Howard v ACE Radio Broadcasters Pty Ltd
[2010] VSC 248
•9 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 7721 of 2009
| JOHN B HOWARD | Applicant |
| v | |
| ACE RADIO BROADCASTERS PTY LTD (ACN 064 882 042) and MOYNE SHIRE COUNCIL | Respondents |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2010 | |
DATE OF JUDGMENT: | 9 June 2010 | |
CASE MAY BE CITED AS: | Howard v ACE Radio Broadcasters Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 248 | |
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PLANNING – Leave sought to appeal on questions of law – Permission granted to vary permit conditions of telecommunications facility – Whether underground radials formed ‘part of the structure’ – Building and works permit not required under farming zone controls - Telecommunications facility exception in Planning Scheme – Meaning of ‘minimal impact’ in terms of amenity effects – Relevance of alternative locations – Relevance of cost considerations to community infrastructure – Imposition of conditions to avoid material impact upon amenity of area - Victorian Civil and Administrative Tribunal Act 1988, s 148 - Planning and Environment Act 1987, ss 3, 4 – Moyne Planning Scheme, cl 52.19, 62.02
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Gobbo QC with Mr D O’Brien | McKean Park Lawyers |
| For the First Respondent | Mr G Peake | Lamplugh McIntosh Lawyers |
| For the Second Respondent | No appearance | Harwood Andrews |
HIS HONOUR:
The applicant seeks leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1988 against the decision of the Tribunal constituted by a planning member made on 16 June 2009.[1] The matter before the Tribunal was somewhat unusual. ACE Radio Broadcasters Pty Ltd sought permission to vary the conditions of a permit previously granted to construct two radio transmission masts and associated buildings on farm land at Purnim. It did so after the masts had been constructed in accordance with building permit plans endorsed by the responsible authority (the Moyne Shire Council) which, it appears, did not reflect the terms of a previously granted planning permit.[2] A neighbouring landowner, Mr Howard, sought review of that decision before the Tribunal. The Tribunal rejected that appeal and directed a permit be granted. Mr Howard now seeks leave to appeal the Tribunal’s decision on questions of law.
[1]Howard v Moyne SC [2009] VCAT 1169.
[2]There is controversy as to how this came about and the extent of inconsistency and non-compliance which resulted. It is unnecessary to resolve or attempt to resolve this controversy for present purposes.
It was first submitted that the Tribunal erred in holding that the structures in issue did not require a buildings and works permit pursuant to the relevant farming zone controls. The Tribunal did so on the basis that the works satisfied minimum setback provisions contained in the zone controls. It appears to me however that there is an even more fundamental answer to this contention. Clause 62.02 of the planning scheme provides that any requirement in the scheme relating to the construction of a building or the construction or carrying out of work does not apply to buildings and works associated with a telecommunications facility if the requirements of cl 52.19 are met. It follows that the relevant control over buildings and works was that contained in cl 52.19 and it is in fact this control which relates specifically to telecommunications facilities which the Tribunal considered and applied.
For the sake of completeness I record however that I accept the contention made on behalf of Mr Howard that the underground radials which intruded into the relevant setback, did form ‘part of the structure’ of the telecommunications facility and hence were part of the building as relevantly defined.[3] Although the radials consist of copper wire and are not load bearing or structurally necessary to the above ground masts, they form an integral and necessary part of the functioning installation as a whole. Thus although the laying of a copper wire below the ground in the setback would in most circumstances not constitute the installation of part of a structure, in the present circumstances it does so.
[3]See Planning and Environment Act 1987 (‘P & E Act’) s 3; Director of Housing v Hutchinson [2003] VSC 310, 15 VPR 99.
I return then to the critical provisions of cl 52.19. The purposes of cl 52.19 are 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 telecommunications network in a manner consistent with the economic, environmental and social objectives of planning in Victoria as set out in Section 4 of the Planning and Environment Act 1987.
To encourage the provision of telecommunications facilities with minimal impact on the amenity of the area.[4]
[4]Moyne Planning Scheme.
The clause requires a permit to construct a building or carry out works for a telecommunications facility unless that facility constitutes one falling into a series of specified categories which are generally of low impact in terms of amenity effects. Clause 52.19 further provides for a site analysis with specified components to accompany the application for permit.
It was submitted that the proposal was fundamentally defective, in that it was not accompanied by a proper site analysis, and in consequence could not properly form the basis of a permit approval. The Tribunal held:
31Clause 52.19-5 sets out the relevant application requirements and lists a range of information that must accompany an application of this type. These matters include a requirement to provide a site analysis and design response explaining how the proposed facility addresses the principles for the design, siting, construction and operation of telecommunications facilities and the requirements in A Code of Practice for Telecommunications Facilities in Victoria. It is clear the original permit did not have a site analysis but the application before the Tribunal has the necessary information upon which I can base my decision.[5]
[5]Howard v Moyne SC [2009] VCAT 1169.
In my view this was a conclusion of fact open to it. Further it is plain that the Tribunal did consider and give extended consideration to the fundamental siting condition of which Mr Howard complains, ie the nature of the juxtaposition of his house with the masts upon the review site.
Clause 52.19 goes on to state the following decision guidelines:
52.19-6 Decision guidelines
Before deciding on an application, in addition to the decision guidelines of Clause 65, the responsible authority must consider, as appropriate:
· 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.
· The effect of the proposal on adjacent land.
· If the Telecommunications facility is located in an Environmental Significance Overlay, a Vegetation Protection Overlay, a Significant Landscape Overlay, a Heritage Overlay, a Design and Development Overlay or an Erosion Management Overlay, the decision guidelines in those overlays and the schedules to those overlays.[6]
[6]Moyne Planning Scheme.
The proceeding before the Tribunal was principally concerned with issues relating to the Code referred to and the effect of the proposal on Mr Howard’s land which lies across a dividing road from the review site.
The Code itself states that its purposes include to:
· Set out principles for the design siting construction and operation of a telecommunications facility which a responsible authority must consider when deciding on an application for a planning permit.
It follows both from the terms of the planning scheme and this statement in the Code itself that the matters contained in the Code are matters to which regard must be had. They are not however matters to which effect must necessarily be given. Ultimately the Tribunal’s discretion fell to be exercised taking into account a range of relevant factors bearing on the ultimate question of whether the application was appropriately permitted having regard to considerations of net community benefit and sustainable development.[7]
[7]Cf cl 11 of the planning scheme.
This ultimate issue which requires a balance of potentially conflicting objectives reflects s 4 of the P & E Act.[8]
[8]Section 4(1) of the P & E Act:
(1)The objectives of planning in Victoria are—
(a)to provide for the fair, orderly, economic and sustainable use, and development of land;
(b)to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
(c)to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;
(d)to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;
(e)to protect public utilities and other assets and enable the orderly provision and coordination of public utilities and other facilities for the benefit of the community;
(f)to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);
(g)to balance the present and future interests of all Victorians.
The purposes of cl 52.19 also themselves raise a potential for conflict. Most obviously the ‘ensuring’ of the provision of telecommunications infrastructure in an efficient and cost effective manner to meet community needs might raise potential conflict with each of the subsequent objectives.
The ultimate question for the Tribunal was thus, as it put it, whether the proposal before it resulted in an ‘acceptable outcome’ having regard to a range of factors.
The Code goes on to say (in like terms to cl 52.19) that it aims to:
· Ensure that telecommunications infrastructure and services are provided in an efficient and cost effective manner to meet community needs.
· Ensure the application of consistent provisions for telecommunications facilities.
· Encourage an effective statewide telecommunications network in a manner consistent with the economic, environmental and social objectives of planning in Victoria as set out in section 4 of the Planning and Environment Act 1987.
· Encourage the provision of telecommunications facilities with minimal impact on the amenity of the area.
In my view the first aim might make cost considerations relevant in a way which they are not in planning cases which are not concerned with the provision of community infrastructure.
Nevertheless the Tribunal proceeded on the basis that the fact the structure already exists should be disregarded. The relevant issue of law was referred to Deputy President McNamara who held, in accordance with established principle, that the Tribunal must ignore the existence of the illegal structure (save for evidentiary purposes) because to do so would otherwise reward the permit applicant for the illegal construction.[9] I shall return to this issue in due course.
[9]Howard v Moyne SC [2008] VCAT 1692, [60], [63], [72-4] as cited in Howard v Moyne SC [2009] VCAT 1169, [38].
It can also be seen that the aims of the Code repeat one of the planning scheme control objectives in seeking to ‘encourage’ the provision of telecommunications facilities with minimal impact on the amenity of the area. Once again this terminology bespeaks a goal which must be considered rather than the specification of a standard.
It is now contended on behalf of Mr Howard that the Tribunal did not correctly apply the concept of ‘minimal impact’ in forming its decision. In essence the Tribunal concluded the relevant goal would be achieved if the proposal was capable of being permitted subject to conditions which avoided material impact upon the amenity of the area. It is contended on behalf of Mr Howard that the relevant notion of minimisation necessarily involves the attainment of the least practicable external impact from a facility of this kind upon the land. In my view the Tribunal was correct in concluding that the concept of minimisation in this context requires an assessment of the substantial consequences of potential impact and not an exercise in absolute relativism, as contended on behalf of Mr Howard.
In turn it seems to me that the conclusions of the Tribunal with respect to the degree of probable impact from the proposed facility as constrained by conditions were conclusions of fact which were open to it on the evidence.
The Code goes on to provide for four principles which must be applied where relevant to the design, siting, construction, and operation of any telecommunications facility which is not exempt under Commonwealth legislation. Principle 1 is ‘a telecommunications facility should be sited to minimise visual impact.’ This statement of principle is followed by a series of dot points under the heading ‘Application of Principle’. The Tribunal concluded that none of these applied to the present case. Most pertinently it concluded that the last dot point did not apply.
· A telecommunications facility should be located so as to minimise any interruption to a significant view of a heritage place, a landscape, a streetscape, vista or panorama, whether viewed from public or private land.
It was not contested that the question of whether the proposed facility would interrupt a significant view of a vista or panorama was a matter of fact for the Tribunal. Its conclusion that there would not be such an interruption was open to it.
Principle 2 relates to the co-location of telecommunications facilities and is not relevant to the current case.
Principle 3 is that health standards for exposure to radio emissions will be met. The statement of application of principle refers to a relevant standard. Once again the application of this principle is not in issue.
Principle 4 provides that disturbance and risk relating to siting and construction should be minimised. Construction activity and site location should comply with State Environment Protection Policies and Best Practice Environmental Guidelines. The statement of application of principle sets out a series of construction considerations which are not relevant to this case.
It follows that although the underlying thrust of siting design principles endorsed by the Code might be said to assist the objector, the detailed provisions as to its application do not.
The Tribunal itself formulated the key question in the following terms:
Thus the key question for the Tribunal’s consideration is whether the location of the masts achieves the objectives of clause 52.19 and therein the code of practice whether those objectives can only be achieved by an alternate location within the planning unit or subject site. The assessment therefore includes a question of minimal impact as set out in the above provisions.[10]
[10]Howard v Moyne SC [2009] VCAT 1169, [40].
I reject the submission that this statement demonstrated an error of approach. The key question for the Tribunal was whether the location of the masts achieved the objectives of cl 52.19 and the consideration of that question was guided by the Code. I accept the submission that the use of the word ‘only’ in the phrase ‘whether those objectives can only be achieved by an alternate location’, was not the ultimate question for the Tribunal, but on the other hand it was relevant to the assessment of whether the proposal resulted in other than ‘minimal impact’. As the Tribunal stated immediately thereafter, the assessment of the case included ‘a question of minimal impact as set out in the above provisions.’
I do not accept that the reasons read as a whole demonstrated that the Tribunal assessed the proposal ‘on an assumption that the as constructed site was the priority location.’[11] Rather, as the Tribunal later said, its task was to:
… determine whether the position of the masts, irrespective of the fact that they are erected, satisfies the provisions, guidelines and requirements of the planning scheme, and the code of practice for telecommunication facilities.[12]
[11]Written submissions for Mr Howard, [45].
[12]Howard v Moyne SC [2009] VCAT 1169, [112].
Shortly beforehand the Tribunal had stated:
It is clear from the reasons above I find that on the test of ‘acceptable planning outcome’ the position outlined in the amended plan (being the as constructed position) is an acceptable planning outcome in terms of the decision guidelines, the zone requirements and the guidelines for the Code of Practice.[13]
[13]Ibid, [110].
I turn then to the more specific conclusions of the Tribunal. It was fundamentally submitted on behalf of Mr Howard that the Tribunal had misdirected itself in the way it applied the Code principle that a telecommunications facility should be sited to minimise visual impact.
The Tribunal recorded the key submission and its own response as follows:
While Mr O’Brien submitted that minimise in terms of the code of practice effectively means having ‘the least possible effect’, I do not accept that it is the correct principle to apply in these types of planning cases. There are a line of authorities from the Tribunal that affirm the principle that ‘to minimise’ does not mean to make ‘invisible’.[14]
[14]Ibid, [49].
The Tribunal’s conclusion in this respect was correct. Both the relevant purpose of the planning scheme control and of the Code itself are directed to achieving minimal impact. Minimal impact does not mean no impact. The purpose of the ‘minimisation’ referred to in the Code is to achieve minimal impact. The acceptable impact is one which is not materially adverse.
The Tribunal made the following findings of fact:
50These masts are an open web structure of approximately 400 millimetres wide with guy wires providing support. Thus they are quite slender and transparent structures. The masts, it was conceded by all, were not visible from within Mr Howard’s dwelling and were only barely visible within the immediate environs of the dwelling because of the dense vegetation around Mr Howard’s property. Within the immediate curtilage of the dwelling including the tack shed, store and stables, the masts had a varying degree of visibility depending on the vegetation provided.
51There is no question that the masts are visible when travelling along Blighs Road but such a visual impact in my view is not unacceptable within a rural landscape which often has a range of tall structures such as transmission towers & lines, wind turbines and the like, located within the rural landscape.
…
56This transparency of the structures of the masts is obvious in the photos tabled at the hearing. The masts were often difficult to pick up on the photos. On my site inspection while the masts were obvious because of the height they certainly didn’t present as a visual mass or blight on the landscape…[15]
[15]Ibid.
These findings were open to the Tribunal and formed a proper basis for its conclusion that the masts were visually acceptable.
The Tribunal went on to refer to the 209.5 metre setback of the masts from Mr Howard’s dwelling and compared that to the 100 metre separation governing (in part) the requirement for a permit to construct a building in a farming zone.
It further referred to the 1:1 setback commonly required in residential zones for buildings.
Ultimately the Tribunal concluded as follows with respect to visual impact:
While the alternate sites that is the original site, council’s NOD site, Mr Glossop’s suggested site and Mr Howard’s preferred site all have reducing visual impact on Mr Howard’s dwelling, I do not believe that a test of an acceptable planning outcome can be purely based on increased separation distances. There are a range of locations within this review site that would satisfy the minimised visual impact and visual amenity, and in my view the proposed location is one such location.[16]
[16]Ibid, [58].
In my view this conclusion was open to it as a matter of fact.
Such a judgment necessarily involves questions of fact and degree relating to the particular circumstances of the case. The decision of the Tribunal in Giddings v Greater Geelong[17] should be regarded as demonstrating this reality and not as reflecting an approach which must necessarily be applied to the present case. In the Giddings case the Tribunal held that a tower proposal some 120 metres from the objector’s dwelling should be moved a further 50 metres away. The Tribunal stated in part:
I am not satisfied that the permit applicant has sited the facility to minimise the visual impact. In any application of this sort a balance has to be achieved between the need for the facility and the associated visual impact on adjoining public and private space. It is my view that this balance will be dependant on the particular circumstances of the chosen location. I consider it appropriate that a greater opportunity is available on the subject land to minimise the visual impact on the objectors’ property without increasing the impact on any adjoining neighbour or the public realm. It is my view that when such an opportunity is available it should be taken. It seems to me that the permit applicant has acknowledged that the proposal will have a visual impact in reducing the height proposed even though this will reduce coverage to 85%.[18]
[17][2007] VCAT 2130.
[18]Ibid, [20].
In the present case the Tribunal’s discretionary decision was likewise responsive to the particular circumstances of the location.
Insofar as noise is concerned the Tribunal carefully considered the expert evidence before it and ultimately imposed a condition requiring compliance with a specified standard. In order to assist the achievement of such compliance, it also required further noise testing of the masts and potential modification of them. It ultimately concluded that it should impose a condition which required as a primary control standard:
Wind induced noise from the facility, when measured within 10 m of the dwelling at 133 Blighs Road Purnim, and corrected for tonality, must not exceed the following criteria for significant periods during the night period (10:00h to 07.00h):
Noise Criteria: Background Noise Level + 5 dBA [19]
[19]Howard v Moyne SC [2009] VCAT 1169.
The condition went on to specify measurement procedures in respect of this standard. It also provided for an initial acoustic assessment of ongoing compliance with the specified standard. It set out a detailed assessment procedure similar to the methodology adopted in part of the expert evidence before it. Insofar as the appropriateness of the basket of conditions imposed by it was concerned, it stated as follows:
78While Mr Howard complains of the condition because of uncertainty I am of the opinion that the condition does provide a mechanism of not only to record the noise generated over a three month period in the real environment, that is, with the masts in place but also sets up an assessment regime which any party can rely on or challenge or verify compliance with.
79This regime I think is a conservative approach given the fact all parties already agree that for most of the time the wind induced noise from the masts satisfy both N1 and N3 criteria.
80In my view the application of a sheath to the guy wires should assist in reducing the wind induced noise. The key question is which method outlined in Mr Peoples submission at 6.1.3 should be applied.
81Any remedial action required to achieve the condition should be undertaken within 3 months of the testing results being available and the tests repeated to ensure compliance with that condition.
82Thus I envisage the remedial measures ought to be applied prior to the first range of testing in that that testing should occur within 3 months of the issue of the amended permit.[20]
[20]Ibid.
In my view this conclusion was also open to it on the evidence.
Various criticisms were levelled at the Tribunal’s observations concerning incidental matters in its reasoning in respect of noise. I do not accept that any of these matters are capable of founding the conclusion that the Tribunal’s reasoning was other than responsive to the evidence as to noise.[21] The central conclusion of the Tribunal was that a condition could and should be fixed specifying an acceptable standard.
[21]I further specifically reject the contention that the Tribunal’s statement, that the distance required to achieve a discernible difference in noise levels of say 10 decibels would require the masts to be placed outside the leased area, is to be read as implying that the limit of the leased area was a material fact affecting the Tribunal’s decision.
The true complaint made on behalf of Mr Howard is one of fact, not law, as the written submissions made on his behalf illustrate:
67.Further, given the significant amount of evidence called on behalf of Mr Howard as to the existence of the noise problem, it is submitted there was ample opportunity for Ace Radio to have ensured that any amelioration measures were undertaken prior to the hearing of the application.
68.These unproven and untested “treatments” ought not to have been the subject of a “trial and assessment” approach as contemplated in the Tribunal’s conditions. This is particularly the case as the noise emanates from the tower structure itself, rather than any use of the tower (save for the generator building). As this noise is a development impact, the masts ought to have been sited to ensure that they did not give rise to off-site noise impacts (if this was possible) rather than attempting to resolve these matters by way of untested “use” conditions.[22]
[22]Applicant’s outline of submissions dated 28 April 2010.
Insofar as electromagnetic radiation (‘EMR’) and electromagnetic interference (‘EMI’) are concerned, the Tribunal noted that levels measured around Mr Howard’s property and at the boundary of the applicant’s property were well below appropriate standards.
Insofar as EMI issues were concerned it held that these could be further addressed by permit conditions. Once again this conclusion was open to it on the evidence.
Mr Howard also now challenges the efficacy of the conditions by reference to evidence as to subsequent events. Those events may found other proceedings, but they do not and could not demonstrate an error of law by the Tribunal at the time of its decision. The Tribunal responded to the evidence before it as it was entitled and required to do.
Specific objection was taken to a passage in its reasoning, in which the Tribunal addressed the question of the relationship between the masts and existing overhead powerlines passing over the review site to a house. Evidence was given of the cost of rectifying interference at Mr Howard’s house in a range between $7,000 and $15,000. The Tribunal referred to this evidence and went on to say:
93While the effect of interference could be reduced by positioning the masts further away that is doubling the distance halves the effect of interference both experts suggest that the installation of RF immunity filters would have a similar [effect] if not be a complete answer and resolution to the problem. Simply setting the masts further from the overhead power lines did not conclusively resolve the interference issues.
94Both experts also indicated that interference is also dependent on many other issues such as equipment used, connection to services, atmospheric conditions etc thus simply doubling the distance between the masts and the power line might not resolve all of the issues in relation to interference.
95Thus the location of the masts closer to the power lines may not of itself be a major consideration in relation to siting of the masts as other factors such as the extra costs of providing power supply to the masts and buildings would increase as a more remote location to the overhead wires was proposed. Thus the siting of the masts needs to balance the benefits [and] constraints of a position of the overhead wires.[23]
[23]Howard v Moyne SC [2009] VCAT 1169.
I do not accept that these paragraphs disclose the Tribunal took into account irrelevant considerations.
The Tribunal found that the provision of immunity filters would provide equivalent and potentially better reduction in EMI effects than would an increase in setback from Mr Howard’s house to the masts. Having found this, the Tribunal was entitled to have regard in the broad to the cost of providing the infrastructure in a more removed location, having regard to the first purpose of the zone (a purpose repeated in the Code) ie ensure that telecommunications infrastructure and services are provided in an efficient and cost effective manner to meet community needs.[24] It was entitled to form a view on the whole of the evidence before it as to whether it was reasonable to address the EMI issues by way of a condition requiring filters, rather than requiring the masts to be relocated.
[24]Cf Legal Services Commission of New South Wales v Stephens [1981] 2 NSWLR 697.
In conclusion, Mr Howard’s fundamental contention is that the Tribunal failed to properly address the question of potential alternative sites. I agree that the availability of alternative sites upon the review land is a matter which was plainly potentially relevant to the question of minimisation of impact upon the amenity. It was not however necessarily determinative of it. It was open for the Tribunal to form a view as to whether the impacts were acceptably minimal in an objective sense without relocation of the masts. In turn, whilst it was open to the Tribunal to have regard to what would be achieved by relocation of the masts, the acceptability of the proposal was not simply to be determined by asking whether, in relative terms, any impacts would be less (however marginally less) if the masts were located to another position. The Tribunal did not err in its analysis of the issues. It expressly adverted to the relevant planning controls and the objectives underlying them. It analysed the evidence before it carefully and it came to conclusions which were open to it upon that evidence. In my view leave to appeal should be refused.
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