause 52.19-3.
3. In any event, the respondents' grounds are contained in the Council's grounds of refusal, meaning that the respondents can assume their concerns will be addressed in this proceeding by the Council.
4. As such, the applicant submits that AME and Battaglia should be removed as parties to this proceeding.

1. The Council submits that the exception to the exemption in clause 52.19-3 does apply in the circumstances, with the effect that the exemption from notice, decision and review rights does not apply.
2. The Council submits that this is because:
   1. the reference to 'dwelling' in clause 52.19-3 includes both an existing dwelling and also a dwelling that is approved but not yet constructed;
   2. when the Permit Application was lodged with the Council on 4 December 2024, the Dwelling Permit had expired, which meant that the exemption operated. However, when the Dwelling Permit was extended on 17 February 2025, this retrospectively enlivened the Dwelling Permit from the date that it had expired, which meant that the Permit Application lost the benefit of the exemption at that time and the respondents were persons who were entitled to notice of the Permit Application and being able to object to it;
   3. as such, when the applicant was required to given notice of the application for review, the effect of section 83A of the PE Act was to require the applicant to given notice to the respondents;
   4. accordingly, AME and Battaglia are proper parties to the proceeding, having been appropriately served with the application for review and they should not be removed as parties; and
   5. if the Tribunal disagrees with the Council and finds that the exemption does apply, AME and Battaglia should be removed as parties under s60A of the VCAT Act.

Dwelling means either an existing dwelling or an approved dwelling under a planning permit that is not yet constructed

1. The Council submits that the term 'dwelling' in the exception should be interpreted as referring to both an existing dwelling and to a dwelling approved under a planning permit but not yet constructed.
2. The Council submits that the relevant time at which the application of the exception and exemption were to be assessed, with respect to the notice requirements of section 52 of the PE Act, was when the Council gave notice of the Permit Application on 8 and 14 January 2025.[36]
3. In the circumstances, the Council submits that the Tribunal need only determine if the exemption applies where a permitted dwelling has not yet been constructed.[37]
4. After considering how, grammatically, the term 'dwelling' is utilised in the exception, the Council concludes that it does not matter whether the term 'dwelling' is understood in the land use term sense or on its ordinary meaning. This is because either way the exception requires a measurement to be taken either to a house or to a building used as a self-contained residence.
5. The Council submits that it is open to the Tribunal to interpret the term 'dwelling' in the exception to including a permitted but not yet constructed dwelling. To this end, the Council observes that the term 'existing dwelling' is not used in the exception to confine the term in that way whereas it is used in other provisions in the Scheme.[38] The Council is unsure if the term 'existing dwelling' is mostly used in the Scheme in a land use sense (as is asserted by the applicant) and even if so, how it is relevant to this proceeding.
6. The Council submits that the purpose of clause 52.19 indicates that a balance is required to be achieved between the facilitation of telecommunications infrastructure and the protection of the amenity of an area. The Council then looks at the classes of telecommunication facility development that do not require a planning permit, indicating that the amenity impacts of those have been determined to be minimal.
7. With respect to the exceptions to the exemption in clause 52.19-3, these indicate that in limited circumstances, the rights of persons who may be materially affected by the development of telecommunications facilities is of greater importance than facilitating such developments quickly.
8. The Council refers to the Explanatory Report for Amendment VC226 and agrees with the applicant's submission that the exemption was broadened in order to facilitate the provision of telecommunications infrastructure but also points to the exceptions contained in clause 52.19-3.
9. The Council submits that:[39]

1. The Council submits that the notice provisions in section 52 of the PE Act should be viewed in light of the objectives of planning in Victoria[40] and of the planning framework established by the PE Act.[41] The consequence of interpreting the wording as the applicant does is that AME would not have received notice of the Permit Application, which the Council submits would be contrary to the objective of planning in Victoria to provide for the fair and orderly development of land.[42]
2. The Council submits that it was open to it to consider that the grant of the Permit Application may cause material detriment to AME and give notice to AME due to the proximity of the proposed telecommunications tower to the permitted dwelling under the Dwelling Permit.[43] As such, it was appropriate for the Council to have given notice of the Permit Application to AME.[44]
3. The Council distinguishes cases relied on by the applicant on the basis of their facts and the provisions being considered, none of which are on point with what is before me in this proceeding.

When the Dwelling Permit was extended this retrospectively enlivened it from date of expiry, meaning exception applied at that date

1. The Council acknowledges that when the Permit Application was lodged with the Council on 4 December 2024, the Dwelling Permit had expired.
2. AME lodged its objection to the Permit Application with the Council on 22 January 2025.
3. On 23 January 2025, the Council received a request from AME to extend the Dwelling Permit.
4. Battaglia lodged their objection to the Permit Application with the Council on 27 January 2025.
5. On 17 July 2025, when the applicant gave notice of this proceeding, development of the dwelling under the Dwelling Permit had not commenced and no set-out or site preparation works for construction of the dwelling had commenced but the Dwelling Permit was live.
6. In terms of the facts of this case, the Council accepts that:[45]

1. The Council submits that:
   • when the Dwelling Permit was extended on 17 February 2025, this retrospectively enlivened the Dwelling Permit from the date that it had expired (i.e. on 16 November 2024); and
   • whilst the Permit Application was exempt from third party rights pursuant to clause 52.19-3 when the Council gave notice of the Permit Application, when the Dwelling Permit was extended on 17 February 2025, this resulted:
     1. in the Permit Application losing the benefit of the exemption at that time; and
     2. the respondents being persons who were entitled to notice of the Permit Application and being able to object to it.[46]
2. Given this, the Council submits that when the applicant was required to given notice of the application for review, the effect of s 83A of the PE Act was to require the applicant to given notice to the respondents.[47]
3. The Council submits that this distinguishes the present case from the situation in West Valentine, where the planning permit application was exempt from third party rights at the time when notice of the application for review was required to be given.[48] The Council submits that the above approach is consistent with the Tribunal's findings in Strintzos Group Pty Ltd v Casey CC,[49] where the planning scheme controls changed when the application for review was lodged, the changed controls made the permit application no longer exempt from third party rights and the Tribunal directed notice be given of the application for review.[50]
4. If the Tribunal accepts the above, AME and Battaglia are proper parties to the proceeding; they were appropriately served with the application for review and should not be removed as parties.
5. The Council submits that if the exemption was not operating, then it is not just AME (with a dwelling within 100 metres of the Land) that is entitled to receive notice but this allows all third parties who would otherwise have been given notice to be given notice.

If the exemption does apply, the respondents should be removed as parties under section 60A of the VCAT Act

1. If, contrary to the Council's submissions, the Tribunal finds that the exemption in clause 52.19-3 applies in the circumstances, the Council accepts that the Tribunal should remove AME and Battaglia as parties using s 60A of the VCAT Act.
2. This is because if the Tribunal makes this finding because the 'dwelling' is interpreted to mean 'existing dwelling', there was no dwelling existing on the AME Land at the time notice was given of the Permit Application, AME (and Battaglia) were not entitled to notice of the Permit Application. In that case, section 83A(2) of the PE Act would result in the objectors not being entitled to notice of the application for review. It would then follow that AME and Battaglia are neither proper nor necessary parties to the proceeding.[51]
3. The Council accepts the reasoning in West Valentine would also apply here.

1. AME submits that the exception to the exemption in clause 52.19-3 does apply in the circumstances, with the effect that the exemption from notice, decision and review rights does not apply.
2. AME submits that this is because:
   1. the reference to 'dwelling' in clause 52.19-3 includes both an existing dwelling and also a dwelling that is approved but not yet constructed;
   2. when the Permit Application was lodged with the Council on 4 December 2024, the Dwelling Permit had expired, which meant that the exemption operated. However, when the Dwelling Permit was extended on 17 February 2025, this retrospectively enlivened the Dwelling Permit from the date that it had expired. This meant that the exception to the exemption now applied and AME's rights to object to the Permit Application and participate in the Application for Review crystallised. Given the Council had not made a decision on the Permit Application at that time, and AME had lodged an objection with the Council, the Council was obliged to take AME's objection into account;
   3. AME is a party to the proceeding as it was entitled to be given and was given notice of the application for review as an objector and it lodged a statement of grounds in accordance with the VCAT Act;
   4. alternatively, if AME was not a proper party, AME should be joined as a party to the proceeding under s60 of the VCAT Act; and
   5. even if the Tribunal disagrees with AME and finds that the exemption does apply, AME should not be removed as a party under s60A of the VCAT Act.

AME was entitled to notice and is a proper party to this proceeding

1. AME submits that the exemption in clause 52.19 does not apply to the proposal because AME has been constructing a dwelling on the AME Land within 100 metres of the proposed telecommunications tower.
2. AME accepts that when it received notice of the Permit Application in January 2025, there was no dwelling on the AME Land.
3. AME submits that both the land use term meaning of 'dwelling as contained in clause 73.03 of the Scheme and the ordinary meaning of the term import considerations of how a building is used i.e. as a self-contained residence.
4. AME submits that the text of the exception relied upon does not refer to 'existing dwelling' and if that was meant the clause would refer to 'existing dwelling', referring to examples in the Scheme where the term 'existing dwelling' is utilised.[52]
5. AME distinguishes Hopkins on its facts and circumstances.
6. AME refers to the purpose of clause 52.19 and Amendment VC226. AME submits that while there is a focus on streamlining the approval process for telecommunications facilities and expanding exemptions, there is a balance to be struck between facilitating telecommunications infrastructure and the impact on the amenity of the area and that clause 52.19-3 ought to be interpreted in this context. AME submits that doing so results in the reference to 'dwelling' including proposed and existing dwellings.[53]
7. AME submits that it is appropriate that notice of the Permit Application was given to it and that the exemption does not apply to dwellings which includes existing, approved and dwellings under construction.[54]
8. AME accepts that when notice of the Permit Application was given in January 2025 the Dwelling Permit had expired.
9. AME lodged its objection to the Permit Application with the Council on 22 January 2025. AME asserts that the notice it was given by the Council stated that the Council would not make a decision on the Permit Application before 29 January 2025.
10. AME lodged an application to extend the Dwelling Permit on 23 January 2025.
11. However, AME submits that the effect of the extension of time being granted on 17 February 2025 was the revival of the Dwelling Permit such that it retrospectively remained on foot as at the date of the Permit Application being submitted to the Council and notice of this being given in January 2025.[55]
12. AME submits that pursuant to s 69(3) of the PE Act, when the Dwelling Permit was extended the extension of time operated from the day the Dwelling Permit expired,[56] with the effect that the Dwelling Permit never lapsed/expired.
13. AME submits that as at 17 February 2025, the Permit Application was no longer exempt from third party rights under clause 52.19-3 and that the exception to the exemption now applies and AME's 'rights to object to the Permit Application and participate in the Application for Review crystallised'.[57]
14. AME submits that because no decision had been made by the Council on the Permit Application as at 17 February 2025, the Council was required to consider the objections that had been lodged in forming its position on the Permit Application.
15. AME acknowledges that these circumstances are unusual but submits that they are analogous to where a permit application is initially exempt from notice and review rights but following an amendment to the planning scheme, the application is no longer exempt before a decision is made by the relevant council or the Tribunal on appeal.[58] In this respect, AME relies on Bunnings Pty Ltd v Surf Coast SC & Ors.[59]
16. As such, AME submits that pursuant to s 83(2) of the PE Act, AME is a party to the proceeding as it was entitled to be given and was given notice of the application for review as an objector and it lodged a statement of grounds in accordance with the VCAT Act.[60]
17. Further, AME agrees with the Council that if it is entitled to receive notice, other third parties (i.e. Battaglia) were also entitled to receive notice.

Alternatively, AME should be joined as a party under section 60 of the VCAT Act

1. AME observes that the applicant did not highlight any exemption to third party rights when it lodged the application for review, nor when it gave notice of the proceeding to AME.
2. AME submits that this constitutes the 'very compelling reasons' referred to in West Valentine that justify joinder under section 60 of the VCAT Act.

AME should not be removed as a party under section 60A of the VCAT Act

1. AME submits that it should not be removed as a party under section 60A of the VCAT Act because its interests are affected by the proceeding, and, it is a necessary party to the proceeding. AME submits:[61]
   1. a planning permit is still required for the proposed telecommunications tower;
   2. the purposes of clause 52.19 include supporting the provision of telecommunications facilities with minimal impact on the amenity of the area;
   3. AME has acted upon the Dwelling Permit, with construction having commenced;
   4. the impacts of the facility on the amenity of the AME Land and the dwelling are relevant matters before the Tribunal, noting the decision guidelines in clause 52.19-5 include consideration of the effect of a telecommunications facility on adjacent land;
   5. the AME Land is the closest land to the proposed siting of the telecommunications tower and will be materially affected by the proposal; and
   6. having regard to the applicant's response to further information for the Permit Application,[62] the applicant was aware of the Dwelling Permit.
2. AME submits that the applicant acquiesced to public notice being given of the Permit Application because the Council informed the applicant that it thought the exemption in clause 52.19-3 did not apply in the circumstances and provided the applicant with the opportunity to provide a legal opinion to the contrary, which was not done.

1. Battaglia submits that they should be a party in this proceeding because:[63]

1. The two questions of law are:
   1. Does the exemption from notice, decision and review in Clause 52.19-3 apply to Permit Application No. P537/2024 where there is a planning permit for the use and development of a dwelling at 127 Milburn Road, within 100m of the proposed telecommunications tower:
      1. If the permitted dwelling has not yet been constructed?
      2. If the permitted dwelling has been partially constructed but not completed?
      3. If the permitted dwelling is not yet capable of being used as a dwelling?
   2. If the answer to Questions 1a, 1b or 1c is 'yes', should the Tribunal remove the Respondents as parties to the proceeding under section 60A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)?
2. These questions are being answered in the context of the agreed position of the parties that at both the time notice was given of the Permit Application by the Council, and when notice was given of the application for review by the applicant, there was no dwelling constructed on the AME Land.
3. The parties' submissions also gave rise to the following additional questions for consideration:
   1. Does the term 'dwelling' in the exception mean:
      1. 'dwelling' in the land use sense or in the development/ordinary sense; and
      2. a dwelling existing at the time when notice is given or can this also include a dwelling that is permitted but not yet constructed when notice is given?
   2. If a permitted dwelling is included in the term 'dwelling', does this include the dwelling permitted under the Dwelling Permit given the expiry and extension of the Dwelling Permit?
   3. What type of notice is being referred to in clause 52.19-3: notice of the Permit Application, notice of the application for review, or both?
4. As can be seen from the analysis below, given the particular facts of this case, not all of the above questions need to be answered.

Interpretation of exception: 'dwelling' in land use sense or ordinary meaning? Existing dwelling only or also a permitted dwelling?_

1. I agree with the parties as to the applicable principles of statutory interpretation to apply. That is, that the task of constructing the words of the Scheme, being subordinate legislation, should be interpreted according to general principles of statutory interpretation. This requires consideration of the text, context and purpose of the wording of the provision, with the text interpreted using the ordinary and grammatical sense of the words, understood in the context of the Scheme as a whole and construed in light of practical considerations, having regard to use by practical people skilled in a particular industry.
2. The above is consistent with s 35(a) of the IL Act, which deals with interpretation of a provision of legislation or a subordinate instrument and states that in the interpretation of such a document:[64]

1. In this proceeding, I need to interpret the following exception to the exemption contained in clause 52.19-3 of the Scheme:

1. This exception is to be understood in the context of the entire provision of clause 52.19-3, being:

1. It is common ground between the parties that the term 'dwelling' is used in two different ways in the Scheme:
   1. in a land use sense, as a defined land use term pursuant to the meaning in clause 73.03 of the Scheme; and
   2. in a development sense and given its ordinary meaning, which is generally understood as being the meaning found in a dictionary.
2. Whilst the Council and AME consider little turns on the distinction between these two meanings for the purposes of interpreting clause 52.19-3, I agree with the applicant that a key reason for the distinction is the broader ambit of the defined land use term as compared with the ordinary meaning. That is, if the term 'dwelling' is used in the land use sense, this imports the concept that other outbuildings and works normal to a dwelling will also be included in what is meant by 'dwelling'. This then brings in the concept of the 'planning unit' that is developed with, and is being used as, a dwelling, as compared with just the physical structure of the main building/house.
3. In terms of the potential area covered by the two meanings of the term 'dwelling', arguably when the term is defined in the land use sense it is a broader, more generous definition because it may cover a larger area. By contrast, the development sense / ordinary meaning of 'dwelling' is a narrower definition, arguably just applying to the main dwelling building.
4. As to whether the term means only an existing dwelling or also a permitted dwelling, this will again potentially narrow or broaden the exception because it will either lessen or increase the dwellings that might be within 100 metres of a proposed telecommunications tower.
5. However, for the reasons explained below, I am of the view that, ultimately, little turns on in which sense the term is used in clause 52.19-3 in the facts and circumstances of this particular case.
6. In determining in which sense the word 'dwelling' is used in this exception, I have considered the drafting of this exception, in the context of the other exceptions in clause 52.19-3, clause 52.19 overall and the other provisions of the Scheme.

1. The exception in issue applies to an application for a telecommunications tower within 100 metres of 'a dwelling' not on the same land or land in contiguous ownership.
2. Given this clause neither provides for a land use permission for a dwelling, nor a development permission to construct a dwelling, it is not apparent on its face whether the term should be used in a land use or in its ordinary/development sense. The drafting of the wording used in this exception does not provide any insight into this matter.
3. Whilst it is common ground that the term 'dwelling' is used in different senses throughout the Scheme, there is no consensus as to any pattern as to when it is used in which sense.
4. On the one hand, arguably, the ordinary way in which this sentence could be read is with 'dwelling' meaning a dwelling in its ordinary meaning sense i.e. the building itself. However, on the other hand, given this clause is part of the Scheme and 'dwelling' is a land use term in the Scheme, it is often the case that a reference to 'dwelling' is to its land use meaning.
5. Often a defined term will employ capitalisation to signify that it is a defined term. I note that the term 'dwelling' in clause 52.19-3 does not employ a capital D. However, I observe that this is not a practice that is used consistently across the Scheme.[65]Rather, it appears to usually be the case that the capitalisation of defined terms is not employed. One such example is within the exception itself, where the term 'telecommunications tower' is a defined general term in clause 73.01 of the Scheme but is not capitalised.
6. In terms of whether 'dwelling' means existing or whether it also can mean a dwelling permitted under a planning permit but not yet constructed, I observe that while the term 'existing dwelling' is not used, nor is the term 'proposed dwelling'. As such, on the face of the words it is not apparent that the term should be interpreted in one way or the other.
7. Notwithstanding this, arguably the ordinary way in which this sentence could be read is with 'dwelling' meaning an existing dwelling; one that exists in fact at the time the exemption from notice is being assessed. However, given the importance of this issue, consideration should be given to the broader Scheme.

1. The exemption in clause 52.19-3 exists in the context of the purpose of clause 52.19 being to ensure the provision of telecommunications infrastructure in an efficient and cost-effective manner to meet community needs, to facilitate an effective state-wide telecommunications network consistent with proper and orderly planning but doing so with minimal impact on the amenity of the area.
2. Clearly, there is a priority given to the provision of telecommunications infrastructure given its importance to the State, but this is to occur cognisant of the impact to the amenity of the area.
3. As such, I agree that the purpose of clause 52.19 indicates that there is a balance to be struck between facilitation and amenity impact. However, I do not think that this assists in the interpretation of 'dwelling'. This is because:
   1. on the one hand, facilitating development points to a narrower definition of 'dwelling', thereby lessening the ambit of the exception to the exemption; whereas
   2. on the other hand, facilitating development with minimal impact on amenity points to a broader definition of 'dwelling', thereby broadening the ambit of the exception to the exemption.
4. I agree with the applicant that 'minimal impact' on amenity does not mean no impact on amenity and that the balance to be struck between the efficient and effective provision of telecommunications infrastructure across Victoria might result in amenity impact for some persons. This is consistent with the approach of clause 52.19-3 in making all applications for building and works for a telecommunications facility exempt from third party notice, decision and review rights except for those specified as exceptions.
5. In any event, I observe that amenity impact can still be taken into account, irrespective of whether third party notice is given of an application. To this end, I agree with the applicant's observation that in directing consideration to the effect of a telecommunications facility on adjacent land, the decision guidelines require consideration of the potential amenity impact on adjacent land, irrespective of whether that adjacent land was given notice of the application.
6. I observe that 'adjacent' land would mean not just the AME Land but also other adjoining land, given 'adjacent' means:[66]

adjective 1. having a common border; contiguous; adjoining: adjacent rooms; a field adjacent to the main road.

2. (of two or more things) not separated by anything of the same kind: adjacent houses with a pretty garden between them; adjacent towns.

1. I disagree that the consequence of interpreting 'dwelling' as the applicant does is contrary to the objective of planning in Victoria to provide for the fair and orderly development of land. This is because the fair and orderly development of land in Victoria goes both ways: it is not only in favour of allowing third party rights; it is also in favour of allowing development, where appropriate.
2. I also disagree that it was open to the Council to consider that the grant of the Permit Application may cause material detriment to AME and therefore give notice to AME. This is because if the exemption operates, this displaces any assessment of whether there may be material detriment caused to AME.
3. For the foregoing reasons, I do not regard the purpose of clause 52.19 to guide the interpretation in one way or the other.

1. Consideration of the other exceptions in clause 52.19-3 provides little insight into the way in which the term 'dwelling' is used in this exception, either in the land use sense / development sense or as an existing / permitted dwelling.
2. The first two dot points each deal with different circumstances where the exemption does not apply, with neither utilising the term 'dwelling':
   1. the first dot point deals with where the permit application is made under one of the specified overlays. Each of these overlays includes a character element or conservation of significant landscapes or heritage in its purpose that contribute to the amenity of an area; and
   2. the second dot point deals with where the permit application is made under a public land zone in circumstances where the responsible authority is not the public land manager.
3. In each of those instances it is understandable why third party input would be desirable and available but neither situation is analogous to the exception in issue in this case.
4. The last paragraph deals with an application under any provision of the Scheme to use or to develop land for a telecommunications facility where the telecommunications facility is funded, or partly funded, by the Commonwealth through the Mobile Black Spot Program or the State of Victoria. For those publicly funded projects, the government has determined that they are to be processed without third party input, presumably due to their importance to the State or Federal government. Again, that is a separate situation to what is before me.
5. At issue in this case is an exception contained in the third dot point. There are six types of exceptions listed in this dot point:
   1. where the permit application is for a telecommunications dish;
   2. where the permit application is for a telecommunications facility on a building within 100 metres of a residential zone;
   3. where the permit application is for a telecommunications facility on a building within 100 metres of a dwelling not on the same land or land in contiguous ownership;
   4. where the permit application is for a telecommunications tower in a residential zone;
   5. where the permit application is for a telecommunications tower within 100 metres of a residential zone;
   6. where the permit application is for a telecommunications tower within 100 metres of a dwelling not on the same land or land in contiguous ownership.
6. The exceptions in paragraphs (a), (b), (d) and (e) (above) can each be understood through the wording of the text. In terms of understanding these exceptions in the context of the purpose of clause 52.19:
   1. for the exception in paragraph (a), a telecommunication dish arguably has a greater physical presence than other types of telecommunications facilities and may be more likely to impact upon amenity, thereby justifying the removal of the exemption from third party notice; and
   2. for the exceptions in paragraphs (b), (d) and (e), given the purpose of a residential zone is to provide for residential accommodation, and use of land for a dwelling in a residential zone is as-of-right, it follows that third parties should be given notice of when a telecommunications facility or telecommunications tower is proposed to be located in such a zone, or within the specified distance of such a zone, given the potential consequential amenity impacts.
7. I am dealing with the exception in paragraph (f) (above), which is drafted in similar terms to that in paragraph (c) (above), with one dealing with a permit application for a telecommunications facility on a building and the other with a permit application for a telecommunications tower.
8. Both exceptions refer to the proposed infrastructure being 'within 100 metres of a dwelling not on the same land or land in contiguous ownership'. This exception would address, for instance, the situation where an adjacent lot owned by the same owner has a dwelling, with the effect that this will not give rise to third party review rights. However, where the dwelling is within 100 metres of the telecommunications infrastructure and is not on the same land or land in contiguous ownership, third party review rights will not be displaced.
9. The question is what is meant by 'dwelling' in this context?

Other parts of clause 52.19 and other provisions of the Scheme

1. Clause 52.19-3 applies to an application under any provision of the Scheme i.e. where there is an exemption from third party rights, this applies not just to an application for planning permit under clause 52.19 but also an application for planning permit under any other provision of the Scheme. Given this, what is understood by the term 'dwelling' in this exception, in this exemption, should be interpreted harmoniously with the other permit triggers in the Scheme.
2. In the present case, in addition to planning permission under clause 52.19-1, this proposed telecommunications tower requires planning permission to construct a building under clause 35.04-5 of the GWZ:
   1. within 20 metres from a road other than a road in a Transport Zone 2 or 3; and
   2. within 100 metres from a dwelling not in the same ownership.
3. Clause 35.04-5 of the GWZ is as follows:

1. As can be seen, the permit trigger that refers to the building being within a 100-metre setback of a dwelling is as follows:

A building which is within any of the following setbacks:

...

• - 100 metres from a dwelling or small second dwelling not in the same ownership.

1. Given these provisions are intended to work together, what is meant by a 'dwelling' in this permit trigger in the GWZ arguably should be the same as what is meant by 'dwelling' in the exception from the exemption to the giving of notice to third parties in clause 52.19-3.
2. I observe that both 'dwelling' and 'small second dwelling' used in the above permit trigger in the GWZ are defined land use terms in clause 73.03 of the Scheme. This is notwithstanding that these terms are not capitalised. As noted earlier, there does not appear to be a consistent practice throughout the Scheme. I observe that sometimes a defined land use term is capitalised,[67] resulting in it being interpreted in its land use sense, whereas in other instances a term is not capitalised where I infer that the term should be read in its land use sense.[68]
3. Arguably, if 'dwelling' in this permit trigger in the GWZ was interpreted in the development/ordinary sense, as being a house, this would be at odds with 'small second dwelling' being referred to in this clause, given that is a land use term. The preferable approach is to interpret both terms using their land use term meaning from clause 73.03.
4. On this approach, this would then mean that 'dwelling' in clause 52.19-3 is also utilised in the land use sense of the term, resulting in consistency in the meaning of 'dwelling' in each provision. If this is done, then:
   1. a planning permit is required for the proposed telecommunications tower under the GWZ where that telecommunications tower is located 100 metres from a dwelling (in the land use sense) not in the same ownership; and
   2. the exemption from third party rights in clause 52.19-3 does not apply to the application for the proposed telecommunications tower where that telecommunications tower is located 100 metres from a dwelling (in the land use sense) not on the same land or land in contiguous ownership.
5. On this approach, the fact that resulted in the need for a planning permit under the GWZ (i.e. the setback) is also the fact that leads to the exception from the exemption from third party rights, meaning that third party rights are available.
6. Interpreting 'dwelling' in the land use sense then means that the distance is to be measured from the planning unit of the dwelling, which might be broader than just the main building. This might result in more 'dwellings' being within 100 metres of a proposed telecommunications tower, but this would be aligned with those instances triggering the need for a planning permit under the GWZ.
7. The alternative approach would be for both references to be to 'dwelling' in the development/ordinary sense. This would mean that the measurement under both clause 35.04-5 of the GWZ and clause 52.19-3 is to the actual building that is the dwelling, rather than to the planning unit.
8. On the facts of the present case, nothing turns on whether 'dwelling' is interpreted in its land use sense or its development/ordinary sense, given the dwelling building itself that is permitted on the AME Land under the Dwelling Permit is within 100 metres of the proposed telecommunications tower. Accordingly, the planning unit for that dwelling building would also be within 100 metres of the proposed telecommunications tower (albeit likely a different measurement).
9. As such, for the purposes of the case before me, I need not make a finding regarding this particular issue.
10. I now turn to whether a dwelling is to be existing or permitted.
11. I observe that the word 'existing' is used in clause 52.19, albeit not in clause 52.19-3. 'Existing' is used in the permit requirement provision of clause 52.19-1, identifying where a permit is required for buildings and works for a telecommunications facility other than in various circumstances, including:

1. In each of the above instances, the reference to 'existing' is in relation to an application for a proposed new telecommunications facility; so, in effect, the distinction is between the existing and the new of a 'like thing'.
2. Clause 52.19-1 also contains the following reference to an 'existing habitable room window':

1. However, I understand the above drafting to be (broadly) referring to, and replacing, the equivalent ResCode provision. As such, I distinguish that situation on that basis.
2. Similarly, the parties took me to several provisions in the Scheme that variously referred to 'existing dwelling' or to a proposed use or building. Again, in considering the provisions the parties referred to, along with other provisions in the Scheme, it appears that when 'existing' is utilised this is often in the context of also describing a 'new' building or use or canopy tree, [69] to draw a distinction between the two for the purposes of the provision. This is in the context of this being a permissions regime, where the focus is on the permission sought. In many of those instances, the distinction appears to be drawn between the proposed/new building, window or tree and the existing building, window or tree; that is, between the existing and the new of a 'like thing'.
3. I acknowledge that an exception to the 'like thing' pattern above is found in clause 52.32 'Wind Energy Facility' that refers to an 'existing dwelling'. I am mindful that clause 52.32 has its own amendment history and is drafted in a different way to clause 52.19, including in terms of there being a prohibition on use and development of a wind energy facility on land within a certain distance of an existing dwelling unless consent has been obtained from that owner. I distinguish that provision and its wording from what is contained in clause 52.19.
4. Returning to clause 52.19-3, there is no existing and new of a 'like thing' because the measurement is not between the location of a new telecommunications tower and an existing telecommunications tower not on the same land or in contiguous ownership. This might explain why the term 'existing' is not used. But in the absence of the provision specifying that the dwelling is to be existing, does this, in any event, mean that the dwelling can only be an existing dwelling?
5. I again consider the permit trigger in clause 35.04-5 of the GWZ that is also triggered in this particular case, noting that these provisions will work together when an exemption operates for a telecommunications facility. The other permit triggers in clause 35.04-5 are all to present, measurable features, be they a zone, a road, a boundary or a water feature:

1. The benefit of measuring the setback from these present features is that there is certainty as to when there is a permit trigger for the building under the GWZ, and when there is not.
2. I also observe that in clause 52.19-3 there are other exceptions that refer to a telecommunications facility being within 100 metres of a residential zone; again, a present, measurable feature.
3. I see a parallel between the desire for certainty in both:
   1. whether there is a permit trigger for a building; and
   2. whether there is an exemption from third party notice for that permit trigger.
4. I acknowledge that the Scheme is to be construed in light of practical considerations, having regard to use by practical people skilled in a particular industry. I accept that a permitted dwelling might still be:
   1. ascertainable, in terms of being able to search the Council's planning register to discover that a planning permit has been issued for construction of the permitted dwelling; and
   2. measurable, in terms of the plans showing the planning unit, layout and design of a permitted dwelling.
5. However, until the dwelling exists in some form, I regard there to be a lack of certainty as to whether the permitted dwelling actually will be pursued.
6. I also acknowledge that often in the assessment of a permit application, the proposed use and development of nearby sites will be considered[70] and weighed according to where the proposed use and development is in the development process. However, this occurs in the assessment of a permit application, which is different to what guides the giving of notice of a permit application.
7. For the foregoing reasons, for the purposes of this exception in clause 52.19-3, I find that the term 'dwelling' means a dwelling that is constructed in some sense as opposed to a dwelling that is permitted to be constructed but for which there is no construction in any sense.
8. Again, on the facts before me, it is common ground that at the time that either type of notice was given, the permitted dwelling had not been constructed in any sense on the AME Land.
9. Another question that arose is if a permitted dwelling is included in the term 'dwelling', does this include the dwelling permitted under the Dwelling Permit given the expiry and extension of the Dwelling Permit?
10. Given my finding above, I need not make any findings regarding this matter. However, I observe that my concern regarding the lack of certainty as to whether a permitted dwelling will be pursued until a dwelling exists in some form is borne out by this question. That is, at the time that notice was given of the Permit Application by the Council, the Dwelling Permit had expired. This is notwithstanding that it was within the 6-month 'grace period' during which an owner may apply for a permit extension, and the responsible authority may (or may not) grant the extension sought. As such, at that date, the permitted dwelling could not commence construction because the Dwelling Permit had expired. Further, at that time, there was no certainty that the Dwelling Permit would be extended enabling construction of the permitted dwelling to be commenced.
11. The Council and AME made submissions as to the retrospective effect of the extension of the Dwelling Permit. Those submissions align with what is stated in section 69(3) of the PE Act and correctly reflect that the extension operates from the date of expiry. However, I am not persuaded that the extension of the Dwelling Permit will retrospectively result in the exception to the exemption contained in clause 52.19-3 taking effect. Rather, whether the exception was in effect at the time notice was required to be given is measured at that point in time and that cannot be retrospectively revisited; that horse has bolted. It would be impractical and introduce uncertainty if it were otherwise.

What type of notice is referred to in clause 52.19-3?

1. The exemption from third party rights in clause 52.19-3 is in the following terms:

An application under any provision of this planning scheme to construct a building or construct or carry out works for a telecommunications facility is exempt from the notice requirements of section 52(1)(a), (b) and (d), the decision requirements of section 64(1), (2) and (3) and the review rights of section 82(1) of the Act.

1. Section 52 of the PE Act is entitled 'Notice of application'. The notice requirements of s 52(1)(a), (b) and (d) are as follows:

1. Section 64 of the PE Act is entitled 'Grant of Permit if there are objectors'. The decision requirements of s 64(1), (2) and (3) are as follows:

1. Section 82(1) of the PE Act is entitled 'Applications for review where objectors'. The review rights of s 82(1) are as follows:

1. The notice that is given of an application for review occurs pursuant to s 83A of the PE Act entitled 'Objectors entitled to notice', which states:

1. Given the above, the notice that is being referred to in clause 52.19-3 of the Scheme is the notice that is given of a planning permit application by the responsible authority.
2. On the facts of this case, that was the notice given of the Permit Application by the Council on 8 and 14 January 2025.
3. It is only when a person responds to that notice through objecting to a planning permit application that they become an 'objector' who is then entitled to notice of an application for review under section 83A of the PE Act.
4. However, if a person is not entitled to notice of a planning permit application and they object to a planning permit application, that does not result in them being an 'objector' under the PE Act or a person who is entitled to notice of an application for review under section 83A. Instead, it just means that they are a person who has objected to a planning permit application, but who had no entitlement to be given notice and has no objector rights, going forward.
5. Given my interpretation of 'dwelling' in clause 52.19-3 and the fact that when notice was given by the Council of the Permit Application, the permitted dwelling on the AME Land had not been constructed, nor had it even commenced construction, I find that the exception in issue in this case was not effective at the time the Council gave notice of the Permit Application. This is because at that time there was no 'dwelling' for the purposes of the exception.
6. Accordingly, the Permit Application was exempt from the notice requirements of s 52(1)(a), (b) and (d), and, it follows, the decision requirements of s 64(1), (2) and (3) and the review rights of s 82(1) of the PE Act.
7. Further, even in the event that I am wrong in the above interpretation exercise and 'dwelling' in this exception includes a permitted dwelling, on the facts of this case, notwithstanding that the Dwelling Permit has now been extended and construction has now commenced on the AME Land under the Dwelling Permit, that has no bearing on the availability of the exception under clause 52.19-3. This is because there was no dwelling on the AME Land at the time notice was required to be given of the Permit Application under section 52 of the PE Act and the exemption was in effect at that time.
8. It follows then that the objections lodged by AME and Battaglia were not 'objections' for the purpose of the PE Act and that those persons are not 'objectors' for the purposes of the PE Act, as they should not have been given notice of the Permit Application.
9. As such, I find that the notice referred to in clause 52.19-3 is the notice given of a planning permit application by a responsible authority.
10. On the facts before me, this means the notice that was given of the Permit Application by the Council on 8 and 14 January 2025.
11. At that time, the dwelling permitted by the Dwelling Permit had not been constructed, nor had it even commenced construction, on the AME Land.
12. As such, on the basis of the foregoing analysis, the exemption in clause 52.19-3 operates and neither AME nor Battaglia had a right to receive notice of the Permit Application or, by extension, the application for review.

1. Based on the above reasoning, my answer to question 1 is as follows:
   1. Does the exemption from notice, decision and review in Clause 52.19-3 apply to Permit Application No. P537/2024 where there is a planning permit for the use and development of a dwelling at 127 Milburn Road, within 100m of the proposed telecommunications tower:
      1. If the permitted dwelling has not yet been constructed?

1. If the permitted dwelling has been partially constructed but not completed?

As this situation does not arise on the facts of this case, I do not need to answer this question.

1. If the permitted dwelling is not yet capable of being used as a dwelling?

As this situation does not arise on the facts of this case, I do not need to answer this question.

1. The second question of law is:
   1. If the answer to Questions 1a, 1b or 1c is 'yes', should the Tribunal remove the Respondents as parties to the proceeding under section 60A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)?
2. Given I have found that the exemption in clause 52.19-3 applied to the Permit Application, I need to answer this question.
3. I agree with the applicant that in the circumstances, it is appropriate to remove AME and Battaglia as parties to this proceeding under s 60A of the VCAT Act.
4. I say this because in circumstances where the Scheme provision contains an exemption from third party rights in the form set out in clause 52.19-3, it would be contrary to that clear direction in the Scheme to, in effect, circumvent the exemption and allow third party involvement.
5. To this end, I adopt the rationale contained in West Valentine.
6. I do not regard there to be any compelling reasons that justify a different approach in this case. I accept that the AME Land might be the closest land to the proposed telecommunications tower, and that the effect of the proposed telecommunications tower on adjacent land is a decision guideline, however this does not, of itself, warrant disregarding the operation of the exemption.
7. Similarly, the fact that notice was given of the Permit Application by the Council, in the circumstances of this matter, does not warrant disregarding the operation of the exemption. This is because these actions do not displace the operation of the exemption that was in effect when the Council gave notice of the Permit Application; if they did, this would provide a means by which the operation of the exemption in the Scheme could be circumvented.
8. The fact that notice was given of the application for review by the applicant also does not warrant disregarding the operation of the exemption; the applicant was complying with the Tribunal's order and was able to (and has) challenged this matter in the appropriate manner, through seeking a ruling from the Tribunal on these questions.
9. As such, the answer to question 2 is 'yes'. Accordingly, I have ordered the removal of AME and Battaglia as parties to this proceeding.

1. Grounds 4 and 5 contend that the proposed telecommunications tower has the potential to impact upon the agricultural sustainability and productivity of the Keilor Market Gardens, in particular the native bees and birdlife in the area.
2. Grounds 4 and 5 are as follows:

1. Having regard to the Council's submissions, I understand that the Council includes these grounds on the basis of potential electromagnetic emission effects from the proposed telecommunications tower.
2. Broadly, the concern regarding electromagnetic emissions involves the potential impact of electromagnetic energy, referred to as 'EME', generated by the proposed telecommunications tower, and its impact on living matter.
3. EME comes from a variety of sources, including natural sources, and its potential impact depends on factors such as the source and type of EME, its proximity and the extent and duration of exposure.
4. The Australian Radiation Protection and Nuclear Safety Agency ('ARPANSA') is the Commonwealth agency responsible for protecting the health and safety of people, and the environment, from the harmful effects of radiation. This includes research, setting standards and undertaking public communication regarding EME issues associated with telecommunications facilities and devices.
5. As part of the Permit Application, the applicant prepared an Environmental EME Report[71] ('EME Report'). The EME Report provides a summary of levels of radiofrequency (RF) EME around the wireless base station (i.e. the proposed telecommunications tower).
6. The levels were calculated using methodology developed by ARPANSA, as contained in the Standard for Limiting Exposure to Radiofrequency Fields - 100 kHz to 300 GHz (2021), RPS S-1 (Rev. 1), known as the 'ARPANSA standard'. According to ARPANSA:[72]

The exposure limits set out in the Standard provide protection against all known adverse health effects from RF EME exposure and are set well below the level at which harm may occur. The limits in RPS S-1 are aligned with guidelines published in 2020 by the International Commission on Non-Ionizing Radiation Protection (ICNIRP), which is the international body recognised as leaders in non-ionising radiation protection.

1. The EME Report calculates that the maximum EME level for the proposed telecommunications tower is 2.41% out of 100% of the public exposure limit at 175 metres from the location of the tower. The calculated levels up to 500 metres are shown in the following graphic from the EME Report:

1. As can be seen, the percentages increase to a certain distance and then decrease again to 500 metres from the telecommunications tower. This is due to the way in which electromagnetic waves travel and spread out.[73]
2. Given the above, the applicant contends that the proposed telecommunications tower will produce EME levels well below the relevant ARPANSA standard.
3. In any event, the applicant seeks that:
   1. Battaglia's grounds relating to EME be struck out under s 75 of the VCAT Act; and
   2. a declaration be made under s 124(1) of the VCAT Act that grounds 4 and 5 of the Council's grounds of refusal cannot be pursued in this proceeding. With respect to this, the applicant relies on the Tribunal's approach in A1 Holdings Vic Pty Ltd v Baw Baw SC[74] in assessing the grounds in question in a similar manner as if the order was seeking a strike out but mindful that the refusal is a document that exists in fact and founds the jurisdiction of the Tribunal to bring the proceeding under s 77 of the PE Act, which the Tribunal is not empowered to change in this proceeding.[75]
4. The applicant makes this request on the basis that it says Battaglia's grounds relating to EME, and grounds 4 and 5 of the Council's grounds, are misconceived and lacking in substance.
5. As explained earlier, prior to this preliminary hearing Battaglia informed the Tribunal and the parties that they no longer pursue grounds relating to EME. In any event, given my order regarding the operation of the exemption in clause 52.19-3, Battaglia is no longer a party to this proceeding.
6. As for the Council, it has neither withdrawn grounds 4 and 5 nor stated that it will no longer pursue those grounds.
7. Rather, the Council submits:[76]

1. As can be seen, the Council's focus is on the proposal not requiring planning approval for use of the telecommunications facility.
2. The applicant's reasons for stating that these ground are misconceived and lacking in substance are twofold.
3. First, the applicant submits that those grounds relate to the use of the telecommunications facility in circumstances where planning permission is only sought (and required) for development. As such, following the Tribunal's decision in Blaser & Ors v Manningham CC ('Blaser'),[77] these grounds are not available for the Tribunal's consideration.
4. Second, the applicant relies on the rationale in Mason v Greater Geelong CC[78] ('Mason'), where Deputy President Dwyer found that grounds relating to EMEs were not relevant to the planning assessment of a telecommunications facility where the ARPANSA standard will be met. Even where the grounds were arguably planning related, they were misconceived where the ARPANSA standard will be met. The applicant submits that at that time, a use permission for a telecommunications facility was required. In Mason, Deputy President Dwyer stated:[79]

1. The applicant submits that Mason follows a line of previous cases that consistently held that EMEs are not relevant considerations in the assessment of a telecommunications facility.
2. In any event, the applicant refers to the Permit Application being well below the relevant ARPANSA standard for EMEs, with the maximum EME levels from the proposed telecommunications tower representing 2.41% of the Australian Standard.[80]

1. The applicant seeks an order that the Council cannot pursue grounds 4 and 5. The applicant's case is put not just on the basis of this being an application for development permission but also that, irrespective of the type of permission, these grounds are not relevant considerations and should not be able to be pursued.
2. Clearly, the proposal is only seeking development permission under the GWZ and clause 52.19 of the Scheme and no use permission is sought, or required, for the proposed telecommunications tower.
3. The Council's submissions do not accept that grounds 4 and 5 are irrelevant considerations in assessment of the development permissions sought. Rather, the Council acknowledges that previous Tribunal cases have found that such concerns are related to use, rather than development, and states that if the Tribunal finds that the grounds are irrelevant considerations in the present circumstances, it is open to the Tribunal to strike them out.
4. As a Red Dot decision, Mason is a leading case on this topic. However, Mason was decided some time ago and when clause 52.19 was drafted differently, including that it referred to 'A Code of Practice for Telecommunications Facilities in Victoria' ('Code'), which was also an incorporated document in the planning scheme at that time.
5. That reference to the Code in the planning scheme was removed though Amendment VC226, with the Explanatory Report explaining that this was done because the Code had not been updated 'for almost 20 years and the descriptions of technology and practices are obsolete and difficult to apply to modern telecommunications requirements.' The Explanatory Report explains that through removing reference to the Code, all decision-making information for the planning permit application is within the planning scheme.
6. The Tribunal's commentary in Mason is partly predicated upon the Code being an incorporated document in the planning scheme and that compliance with the ARPANSA standard is thus effectively incorporated within the Victorian planning framework.[81]
7. Mason states that electromagnetic radiation emitted by a telecommunications facility, of itself, is not a totally irrelevant consideration from a town planning perspective. However, Mason also clearly recognises that EME is regulated by a dedicated multi-disciplinary Commonwealth authority, and it is not the role of the Tribunal to second-guess the appropriateness of the ARPANSA standard in regulating this topic:[82]
   1. None of the above statements should be taken to mean that the electromagnetic radiation emitted by a telecommunications facility is, of itself, a totally irrelevant consideration from a town planning perspective. The spatial context of planning is to generally avoid siting incompatible uses or development together. If electromagnetic radiation was wholly unregulated, there may be an argument that a facility emitting such radiation should not be sited close to where people commonly live, work or congregate. However, emissions of electromagnetic radiation from telecommunications facilities are regulated. There is a clear regulatory standard - the ARPANSA standard - fixed by the appropriate Commonwealth authority, and recognised within the Victorian planning framework, that limits the amount of electromagnetic radiation from a telecommunications facility in order to protect and safeguard public health. If the ARPANSA standard is clearly met (as here, by an order of magnitude), VCAT cannot and should not second-guess it.
   2. VCAT has rightly stated that, if there was compelling evidence that a regulatory standard was not appropriate in a particular case, or no longer appropriate generally, then that may be matter for argument in that particular proceeding. That is certainly not the case here, nor generally at this point of time in relation to the ARPANSA standard for electromagnetic radiation, particularly given its existence under Commonwealth law and its reference and incorporation into the Victorian planning framework. Indeed, it is difficult to conceive of any circumstance under the current regulatory framework where compelling evidence contrary to the ARPANSA standard could realistically exist or be considered in a determinative way by VCAT. At [sic] things stand, compliance with the ARPANSA standard is a sufficient response to the issue.

1. Again, none of these statements should be taken to mean that electromagnetic radiation emitted by a telecommunications facility is not a legitimate issue of public concern. It is simply the situation that VCAT is essentially bound to apply the ARPANSA standard and, accordingly, VCAT is not the appropriate forum where general opposition to telecommunications facilities based on public health concerns can or should be raised.

1. Whilst I acknowledge that the Code is no longer an incorporated document in the Scheme, it does not follow that the Tribunal's comments in Mason are no longer applicable. Rather, it remains the case today that ARPANSA is the specific Commonwealth government agency dedicated to overseeing regulation of the effects of EMEs through the ARPANSA standard, along with research and advocacy in this space and the preparation of public communications. This is a technical area, and ARPANSA is the appropriate entity to oversee whether the RF EME calculated to be produced by a proposed telecommunications tower will be acceptable having regard to the general public exposure limit. In this sense, I agree with the comments in Mason that:[83]

Neither the responsible authority nor VCAT has the expertise to second-guess the ARPANSA standard, nor to impose a different standard. ...

1. I also endorse the following comments of the Tribunal in Mason regarding the Tribunal's role in, and approach to, decision-making:[84]
   1. The Tribunal has previously indicated that town planning is not a panacea for all perceived social ills, nor is the hearing of a planning matter at VCAT a forum for addressing all issues of social or community concern. It has also acknowledged that objectors often mistakenly view VCAT as a forum to express their general opposition to a proposal, and express frustration when the tribunal does not seem to have regard to issues that they consider important. However, VCAT is limited by its statutory jurisdiction. It can only decide a matter based on the actual application before it, and for the limited purpose for which a planning permit is required, and having regard to the relevant provisions and decision guidelines in the Planning and Environment Act 1987 and in the planning scheme that relate to that permit requirement. Those are the planning controls approved by the Minister for Planning and local government, and which are intended to balance competing interests in favour of net community benefit and sustainable development.
   2. The views of the community or the local council are important, but within the confines of what are the relevant and determinative planning issues in a particular case. It is not simply a matter of what certain individuals like or don't like, or what they want or don't want. Indeed, VCAT itself doesn't decide the matter according to the individual likes or dislikes of the presiding members. VCAT must objectively apply the law and the provisions of the planning scheme, as it exists, to the application before it. In doing so, VCAT relies upon relevant probative material, legal authority and logical reasoning in considering the grounds of a party in a proceeding. VCAT is not an investigative body, and cannot give great weight to unsupported assertions - particularly in relation to matters outside its own expertise or beyond the ambit of its statutory role or discretion.

1. Whilst planning permission for development of the telecommunications tower is required under the GWZ as well as clause 52.19, the assessment of the matters relating to telecommunications facilities occurs under clause 52.19. This is because that is the purpose of clause 52.19, as opposed to the purpose of the GWZ.
2. The decision guidelines in clause 52.19-5 state:

1. At the time of Mason, the first decision guideline previously referred to the principles for the design, siting, construction and operation of a telecommunications facility as set out in the Code. The second decision guideline is, in essence, the same as before. There was previously a third decision guideline that referred to the situation when specified overlays also applied to a review site.
2. Whilst the purposes of clause 52.19 that applied when Mason was decided[85] were more extensive, none directly dealt with EME and arguably the essence of the purposes remains the same.
3. Having regard to the two current decision guidelines in the context of the purpose of clause 52.19, they are directed at the appropriateness of the siting and location of the proposed facility to meet telecommunication needs and the potential amenity impact of the proposed design and siting.
4. Clause 52.19-5 also refers to the decision guidelines of clause 65. These include, along with referring to the matters set out in section 60 of the PE Act:

The effect on the environment, human health and amenity of the area.

1. Arguably, the potential EME from the proposed telecommunications tower is an effect on the environment, human health and amenity, and this, conceivably, relates to the purposes of clause 52.19.
2. Based on my review of the historic planning scheme provisions, it appears that planning permission was not required for use of land for a telecommunications facility when Mason was decided if the associated building and works met the requirements of clause 52.19.[86] It appears that the planning scheme provisions in place at that time were the same as those in place when Blaser was decided, and in Blaser it was observed that no planning permission was required for use of a telecommunications facility if the requirements of clause 52.19 are met.
3. I raise this because in Blaser, which was decided before Mason, the Tribunal found that EME relates to use of land for a telecommunications facility and not to its development for that purpose.[87] On that basis, the Tribunal in Blaser stated that EME was not before it for consideration.
4. However, in any event, the Tribunal in Blaser observed that if EME had been relevant, the Tribunal would have had regard to the ARPANSA standard, and the evidence before the Tribunal indicated that the 'anticipated emissions would be enormously below the levels in that standard'.[88] As such, the Tribunal in Blaser 'would not have considered this aspect to be a problem in any event'.[89]
5. I note that Mason was written with the benefit of the Tribunal's consideration in Blaser. Given Mason was decided after Blaser and is designated as a Red Dot decision on the basis of its discussion about this matter, to the extent the cases approach this issue differently, I prefer Mason. In in any event, I observe that both Mason and Blaser refer to the ARPANSA standard and the relevant proposal's measurement against that standard as to the appropriate gauge by which EME was assessed.
6. Notably, as extracted above, the Tribunal in Mason did not state that EME from a telecommunications facility was a totally irrelevant consideration from a town planning perspective. However, it was stated that because EME was regulated by the ARPANSA standard and because that was recognised within the Victorian planning framework (i.e. through the Code that was, at that time, an incorporated document), this will limit the amount of EME from a telecommunications facility in order to protect and safeguard public health.
7. In Mason, the Tribunal struck out the objector's grounds relating to EME for the following reason:
   1. It is thus a waste of the parties' and Tribunal resources to deal with the issue at a VCAT hearing in almost every case about a telecommunications facility. As I have said, it creates false expectations in the minds of objectors that it is a relevant determinative issue that VCAT can deal with.
   2. In this case, based on the material before me and the matters discussed above, it is therefore appropriate to strike out the objectors' grounds in this proceeding that raise issues about electromagnetic radiation and/or related public health concerns stemming from the operation of the proposed facility. These grounds are not relevant to the planning assessment of a telecommunications facility where the ARPANSA standard will be met. Even if these grounds are at least arguably planning-related, they are misconceived and lacking in substance on the facts of this case given compliance with the ARPANSA standard.

1. Having regard to all of the above, I agree with the Tribunal in Mason that it cannot reasonably be said that EME is a wholly irrelevant consideration in the assessment of a telecommunications facility and I do not think that EME is wholly irrelevant to the permission now sought under clause 52.19. However, and importantly, I agree with the Tribunal in Mason that the appropriate measure of EME from a proposed telecommunications facility is made against the ARPANSA standard, which is overseen by ARPANSA.
2. In circumstances where the proposed telecommunications tower the subject of this proceeding is calculated to produce EME that is well below the public exposure limit in the ARPANSA standard, any grounds that seek to challenge the EME impact are misconceived and lacking in substance; they are doomed to fail.
3. I am mindful of the Tribunal's comments at [23] of Mason as to whether there is compelling evidence that the ARPANSA standard is not appropriate in a particular case or no longer generally appropriate, and whether that could be a matter for argument in a particular proceeding. Notably, the Council does not specifically challenge the ARPANSA standard or its appropriateness in the circumstances. Rather, the Council submits that if the Tribunal declares that EME is an irrelevant consideration to the Permit Application, it would be open to strike out grounds 4 and 5.
4. Whilst I have not found that EME is an irrelevant consideration to the Permit Application, in circumstances where ARPANSA deals with this issue and the ARPANSA standard is more than comfortably met, I proceed as did the Tribunal in Mason and find that grounds 4 and 5 are misconceived and lacking in substance on the facts of this case given compliance with the ARPANSA standard.
5. Accordingly, pursuant to section 124(1) of the VCAT Act I declare that grounds 4 and 5 are not available to the Council in relation to the Permit Application and this proceeding and I have also made an order directing that the Council must not pursue those grounds in this proceeding.

1. For the above reasons, my answers to the questions of law are:

Question 1:

Does the exemption from notice, decision and review in Clause 52.19-3 apply to Permit Application No. P537/2024 where there is a planning permit for the use and development of a dwelling at 127 Milburn Road, within 100m of the proposed telecommunications tower:

1. If the permitted dwelling has not yet been constructed?
2. If the permitted dwelling has been partially constructed but not completed?
3. If the permitted dwelling is not yet capable of being used as a dwelling?

1. Yes.
2. As this situation does not arise on the facts of this case, I do not need to answer this question.
3. As this situation does not arise on the facts of this case, I do not need to answer this question.

Question 2:

If the answer to Questions 1a, 1b or 1c is 'yes', should the Tribunal remove the Respondents as parties to the proceeding under section 60A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic)?

Answer:

Yes.

1. Accordingly, I have made orders removing AME and Battaglia as parties to this proceeding.
2. I have also declared that grounds 4 and 5 of the Council's refusal are not available to the Council in relation to the Permit Application in this proceeding. I do so because I find that grounds 4 and 5 are misconceived and lacking in substance on the facts of this case given compliance with the ARPANSA standard. I have ordered that the Council must not pursue those grounds in this proceeding.
3. This matter will now proceed to the hearing scheduled to commence on 29 July 2026.

[1] John Demertzidis was a party to this proceeding. At his written request, John Demertzidis was removed as a party pursuant to section 60A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which was an order made orally at the preliminary hearing and perfected by the Tribunal's written order dated 13 November 2025.

[2] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[4] Minutes from Brimbank Council Meeting No. 644 on 15 April 2025.

[5] Order 3 of the Tribunal order dated 3 October 2025.

[6] Dated 6 November 2025 and 11 November 2025.

[7] Outline of submission on behalf of respondent for the preliminary hearing dated 31 October 025, [22].

[8] For example, SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, Melbourne CC v Minister for Planning (Includes Summary) (Red Dot) [2015] VCAT 370, Salnando Superannuation Pty Ltd v Brimbank CC [2025] VCAT 366, Viva Energy Australia Pty Ltd v City of Greater Geelong [2023] VSC 586.

[9] Macquarie Dictionary Definition as taken from Preliminary Hearing Submission on behalf of the Applicant dated 23 October 2025, [3.20].

[10] Preliminary Hearing Submission on Behalf of the Applicant dated 23 October 2025, [3.27].

[11] For example, clauses 35.04-1 and 35.04-5 of the Scheme.

[12] Preliminary Hearing Submission on Behalf of the Applicant dated 23 October 2025, [3.26].

[13] (Red Dot) [2020] VCAT 1124.

[14] Reply Submission on Behalf of the Applicant dated 6 November 2025, [3.18].

[15] Preliminary Hearing Submission on behalf of the Applicant dated 23 October 2025, [3.38]-[3.48].

[16] Reply Submission on Behalf of the Applicant dated 6 November 2025, [2.2.2].

[18] Reply Submission on Behalf of the Applicant dated 6 November 2025, [3.26].

[21] Preliminary Hearing Submission on Behalf of the Applicant dated 23 October 2025, [3.47].

[22] Reply Submission on Behalf of the Applicant dated 6 November 2025, [3.8].

[25] Relying on Perorad Care Pty Ltd v Frankston CC [2004] VCAT 2272 and JCDecaux Australia Pty Ltd v Melbourne CC [2023] VCAT 32.

[26] Preliminary Hearing Submission on Behalf of the Applicant dated 23 October 2025, [4.6], relying on Central Highlands Water v Ballarat City Council (No.1) [2006] VCAT 1297 and Hillview Quarries Pty Ltd v Mornington Peninsula SC [2017] VCAT 573.

[27] Preliminary Hearing Submission on Behalf of the Applicant dated 23 October 2025, [4.10].

[28] Preliminary Hearing Submission on Behalf of the Applicant dated 23 October 2025, [6.1]-[6.4].

[31] Reply Submission on Behalf of the Applicant dated 28 November 2025, [2.1]-[2.6].

[33] Reply Submission on Behalf of the Applicant dated 6 November 2025, [4.1].

[34] [2005] VCAT 243.

[35] West Valentine, [14] & [21].

[36] Submissions on Behalf of Brimbank City Council Preliminary Hearing on 13 November 2025, [13.1].

[38] For example, clause 52.32-2 and clause 54.04.

[39] Submissions on Behalf of Brimbank City Council Preliminary Hearing on 13 November 2025, [43]-[44].

[42] Submissions on Behalf of Brimbank City Council Preliminary Hearing on 13 November 2025, [48].

[45] Further Submissions on Behalf of Brimbank City Council Preliminary Hearing on 13 November 2025 dated 21 November 2025, [9].

[49] [2009] VCAT 421.

[50] Further Submissions on Behalf of Brimbank City Council Preliminary Hearing on 13 November 2025 dated 21 November 2025, [23].

[51] Submissions on behalf of Brimbank City Council Preliminary Hearing on 13 November 2025, [63].

[52] The examples relied upon were clause 52.32-2, clause 55 (including clause 55.04), clause 57 (including clause 57.04) and clause 58 (including clause 58.04).

[53] Outline of Submissions on Behalf of Respondent for the Preliminary Hearing dated 31 October 2025, [52].

[55] Further Submissions on Behalf of the Respondent dated 21 November 2025, [4].

[56] Section 69(3) of the PE Act: 'If the time is extended after the permit has expired the extension operates from the day the permit expired'.

[57] Further Submissions on Behalf of the Respondent dated 21 November 2025, [14].

[59] [2011] VCAT 690.

[60] Further Submissions on Behalf of the Respondent dated 21 November 2025, [21].

[61] Outline of Submissions on Behalf of Respondent for the Preliminary Hearing dated 31 October 2025, [57]-[58].

[63] Preliminary hearing submission by Mark Battaglia, [2].

[64] Extract taken from Submissions on Behalf of Brimbank City Council Preliminary Hearing on 13 November 2025, [16].

[66] Macquarie Dictionary online edition, Macquarie Dictionary Publishers, Pan Macmillan Australia 2026.

[67] Such as in the Table of Uses in clause 35.04-1 of the GWZ in the conditions placed upon the land uses Group accommodation and Residential building (other than Residential hotel), where reference is made to 'Agriculture', 'Natural systems', 'Outdoor recreation facility', 'Rural industry' and 'Winery'

[68] For instance, the references to 'grazing animal production' and 'accommodation' in the fourth and fifth permit triggers in clause 35.04-5 of the GWZ, respectively.

[69] For example, in addition to the clauses cited earlier that were referred to by the parties, there is also clause 52.17-7, 52.37-7, 52.06,

[70] For instance, if an older dwelling is being removed and three new dwellings are to be constructed on the site, the likely interface with those three proposed dwellings may be taken into account.

[71] Appendix 3 of Development Application for Planning Consent by Indara.

[72] https://www.arpansa.gov.au/regulation-and-licensing/regulatory-publications/radiation-protection-series/codes-and-standards/rpss-1

[73] https://www.arpansa.gov.au/research/surveys/environmental-electromagnetic-energy-reports

[74] [2025] VCAT 377.

[76] Submissions on behalf of Brimbank City Council Preliminary Hearing on 13 November 2025, [70]-[72].

[77] [2011] VCAT 732.

[78] (Includes Summary)(Red Dot) [2013] VCAT 2057.

[80] Preliminary hearing submission on behalf of the applicant dated 23 October 2025, [9.11].

[85] Having regard to the historic Scheme that applied at 10 December 2013: https://planning-schemes.app.planning.vic.gov.au/Brimbank/histories/VC099

[86] As per clause 62.01 as at 10 December 2013.