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[2003] VCAT 968
appellant. Condition 1 (temporary permit expiring 24 September 2017 requiring removal) deleted; condition severable and the permit otherwise remains in force; the Tribunal declined to cancel the permit under...
Optus sought review of a Council-imposed condition that its relocated mobile phone tower be removed after 24 September 2017. The Tribunal held that the condition was invalid because it did not reasonably relate to the development permission and effectively sought to limit a use that is otherwise permitted as of right. The Tribunal also noted there was no expert evidence to justify imposing a precautionary time limit where the facility complied with the conservative Australian radiofrequency standard. The time-limited condition was deleted and the rest of the permit remains in force.
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2,016 words · generated 03/07/2026
Optus Mobile Ltd applied to the Victorian Civil and Administrative Tribunal (VCAT) under s80 of the Planning and Environment Act 1987 for review of a condition on Planning Permit No. 707521 issued by Whittlesea City Council (see [1]). The permit authorised construction of a telecommunications facility (a 30m tower to replace an earlier 23m tower) on Lalor Golf Course after VicRoads required relocation because of the Craigieburn By-pass (see [4]–[6]). Council had imposed Condition 1, which made the approval temporary:
1 cited instrument linked from this judgment.
"Approval has been granted for a temporary permit which shall cease on 24 September 2017. Upon expiry of the permit and unless a further permit is issued, the owner of the land shall remove any relevant development and reinstate the land." (see [2]).
Optus sought deletion of this condition. The Council had justified the time limit on two related grounds: (a) the Cooper Street Development Plan was in progress and future residential development could bring housing within about 110m of the tower (down from 360m presently), and (b) the Council adopted a precautionary approach, suggesting that in 15 years new information about health effects might require relocation (see [16]–[18]). Optus argued the condition was invalid because it attempted to constrain the "use" of the facility (telecommunications services), which in the Rural Zone is an as-of-right use subject to Clause 52.19, and because the condition was unreasonable and would undermine commercial certainty and co-location objectives (see [19]–[21]).
The Tribunal heard submissions on 15 April 2003 and gave oral reasons to delete the condition, then issued written reasons on 16 June 2003 (see [3], [27]). The Tribunal deleted Condition 1 and left the permit standing without it (see [27]).
Primary legal principles applied
Permit conditions must reasonably relate to the permission being granted and may not be used to achieve an ulterior purpose (see [22]). The Tribunal emphasised that a responsible authority cannot use a development permit as a vehicle to restrict a use that is otherwise permitted in the zone.
The Tribunal must apply existing regulatory standards as it finds them and must decide on the evidence before it; it is not the forum to create or pioneer new safety standards (see [24]). That principle was drawn from reasoning in earlier tribunal decisions and is stated emphatically in the judgment.
Where a condition is invalid but severable, the Tribunal may strike the condition and let the remainder of the permit stand; cancellation of the whole permit is not necessary if the invalid part can be severed (see [27]).
How principles applied to the facts
Nature of the permission: The Tribunal treated the building and works (the tower) as the development authorised by the permit and distinguished that from the "use" of telecommunications services. In the Rural Zone, telecommunications facilities are a use where buildings and works require permission under Clause 52.19, but the use itself is otherwise permitted in the zone. The Council, by imposing a time limit on the permit, effectively sought to limit ongoing provision of telecommunications services, an "ulterior purpose" not properly achieved by a development permit condition (see [7], [14], [22]).
Evidence on health risks: The Tribunal noted there was no expert evidence presented to show the facility posed a health risk or that the existing Australian Standard AS/NZS 2772.1:1999 was inadequate. Both parties agreed the proposal complied with that standard, and the Tribunal accepted the standard was conservative by world standards (see [14], [25], [26]). The Tribunal relied on the principle that it applies the regulatory standards as it finds them and will not extend regulatory precautions in the absence of credible, focussed evidence (see [24]).
Precedential and policy considerations: The Tribunal was concerned that accepting time-limited conditions of this type would undermine industry certainty, frustrate co-location objectives, and set an undesirable precedent inconsistent with State Planning Policy Framework objectives for telecommunications (see [26]).
Conclusion: Because the condition did not reasonably relate to the development permission, was not supported by evidential findings that challenged current standards, and would set an undesirable precedent undermining certainty, the Tribunal deleted Condition 1 and severed it from the permit (see [22], [26]–[27]).
Before this decision
VCAT and its predecessor bodies have long applied the principle that permit conditions must be connected to the development authorised and must be reasonable. Authorities referenced by the Tribunal (Pyx Granite, 271 William Street, Protean, Challister) establish the general limitations on permit conditions and the requirement that conditions serve the purposes of the permit rather than extraneous objectives (see [20]). The tribunal decision in Hutchison Telecommunications v Maribyrnong City Council had also considered the reasonableness of time-limit conditions in telecommunications planning and found time limits could be unreasonable in that context (see [21]).
After this decision
VCAT's written reasons in Optus v Whittlesea reinforce and apply these existing principles specifically to telecommunications facilities: a responsible authority should not, by development condition, attempt to impose temporal limits on infrastructure where the use is otherwise permitted and where the facility complies with recognised standards and there is no cogent evidence of a need for precautionary measures. The decision reinforces that health and safety concerns may be relevant only when the Tribunal is presented with credible, expert evidence showing non-compliance or risk. It also emphasises the severance approach as a pragmatic remedy when a condition is invalid.
In practice, the decision strengthens certainty for telecommunications providers that complying with the Code of Practice and Australian standards will generally protect them from ad hoc time-limited conditions designed to address potential future residential encroachment or speculative health concerns.
Selected passages and translations with paragraph references.
Paragraph 2 (condition text): "Approval has been granted for a temporary permit which shall cease on 24 September 2017...", This is the exact wording of the contested condition; it required removal of the facility on a fixed future date.
Paragraph 22: "A permit condition that does not reasonably relate to the permission being granted is invalid.", Plain English: Conditions must be about the thing the permit authorises; you cannot use a condition to achieve something the permit is not meant to do.
Paragraph 24: "First, the Tribunal is obliged to apply the relevant regulatory standards as it finds them not to pioneer standards of its own. Second, the decisions of the Tribunal must be made on the evidence available to it.", Plain English: The Tribunal must follow the current rules and rely on evidence put to it; it cannot make new health rules or act on speculation.
Paragraph 25: "all parties acknowledged that the proposed development is sited in accordance with the relevant Australian standard", Plain English: The tower meets the accepted safety and technical standards that govern radio emissions; there was no expert evidence proving otherwise.
Paragraph 26: "placing a time limit of this nature on such a permit would set an undesirable precedent - undermining the certainty which this industry requires.", Plain English: If Councils start putting short expiry dates on all these permits, it makes it hard for telecom companies to plan and for planning policy to be effective.
Paragraph 27: "Accordingly I find it appropriate to direct the deletion of Condition 1 ... the permit can stand without the condition", Plain English: The Tribunal removed the bad condition and left the rest of the permit intact.
This decision will be most relevant where the following factual constellation exists:
A development permit authorises buildings and works for telecommunications infrastructure in a zone where the use of telecommunications facilities is otherwise permitted or contemplated under planning controls (see [7], [14]).
The responsible authority imposes a time-limited condition requiring removal of the structure after a fixed period, premised on potential future changes (e.g. prospective residential development, uncertain future scientific findings about health effects) rather than present regulatory non-compliance (see [17]–[18], [22]).
The applicant demonstrates (or the parties agree) that the proposed facility complies with relevant national or state regulatory standards (AS/NZS 2772.1:1999 was accepted in this case) and there is no persuasive expert evidence showing current harm or standard inadequacy (see [14], [25]).
The condition, if upheld, would frustrate the commercial life, co-location objectives, or operational certainty of the telecommunications provider (see [19], [26]).
When these factors are present, the Tribunal's reasoning supports deletion of time-limited removal conditions as outside power or unreasonable.
This decision is a VCAT Planning and Environment List decision by a Senior Member and therefore persuasive within the Tribunal's ecosystem, especially on similar factual matters in Victoria. The judgment expressly referenced and aligned with earlier tribunal decisions such as Hutchison Telecommunications v Maribyrnong City Council which had found time limits unreasonable in the telecommunications planning context (see [21]). The decision reinforces a line of tribunal authority that: (a) conditions must be reasonably related to the development; (b) health concerns require expert evidence and established standards; and (c) cancellation of a permit is unnecessary where an invalid condition is severable.
Practitioners should treat Optus v Whittlesea as a strong Tribunal-level authority in Victoria against the imposition of precautionary time-limited permit conditions for telecommunications facilities where the facility meets recognised standards and no evidential basis is put before the Tribunal to justify restriction.
Note: This deep dive does not attempt to catalogue every later decision citing Optus v Whittlesea. Users should search subsequent VCAT and court decisions to identify how higher courts or other members have referred to or distinguished this decision in later adjudications.
Strength of evidence required to depart from standards: The Tribunal emphasised that it must apply existing regulatory standards and decide on the evidence before it (see [24]). However, the decision does not set a precise threshold for the quality or quantity of expert evidence required to justify imposition of precautionary conditions. Future cases may clarify what level of scientific or technical evidence will permit a departure from established standards.
Interaction with rezoning or infrastructure timing: The Council relied partly on the prospect of future rezoning and future provision of sewer infrastructure delaying residential development (see [17]). The judgment treats such future planning changes as insufficient to justify time-limited conditions absent evidence of present non-compliance. Nevertheless, questions remain about how imminent and concrete future land-use changes must be before they can justify different planning controls or permit conditions.
Limits on severance when conditions are interdependent: The Tribunal found Condition 1 severable (see [27]). In other cases where a time limit is a core feature of the permit grant or linked to other permit terms, severance may be harder. The judgment does not fully explore tests for severance complexity in circumstances where conditions are interlinked.
Application beyond telecommunications: The decision is squarely about telecommunications infrastructure, a use governed by Clause 52.19, the Code of Practice, and an overarching policy promoting certainty and co-location (see [8], [13]–[14], [26]). Whether the same approach applies with equal force to other potentially hazardous or contested land uses where the planning scheme does not treat the use as 'as of right' remains a live issue.
Role of precautionary principle in planning decisions: The judgment acknowledges the precautionary principle conceptually (see [18]) but confines its practical application where established standards are met and no evidential basis exists. The precise circumstances in which precaution will justify time-limited or conditional permissions in planning law continue to be an area for legal development.
Practical takeaway for practitioners: When defending or opposing time-limited removal conditions on telecommunications development permits in Victoria, focus on (a) whether the use is otherwise permitted in the zone, (b) whether the proposal complies with relevant Australian standards, (c) whether there is credible expert evidence establishing a current or imminent risk that would justify departure from standards, and (d) the potential impact on industry certainty and co-location objectives. The Tribunal's reasoning in Optus v Whittlesea squarely supports deletion of ad hoc precautionary expiry conditions lacking evidential underpinning (see [22]–[27]).
Application under Section 80 of the Planning and Environment Act 1987 for review of a condition on a permit issued under Clause 51.19-2 of the Whittlesea Planning Scheme to construct buildings and works for a telecommunications facility; Rural Zone; Design and Development Overlay - Schedule 2 Hume Freeway - Metropolitan Ring Road to north of Craigieburn; Conditions on a development permit requiring development to be removed after 15 years not valid; Condition is unreasonable and would set an undesirable precedent; Possible future changes in knowledge about health effects is dealt with under other legislation.
1. This was an application under Section 80 of the Planning and Environment Act 1987 (the Act) to review a condition in Planning Permit 707521 issued by Whittlesea City Council on 24 September 2002 (the permit). The permit granted permission for the development of a telecommunications facility at 50 Gillwell Road, Lalor.
"Approval has been granted for a temporary permit which shall cease on 24 September 2017. Upon expiry of the permit and unless a further permit is issued, the owner of the land shall remove any relevant development and reinstate the land".
3. The hearing of this application took place on 15 April 2003 and at the conclusion of the hearing the Tribunal gave oral reasons for its decision to delete the condition from the permit. The Tribunal gave a brief written summary of its reasons along with its written order however the applicant for review has sought written reasons pursuant to Section 117 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
4. On 1 June 1999 the Responsible Authority issued a planning permit for a "mobile telephone base station". The facility comprised a 23m high tower with attached antenna and was subsequently erected at the south-west corner of the Lalor Golf Course.
5. After the tower had been erected VicRoads advised Optus that with the construction of the Craigieburn By-pass the tower would need to be relocated. At the time of the tower's construction and of the permit being granted the final alignment of the by-pass was unknown. The Tribunal was advised that VicRoads sought to enter into an agreement for relocation of the tower to the east side of the freeway, still within the golf course land. The subject application seeks approval for the tower's relocation approximately 40m to the east of its original site and VicRoads has no objection to this new location.
6. The application for permit was lodged with the Responsible Authority in May 2002. The application seeks permission for a 30m high tower and the Tribunal was advised that the increase in height is sought in order that Orange and Vodafone may co-locate on the pole.
7. The subject land is zoned Rural under the Whittlesea Planning Scheme. Within this zone a telecommunications facility is a use for which no permit is required provided "buildings and works must meet the requirements of Clause 52.19".
8. Clause 52.19 refers to telecommunications facilities and the stated purpose of this particular provision is as follows:
"To ensure that telecommunications infrastructure and services are provided in an efficient and cost effective manner to meet community needs.
To ensure the application of consistent provisions for telecommunications facilities.
To encourage an effective statewide communications network in a manner consistent with the economic, environmental and social objectives of planning in Victoria as set out in Section 4 of the Planning and Environment Act 1987.
To encourage the provision of telecommunication facilities with minimal impact on the amenity of the area."
9. Pursuant to Clause 52.19-2 a permit is required to construct a building or to construct or carry out works for a telecommunications facility. There are various exemptions from the need for a permit however the parties to this application agreed that the proposed tower is not so exempt.
10. Clause 52.19-4 provides that applications to construct buildings and works for a telecommunications facility are exempt from the notice requirements and review rights of the Act unless the facility is a telecommunications tower - which is the case here - or the land is located within, among other things, a Design and Development Overlay. The subject land is affected by Design and Development Overlay Schedule 2 which refers to the Hume Freeway and Metropolitan Ring Road to the north of Craigieburn. The objective of this overlay is to minimise the impact of traffic noise on noise sensitive activities and a telecommunications facility is not listed as one of the uses referred to as noise sensitive uses. The application for permit was however advertised and two objections were received. The grounds for objection were summarised in the officer's report to Council as follows:
"The proposal will pose a risk to local residents' health."
11. Clause 65 of the Planning Scheme sets out decision guidelines which a Responsible Authority and this Tribunal on review must consider, as appropriate, before deciding on an application for permit. This clause commences with the following relevant statement:
"Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause."
12. The matters relevant to this application are:
* The purpose of the zone, overlay or other provision.
* Any matter required to be considered in the zone, overlay or other provision.
13. The decision guidelines at Clause 52.19-6 which must be considered when deciding about applications for the construction of telecommunications facilities are:
"* The principles for the design, siting, construction and operation of a telecommunications facility set out in A Code of Practice for Telecommunications Facilities in Victoria.
* If the telecommunications facility is located in ... a Design and Development Overlay ..., the decision guidelines in those overlays and the schedules to those overlays."
14. As already noted the Design and Development Overlay is not relevant here. The Code of Practice at Part 4 sets out principles for the design, siting, construction and operation of telecommunications facilities which are to be "applied where relevant to the design, siting and construction and operation of any telecommunications facility which is not exempt under Commonwealth legislation". In the subject case the proposed development is not exempt. Principle 1 refers to telecommunications facilities being sited to minimise visual impact. Principle 2 refers to telecommunications facilities being co-located wherever practical. Principle 3 refers to health standards for exposure to radio emissions being required to be met and in this regard the stated application of principle is:
"* A telecommunications facility must be designed and installed so that the maximum human exposure levels to radio frequency emissions comply with Australian Standard AS/NZS 2772.1:1999."
The parties agreed that the location and design of the proposed tower complied with this standard.
15. The final principle, refers to minimising disturbance and risk relating to siting and construction of such facilities, such as ensuring that soil erosion is minimised, that construction is carried out in a safe and effective manner in accordance with occupational health and safety requirements and that disturbance to flora and fauna is minimised during construction and vegetation replaced to the satisfaction of the Responsible Authority at the conclusion of work. There was no issue in relation to this principle.
16. The principal issue in this application is whether a condition requiring removal of this facility after September 2017, unless a new permit issues, is a reasonable imposition to place upon a development permit of this type. It was submitted by Mr Sucic that the Lalor Golf Course land - which is to be split in two by the Craigieburn By-pass - is located at the periphery of what is referred to as the Cooper Street Development Area.
17. The Tribunal was advised that the Cooper Street Development Plan is in the process of being prepared and recent advice confirms that the proposed telecommunications facility would be located approximately 110m to the west of a future residential area to be developed as part an adjunct to the Cooper Street Development Plan process. The development area is primarily to be developed for high quality industrial and office development but at its edges, or on its borders, residential and active recreation and open space areas are also thought to be likely. However, as Mr Sucic admitted, this area would be withheld from any rezoning from rural to urban, such as Residential 1 until sewer infrastructure was available. In Mr Sucic's submission, this could take anywhere between 7 and 20 years. It was for this reason that the officer's report to Council suggested that approval of this facility should be for an interim period of 15 years. As noted in the officer's report to Council:
"At the conclusion of this period new information may be available about the health effects (if any) of living in proximity to a telecommunications facility. It may then be necessary to relocate the facility northwards to a position within an industrial area that will be developed as part of the Cooper Street Development Plan."
18. Mr Sucic did not rely on the possible visual impact in the event of future residential development but rather on the need to consider health impacts, should residential development come to within 110m of this tower compared to 360m at present. In Mr Sucic's submission the Council was adopting a precautionary principle. The precautionary principle is that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. What Mr Sucic appeared to be suggesting was that if the present level of scientific knowledge of the health effects was to change, a measure that could be applied to allow for the results of future scientific research to be taken into consideration would be to provide for the permit to expire after 15 years.
19. Ms Johns submitted that the permit applicant sought the deletion of the condition because:
"1) It will have a lease for 20 years with the landowner, but not certainty that it will have planning approval for the facility for the term;
2) It requires the facility to meet coverage objectives. If required to remove the facility, it will not be able to do so, meaning that it will not be able to service its customers;
3) It has invested substantial capital in this infrastructure (about $250,000 plus cost of equipment). The infrastructure has an expected lifetime of not less than 20 years. It is not economic to limit its life to 15 years;
4) It creates uncertainty with respect to future provision of this infrastructure;
5) A limit on the life of the structure limits options for collocation by other carriers. (This is contrary to planning policy which aims for collocation to limit the amount of new physical infrastructure.);
6) There is no valid reason for the imposition of the condition."
20. In Ms Johns' submission a permit condition requiring buildings and works to be removed at some time in the future in order to facilitate a review of the health effects of a facility when the use in this case is "as of right" is invalid. She contended that the condition did not reasonably relate to the permission being granted and was instead being imposed for an ulterior purpose. She also submitted that it was invalid for being unreasonable in the circumstances. In support of her submission she referred me to a number of well known decisions of the Tribunal and its predecessors in relation to the validity of conditions notably, Pyx Granite v Minister for Housing and Local Government (1998) 1 QB 554, 271 William Street v City of Melbourne [1975] VicRp 15; (1975) VR 156 and Protean Holdings Limited v EPA [1977] VicRp 5; (1977) VR 51. In addition, and in relation to the validity of a condition relating to use or operation within a development permit, she referred me to Challister Limited v City of Caulfield (1992) 8 AATR, 22. The Tribunal in that case held that a condition constraining use contained in a development permit depended for validity on being reasonably related to the development. In the subject case it is not the tower structure that has the impact challenged by the Responsible Authority. Rather it is the operation of the tower, that is to say its use as part of a telecommunications system.
21. A further decision of the Tribunal referred to by Ms Johns was that of Hutchison Telecommunications v Maribyrnong City Council (P51461/2001) a decision handed down in May 2002. The Tribunal, which included a legally qualified member, found that a time limit condition would be unreasonable and would lead to uncertainty which would be contrary to the State Planning Policy for Telecommunications at Clause 18.13 which has as its objective:
"To recognise the importance of telecommunications to all aspects of modern life and the essential and beneficial contribution of modern telecommunications facilities to local communities and the State and national economy."
22. I agree with Ms Johns that as a general principle it is inappropriate to include a condition relating to use on a development permit. Once a development is constructed the permit in effect cases to have effect. That is to say it is spent. It could not for example be cancelled under Section 87 of the Planning and Environment Act as once authorised and lawfully completed it cannot be unauthorised. In support of this proposition I note also that in Section 62(2)(c) of the Act reference is made to permits for limited time periods but the reference is to permits for a "use" for a limited time not for "development". In the subject case the use is as of right. It is not subject to the requirement of a planning permit. To seek to place a limitation on the operation of this "use", using the vehicle of a development permit, is tantamount to using the permit condition to achieve an ulterior purpose, namely to limit the use, which is as of right. It is not open for a responsible authority to use a permit to achieve an ulterior purpose, however worthy that purpose may seem to be. A permit condition that does not reasonably relate to the permission being granted is invalid.
23. Even if I was to be wrong in relation to the inappropriateness of placing a time limit of this nature on a permit of this type I would have found in any case that such a condition was unreasonable and unnecessary in the circumstances.
24. If the Council's concern is about health impacts then this is not properly a matter for this Tribunal to decide. This has been found to be the case by other divisions of the Tribunal, notably in R. Hyett v Shire of Corangamite (Appeal No. 1999/11208) where the Tribunal comprised Justice M. Kellam, President and Member I. Marsden. In response to concerns expressed by the appellant in relation to the biological effects of non-thermal RFR, as experienced within 300m of mobile phone towers, the Tribunal, while accepting that the gentleman's beliefs were sincerely held, made the following two observations:
"First, the Tribunal is obliged to apply the relevant regulatory standards as it finds them not to pioneer standards of its own. The creation of new standards is a matter for other authorities. Second, the decisions of the Tribunal must be made on the evidence available to it. In this case we have the evidence of a highly qualified expert witness whose material must be weighed against a number of unsubstantiated assertions advanced by Mr Hyett." (emphasis added)
25. In the subject proceeding I was not provided with any expert evidence. However, all parties acknowledged that the proposed development is sited in accordance with the relevant Australian standard and that under this standard even if residential development were to be within 110m of the tower the standard would still be met. Furthermore, it was agreed by both parties that the Australian standard is very conservative by world standards.
26. On a final note I also accept that placing a time limit of this nature on such a permit would set an undesirable precedent - undermining the certainty which this industry requires. This need for certainty is clearly emphasised in the State Planning Policy Framework and by the fact that no planning scheme in Victoria may prohibit the use of land for a telecommunications facility in any zone. The Code of Practice principles mentioned earlier are also directed towards the achievement of certainty. It provides for facilities to be designed and installed to comply with the Australian Standard AS/NZS 2772.1:1999 is met and this development meets that standard both now and in the event of residential development coming to within 110m. I was provided with no evidence to suggest that the Australian Standard is not well founded. Indeed to the contrary, it was agreed that by world standards it is conservative. That is to say, it is more precautionary than most.
27. Accordingly I find it appropriate to direct the deletion of Condition 1 and being also of the opinion that this condition is severable from the permit, that is to say that the permit can stand without the condition, I find no reason to exercise the power vested in the Tribunal at Section 85(1)(g) of cancelling a permit in the event of it being found to be beyond power.
Optus Mobile Ltd
Whittlesea CC [2003] VCAT 968
Condition 1 (temporary permit expiring 24 September 2017 requiring removal) deleted; condition severable and the permit otherwise remains in force; the Tribunal declined to cancel the permit under s85(1)(g) (see [27]).