Aurecon Australia Pty Ltd and Shire Of Waroona
[2012] WASAT 179
•27 AUGUST 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: AURECON AUSTRALIA PTY LTD and SHIRE OF WAROONA [2012] WASAT 179
MEMBER: MR R EASTON (SENIOR SESSIONAL MEMBER)
HEARD: 11 AND 28 JUNE 2012
DELIVERED : 27 AUGUST 2012
FILE NO/S: DR 99 of 2012
BETWEEN: AURECON AUSTRALIA PTY LTD
Applicant
AND
SHIRE OF WAROONA
Respondent
Catchwords:
Town planning Development approval Building height Height of water tower Telecommunications infrastructure Adverse impact of infrastructure on visual amenity Balance between amenity requirements and community need for telecommunication facilities Possibility of other available sites not determinative of the matter No necessity for landscaping
Legislation:
Planning and Development Act 2005 (WA), s 252(1)
Shire of Waroona Town Planning Scheme No 7, cl 4.2.5, cl 4.13.1, cl 6.1.1, cl 6.1.2, cl 6.12.1, cl 8.2
Result:
Application for review allowed
Decision under review set aside and there is substituted a planning approval subject to conditions
Category: B
Representation:
Counsel:
Applicant: Mr J Gajic (Acting as Agent)
Respondent: Ms A Butterworth (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Allerding & Associates (Planning Consultants)
Case(s) referred to in decision(s):
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238
Telstra Corporation and City of Wanneroo [2011] WASAT 77
Telstra Corporation Limited v Yarra Ranges SC [2009] VCAT 2441
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review was lodged against a decision of the Shire of Waroona to not approve the development of telecommunications infrastructure on a water tower site within the Preston Beach townsite at No 28 (Lot 356) Beachcast Close, Preston Beach.
In undertaking this review, the Tribunal had the benefit of an onsite view of the subject land and surrounding locality, and considered the arguments of the parties within the context of the planning framework.
The issues under review were whether the proposed development would be consistent with the intent and objectives of the relevant zoning, and whether approval of the development would be consistent with both State and local planning policy dealing with telecommunications infrastructure. The issue of whether the proposed facility would have an impact on amenity was also argued, as was the issue of whether there was a capacity for the infrastructure to be located elsewhere, either within or outside the Preston Beach townsite.
The Tribunal found that the proposed development would be consistent with the intent and objectives of the current zoning, and with both State and local policy on telecommunications infrastructure.
The Tribunal also found that the overall impact of the tower on the visual amenity of the locality would not be significantly adverse to outweigh the increased reliability of the telecommunication services that would be provided, and that the possible availability of other sites was not determinative of the matter.
The application for review was therefore allowed and the decision under review set aside.
The following are the reasons given orally at the hearing and edited in minor respects from the transcript to add clarity.
Introduction
This matter is an application by Aurecon Australia Pty Ltd (Aurecon or applicant) where, under s 252(1) of the Planning and Development Act 2005 (WA) (Shire or respondent), there is a right of review against the decision of the Shire of Waroona made on 14 February 2012 to not approve the development application for telecommunications infrastructure at No 28 (Lot 356) Beachcast Close, Preston Beach.
On Thursday 7 June 2012, the Tribunal had the benefit of a viewing of the site and locality in the company of the parties.
At the hearing on 11 June 2012, it was accepted that, although Aurecon had not submitted any witness statements, various planning statements and arguments written by Mr Gajic, a qualified town planner, were contained within the documents admitted as exhibits. However, it became apparent that, although Aurecon's planning evidence referred to various technical elements, there was no expert evidence to support the technical arguments and no expert to answer questions from the Shire and the Tribunal. At the completion of planning evidence, the hearing was adjourned to enable the submission of expert evidence on relevant technical aspects of the matter before the Tribunal.
In early 2010, Aurecon sought approval to build the proposed telecommunications infrastructure on a site within the Preston Beach Golf Club. That application was refused by the Shire at its meeting on 22 June 2010. The applicant made a new application to the Shire in November 2011. This new application relocated the proposal to a water tower site within the townsite at No 28 (Lot 356) Beachcast Close, Preston Beach.
The application was considered by the Shire at its meeting in December 2011, where it resolved to:
a)Determine that the proposed use may be consistent with the objectives of the Urban 9 - Preston Beach zone as stated in section 4.13.1 of Town Planning Scheme No 7.
b)Advertise the application following the 'SA' procedures in accordance with clause 8.2 of Town Planning Scheme 7.
After advertising closed, a new report was prepared by the Shire's planning department recommending conditional approval. At its meeting on 14 February 2012, the respondent resolved not to adopt the recommendation for approval. There were no reasons provided for the decision. On 15 May 2012, in a separate document filed at the same time as the respondent's statement of issues, facts and contentions, the respondent submitted a document titled 'Statement of Reasons', which read as follows:
The application for Telecommunications Infrastructure over Lot 356 (No 28) Beachcast Close, Preston Beach was considered by Council, at its meeting of 14 February 2012, whereby a motion was moved to adopt the Officer Recommendation. That motion to approve the application was lost. An alternative motion was not put to Council.
Correspondence from the Shire to the applicant, dated 27 February 2012, advised the applicant that the application was not approved. The correspondence, in regard to the council meeting, states:
… In this regard you are referred to the submissions received against the application, raising various concerns about the proposal including amenity and risks to public health. …
The subject land and surrounding locality
The subject land is currently used by the Water Corporation as the site for a large water tank, which appears to be the source of the town's water supply. The water tank is 5 metres high and the site is located on top of the highest sand dune in the townsite.
The site has an area of 2,509 square metres. Approximately 800 square metres of the site area is in the form of an 11.8 metre wide battleaxe leg over 70 metres long, which rises approximately 15 metres to provide steep access to the top of the hill from Beachcast Close.
The top of the site is levelled and dominated by the water tank with an approximate diameter of 25 metres. North of the water tank, the site contains a cleared level area where it is proposed to locate the telecommunications infrastructure in the form of a 15 metre high tower with a maximum diameter of 0.7 metres, and a 3 metre high equipment shelter with an area of 7 square metres. The area of the site proposed to be leased to Telstra Corporation Limited is 66 square metres.
Immediately north of the proposed location of the infrastructure, the sand dune drops steeply and there is limited vegetation at the top of the slope. There is slightly more vegetation immediately east of the proposed infrastructure. The height and depth of the vegetation increases to the west and south, and assists in screening the water tank.
Apart from the first 50 metres of the battleaxe leg, the site is surrounded by a reserve.
The respondent submitted an aerial photograph plan of the site and immediate locality as part of Ms Butterworth's witness statement.
The nearest residence (adjoining the battleaxe leg) is 68 metres immediately south of the proposed infrastructure. The water tank and the hill will screen all of the infrastructure, apart from, possibly, the top of the proposed tower.
The next nearest residence, also adjoining the battleaxe leg, is that of Ms Jan Hortle, one of the witnesses. Her residence, although south of the site, is slightly east, and the water tank and vegetation will not provide complete screening. It is likely that a portion of the tower will be visible from various parts of the residence and property.
The next nearest residence is immediately east and 76 metres from the proposed infrastructure. Here, the sand dune slopes down steeply to Panorama Drive. The residence is on the other side of the road and approximately 20 metres below the proposed infrastructure. There is vegetation providing some screening and, although the shelter may be screened, a substantial portion of the tower will be visible.
The closest residence to the north is 105 metres away. The vegetation will provide limited to no screening. This residence currently has a view of the water tower.
There are no residences to the west. A golf course adjoins the reserve on the west side of the site.
Preston Beach is a small coastal town with a very small commercial centre. It is separated from the ocean by a wide coastal reserve. There is a golf course which meanders around the townsite. Immediately east of the townsite is the Yalgorup National Park, which contains Lake Preston. From the evidence of the parties, together with the site and locality viewing, it is apparent that the residences north, east and south of the review site are likely to be orientated to take advantage of the views to the east over Lake Preston.
Planning framework
The site is zoned 'Urban 9 Preston Beach' under the Shire of Waroona Town Planning Scheme No 7 (TPS 7).
Table 1 Zoning Table of TPS 7 does not provide a use class of telecommunications infrastructure. Clause 4.2.5 of TPS 7 identifies that if a use:
… is not specifically mentioned in the Zoning Table and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category the Council may
(a)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(b)determine that the use may be consistent with the objectives of the particular zone and thereafter follow the 'SA' procedures of clause 8.2 in considering an application for planning approval; or
(c)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
Clause 4.13.1 of TPS 7 outlines the objectives of the zone as follows:
Council's objective is to ensure that the Preston Beach Townsite develops for residential, holiday accommodation and recreational uses in a manner consistent with protection of the environment and landscape of the area.
The respondent determined that the proposal may be consistent with the objectives of the Preston Beach zone and advertised the proposal.
It is worth noting that development approval is required by cl 6.1.1 of TPS 7, because the proposal is not exempt under any of the provisions of cl 6.1.2. The applicant did not disagree with the need for development approval.
Clause 6.12.1 of TPS 7 addresses building heights within the Preston Beach zone as follows:
Unless otherwise approved, no building shall be erected with the apex of the roof, exclusive of masts, aerials or the like, exceeding 9 metres in height above natural ground level, except on 'Urban 9 Preston Beach' Zoned land, where, unless otherwise approved, no building shall be erected with the apex of the roof, exclusive of masts, aerials or the like, exceeding 7.5 metres in height above natural ground level.
The Shire has adopted a relevant local planning policy under the provisions of TPS 7. The policy, adopted in 2008, is Local Planning Policy 19 Telecommunications Infrastructure (LPP 19).
Also relevant is the Western Australian Planning Commission's Statement of Planning Policy 5.2 Telecommunications Infrastructure, (SPP 5.2)
In the Introduction to SPP 5.2, the following significant statements are made:
The importance of telecommunications services in Western Australia is recognised in the Western Australian Planning Commission's State Planning Strategy (1997), which advocates the provision of an effective statewide telecommunications network in a manner consistent with the State's economic, environmental and social planning objectives.
Modern telecommunications are an essential and beneficial element in the life of communities and in the State and national economy. New communications technology is rapidly advancing and being developed to meet the growing demand for better communication at home, in business, health and welfare and in public services. For opportunities and benefits to be realised it is important that appropriate and adequate telecommunications infrastructure is provided and that it is available to all on a costcompetitive basis.
The expansion and installation of telecommunications networks usually involves the physical development of land and/or alteration to the appearance of buildings or structures, which may have impacts on the character and amenity of local environments. It is important therefore that planning policies ensure that facilities are designed and installed in a manner that protects the visual character and amenity of local areas. It is also desirable that they provide for the effective and efficient rollout of networks and avoid lengthy and litigious approval procedures.
LPP 19, in many ways, is the same as SPP 5.2. The formatting and organisation are different and, for example, SPP 5.2 may use the word 'State' when LPP 19 uses the words 'local' or 'Shire', but the key components are close to identical in both policies.
LPP 19 does not have the various introductory sections of SPP 5.2 and commences with 'Objectives'. The six objectives in LPP 19 are the same as the six objectives in SPP 5.2.
Section 5 of SPP 5.2 lists 15 guiding principles for the location, including siting and design of telecommunications infrastructure. These 15 guiding principles are repeated in LPP 19 under the heading 'Policy'.
LPP 19 describes nine matters to be considered when determining planning applications. The first eight matters are the same (except for reference to Shire rather than State) as the matters to be considered in s 5.2 of SPP 5.2. The ninth matter in LPP 19 is adherence to the guiding principles in SPP 5.2.
Relevant sections of these policies will be discussed later in these reasons.
Issues
The parties submitted a list of five issues. The second issue referred to LPP 19, and the third issue dealt with SPP 5.2. As there were no significant differences between these policies, the Tribunal advised the parties before the hearing that it would consider both policies as one issue.
Therefore the issues to be determined in this matter are:
1)Whether approval of the development would be consistent with the intent and objectives of the 'Urban 9 Preston Beach' zone.
2)Whether approval of the development complies with LPP 19 and SPP 5.2.
3)Whether the proposed facility will have an adverse impact on amenity.
4)Whether there is the capacity for the telecommunications infrastructure to be located elsewhere and achieve the technical objectives.
I will deal with each of the issues in turn.
The Tribunal will now proceed to the first issue.
Issue 1: whether approval of the development would be consistent with the intent and objectives of the 'Urban 9 Preston Beach' zone
Ms Amanda Butterworth, an expert town planner, appeared as counsel and as a witness for the respondent. Ms Butterworth argued that:
… the proposed development does not meet the overall objectives of [cl] 4.13.1 of TPS 7 … [because] the proposed structure is … not consistent with the character and intent of the zone and is not of a scale which is appropriate to the area by virtue of the nature of the … structure given its height, especially given the height is exacerbated by locating the tower on the crest of the hill, being the highest point in the locality.
The significance of Ms Butterworth's argument is that, because the proposed use is not listed, it is incapable of being approved if it is inconsistent with the objectives of cl 4.13.1 of TPS 7.
Ms Butterworth further argued that:
… there is land in the locality that is zoned rural or reserved for Regional Open Space … [on] which may be possible to locate a telecommunications tower. If the tower was located in a rural type zoning … [it] would be more desirable than locating it in a zone that is for 'residential, holiday accommodation and recreational uses'.
The applicant did not agree with the respondent's argument, and in its statement of issues, facts and contentions argued:
… the proposed telecommunications infrastructure does not hinder the development of Preston Beach Townsite for residential, holiday accommodation or recreational uses and has been suitably sited and designed so as to have no detrimental impact on the natural environment, [to] be least visually impactful whilst still achieving coverage objectives …
From the evidence of the parties, it appears that the population of the Preston Beach townsite varies, with peaks during holiday periods. One of the objectives of the zone is to provide for holiday accommodation. Although the proposal does not specifically provide holiday accommodation, it does provide infrastructure that supports the development of the townsite for holiday and residential accommodation. Mr Wittek, a qualified engineer and radio frequency design specialist employed by Telstra Corporation Limited, appeared as a witness for the applicant. Mr Wittek, when referring to the Preston Beach townsite, stated:
The demands for mobile services significantly accelerate during the peak holiday season which includes the Christmas and Easter periods.
During crossexamination, Mr Wittek stated that the service capacity had dropped to zero during the last Christmas and Easter holidays.
Subject to meeting amenity requirements, the Tribunal finds that the proposal is not inconsistent with the intent and objectives of the zone. Contemporary residential, holiday accommodation and recreational activities all require, and benefit from, effective telecommunication infrastructure. This finding is consistent with the introduction and background to SPP 5.2 quoted earlier in these reasons.
The respondent has not provided any evidence that the proposal is inconsistent with the objective to protect the environment and landscape of the area, other than various arguments relating to visual amenity which are dealt with later in these reasons.
The objectives refer to various policy requirements, and the respondent has highlighted the matter of scale as well as referring to TPS 7 requirements on height. The reference to height is a minor distraction and was not developed as a significant matter. Clause 6.12.1 of TPS 7 limits height to 7.5 metres in this locality. Although the pole is 15 metres high, cl 6.12.1 specifically exempts aerials and masts.
The respondent's arguments on scale fail on reasonable analysis. The proposed building will only be visible from residences to the north and partially visible from some residences to the east, because of existing landscaping. However, despite being visible to a small number of properties, the proposed building will be dwarfed against the water tank behind it. The proposed tower is 15 metres high, but has only a maximum diameter of 700 millimetres. It will be approximately 10 metres higher than the water tank and approximately 5 metres higher than a mast already on the site. There is no question that the proposed infrastructure will be visible and that this gives rise to the separate issue of visual amenity discussed below. However, given the bulk of the water tower and the height of another mast on the site, there is no credible reason for the Tribunal to find the proposal has inappropriate scale for the area.
Finally, cl 4.13.1 of TPS 7 provides for Shire policies to permit a range of uses compatible with the character and intent of the zone. Various forms of infrastructure are necessary or desirable to support the intended uses in this zone. Some will be more visible than others because they need height. Water towers and telecommunications infrastructure fit into that category.
Subject to later findings on amenity, the proposal is consistent with the intent and objectives of the 'Urban 9 Preston Beach' zone.
Issue 2: whether approval of the development complies with LPP 19 and SPP 5.2
The respondent did not identify any specific requirements of LPP 19 that were different from, or in addition to, the requirements of SPP 5.2.
Both policies deal with matters to be considered when determining planning applications under the policies. Ms Butterworth stated that she was of the view that:
•There is a need to provide telecommunications services to people[;] however, any application for such development in a zone specifically not encouraged under the planning framework should identify why the proposal cannot be located in more desirable zones identified under [the] policies.
•The proposal does not include [any] mitigation measures to address the issue in height of the topography; and
•The proposal is not consistent with the guiding principles for the location, siting and design of telecommunications infrastructure as set out in [the policies]. …
Ms Butterworth highlighted several of the guiding principles. The principles that were emphasised, in whole or in part, were:
•Telecommunications facilities should be designed and sited to minimise any adverse potential impact on the character and amenity of the local environment, in particular, impacts on prominent landscape features, general views in the locality and individual significant views.
•Telecommunications facilities should be designed and sited to minimise the adverse impacts on the visual character and amenity of residential areas.
•Unless it is impractical to do so, telecommunications towers should be located within commercial, business, industrial and rural areas, and areas outside conservation areas.
•The design and siting of telecommunication towers and facilities should be integrated with existing buildings and structures, unless it is impractical to do so, in which case, they should be sited and designed to minimise any adverse impact on the amenity of the surrounding area.
Ms Butterworth argued that the proposal fails all of the above requirements of the policies and that, rather than minimising the impact, the location on the highest point in a residential area exacerbated the impact.
She argued that:
[although] such infrastructure should be located to meet the communication needs of the community, the applicant has provided no justification as to the advantages of the proposed location over another in meeting the community service needs. It is considered that location of the development in rural zoned land or undeveloped land within the Preston Beach locality that is not the highest point in the locality would be preferable to it being in immediate proximity to dwellings and clearly visible from many vantage points within the town.
In summary, the respondent argued that the applicant failed to make reasonable efforts to locate the proposal outside the residential area and in a location that minimises the visual impact. The respondent's position is that Preston Beach is a small townsite surrounded by rural and reserve land, where there must be a suitable range of alternative sites that meet the guiding principles and requirements of the policies.
The applicant provided a detailed analysis of the proposal against the policy requirements in the submission to the Shire dated 16 November 2011.
After quoting the policy objectives, the applicant stated:
The proposed base station satisfies the above objectives as it is required to meet customer demand, has been located to minimise disturbance to the natural environment, and will be compliant with the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) cumulative radiofrequency electromagnetic energy levels.
It is emphasised in the Policy that … 'infrastructure should be strategically planned and coordinated … and should be located and designed to meet the communications needs of the community'. Given the current and projected growth of the Preston Beach townsite it is essential that Telstra provided a dedicated base station. It is further emphasised that 'unless impractical to do so, telecommunications towers should be located within commercial, business, industrial and rural areas and areas outside conservation areas'. Given the current scale of the Preston Beach townsite and lack of rural land in the immediate vicinity, there are limited opportunities to locate in areas with substantive separation distances to residents. The proposed Water Corporation site is[,] however, not a residential site, is not of conservation value, and is somewhat buffered from residences by the golf course. It should also be noted that the proposed base station will not impact on the coastal reserve or the Yalgorup National Park.
With reference to the policy's siting guidelines to minimise adverse visual impact, the applicant stated:
Telstra has, within its site selection process, selected a site and location that will minimise perceived negative impacts on the visual amenity of the area, particularly the coastal reserve and the Yalgorup National Park. [The] site is set amongst remnant vegetation, is set back from the localised road network (thereby minimising its visibility for passing motorists), and is an ideal site for a telecommunications mast to be located adjacent to existing infrastructure.
With reference to the guidelines preference for rural, commercial or similar areas, the applicant stated:
The required coverage area does not have any suitable commercial or industrial sites. The Water Corporation site offers the best opportunity to provide a suitable facility with the least visual impact on existing residential areas which the facility is designed to service.
As was the case with the first issue, the Tribunal's finding on whether the proposal complies with the policies is separated from the question of the actual impact on amenity. The policies describe a required balance between amenity requirements and the community need for the facilities.
Mr Wittek, for the applicant, stated:
An explosion in the demand for data on mobile devices has put a real strain on the Telstra wireless network and its infrastructure. The rapidly growing demands for wireless internet and data services will eventually exhaust the capacity of the surrounding sites. To compensate for the reduction of capacity, the current serving site at Lake Clifton will reduce its coverage area and limit access to the network for distant customers. As a consequence, the existing areas of poor depth of coverage at Preston Beach will become much larger with very slow transmission throughput. In many cases, the existing slow mobile data services will become unavailable.
During crossexamination, Mr Wittek explained that Preston Beach was a difficult townsite to service because of the steep terrain and the long, thin north/south nature of the townsite. He explained that a site central to the existing and future townsite was best. If a central site was not available, it would be necessary to have two separate sites, one north and the other south of the townsite.
It is clear from the information submitted by the applicant that the facility is best located as close as reasonably possible to the users, given the terrain of the Preston Beach townsite. The applicant has followed a site selection process consistent with the policy requirements. The actual site selected is, in general, consistent with the policy requirements. The small commercial centre in Preston Beach is closer to residential and holiday accommodation than the proposed site. The proposal is colocated with existing infrastructure, and attempts have been made to minimise the visual impact while providing the required service.
The findings are consistent with Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 , where, at [59], the Tribunal observed:
While it is true that the tower will be higher than any other point in the immediate vicinity of the subject land (adopting for convenience, Mr Spencer's view of what constitutes the 'locality'), such height is an integral part of the successful functioning of the infrastructure, a matter recognised by SPP 5.2, cl 2.3 ('mounted clear of surrounding obstructions'). The weight to be afforded to SPP 5.2 in the planning framework is, as has been explained above, significant. Importantly, this finding has effect in relation to both the subject land and its immediate vicinity, and will influence any discussion of the impact on visual amenity. …
Apart from the tower, the proposed infrastructure will not be visible, except from the north, where, for most residents, the views will be glimpses. The monopole design is the least intrusive for a telecommunications tower, and the 15 metre height of the tower on top of the hill is less than would be required on a lower site.
It should be noted that, in the letter advising of the refusal, the respondent referred to objections of residents and specifically mentioned 'various concerns about the proposal including amenity and risks to public health'. Nevertheless, during the hearing, the respondent did not provide any evidence on the matter of public health, nor did it raise this as an issue. The only evidence on this matter was a statement of compliance with health regulations by the applicant. There is no reason for the Tribunal to find that the proposal is inconsistent for the aspects of the policies dealing with public health.
Setting aside the actual impact on visual amenity at this point, the Tribunal considers that, otherwise, the proposed facility is consistent with both SPP 5.2 and LPP 19.
Issue 3: whether the proposed facility will have an adverse impact on amenity
Some elements of the visual impact of the proposal have been discussed above. The evidence of the witnesses relating to the negative impact of the facility on visual amenity appropriately focussed on the tower. The small shed associated with the facility is mostly screened and, where not screened, is dwarfed by the water tank behind it and will not have an adverse impact on visual amenity.
Ms Butterworth's evidence included several photographs of the proposed site taken from various points around the townsite. She stated that:
… the photos assist to demonstrate that the proposed tower will be clearly visible to residents and those visiting the town and will adversely affect the amenity of a number of residential properties in what is a residential locality and will also affect the visual amenity of the locality given the prominent location of the review site.
Ms Hortle, a resident whose residence adjoins the site, stated that the tower:
… will adversely affect my amenity due to the proximity of the tower to our house and the visual impact given the limited screening of the proposed tower, especially when viewed though the windows and doors of the rear of our house.
Ms Hortle also expressed concerns about the impact of the tower on the visual amenity of the locality, and noted that local residents walk around the outside of the water tower site to watch the sunset or to enjoy views of Lake Preston.
Ms Butterworth referred to Telstra Corporation Limited v Yarra Ranges SC [2009] VCAT 2441 (Yarra Ranges) where, at [34], [37] in part, and [38], the Tribunal found:
What has caused me particular concern about the proposed facility is its siting on a hilltop where its prominence and visibility are accentuated and the absence of established vegetation in the immediate area to at least partially screen the structure and/or act as a back drop.
…
… Indeed, had the review site not been so prominent and/or displayed a greater presence of mature trees, I may have formed a different view on the application.
…
As it stands, however, I have concluded that the facility will be too visually prominent and am unable to support it on this basis.
Ms Butterworth argued that the current review is similar to Yarra Ranges, where the proposed facility is located on the highest hill in the townsite and it will not be significantly screened by existing vegetation. She argued that the proposal is clearly inconsistent with SPP 5.2's and LPP 19's siting guidelines which require that:
[…] telecommunications facilities should be designed and sited to minimise any potential adverse visual impact on the character and amenity of the local environment, in particular impacts on prominent landscape features, general views in the locality and individual significant views.
The applicant argued that height is an essential requirement for the tower, especially because of the hilly terrain of the townsite. The applicant noted that, because the tower is on the highest hill, it is only a 15 metre high slim structure with a maximum diameter of 700 millimetres. By way of comparison, the applicant explained that, if the tower was located on the Telstra site in the townsite (which is unsuitable because of directly adjoining residences), the tower would need to be 40 metres high. The applicant also included various photographs of the water tower site, including two montages with the proposed tower imposed on the photograph. Also included was a 'view shed' analysis of the locality, recording where some part of the tower would be visible. This analysis confirmed that the views would be mostly from the north, from the golf course fairways to the west, and some views from the east. What was initially surprising from the 'view shed' analysis, the photographs and the Tribunal's viewing of part of the locality, was that the large water tank structure on top of the highest hill in the townsite is not visible from substantial parts of the town. After some consideration and review of the evidence, this limited visibility is due to the hilly terrain of the townsite and the site line restrictions imposed by houses and vegetation.
This current review is not directly comparable to Yarra Ranges, where the 30 metre tower was more exposed. In the case of Preston Beach, the Tribunal agrees with the applicant's arguments that, generally, houses appear to be designed to take advantage of the views to the east towards Lake Preston, where those views are available. There was no evidence that the proposal will interfere with any of those views towards Lake Preston, with the possible exception of Ms Hortle's residence, where the top of the tower will be visible in the peripheral view.
From the evidence submitted, most views where a significant portion of the 15 metre tower is visible will be those where the bulkier water tank is visible. The slim tower will have minimal visual impact.
The planning framework does not require the tower to be invisible. Because it is located on the highest point in the townsite, the tower is relatively low. At 15 metres, it is not significantly taller than an existing tower on the site, estimated at 9 metres. One of the photo montages, taken from Panorama Drive, indicates that the part of the tower that is visible probably has less visual impact than the wooden light poles that carry electricity around the town.
On balance, the Tribunal concludes that the overall impact of the tower on the visual amenity of the locality is not significantly adverse to outweigh the increased reliability of telecommunication services that will be provided.
Issue 4: whether there is the capacity for the telecommunications infrastructure to be located elsewhere and achieve the technical objectives
The respondent does not necessarily dispute the need for telecommunications infrastructure in or near the townsite, but objects to this particular site, especially because there is rural zoned land to the north and south of the site.
Although the applicant did not refer to sites north of the townsite, Mr Gajic stated that other sites within the townsite and south of the site were not suitable or available, either because landowners would not support the application, or because the sites would be closer to residential areas.
Although some potential sites have been eliminated, the Tribunal finds itself in a similar position to that in Telstra Corporation and City of Wanneroo [2011] WASAT 77 (Wanneroo) where, at [70], the Tribunal stated:
The Tribunal has found it agrees with the respondent that there is an absence of evidence to support the assertion that no other sites … might be available. …
However, in that particular case, the Tribunal found, at [71] and [72], that:
The Tribunal did have before it, however, a proposal to erect the proposed facility on the site. The task of the Tribunal, therefore, was to determine whether or not to affirm the refusal of the application for the proposed facility on the site or to set aside the refusal and grant planning approval: s 29(3) of the State Administrative Tribunal Act 2004 (WA).
The Tribunal considers that whether there might be other sites available is not determinative of this matter. While another site might be found, the essence of the matter before the Tribunal is whether the visual impact of the proposed facility on the site would be such that the development should be refused, notwithstanding the benefits it would bring to telecommunications in Tapping and Ashby. It is the findings of the Tribunal on the other issues … which are determinative of this matter.
In this particular case, the applicant provided evidence and arguments against the use of other sites within the townsite, and also stated that a landowner of rural land to the south had refused to consent to an application. Longterm planning for the locality indicates the possibility that rural land immediately north and south of the townsite may change to allow future expansion of the townsite, or for rural residential lifestyle lots. The applicant's technical evidence was that, if a central site could not be found, then the north/south nature of the townsite would result in the need for two telecommunications facilities north and south of the townsite.
During the hearing, both parties indicated that adjoining reserve land was unsuitable. Finally, the respondent did not specifically identify any other suitable site that had not already been eliminated by the applicant.
Even though the above discussion indicates that it may be difficult to find another suitable site, especially within the townsite and to the south, the potential exists. Nevertheless, the Tribunal, consistent with Wanneroo, finds that the possible availability of other sites is not determinative of this matter. It is the findings of the Tribunal on the other issues which are determinative of this matter.
Conditions
As required by the Tribunal, the respondent submitted draft without prejudice conditions. This was later replaced with 'Applicant and Respondent's Agreed Without Prejudice Conditions'.
The parties agreed on six conditions, but referred to one disputed condition as follows:
The Respondent seeks this additional condition be imposed[;] however, this condition is not agreed to on the grounds that in the applicant's opinion the equipment shelter is colourtreated and already substantially screened by existing vegetation and Water Corporation infrastructure.
1.The shed (equipment and shelter) shall be suitably screened using vegetation planting so as to limit the impact on the surrounding area. Details of screening shall be submitted to the satisfaction of the Manager Planning Services of the Shire of Waroona prior to the issue of a Building Licence. The development shall thereafter be implemented and maintained in accordance with the approved details to the satisfaction of the Manager Planning Services.
During the hearing, the respondent argued that there was room to locate landscaping between the shelter and the fence. The applicant argued that the landscaping was unnecessary and may interfere with underground services.
The Tribunal agrees that the landscaping is unnecessary. The shed is small, particularly in relationship to the large water tank adjoining the shed. The shed will only be clearly visible from the north and some views from the golf course to the northwest. However, these views will generally be of the shed blocking the view of the water tank. Furthermore, there is existing vegetation on the adjoining reserve, with the potential to grow to provide further screening.
The other conditions are reasonable. Therefore, the Tribunal finds that the agreed conditions be imposed and that the landscaping condition not be imposed.
Conclusion
For the above reasons the Tribunal finds that the application for review has been successful and issues the following orders.
Orders
1.The application for review is allowed.
2.The decision of the Shire of Waroona to not approve the application is set aside and planning approval is granted for the proposed telecommunications infrastructure at No 28 (Lot 356) Beachcast Close, Preston Beach subject to the following six conditions agreed by the parties.
(a)The development shall be carried out and fully implemented in accordance with the details indicated on the plans included in the Applicant's Bundle of Documents (drawing No W106672, Sheets 1 and 3 dated revised 20.04.2012), unless otherwise required or agreed in writing by the Manager Planning Services of the Shire of Waroona.
(b)The ongoing use of the site and approved development works shall not cause erosion or degradation to the subject or surrounding land. Should the Manager Planning Services deem it necessary for the applicant to undertake mitigation works; plans, specifications and work schedules may be required to be submitted and the works undertaken by the proponent at no cost and to the satisfaction of the Shire of Waroona.
(c)All site works shall be contained within the boundaries of Lot 356 Beachcast Close, Preston Beach and vegetation on the adjacent lots shall not be disturbed.
(d)Damage to road pavements, kerbing, footpaths or Shire of Waroona assets (as applicable) caused by construction activity including; but not limited to, vehicle movements, shall be repaired in accordance with specifications and works supervision and scheduling arrangements to be approved.
(e)Stormwater run-off from the approved development shall not discharge into adjacent private property.
(f)The development approved is to be substantially commenced within two years after the date of this determination. The approval lapses if the development has not substantially commenced before the expiry of that period.
I certify that this and the preceding [98] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR R EASTON, SENIOR SESSIONAL MEMBER
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