Crown Castle Australia Pty Ltd and Western Australian Planning Commission
[2008] WASAT 162
•16 JULY 2008
CROWN CASTLE AUSTRALIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 162
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 162 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:426/2007 | 8 JULY 2008 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) MR L GRAHAM (SENIOR SESSIONAL MEMBER) | 16/07/08 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Subdivision approval granted subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | CROWN CASTLE AUSTRALIA PTY LTD WESTERN AUSTRALIAN PLANNING COMMISSION |
Catchwords: | Town planning Subdivision Infrastructure lot Existing telecommunications facility Site adjoins Kwinana Freeway and bushland Development area Urban development front Facility contemplated in District Structure Plan Entrenchment of use Potential expansion and intensification of use Whether subdivision is inconsistent with local planning scheme requirement for comprehensive planning Whether subdivision will not prejudice specific purposes and requirements of development area Whether subdivision should be refused because infrastructure use of proposed lot may become redundant Whether approval would compromise local structure planning Whether subdivision is inconsistent with State Planning Policy No 5.2 Telecommunication Infrastructure |
Legislation: | City of Cockburn Town Planning Scheme No 3, cl 4.2.1, cl 6.2.1, cl 6.2.2, cl 6.2.2.1, cl 6.2.4, cl 6.2.4.2, cl 6.2.9, cl 6.2.10, Table 1, Sch 11 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 238(4), s 251(1) Telecommunications Act 1997 (Cth) |
Case References: | Nil |
Orders | 1. The application for review is allowed.,2. The decision of the respondent made on 14 November 2007 to refuse subdivision approval of Lot 10 Gaebler Road, Aubin Grove to create two lots is set aside and a decision is substituted that subdivision approval is granted in accordance with the plan drawn by Sorensen Short & Associates, ref no 07/057 drawing no 057SUBD Rev O dated 11 April 2007 subject to the following conditions:,(i) Satisfactory arrangements being made with the local government to provide proportional contributions towards those items of development infrastructure defined in the City of Cockburn Town Planning Scheme No 3 for the Aubin Grove, Contribution Area (DCA 7). (Local Government),(ii) The subdivider of the land shall make arrangements to ensure that the prospective purchaser of the proposed Lot 2 is advised in writing that provision of a reticulated sewerage service will not be available to that lot. (Local Government),(iii) The subdivider of the land shall make arrangements to ensure that the prospective purchaser of proposed Lot 2 is advised in writing that provision of a reticulated water supply will not be available to the lot. (Local Government),(iv) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to proposed Lot 2. (Western Power) |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : CROWN CASTLE AUSTRALIA PTY LTD and WESTERN AUSTRALIAN PLANNING COMMISSION [2008] WASAT 162 MEMBER : MR D R PARRY (SENIOR MEMBER)
- MR L GRAHAM (SENIOR SESSIONAL MEMBER)
- Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Subdivision - Infrastructure lot - Existing telecommunications facility - Site adjoins Kwinana Freeway and bushland - Development area - Urban development front - Facility contemplated in District Structure Plan - Entrenchment of use - Potential expansion and intensification of use - Whether subdivision is inconsistent with local planning scheme requirement for comprehensive planning - Whether subdivision will not prejudice specific purposes and requirements of development area - Whether subdivision should be refused because infrastructure use of proposed lot may become redundant -
(Page 2)
Whether approval would compromise local structure planning - Whether subdivision is inconsistent with State Planning Policy No 5.2 - Telecommunication Infrastructure
Legislation:
City of Cockburn Town Planning Scheme No 3, cl 4.2.1, cl 6.2.1, cl 6.2.2, cl 6.2.2.1, cl 6.2.4, cl 6.2.4.2, cl 6.2.9, cl 6.2.10, Table 1, Sch 11
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 238(4), s 251(1)
Telecommunications Act 1997 (Cth)
Result:
Subdivision approval granted subject to conditions
Category: B
Representation:
Counsel:
Applicant : Mr ND Ellery with Ms LM D'Ascanio
Respondent : Ms MJ Paterson with Mr H Leith
Solicitors:
Applicant : Corrs Chambers Westgarth
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 This case concerned a subdivision application to create a small infrastructure lot to accommodate an existing telecommunications facility and to enable the facility to be expanded by the colocation of other communications providers. The proposed lot is located in a development area at Perth's southern urban development front. It adjoins the Kwinana Freeway and is separated from land that is likely to be developed for residential purposes by bushland.
2 The principal issues concerned the requirement for prior comprehensive structure planning for the area, the potential for infrastructure use to become redundant, and consistency with the State Planning Policy concerning telecommunications infrastructure.
3 The Tribunal determined that, although a local structure plan is generally required to coordinate and guide subdivision in the area, a local structure plan is not required in the particular circumstances of the case. The facility is an historical, lawful and continuing use that is expressly contemplated by district strategic planning for the area, and is therefore likely to be recognised by local structure planning, is consistent with the purpose of providing residential development as it supports and services that development, and is well located, adjoining the freeway and separated from likely residential development by bushland.
4 Contrary to the Western Australian Planning Commission's contentions, the proposed subdivision would not preclude consolidation of public open space and is not a suboptimal use of the land, as access to wireless services is an important element of modern life and is an important amenity for motorists and existing and future residents of the locality.
5 While specific technologies may change over time, there was nothing in the evidence to suggest that the land will not continue to be used for infrastructure, and specifically, telecommunications purposes for the foreseeable future.
6 The proposed subdivision is consistent with the guiding principles in the State Planning Policy. In particular, it will not result in loss of vegetation and it could have little or no impact on future residential amenity. It may also result in the colocation of telecommunications providers, thereby minimising the number of telecommunications facilities in the area.
(Page 4)
7 The Tribunal therefore granted conditional subdivision approval.
Introduction
8 These proceedings involve an application brought by Crown Castle Australia Pty Ltd (Crown) under s 251(1) of the Planning and Development Act2005 (WA) (PD Act) for review of the decision of the Western Australian Planning Commission (Commission) to refuse to grant approval for the subdivision of Lot 10 Gaebler Road, Aubin Grove (property) into two lots.
9 Proposed Lot 1 would have an area of 4.0218 hectares and frontages of 344.23 metres to Gaebler Road to the north and 104.63 metres to Lyon Road to the east (Lot 1). Proposed Lot 2, which is located in the northwestern corner of the property, would have an area of 200 square metres, a frontage of 15.2 metres to Gaebler Road and a depth of 13.15 metres (Lot 2).
10 The purpose of the subdivision is to create Lot 2 as a small infrastructure lot for an existing telecommunications facility owned and operated by Crown and for the potential expansion and intensification of the facility in the future.
11 The President of the Tribunal has formed the opinion under s 238(4) of the PD Act that the application is likely to raise complex or significant planning issues and has, therefore, listed the proceedings for hearing and determination by a panel comprising a senior member and senior sessional member.
12 For reasons discussed below, the Tribunal considers that the proposed subdivision warrants conditional approval.
The property and locality
13 Crown currently leases the northern half of Lot 2, which has an area of approximately 100 square metres, from the owner of the property for a term that will expire on 19 January 2017. Approximately 80 square metres of the leased area contains a telecommunications facility behind a cyclone fence. The telecommunications facility consists of a 38 metre high steel monopole communications tower and ground components in the form of small portable cabins and associated infrastructure. The telecommunications facility enables communications providers to service the immediate area with mobile telephone coverage, wireless internet and other data services.
(Page 5)
14 The communications provider Vodafone obtained a lease and constructed the telecommunications facility in about 1997. In about April 2001, Vodafone transferred the lease and sold the telecommunications facility to Crown. Vodafone continues to use the telecommunications facility under contract with Crown. In addition, since 2003, another telecommunications company, Hutchison 3G, has colocated its telecommunications equipment for the area at the facility. This colocation involved the addition of an antenna to the existing monopole and a further small portable cabin.
15 The leased area and the remainder of Lot 2 is cleared.
16 As noted earlier, Lot 2 would have a 15.2 metre frontage to Gaebler Road to the north. Gaebler Road terminates in that location in the form of a culdesac. Lot 2 would also have a common boundary of 13.15 metres with the Kwinana Freeway to the west, and a southern common boundary of 15.2 metres and an eastern common boundary of 13.15 metres with Lot 1.
17 The western part of Lot 1, which is adjacent to Lot 2, comprises bushland with dimensions of approximately 100 metres by 100 metres, which separates Lot 2 from the remainder of Lot 1. The part of the property to the east of the bushland contains a house and workshop and is otherwise used for market gardening.
18 The property is zoned "Urban" under the Metropolitan Region Scheme and "Development" under the City of Cockburn Town Planning Scheme No 3 (TPS 3 or Scheme).
19 The property is one of six similarly sized allotments between Lyon Road to the east and the Kwinana Freeway to the west which are now at Perth's urban development front. Residential development has or is currently taking place to the north, east and south of this group of six properties in accordance with local structure plans approved by the City of Cockburn (City) under cl 6.2.9 of TPS 3 and endorsed by the Commission under cl 6.2.10 of TPS 3.
Subdivision application
20 Crown lodged the subdivision application with the Commission on 10 May 2007.
(Page 6)
21 Crown owns and operates approximately 1,450 communications facilities in Australia and contracts the use of the facilities to communications providers including Optus, Telstra, Hutchison 3G and Vodafone, State and Federal government agencies such as emergency services, and narrow band and broadband services providers.
22 Mr Peter Armstrong, Crown's National Property Manager, gave evidence that, although Crown's portfolio contains significantly more leased sites than owned ones, its preference is to own its sites so as to secure certain longterm tenure and therefore encourage additional investment by communications providers and others in the facilities. Crown has commenced a process of seeking to purchase the sites of its telecommunications facilities. It has entered into an agreement with the owner of the property to purchase Lot 2 in the event that subdivision approval is granted.
23 Mr Armstrong also explained that Crown provides shared access to communication providers at its facilities, thereby reducing the number of towers that might otherwise need to be constructed if each provider were to independently construct a tower for each communication area. Since 2000, in excess of 1,000 new installations have been located on Crown's facilities, reducing the requirement for construction of a significant number of new towers. As noted earlier, in 2003, Hutchison 3G colocated its equipment at the telecommunications facility on Lot 2.
24 Mr Armstrong gave evidence, which the Tribunal accepts, that demand for the telecommunications facility on Lot 2 will increase in the future, because of the urban development that has and will take place in the area and increasing demand for wireless services. Mr Armstrong explained that the site area of the telecommunications facility needs to be increased to accommodate the co-location of other communications providers, because there is insufficient room within the leased area to accommodate the small portable buildings that would be required by each carrier. However, subject to structural engineering issues, further colocation of carriers' facilities would not require an additional monopole. Mr Armstrong said that there are numerous examples of all four major communications providers operating from the same monopole at Crown's telecommunications facilities in Australia.
25 The Commission referred the subdivision application to the City, the Water Corporation, Western Power, the Department of Environment and Conservation and the Public Transport Authority. None of these agencies objected to the proposed subdivision. In particular, on 17 July 2007, the City advised that it recommends conditional approval for the proposed subdivision.
(Page 7)
26 On 14 November 2007, the Commission refused to approve the proposed subdivision for the following reasons:
"1. The proposal to create a lot to accommodate the existing telecommunication tower is not provided for in an approved Structure Plan for the land.
2. The need for the proposed 200 [square metres] lot has not been demonstrated.
3. The size of the proposed 200 [square metres] lot is not consistent with the much smaller curtilage of the telecommunication tower footprint (within the cyclone fence).
4. The ability of the proposed 200 [square metres] to accommodate alternative land uses other than the telecommunications tower has not been demonstrated.
5. In consequence of reasons 1 to 4 (inclusive), the proposal:
(i) is not consistent with orderly and proper planning;
(ii) is in conflict with the provisions of the City of Cockburn Town Planning Scheme No 3 for the 'Development' zone (which requires a Structure Plan to guide subdivision, development and land use); and
(iii) is in conflict with the provisions of the Western Australian Planning Commission development control policy DC 1.1 Subdivision of Land."
Issues for determination
28 The following four principal issues arise for determination in this review:
1) Whether the proposed subdivision is inconsistent with TPS 3 in relation to any requirement for comprehensive planning and the land uses envisaged for the property.
2) Whether the proposed subdivision should be refused because infrastructure use may become redundant in the future.
(Page 8)
- 3) Whether approval of the proposed subdivision would compromise local structure planning.
4) Whether the proposed subdivision is inconsistent with State Planning Policy 5.2 - Telecommunications Infrastructure (SPP 5.2).
29 The Tribunal will address each of these issues in turn.
Is the subdivision inconsistent with TPS 3?
30 The objective of the Development zone is:
"To provide for future residential, industrial or commercial development in accordance with a comprehensive Structure Plan prepared under the Scheme." (cl 4.2.1(i), original emphasis)
31 Consistently with this objective, Table 1 - Zoning Table of TPS 3 does not indicate the permissibility of specific land uses in the Development zone, but rather contains the following note:
"Development and use of land is to be in accordance with an approved Structure Plan prepared and adopted under clause 6.2.9." (original emphasis)
32 The property is located within Development Area 11 in Sch 11 of TPS 3, which is a Special Control Area under the Scheme.
33 Clause 6.2.2.1 of TPS 3 states as follows:
"The purposes of Development Areas are to:
(a) identify areas requiring comprehensive planning; and
(b) coordinate subdivision and development in areas requiring comprehensive planning." (original emphasis)
34 In addition, in accordance with cl 6.2.2.2 of TPS 3, Sch 11 sets out the following specific purposes and requirements that apply to Development Area 11:
"1. Structure Plan adopted to guide subdivision, land use and development.
2. To provide for Residential development.
3. Land Uses classified on the structure plan apply in accordance with clause 6.2.6.3." (original emphasis)
(Page 9)
35 Clause 6.2.4 of TPS 3 states as follows:
"6.2.4.1 The local government is not to:-
(a) consider recommending subdivision; or
(b) approve development
of land within a Development Area unless there is a structure plan for the Development Area or for the relevant part of the Development Area.
6.2.4.2 Notwithstanding clause 6.2.4.1, a local government may recommend subdivision or approve the development of land within a Development Area prior to a structure plan coming into effect in relation to land, if the local government is satisfied that this will not prejudice the specific purposes and requirements of the Development Area and the owner's liability for the proportion of land or development can be fulfilled pursuant to clause 6.3.5." (emphasis in bold or italics original; underlining emphasis added)
36 In 2003, the City adopted the City of Cockburn Southern Suburbs District Structure Plan - Stage 2 - Banjup (DSP) for the area including the property in accordance with cl 6.2.9 of TPS 3 and the Commission endorsed the DSP in accordance with cl 6.2.10 of TPS 3. Crown contends that the DSP is a structure plan prepared and adopted under the Scheme that satisfies the various Scheme provisions set out earlier. The Commission contends that this is not the case and, in particular, that cl 6.2.4 and Sch 11 of the Scheme require the adoption and endorsement of a local structure plan for Development Area 11, which has not occurred.
37 It is not necessary to resolve this dispute between Crown and the Commission in order to determine the review application. Even assuming, for the purposes of these reasons, that the DSP does not satisfy the Scheme requirements for a structure plan, the Tribunal considers that the proposed subdivision is capable of approval and warrants conditional approval.
38 The Tribunal accepts the evidence of Mr Jason Bouwhuis, a town planner employed by the Department for Planning and Infrastructure, that it is a common and logical sequence in a Development Area for a local structure plan to be prepared, adopted and endorsed before a subdivision application is approved. Similarly, the Tribunal accepts the evidence of Mr Joe Algeri, a consultant town planner who gave evidence on behalf of Crown, that it is generally inappropriate to grant subdivision approval of land in a Development Area without the prior preparation, adoption and
(Page 10)
- endorsement of a local structure plan for the area.
39 However, the Scheme does not mandate the prior preparation, adoption and endorsement of a local structure plan in every case before a subdivision approval can be granted. By cl 6.2.4.2 the Scheme expressly confers a discretion on the City to recommend subdivision approval of land within a Development Area prior to a structure plan coming into effect in relation to the land if the local government is satisfied that this will not prejudice the specific purposes and requirements of the Development Area. By implication, therefore, the Scheme confers a discretion on the Commission to grant subdivision approval of land within a Development Area prior to a structure plan coming into effect in relation to the land, if the Commission is satisfied that this will not prejudice the specific purposes and requirements of the Development Area.
40 The Tribunal is satisfied that approval of the proposed subdivision in the absence of a local structure plan will not prejudice the specific purposes and requirements of Development Area 11 stated in cl 6.2.2.1 and in Sch 11 of the Scheme, and is consistent with orderly and proper planning for the following five reasons.
41 First, the telecommunications facility that is located on the northern half of Lot 2 is an historical, lawful and continuing use.
42 Second, the telecommunications facility is expressly contemplated in two parts of the text of the adopted and endorsed DSP including the following:
"Council has been previously advised that the tower does not have an impact on the development of the surrounding land for residential purposes.
Notwithstanding this, the general public are wary about potential impacts from phone towers and the provision of open space in this location will not only provide a buffer but also to include an area of good quality bushland."
43 The Tribunal accepts Mr Algeri's evidence that the references to the communications facility in the DSP are important because they evidence a recognition in the district strategic planning for the area that the telecommunications facility will be retained in its current location while the area is planned and developed for residential purposes.
44 The DSP states that it will "form the basis of coordinating and considering local structure plans and plans for subdivision to be prepared by land owners in the area". It is consistent with orderly and proper planning for the local
(Page 11)
- structure plan for the area that includes the property to be consistent with the DSP and recognise the telecommunications facility. Indeed, the preliminary plan that has been prepared for the purpose of formulating a draft local structure plan by a town planning consultant on behalf of the owner of the property for the property and the allotment to the south shows Lot 2 as a special purpose infrastructure lot consistently with the contemplation in the DSP.
45 Third, the use of Lot 2 for infrastructure, and specifically telecommunications purposes, is consistent with the specific purpose of Development Area 11 to provide for residential development. As Mr Algeri said:
"With residential development comes the need for various forms of supporting infrastructure and related servicing requirements. The Facility existed prior to the locality becoming urbanised. I believe that the Facility is more important now with the increase in urban activities in the locality."
46 Fourth, as Mr Algeri said, the telecommunications facility is well located. It adjoins the Kwinana Freeway and is separated from the cleared parts of Development Area 11 by the bushland on the western part of the property and on the western part of the property to the north. Consistently with the DSP, the preliminary plan for the draft local structure plan for the property and the allotment to the south separates residential lots from Lot 2 by a 0.9 hectare public open space lot comprising the bushland and also generally by roads. The proposed subdivision does not prejudice comprehensive planning and the coordination of subdivision and development for residential purposes in the area.
47 Fifth, for reasons discussed in relation to issue 4 below, the proposed subdivision is consistent with SPP 5.2.
48 The Commission contends that the approval of the proposed subdivision will prejudice the specific purposes and requirements of Development Area 11 for essentially two reasons.
49 First, the Commission relies on Mr Bouwhuis' evidence that the proposed subdivision would preclude the creation of one consolidated area of open space incorporating the bushland on the western part of the property and the bushland on the western part of the property to the north of Gaebler Road for the benefit of future residents, as shown on the DSP, because Gaebler Road would have to be maintained to provide vehicular access to Lot 2 and would, therefore, physically divide the public open space. Mr Bouwhuis relies on cl 3.7.1 of the Commission's
(Page 12)
- Development Control Policy 1.1 - Subdivision of Land - General Principles (DC 1.1.) which states as follows:
"New green title lots will be created only where each lot has, or can be, provided with direct frontage access to a constructed public road, which is connected to the road system of the locality. This is to ensure the provision of public utility and other services as well as to provide vehicular and pedestrian access to the lot."
51 Furthermore, it is by no means necessarily the case that the need to provide vehicular access to Lot 2 means that Gaebler Road must be maintained as it currently is, namely as sealed dual carriage road within an approximately 20 - 25 metre wide road reserve.
52 While compliance with cl 3.7.1 of DC 1.1 will generally be required for subdivision, it is a policy provision that can be departed from in appropriate circumstances. Mr Armstrong gave evidence that routine access to the telecommunications facility only takes place on average once every two months. Even if three other telecommunications companies were to colocate at the facility, routine access would take place on average only once every month. Such infrequent access does not require a constructed road such as Gaebler Road is at present. Indeed, Mr Armstrong said that many of Crown's telecommunications facilities are on remote rural hilltops that can only be accessed by 5 metre wide rough tracks. It is entirely conceivable that the City can remove the western part of Gaebler Road and incorporate that area into public open space while still providing adequate access, whether along that alignment or another route and whether sealed or unsealed, to the telecommunications facility. Approval of the proposed subdivision would not, therefore, preclude the consolidation of public open space to the north and south of Gaebler Road.
(Page 13)
53 Second, the Commission contends that the proposed subdivision will entrench infrastructure use of Lot 2, thereby precluding that land from being put to its optimal use as public open space.
54 While it is correct that the proposed subdivision will entrench the infrastructure, and specifically telecommunications, use of the land, the Tribunal rejects the contention that this use of Lot 2 is not optimal. Access to the wireless services provided by the telecommunications facility is an important element of modern life and provides an important amenity to motorists travelling along the Kwinana Freeway and to existing and future residents of the area.
55 It follows that, although a local structure plan is generally required to coordinate and guide subdivision in Development Area 11, a local structure plan is not required in the particular circumstances of this case. Approval of the proposed subdivision will not prejudice the specific purposes and requirements of Development Area 11.
56 The proposed subdivision is not inconsistent with TPS 3 in relation to the requirement for comprehensive planning and land uses that are envisaged for the property.
Should the subdivision be refused because infrastructure use may become redundant?
57 Mr Bouwhuis expressed the following opinion:
"A lot of this size used for infrastructure purposes is likely to become redundant in [the] future with no alternative use, resulting in Gaebler Road being maintained to provide road access to a 200 [square metres] lot."
58 However, the Commission did not present any evidence from a witness with qualifications or experience in relation to infrastructure provision to support this speculative opinion. Whilst specific technologies may well change over time, there is nothing in the evidence to suggest that Lot 2 will not continue to be used for infrastructure, and specifically telecommunications, purposes for the foreseeable future.
59 To the contrary, Mr Armstrong gave evidence, which the Tribunal accepts, that Crown has identified a strategic need for the facility and that it is extremely unlikely that the facility will be removed at any time in the foreseeable future.
(Page 14)
60 The Commission ultimately contended that infrastructure use "may or may not become redundant, but good planning should make provision for the possibility that it will not remain". The Tribunal rejects this submission. As Mr Algeri observed, good planning is concerned with what is likely to happen in the foreseeable future, not with what may possibly happen thereafter. As Mr Algeri said, this would be bad planning, because it is speculation.
Will approval compromise local structure planning?
61 The Commission contends that the creation of Lot 2 will prejudice the formulation of an optimum local structure plan design.
62 The Tribunal does not accept this contention. Having regard to the matters discussed in relation to issue 1, we accept Mr Algeri's opinion that "any structure plan developed would have to accommodate the Facility". As noted earlier, the preliminary plan for the draft structure plan for the property and the allotment to the south does precisely this.
63 Indeed, we accept Mr Algeri's evidence that the proposed subdivision will assist in the formulation of a local structure plan, because it enables the remainder of the property to be planned and developed without the need to anticipate development on Lot 2.
Is the subdivision inconsistent with SPP 5.2?
64 SPP 5.2 applies to subdivision as well as to zoning and development of land in the State in respect of all telecommunications infrastructure other than those facilities exempted under the Telecommunications Act 1997 (Cth). The parties did not address the question of whether the existing and likely future facilities on Lot 2 are exempted. For the purposes of these reasons, we assume that the existing and likely future facilities on Lot 2 are not exempted and are therefore subject to SPP 5.2.
65 Clause 5.1 of SPP 5.2 sets out guiding principles for the location, siting and design of telecommunications infrastructure. The Commission relies on the following guiding principles:
"• 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.
…
(Page 15)
- • Telecommunications facilities should be designed and sited to minimise 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 outside identified conservation areas."
66 Mr Bouwhuis considers that the amenity of the surrounding locality is likely to be prejudiced by allowing the footprint of the existing facility to be increased, sanctioning more telecommunications providers to colocate on the site. Mr Bouwhuis also considers that the facility is inconsistent with upholding the minimisation of the disturbance to the environment and loss of amenity in the provision of telecommunications infrastructure, as the proposed subdivision is likely to sanction the intensification of the existing use.
67 In contrast, Mr Algeri observes that there will be no disturbance to the environment, as the whole of Lot 2 is free of vegetation. Mr Algeri considers that, because of its remote location, surrounded by public open space, existing and likely future infrastructure on Lot 2 will only have a negligible impact on future residential amenity.
68 The Tribunal prefers Mr Algeri's evidence. Neither the existing nor likely future facilities on Lot 2 are likely to result in any adverse environmental impacts. Any additional facilities consequent on the colocation by other service providers on Lot 2 could have only negligible impact on future residential amenity. As noted earlier, these additional facilities are likely to consist of small mobile cabins at ground level and additional antennae on the existing monopole. However, even if an additional monopole were required, it would have minimal impact on future residential amenity, given that it would be colocated with an existing monopole, and that it would be distant from residences and separated from them by substantial bushland.
69 The Commission did not present any evidence that there are commercial, business, industrial or remaining rural areas where an alternative facility could be located. As we found in relation to issue 1, the facility on Lot 2 is well located.
70 The proposed subdivision is consistent with the guiding principles in SPP 5.2 relied on by the Commission.
(Page 16)
71 Furthermore, Mr Armstrong gave evidence that the telecommunications facility on Lot 2 fits neatly into a network of facilities in the area. He also said that the main reason for the proposed expansion of the area of the facility from the leased area to the area of Lot 2 is so that other telecommunications providers can colocate on Lot 2.
72 The proposed subdivision is therefore also consistent with the following important guiding principles in SPP 5.2:
"• Telecommunications infrastructure should be strategically planned and coordinated, similar to planning for other essential infrastructure such as transport networks and energy supply.
• Telecommunications facilities should be located and designed to meet the communication needs of the community.
…
• Colocation of telecommunications facilities should generally be sought unless such an arrangement would detract from local amenities or where operation of facilities would be significantly compromised as a result."
Conclusion
73 The proposed subdivision is not inconsistent with TPS 3, is consistent with orderly and proper planning, would not compromise local structure planning and is consistent with SPP 5.2.
74 The decision of the Commission to refuse subdivision approval should be set aside and a decision should be substituted that subdivision approval is granted subject to conditions that have been agreed between the parties.
Orders
75 The Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent made on 14 November 2007 to refuse subdivision approval of Lot 10 Gaebler Road, Aubin Grove to create two lots is set aside and a decision is substituted that subdivision approval is granted in accordance with the plan drawn by Sorensen Short & Associates, ref no 07/057 drawing no 057SUBD Rev O dated 11 April 2007 subject to the following conditions:
- (i) Satisfactory arrangements being made with the local government to provide proportional contributions towards those items of development infrastructure defined in the City of Cockburn Town Planning Scheme No 3 for the Aubin Grove, Contribution Area (DCA 7). (Local Government)
(ii) The subdivider of the land shall make arrangements to ensure that the prospective purchaser of the proposed Lot 2 is advised in writing that provision of a reticulated sewerage service will not be available to that lot. (Local Government)
(iii) The subdivider of the land shall make arrangements to ensure that the prospective purchaser of proposed Lot 2 is advised in writing that provision of a reticulated water supply will not be available to the lot. (Local Government)
(iv) Arrangements being made to the satisfaction of the Western Australian Planning Commission and to the specification of Western Power for the provision of an underground electricity supply service to proposed Lot 2. (Western Power)
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER
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