Hutchison 3G Pty Ltd v City of Mitcham & Ors
[2005] SASC 249
•5 July 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HUTCHISON 3G AUSTRALIA PTY LTD v CITY OF MITCHAM & ORS
Judgment of The Full Court
(The Honourable Justice Besanko, The Honourable Justice Anderson and The Honourable Justice Layton)
5 July 2005
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL
Appeal against orders of the full bench of the Environment, Resources and Development Court - appeal on a question of law - whether the Court erred in its interpretation of certain Objectives and Principles of Development Control in the Development Plan dealing in particular with the need for a telecommunications facility and its effect on visual amenity - whether the Court erred in failing to give sufficient reasons in support of its conclusions - appeal dismissed.
Environment, Resources and Development Court Act 1993 s 30; Telecommunications Act 1997 s 56; Telecommunications Code of Practice 1997; Telecommunications (Low-impact Facilities) Determination 1997; Development Act 1993 .; Heritage Act 1993 ., referred to.
City of Burnside & Ors v City Apartments Pty Ltd [2004] SASC 294, considered.
HUTCHISON 3G AUSTRALIA PTY LTD v CITY OF MITCHAM & ORS
[2005] SASC 249Full Court: Besanko, Anderson & Layton JJ
BESANKO J: This is an appeal against an order made by the Environment, Resources and Development Court (“ERD Court”). The appeal lies to the Full Court of this Court because the order was made by a full bench of the ERD Court and the appeal is limited to an appeal on a question of law because no leave has been sought to appeal on a question of fact (s 30(1) and (2) of the Environment, Resources and Development Court Act 1993).
The appellant is Hutchison 3G Australia Pty Limited and it made an application to the first respondent, City of Mitcham (“the council”), for provisional development plan consent in relation to a proposed development. The application was refused and the appellant appealed against the decision of the council to the ERD Court. The second respondents, Mr and Mrs Stokes, lodged representations with the council and they were joined as parties to the appeal. The ERD Court dismissed the appeal and the appellant appeals to this Court.
The facts
The University of Adelaide owns land off Hartley Grove in the suburb of Urrbrae. Hutchison 3G Australia Pty Limited is a member of the Hutchison Whampoa group of companies. The appellant holds a carrier licence under s 56(1) of the Telecommunications Act 1997. It sought to undertake development on the land owned by the University. The proposed development consists of the erection and construction of the following:
1A single 25 metre high steel monopole.
2Three panel antennae (each 1.95 metres in length and light grey in colour) installed at the top of the new pole in a turret formation.
3A single, 300 mm diameter parabolic transmission antenna mounted on the new pole at the 18 metre high level.
4A new equipment shelter (3.0 mL x 2.5mW x 3.0 mH) installed at the base of the tower.
5The replacement of the existing compound fence with a new 2.7 metre high security fence, surrounding the proposed facility.
It is proposed that the appellant will enter into a lease with the University.
The proposed development is to form part of a new service provided by the appellant and referred to by the ERD Court as the 3G network. The 3G network was launched in Adelaide on 1st July 2003. The ERD Court described the new service in the following terms:
The 3G network is a high-speed wire free data network which presently operates in Australia in and around Perth, Adelaide, Melbourne, Sydney and Brisbane. Customers of Hutchison can, through the use of mobile telephone handsets, obtain via the 3G network telephone, text messaging, video messaging and internet services. The network, put very simply, comprises a series of transmission hubs and downlink sites placed at strategic intervals across the area over which the network services are accessible to customers. The proposed development is a transmission hub. Transmission hubs receive and transmit radio waves from and to handsets and each other.
The appellant has identified a number of trouble spots in relation to the 3G network. A trouble spot is an area which is inoperable or unreliable from the point of view of a customer because calls cannot be initiated by the customer in that area, and calls in progress “drop out” upon entry into that area. The reason for that is insufficient signal strength within the trouble spot. The purpose of the development is to overcome three trouble spots, the first being in the streets north of Cross Road in Myrtle Bank, the second in streets east of Waite Road in Urrbrae and the third in streets south of Claremont Avenue in Netherby. Recently, the appellant entered into an agreement with Telstra under which Telstra will use the appellant’s network and infrastructure, including the tower. At present, the appellant has an agreement with Vodafone which enables it to overcome at least some of the problems associated with the trouble spots. Under the agreement, in the case of a customer of the appellant making a call from within the trouble spot, the Vodafone network carries the call. This arrangement does not prevent a caller who initiates a call from outside the trouble spot from losing the call, but he or she can redial and be connected via the Vodafone network. The agreement with Vodafone does not cover video calls or internet connection.
The provisions of the Telecommunications Act 1997 and Telecommunications Code of Practice 1997 mean that the holder of a carrier licence does not require development consent to install what is called a low- impact facility providing it complies with certain conditions. To determine what is a low-impact facility it is necessary to consider the provisions of the Telecommunications (Low-impact Facilities) Determination 1997. Furthermore, a carrier, such as the appellant, has extensive powers to enter and occupy any land for the purpose of installing a low-impact facility.
As I have said, the land upon which it is proposed to erect the tower is owned by the University and it forms a small part of its Waite Campus. The site is set apart from the buildings on the campus and is presently unused. It has a cyclone wire fence around it. It is east of the constructed portion of Hartley Grove.
The Waite Campus is a large parcel of land characterised by institutional buildings and open space. The site is situated in an Institutional Zone designated under the Development Plan. To the south and south east of the site for a considerable distance the land is vegetated open space. To the north and north east of the site there is open space leading to the streets of Birksgate. Two important streets in terms of the proposed development are Birksgate Drive and Barr Smith Drive. That area, the area further to the north and the area to the west are in the Residential (East Plains) Zone under the Development Plan, and the area further to the south of the site is in the Hills Face Zone under the Development Plan.
The appellant made its application for provisional development plan consent in relation to the proposed development on 21st November 2003. The application was characterised as a category 3 form of development which was neither complying nor non-complying under the Act. The council received 33 representations, one of which was from Mr Wayne Stokes and Mrs Pamela Stokes of 83 Birksgate Drive, Urrbrae. The council considered the application and the representations and decided to refuse the application.
The reasons of the ERD Court
It is convenient to start by identifying those provisions of the Development Plan which the ERD Court considered to be relevant. There is no suggestion that the ERD Court did not identify the relevant provisions.
The Objectives and Principles of Development Control which apply throughout the council area refer to “Telecommunications Facilities” and it is not in dispute in this case that the proposed development is a telecommunications facility. The relevant Objectives are.
Objective 28: Telecommunications facilities provided to meet the needs of the community.
Objective 29: Telecommunications facilities located and designed to minimise visual impact on the amenity of the local environment.
Telecommunications facilities are an essential infrastructure required to meet the rapidly increasing community demand for communications technologies. To meet this demand there will be a need for new telecommunications facilities to be constructed.
The Commonwealth Telecommunications Act 1997 is pre-eminent in relation to telecommunications facilities. The Telecommunications (Low-impact Facilities) Determination 1997 identifies a range of facilities that are exempt from State planning legislation. The development of low impact facilities to achieve necessary coverage is encouraged in all circumstances where possible to minimise visual impacts on local environments.
Where required, the construction of new facilities is encouraged in preferred industrial and commercial and appropriate non-residential zones. Recognising that new facility development will be unavoidable in more sensitive areas in order to achieve coverage for users of communications technologies, facility design and location in such circumstances must ensure visual impacts on the amenity of local environments are minimised.
The ERD Court also made passing reference to Objective 14 which is in the following terms:
Objective 14: The establishment of safe, attractive and pleasant residential areas comprising residential development of a scale, form, density and appearance that maintains or achieves the desired character of specific zones and, where applicable, policy areas.
The Principles of Development Control which apply throughout the council area and which the ERD Court considered to be relevant are as follows:
Telecommunication Facilities
188 Telecommunications facilities should:
(a) be located and designed to meet the communication needs of the community;
(b) utilise materials and finishes that minimise visual impact;
(c) have antennae located as close as practical to the support structure;
(d) primarily be located in industrial, commercial, business, office, centre, and rural zones;
(e) incorporate landscaping to screen the development, in particular equipment shelters and huts; and
(f) be designed and sited to minimise the visual impact on the character and amenity of the local environment, in particular visually prominent areas, main focal points or significant vistas.
189Where technically feasible, co-location of telecommunications facilities should primarily occur in industrial, commercial, business, office, centre and rural zones.
…
191Telecommunications facilities should only be located in residential zones if sited and designed so as to minimise visual impact by:
(a)utilising screening by existing buildings and vegetation;
(b) where possible being incorporated into, and designed to suit the characteristics of an existing structure that may serve another purpose; and
(c) taking into account existing size, scale, context and characteristics of existing structures, land forms and vegetation so as to complement the local environment.
In addition to these parts of the Development Plan, the ERD Court identified as relevant certain provisions relating to the three zones to which I have previously referred. They are as follows:
Institutional Zone
OBJECTIVES
Objective 1 : A zone accommodating public and private activities primarily of an institutional and/or open character.
Objective 2: The Waite Institute area developed for educational and research activities which have a distinctive open and rural character and in which:
(a) substantial mature vegetation is retained; and
(b) existing recreation areas are retained.
…
PRINCIPLES OF DEVELOPMENT CONTROL
…
2Building development within the zone should be sympathetic to, and clustered with, existing buildings to preserve the open character of the zone.
Residential (East Plains) Zone
Objective 1: Development comprising detached dwellings on large allotments.
Desired Character
…
The area is also notably characterized by high quality streetscapes which result from the presence of well maintained street verges, large mature street trees, and extensive landscaping undertaken on the frontage of most allotments. Dwellings have a high standard of appearance and are sited on allotments with a generous set-back from the road frontage.
…
The above factors combine to create a zone regarded as being of a high standard of amenity, with a character that it quite unique from the rest of the metropolitan area.
Hills Face Zone
OBJECTIVES
Objective 1: A zone in which the natural character is preserved and enhanced or in which a natural character is re-established in order to:
(a) provide a natural backdrop to the Adelaide plains and a contrast to the urban area;
(b) preserve and develop native vegetation and fauna habitats close to metropolitan area;
As to the provisions relating to the Residential (East Plains) Zone, the ERD Court also noted that under Principle of Development Control 4, a Telecommunication Station and a Transmitting Station are non-complying developments in the zone. As to the provisions relating to the Hills Face Zone, the ERD Court also noted that Principles of Development Control 8 and 9 support the relevant Objectives with design requirements for buildings and structures and that pursuant to Principle 30 a Transmitting Station is a non-complying development.
The ERD Court made a finding as to the appropriate locality. The Court had the benefit of a view of the site and area, and of a cherry picker being placed on the site at the approximate height of the tower. The ERD Court said that for the purposes of the planning assessment which it was called upon to make, the delineation of the locality of the proposed development was “most usefully” arrived at by reference to visibility of the proposed tower.
The ERD Court said that the proposed tower would be visible from Mr and Mrs Stoke’s house, and visible for a distance of 100 – 150 metres of Birksgate Drive adjacent to the Waite Campus and for some 50 – 80 metres around the southernmost bend in Barr Smith Drive. The Court went on to say that because of the presence of trees and shrubs combined with landform it was unlikely the proposed tower would be visible in much of Urrbrae west of Birksgate. The ERD Court also said that distant fleeting views would be available from further away. For example, it was shown that one such view would be available from a location on Cross Road. The Court found that the proposed tower would be visible at points on Waite Road (though not prominently), but not from Claremont Street.
Mr Jeffrey Smith is a town planning consultant and he gave evidence on behalf of the appellant. He expressed an opinion as to the locality. His opinion as to the locality was adopted by the ERD Court with some modifications. The Court said:
We find that the locality extends roughly in an egg shape some 100m to the south of the site, flaring out to the east to embrace Mr and Mrs Stokes’ property at 83 Birksgate Drive, continuing through Birksgate to incorporate those areas from which the proposed tower will be partially visible, and proceeding to the boundary of the Waite campus with Urrbrae before returning through the Waite Campus. Basically, it is the locality shown on Mr Smith’s locality plan with extensions to the east, north-east and northwards along Barr-Smith Drive.
The ERD Court then moved to consider what it found to be the relevant zoning. The Court found that the proposed tower would be viewed from some perspectives west, north-west and north of the tower against the backdrop of part of the Hills Face Zone and, from some perspectives in Birksgate, it would be viewed against either the view of the city or the Hills Face Zone.
The ERD Court found that “the Institutional Zone was not inherently inappropriate for the kind of development applied for”. In other words, it found that it is a zone in which a telecommunications tower may be permissible. The Court said that the planning assessment of the proposed development turned on whether the likely effects of it were acceptable and it turned to consider those effects.
After referring to Council Wide Objectives 28 and 29 and Principles of Development Control 188, 189 and 191 (see [14] above), the ERD Court said that Objective 29 and Principle 188(f) made it clear that both the design and location of a telecommunications facility must minimise the visual impact upon the local environment. The Court referred to the following passage from the reasons of Doyle CJ in City of Burnside & Ors v City Apartments Pty Ltd [2004] SASC 294 at [35]:
The provisions in the Plan that speak of minimising bushfire risk, keeping excavation to a minimum, or minimising the obtrusiveness of buildings do not call for a different approach. As Mr Roder demonstrated, such terminology (that is the use of “minimise” and like expressions) is found in many provisions of the Plan. Such language calls for a planning authority to consider the relevant aspect of the proposed development (bushfire risk, obtrusiveness, the amount of excavation), the extent of or the impact of the relevant aspect, and whether the proposal has been developed in a manner that will contain or reduce the relevant aspect to an acceptable level, having regard to the relevant Objectives and Principles of the Plan.
The ERD Court said the proposed tower would have an impact on the visual amenity of the locality, but the proposed equipment shelter and fence were unobjectionable. The Court said that it needed to assess whether the proposed tower had been designed and sited in a manner that would contain or reduce its adverse visual impact upon amenity to an acceptable degree. The Court considered that that question involved an assessment of the level of visual amenity presently enjoyed in the locality and an assessment of the nature and extent of the impact the proposed tower would have on that level of visual amenity.
As to the existing visual amenity the ERD Court said that that part of the Residential (Eastern Plains) Zone which is included in the locality of the proposed development is a residential area of high visual amenity. The Court said that most of that part of the Hills Face Zone which is within the locality is open vegetated land. As to that part of the locality which is within the Institutional Zone, namely, part of the Waite Campus, the locality is characterised by large, institutional buildings or clusters of buildings with open spaces between them and significant landscaping and vegetation. Part of the Hills Face Zone forms a backdrop to the Waite Campus. The Court said that again, visual amenity is high.
The ERD Court then considered the impact of the proposed tower. The Court made three important findings in relation to the impact of the proposed tower. First, the visual impact of the proposed tower upon the properties in the affected parts of Birksgate Drive and Barr Smith Drive would be dramatic and adverse. Secondly, views of the Hills Face Zone which would be affected by the proposed tower are available from a limited number of vantage points and those views would also be adversely affected. Thirdly, the proposed tower, viewed from perspectives in the Residential (East Plains) Zone and against the backdrop of the Hills Face Zone, would constitute the introduction of a type of structure that the provisions of the Development Plan (Objectives 1 and 2) speak against, and have largely been successful in excluding from the locality.
The ERD Court then considered the need for telecommunications facilities. The Court referred to Objective 28 that provides for telecommunications facilities to meet community needs. The Court accepted that community need was “more closely allied” to community demand rather than any essential requirement and that the facilities provided by the appellant over and above the stopgap coverage provided by Vodafone fell within the concept of community demand and therefore community need. The Court considered whether the appellant had other options and expressed its conclusions as follows:
It is clear from the evidence of Mr Sahota that the proposed development is by no means the only way, from a technical point of view, for Hutchison to establish the telecommunications facilities that it needs to cover the trouble spots in the 3G network. Hutchison has many options, some of which would not require the erection of a tower, but would instead involve the establishment of several low impact facilities under the Determination.
The Court concluded that the proposed tower on the proposed site would not contain the adverse visual impact upon the locality to an acceptable level, and that the proposed development did not comply with Objective 29 and Principle 188(f). The Court concluded that in formulating its strategy for overcoming the trouble spots in its network, the appellant had not taken adequate steps to minimise visual impact upon the local environment and the proposed development did not warrant consent on that basis.
The ERD Court referred to Claremont House which is a dwelling sited approximately 70 metres south east of the site on land owned by the University of Adelaide. It was probably built in 1842 – 1843 and today consists of a basic bluestone two-storey house with a wooden verandah in an indifferent state of repair. The Court found that the proposed tower would be visible from the front rooms of the house, its balcony and its front yard and that its presence would have a considerable, adverse impact upon the visual amenity of Claremont House. The house is not presently listed as a State Heritage place under the Heritage Act 1993 or as a local Heritage Item under the Development Act 1993. The Court referred to the following Principles of Development Control which apply throughout the council area:
134 Development should not impair the character or nature of:
(a) localities, spaces, buildings or structures;
(b) items or sites of architectural, historical or scientific interest; and
(c) localities, spaces and sites of natural beauty.
…
139Additions or alterations to, or development in the vicinity of any building, structure or site of heritage significance, should be compatible with the set-back, scale, height, massing, roof-form, fenestration, features, construction materials, finishes and colours of such buildings, structures or sites, and with the desired character of the zone in which they are situated.
The Court said that these principles are not confined to State Heritage places or Local Heritage items and are relevant to the assessment of the proposed development in relation to Claremont House. The Court said the proposed development is not consistent with principle 134(b) and, although principle 139 would not be directly applicable, it is clear a tower is not the kind of development encouraged in the vicinity of a building such as Claremont House. Balancing all the consideration previously identified, the ERD Court said that the impact on Claremont House alone would not be sufficient to justify the refusal of the application, but it is a factor against the proposed development to be weighed in the planning assessment.
Issues on appeal
The grounds of appeal are as follows:
“1.The ERD Court erred in failing to distil the intent of the Development Plan by construing the reference to the local environment (Objective 29 and Principle of Development Control 188(f)) as corresponding with the locality identified by reference to the visibility of the proposed tower.
2.The ERD Court erred in construing the Development Plan as preferring the installation of more than one low-impact facility to the installation of a single facility that does not come within the description of a low-impact facility for the purposes of the Telecommunications (Low-Impact Facilities) Determination 1997.
3.The ERD Court erred in failing to give sufficient reasons in support of its conclusions so as to enable a proper appellate review.”
The appellant submitted that there were four matters relevant to the planning assessment in this case, namely,
1The zoning in relation to the proposed development and, in particular, the issue of whether the proposed development is inappropriate in the zone.
2The need for the proposed development.
3The effect of the proposed development on visual amenity.
4The design of the proposed development.
I agree that these four matters are the relevant matters in this case.
The appellant submitted (correctly in my view) that the Court found that the Institutional Zone was not an inappropriate zone for the kind of development applied for. The appellant submitted (again, correctly in my view) that the Court found that there was a need for a telecommunications facility in the area. However, the appellant submitted that the Court erred in the approach it took to the availability of alternative sites. The appellant submitted that, in terms of visual amenity, the Court erred in the area it defined as the relevant area for the purposes of considering the effect of the proposed development on visual amenity. The appellant submitted that the Court made no adverse finding in relation to the design of the proposed development and this proposition appears to be correct.
The appeal turns then on two of the four factors referred to above, namely, the Court’s approach to need and the Court’s approach to visual amenity. The complaint about the adequacy of the reasons is linked to the complaint about the Court’s approach to need and I will deal with it in that context. It is convenient to start with the appellant’s complaint about the Court’s approach to the question of visual amenity.
First, the appellant submitted that the ERD Court fixed the wrong geographical area for the purpose of considering the effect of the proposed development on visual amenity. The appellant submitted that the area where there was a need or where there were the trouble spots was the relevant area for the purposes of considering the effect of the proposed tower on visual amenity. The appellant submitted that the area to be serviced by the proposed development was a much larger geographical area than the locality found by the Court. In the course of submissions the appellant identified an area which, in general terms, comprised the suburbs of Urrbrae, Netherby and Myrtle Bank.
The appellant submitted that the approach taken by the ERD Court in defining the locality by reference to the visibility of the tower would make it very difficult for the appellant to obtain development consent in any area because the proposed tower inevitably has an adverse impact on those who can see it. It was submitted that to define the relevant area by reference to those who can see it will always, or almost always, lead to a finding that the proposed development will have an adverse impact on visual amenity and that will invariably be a significant factor against the development.
This submission by the appellant appears not to have been put to the ERD Court. It is contrary to the evidence of the town planning experts who gave evidence before the Court including Mr Smith who gave evidence on behalf of the appellant. I have already referred to Mr Smith’s evidence as to the appropriate locality.
The ERD Court defined the locality by reference to the visibility of the proposed tower. In terms of the area whose needs are met by the facility it is difficult for this Court to make a precise finding as to that area in circumstances where the ERD Court did not make such a finding. However, it can confidently be said that it is a significantly larger geographical area than the locality defined by the Court.
I reject the appellant’s submission. The relevant provisions of the Development Plan in terms of visual amenity are Objective 29 and Principle of Development Control 188(f) and they both refer to the visual impacts of the telecommunication facility on the “local environment”. The short answer to the appellant’s submission is that the local environment as referred to in these provisions is not the geographical area whose needs will be met by the facility. The local environment is the area in the immediate vicinity of the proposed development and I think it includes the area from which the proposed tower is visible. Acceptance of the appellant’s submission would have some surprising consequences. The area serviced by the facility might be very large, and/or at least some parts of it might be quite remote from the facility. To take those areas into account when considering the effects on visual amenity would reduce the significance of the impact on visual amenity to a degree that could not have been contemplated by those who drafted the relevant provisions of the Development Plan. As with most planning assessments a variety of factors are relevant. In this case visual amenity is one of those factors and of course in some cases it may be the decisive consideration. However, acceptance of a locality defined by reference to the visibility of the proposed tower does not have the consequence that applications for these types of facilities will always be refused consent and I reject the appellant’s submission to this effect. This case is an example. The Court found that the appellant had many options in terms of alternative sites and facilities, and in those circumstances, and having regard to the effects of the proposed tower on visual amenity, concluded that the appellant had not taken adequate steps to minimise the visual impact on the local environment.
The Court did not err in defining the locality by reference to the visibility of the proposed tower and in determining the effects on visual amenity by reference to that area.
Secondly, the appellant submitted that the ERD Court erred in the approach it took to the availability of alternative sites. The appellant submitted that alternative sites were not relevant, or alternatively, only an obvious alternative site was relevant. The ERD Court did not identify an obvious alternative site. The appellant submitted that either there were no obvious alternative sites and therefore the ERD Court erred in taking into account what it referred to as “many options” or, if there were, the reasons of the ERD Court are inadequate in that they do not address in detail the obvious alternative sites. It was in relation to this alternative submission that the appellant said that the ERD Court erred in law in failing to give adequate reasons.
In City of Burnside & Ors v City Apartments Pty Ltd (supra) this Court considered an appeal from the ERD Court. That Court had granted provisional development consent for the construction of a detached dwelling, with associated earthworks and road works, retaining walls and landscaping in the Hills Face Zone. The relevant provisions of the Development Plan provided that the development should minimise the threat and impact of bushfire and should minimise the excavation and filling of the land. The City of Burnside and two objectors appealed to this Court. They argued that because of the repeated references in the relevant provisions of the Development Plan to the need to minimise bushfire risk and the excavation and filling of the land, the ERD Court must consider alternative locations on the land and had to be able to find that there was no alternative site on the land for the proposed development that would reduce the bushfire risk and the amount of excavation and visual intrusion compared with the proposed site. The ERD Court considered other possible sites in a general way, but did not embark on a detailed examination of the alternatives. Doyle CJ (with whom Nyland and Gray JJ agreed) doubted whether it was possible to state a principle of universal application dealing with the extent to which the ERD Court should consider other possible sites on the land which would or might accommodate the proposed development, and would better conform with the relevant provisions of the Development Plan [29]. The Chief Justice said (at [31] and [33]):
In a particular case there might be an obvious alternative site for proposed development which would clearly better meet the objectives and principles of the Plan. If that were so, that circumstance might affect the ERD Court’s assessment of the proposal before it. It would be a matter for the ERD Court to consider in a practical and commonsense fashion. However, it would remain the ERD Court’s task to assess the proposed development against the Plan, but bearing in mind, if it were the case, the existence of an alternative site that would accommodate the proposed development and that would better conform to the provisions of the Plan.
…
I agree with Mr Roder’s submission that it would not be possible for a relevant authority to assess a proposed development against the Plan if it had to consider a variety of different locations, and also changes to a proposed development to accommodate those different locations, with a view to deciding whether the hypothetical proposal would better conform to the provisions of the Plan than the proposed development.
The Chief Justice then considered whether the reference in the Development Plan to “minimising” certain matters called for a different approach and he made the observations in the passage cited by the ERD Court and referred to in [22] above.
The Chief Justice said that the ERD Court was not required to exclude the possibility of an alternative site for the proposed development that would better conform to the provisions of the Plan.
With respect, I do not disagree with what the Chief Justice said in City of Burnside & Ors v City Apartments Pty Ltd (supra). However, as his Honour noted, it is doubtful whether it is possible to state a principle of universal application, and I think that by reason of the relevant provisions of the Development Plan a different approach is called for in this case. It seems to me that the assumption behind those provisions is that telecommunications facilities involving a tower are likely to be unsightly and low-impact facilities are likely to be less intrusive. However, the effect on visual amenity is not the only matter relevant to the planning assessment. The Plan recognises that in certain circumstances there will be a need for a telecommunications facility. The need might be for a facility in the general area or it might be for a particular facility in a particular location. The question of need is relevant to the planning assessment and is to be weighed against the effect on visual amenity. I think it is inherent in the question of need (which was an important part of the appellant’s case) that other options or alternatives be considered. Provisions in the Development Plan which refer to where the facility is “located” (Objective 29) or “sited” (Principle 188(f)), which encourage low-impact facilities and which recognise that, on occasions, new facilities in more sensitive areas will be “unavoidable” reinforce the conclusion that an examination of the need and the available alternatives and options was not only permitted but in fact was required.
It follows that this case called for a different approach from that taken in City of Burnside and Ors v City Apartments Pty Ltd (supra).
In this case it was quite proper for the ERD Court to conclude that there was a need for a facility in this area. Equally, it was quite proper for the Court to consider if there were alternative locations or sites and to consider if the need could be met by low-impact facilities. There was no error in the approach adopted by the ERD Court.
The ERD Court found that the appellant had many options, some of which would not require the erection of a tower, but would instead involve the establishment of several low-impact facilities under the Determination. I have read the relevant evidence and I have no doubt that it supports the conclusion that the need identified by the appellant could be met by the establishment of several low-impact facilities. The finding of the ERD Court that there were other alternatives or options involving the erection of a tower is more finely balanced in terms of whether it is supported by the evidence, but this is not an appeal on a question of fact. In any event, I would only interfere with this finding of fact if clearly persuaded that it was wrong and I am not so persuaded. It was not an error of law for the ERD Court not to identify in its reasons the options or alternatives having regard to my view as to the proper approach to the question of need and alternative locations or sites as outlined above.
The Court weighed up its finding as to the effect of the tower on visual amenity, its finding as to the community need for the facility and its finding as to the other options available to the appellant and considered those matters in light of the relevant provisions of the Development Plan. It decided that provisional development plan consent should be refused. That is quintessentially a planning judgment and there is no warrant for this Court to interfere with that judgment.
Conclusion
For these reasons, the appeal should be dismissed.
ANDERSON J I agree that the appeal should be dismissed for the reasons published by Besanko J.
LAYTON J. In my opinion the appeal should be dismissed and I agree with the reasons given by Besanko J.
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