NBN Co Limited and City Of Albany
[2016] WASAT 61
•25 MAY 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: NBN CO LIMITED and CITY OF ALBANY [2016] WASAT 61
MEMBER: MS L EDDY (MEMBER)
HEARD: 19 JANUARY 2016
DELIVERED : 25 MAY 2016
FILE NO/S: DR 150 of 2015
BETWEEN: NBN CO LIMITED
Applicant
AND
CITY OF ALBANY
Respondent
Catchwords:
Town planning Development application Telecommunications infrastructure Fixed wireless transmission facility 40 metre monopole Proposed site in Rural Residential zone Whether able to be permitted under City of Albany Town Planning Scheme Assessment of impact on visual amenity
Legislation:
City of Albany Town Planning Scheme No 1, cl 3.3, cl 4.2.17, cl 4.4.2, cl 4.3, cl 4.4, cl 4.7.2, cl 5.5.13, cl 10.2, Sch 1, Sch 12, Sch 14
Commonwealth Telecommunications Act 1997 (Cth)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2
Planning and Development Act 2005 (WA), s 252(1), s 256, s 257B
Result:
Application allowed
Summary of Tribunal's decision:
The application for review was in relation to the respondent's decision to refuse development approval for a fixed wireless transmission facility to be installed on a site in a suburb of Albany. The proposed facility comprised a 40 metre monopole with various attachments and an equipment cabinet at ground level. The respondent had refused that application on the basis that it considered the facility would 'have an unacceptable impact on the character and amenity of the local environment'. At the hearing it was argued that the use category 'telecommunications infrastructure' is a use that is not permitted in the relevant zone, or, in the alternative, if capable of approval, it should not be approved because the proposed development was inconsistent with the objective of the zone because it would have an adverse impact on the visual amenity of the locality.
The Tribunal determined that under the City of Albany Town Planning Scheme No 1, 'telecommunications infrastructure' is not a prohibited use on Rural Residential zoned land. Instead, this use had to be treated as a use not listed in the Zoning Table. In relation to impact on visual amenity, the Tribunal determined that the mere fact that part of the proposed development would be visible from various locations did not, of itself, mean that the proposed development would have a negative impact on the visual amenity of the locality. In accordance with State Planning Policy 5.2, factors such as the prominence of the development within the landscape, the extent to which visual aspects of value to the community as a whole might be compromised and the degree to which the development is sympathetic to the surrounding landscape are relevant to this assessment. On the evidence before it, the Tribunal was satisfied that the proposed development would not have an adverse impact on the visual amenity of the locality. There was no dispute that there was a need for effective internet services within the locality and it was determined that the proposed development should be approved.
Category: B
Representation:
Counsel:
Applicant: Mr P McGowan
Respondent: Mr A Stewart (Acting as Agent)
Solicitors:
Applicant: Clayton Utz
Respondent: Rowe Group (Acting as Agent)
Case(s) referred to in decision(s):
Puma Energy Australia and City of Cockburn [2016] WASAT 36
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In October 2014, NBN Co Limited (applicant) requested planning approval from the City of Albany (respondent) for a fixed wireless transmission facility to be installed on No 241 (Lot 105) Robinson Road, Robinson (site). The proposed facility comprises a 40 metre monopole (that is, 40 metres above ground level) with three panel antennas attached to a frame at the head of the pole and two parabolic dish antennas attached approximately 3 metres below the top of the monopole. It is also proposed that an equipment cabinet will be located at ground level. This and the monopole will be enclosed using a 2.4 metre high chain link fence to create a fenced compound of approximately 124m2.
On 9 April 2015, the respondent refused the application on the basis that it would 'have an unacceptable impact on the character and amenity of the local environment'. On 7 May 2015, the applicant lodged an application with the Tribunal pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) seeking review of the respondent's decision.
After a hearing held in Albany on 19 January 2016, the decision was reserved. As part of the hearing, the Tribunal conducted a site view starting from the corner of Manni Road and Munroe Court. The view involved driving in a southerly direction down Manni Road to Roberts Road, along Roberts Road to Racecourse Road, along Racecourse Road to Robinson Road, and along Robinson Road past the site.
Following is the Tribunal's decision and reasons for decision in relation to this matter.
Site and locality
The site is 6.16 hectares in area and is located approximately 4 kilometres south‑west of the Albany town centre. Currently, the site has a single dwelling and associated outbuilding constructed on it, with the remainder of the site being largely uncleared vegetation. The site, and the surrounding land to the west, south and east is zoned Rural Residential under the City of Albany's Town Planning Scheme No 1 (TPS 1 or Scheme). The Albany racecourse is located approximately 1.3 kilometres to the south‑west of the site. Land to the north‑west and north‑east of the site is zoned Rural Small Lot Holding under TPS 1.
The planning experts called by each of the parties agreed that the relevant locality, for the purposes of consideration of issues relating to visual amenity, is the general area bounded by Roberts Road to the south, Gledhow Road to the west, Lower Denmark Road to the north and Elphinstone Road to the east. This area includes all of the Rural Residential zoned land to the south and west of the site, the Rural Small Lot Holding zoned land immediately to the north of the site, plus a small pocket of Industry zoned land to the north-east and the majority of the Rural Residential zoned land to the west of the site. The Tribunal is satisfied that this is the relevant locality for consideration in the context of this application.
It was not disputed that the site is situated on high ground (20.47 AHD). The immediate surrounds comprise localised steep undulating hills that broadly form a south‑west to north‑east orientated dune complex. North of the site, extending to the Lower Denmark Road, and south of the site, extending to Roberts Road, the land is lower (~7.00 AHD and ~10.00 AHD respectively) and relatively flat.
Planning framework
Town Planning Scheme
As mentioned above, the site is zoned Rural Residential under TPS 1. It is also located within a part of a Rural Residential zone that is identified on the Scheme Map as 'RR29'.
The objectives for the Rural Residential zone are specified in cl 4.2.17 of TPS 1, which provides:
(a)Create small rural land holdings for residents who wish to enjoy a residential lifestyle within a rural landscape and environment; and
(b)Provide for residential and limited incidental land uses which:
(i)Are compatible with the preservation and protection of environmentally sensitive areas such as remnant vegetation and groundwater protection areas;
(ii)Do not visually detract from the landscape and the visual amenity of the locality;
(iii)Allow for uses and developments that are fit for purpose and minimise any on-site or off-site impacts such as soil erosion, nutrient loss, drainage and potential land use conflicts; and
(iv)Are located in close proximity to existing urban areas and can enjoy appropriate urban servicing to the lots including rubbish disposal, reticulated water, community facilities and fire infrastructure.
Further provisions relating to the Rural Residential zone are found in cl 5.5.13 of TPS 1. Relevantly to this application, that clause provides:
5.5.13.1In the event of there being any variations or conflict between the special provisions set out in Schedule 14 – Rural Residential Zone and the following general provisions, the requirements of the special provisions under Schedule 14 shall prevail.
5.5.13.2The following general provisions shall apply to all land within the Rural Residential zone, in addition to any special provisions set out in Schedule 14 which are specifically applicable to such land:
5.5.13.2.1Building Design, Material and Colours
…
(b)All dwellings, outbuildings and other structures (such as water tanks) shall be designed and constructed of material which allows them to blend into the landscape of the site.
…
Schedule 14 of TPS 1 contains a table which provides a number of specific provisions applying to areas of Rural Residential zoned land as identified by the numbering system marked on the Scheme Map. In relation to the area identified as 'RR29', Sch 14 of TPS 1 provides:
…
3.The following land uses are 'P' permitted uses:
…
•Single House
4.The following land uses are 'D' discretionary uses:
•Ancillary Accommodation;
•Home Occupation;
•Industry ‑ Cottage;
•Public Utility; and
•Rural Pursuit (which shall be limited to existing cleared and pastured land only).
…
At cl 4.3 of TPS 1, it is stated that the Zoning Table sets out the uses permitted in the Scheme area in various zones using the usual permissibility symbols:
•'P' ‑ permitted;
•'D' ‑ not permitted unless the respondent's council has exercised its discretion;
•'AA' ‑ not permitted unless council has exercised its discretion after advertising; or
•'X' ‑not permitted.
One of the land uses identified in the Zoning Table that follows is 'telecommunications infrastructure', which is defined in Sch 1 of TPS 1 to mean:
land used to accommodate any part of the infrastructure of a telecommunications network and includes any line, equipment, apparatus, tower, antenna, tunnel, duct, hole, pit or other structure used, or for use in or in connection with a telecommunications network[.]
The Zoning Table in TPS 1 does not allocate any of the permissibility symbols next to any land use in the column for the Rural Residential zone. Rather, it is stated in that column that '[a]ll land use and development to comply with clause 5.5.13 and Schedule 14'.
Clause 4.4 of TPS 1 provides that:
4.4.1Where a specific land use is mentioned in the Zoning Table, it is deemed to be excluded from the general terms used to describe any other use.
4.4.2If a person proposes to carry out on land any use that 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 Local Government 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 advertising procedures of clause 9.4 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.
In relation to the determination of development applications, cl 10.2 of TPS 1 provides that the respondent's council is to have due regard to a number of specified factors.
However, as described by the Tribunal in Puma Energy Australia and City of Cockburn [2016] WASAT 36, at [39] ‑ [45], the deemed provision introduced by the Planning and Development (Local Planning Scheme) Regulations 2015 (WA) (PD (LPS) Regs) has effectively replaced this. Relevant to this application, cl 67 of Sch 2 of the PD (LPS) Regs requires the respondent's council to have regard to:
(a)the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;
(b)the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;
(c)any approved State planning policy;
…
(g)any local planning policy for the Scheme area;
…
(m)the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including, but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following ‑
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii)social impacts of the development;
…
(r)the suitability of the land for the development taking into account the possible risk to human health or safety;
…
(x)the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals.
In addition, when considering the amenity of the locality, it is necessary to keep in mind that this concept specifically includes 'environmental impacts of the development; the character of the locality [and] social impacts of the development'.
City of Albany Local Planning Strategy
The infrastructure servicing strategy, identified in clause 8.6.4 of the City of Albany Local Planning Strategy (Strategy), provides that the strategic objective is to '[p]rovide for and encourage the sustainable and timely delivery of essential utility infrastructure to accommodate appropriate urban and rural settlement growth'. One of the key elements of the Strategy, identified in clause 8.6.4 of the Strategy, is to '[i]mprove telecommunications services to rural areas, including mobile phone and broadband coverage …'.
State Planning Policy 5.2 Telecommunications Infrastructure
The most recent version of State Planning Policy 5.2 Telecommunications Infrastructure (SPP 5.2) was published in September 2015. The policy intent is described at clause 2, on page 1 of SPP 5.2 as:
Installation of telecommunications network infrastructure usually involves the development of land and/or alteration to the appearance of buildings or structures, which may have visual impacts. This planning policy aims to balance the need for effective telecommunications services and effective roll-out of networks, with the community interest in protecting the visual character of local areas. Using a set of land use planning policy measures, the policy intends to provide clear guidance pertaining to the siting, location and design of telecommunications infrastructure.
At clause 3.2, on page 1 of SPP 5.2, it is stated that the policy applies throughout Western Australia in respect to above and below ground telecommunications infrastructure other than those facilities exempted under the Commonwealth Telecommunications Act 1997 (Cth). The telecommunications infrastructure under consideration in this application is not one exempted under that legislation. At clause 3.6 on page 3 of SPP 5.2 it states that '[d]ue regard should be given to this policy by State and local government planning decision‑makers for … [d]evelopment proposals for telecommunications infrastructure'.
The policy objectives of SPP 5.2 are specified at clause 4 on page 4 of SPP 5.2 as:
a)facilitate the provision of telecommunications infrastructure in an efficient and environmentally responsible manner to meet community needs;
b)manage the environmental, cultural heritage, visual and social impacts of telecommunications infrastructure;
c)ensure that telecommunications infrastructure is included in relevant planning processes as essential infrastructure for business, personal and emergency reasons; and,
d)promote a consistent approach in the preparation, assessment and determination of planning decisions for telecommunications infrastructure.
At clause 5 on page 4 of SPP 5.2, the policy measures are identified. That clause specifies that visual impacts of an infrastructure development proposal should be assessed by applying the following set of policy measures to guide the location, siting and design of the structure:
5.1.1The benefit of improved telecommunications services should be balanced with the visual impact on the surrounding area.
i)Assessment of the visual impact of development proposals for telecommunications infrastructure should be made on a case by case basis;
ii)Telecommunications infrastructure should be sited and designed to minimise visual impact and whenever possible:
a)be located where it will not be prominently visible from significant viewing locations such as scenic routes, lookouts and recreation sites;
b)be located to avoid detracting from a significant view of a heritage item or place, a landmark, a streetscape, vista or a panorama, whether viewed from public or private land;
c)not be located on sites where environmental, cultural heritage, social and visual landscape values maybe compromised and
d)display design features, including scale, materials, external colours and finishes that are sympathetic to the surrounding landscape;
…
iv)Telecommunications infrastructure should be located where it will facilitate continuous network coverage and/or improved telecommunications services to the community; and
v)Telecommunications infrastructure should be collocated and whenever possible:
a)Cables and lines should be located within an existing underground conduit or duct; and
b)Overhead lines and towers should be co-located with existing infrastructure and/or within existing infrastructure corridors and/or mounted on existing or proposed buildings.
Finally, at clause 6.3 on page 5 of SPP 5.2, it states that:
In considering a development application, the local government should give consideration to:
a)The extent to which the proposal adheres to the policy measures outlined in Section 5 of this policy[;]
b)The need for services to be located to optimise coverage; and
c)Documentation to be submitted under Section 6.3.1 of this Policy.
…
Issues
The issues to be determined in this application, as identified by the parties, are:
1)whether the proposed telecommunications tower is capable of approval under TPS 1;
2)whether the proposed telecommunications tower will have a detrimental impact on the landscape character, and therefore the amenity, of the locality; and
3)whether the proposed telecommunications tower is consistent with orderly and proper planning.
Whether the proposed development is capable of approval
The respondent submits that the use category 'telecommunications infrastructure' is a use that is not permitted in the RR29 zone. In making this submission, the respondent relies on the fact that the Zoning Table in TPS 1 states that all land use development in the Rural Residential zone must comply with Sch 14 of TPS 1, and that schedule does not include the use category 'telecommunications infrastructure'. The respondent submits therefore that TPS 1 should be understood as permitting in the Rural Residential zone only those uses that are identified in Sch 14 of the Scheme, with all other uses, including telecommunications infrastructure, consequently not capable of being permitted in this zone. In further support of this submission, the respondent points to examples in Sch 14 of TPS 1, such as in the 'RR39' zone, where included in the list of discretionary uses are '[o]ther incidental or non‑defined activities considered appropriate by the Local Government, which are consistent with the objective of the zone'. The absence of words to this effect in relation to the RR29 zone is submitted to have the effect that any incidental or non‑defined uses are not able to be considered in that zone.
The applicant submits that the statement in the Zoning Table relied upon by the respondent does not have the effect of prohibiting any use or development that is not referred to in Sch 14 of TPS 1. In support of its submission, the applicant refers to cl 4.7.2 of TPS 1. This provides that '[a] person must not use any land, or any structure or buildings on land … except for the purpose set out against that land in Schedule 4 and subject to compliance with any conditions set out in Schedule 4 with respect to that land'. The applicant submits that this is a provision that expressly limits the use of land within the Special Use zones. In contrast, the statement in the Zoning Table in relation to the Rural Residential zone does not expressly prohibit any uses. Rather, it simply provides for information relating to use permissibility to be contained in Sch 14 of TPS 1 as opposed to within the Zoning Table itself. Within Sch 14 of TPS 1, the same permissibility symbols as are used in the Zoning Table in TPS 1 are used. In relation to RR29, there are listed use categories that are 'P' (permitted) or 'D' (not permitted unless the respondent's council has exercised its discretion) but there are not any uses identified as 'X' (not permitted) uses. Therefore, there is no basis to infer that telecommunications infrastructure is not permitted in the RR29 zone.
Although there is logic in the applicant's argument that, having regard to the context, the RR29 zone must have been intended to exclude a discretion to allow 'incidental or other' uses, it is the Tribunal's view that the language used is insufficient to read into it a prohibition of land uses that are not specifically referred to. In addition to the matters referred to by the applicant, there is another contextual consideration in TPS 1 that supports the conclusion that the lack of reference to a land use category in Sch 14 of TPS 1 does not equate to a prohibition of that land use. Similarly to the way that the Rural Residential zone is treated in the Zoning Table of TPS 1, it is stated in relation to the Conservation zone that '[a]ll land use and development to comply with clause 5.5.14 and Schedule 12'. In Sch 12 of TPS 1 there are some uses that are expressly stated to be prohibited in a specific Conservation zone (see cl 3.3 of Sch 12 of TPS 1 in relation to CZ1) or are described as 'X' (not permitted) uses (see cl 3.3 of Sch 12 of TPS 1 in relation to CZ2). The lack of any similar statement or identification in Sch 14 of TPS 1 supports the conclusion that it was not intended to prohibit any land use in the Rural Residential zone.
The references to the relevant schedule in the Zoning Table and the use in those schedules of the symbols 'P', 'D' and 'X' (those symbols only being defined in cl 4.3 of TPS 1 in relation to their use in the Zoning Table) can only be sensibly understood as meaning that, to the extent that the schedules referred to in the Zoning Table include land use information, those schedules are, in effect, an extension of the Zoning Table. Starting from this premise, it is apparent then that where there is a proposal to use land in the Rural Residential zone for a use that is not mentioned in Sch 14 of TPS 1, that proposal must be dealt with pursuant to cl 4.4.2 of TPS 1. In applying this clause to Rural Residential zoned land, it is necessary to understand the reference to the Zoning Table as a reference to Sch 14 of TPS 1.
The Tribunal is satisfied that the proposed use in this case, being 'telecommunications infrastructure', is not a prohibited use on Rural Residential zoned land. Rather, this use must be treated, in relation to Rural Residential zoned land, as a land use not listed. The Tribunal may therefore permit the use aspect of the development proposal only if it is, or may be, consistent with the objectives of the Rural Residential zone: cl 4.4.2 of TPS 1.
Mr Jeremy Hofland, the town planner called by the respondent, was of the opinion that the proposed development is inconsistent with the objectives of the Rural Residential zone because it would detract from the visual amenity and landscape character of the area: Exhibit 16 at [79] and [80]; Exhibit 18 at [15]. Mr Steve Allerding, the town planner called by the applicant, was of the view that the proposed development is not inconsistent with the objectives of the Rural Residential zone: Exhibit 17 at [50]. This, in substance, is based on his opinion that the proposal does not detrimentally impact on the visual amenity of the locality.
Having regard to the objectives listed in TPS 1 in relation to the Rural Residential zone, it is apparent that whether or not the proposed development is, or may be, consistent with those objectives will effectively turn on the Tribunal's finding as to whether the proposed development visually detracts from the landscape and the visual amenity of the locality.
Whether the proposed development impacts on visual amenity
In relation to the issue of visual amenity, the Tribunal has before it expert evidence from the town planners, Mr Hofland and Mr Allerding, as well as from Mr Howard Mitchell, a Chartered Landscape Architect and a Director of EPCAD Pty Ltd (EPCAD). EPCAD is a business involved in planning and designing developments in the urban and rural landscape and providing the consulting services of a number of landscape architects, environmental planners and urban designers. The Tribunal also heard from Mr Grant Boonzaaier, who is a Geographic Information Systems (GIS) analyst employed by the respondent as a GIS Technical Officer.
The Tribunal also has witness statements from Mr Robert Tweedle, Mrs Margaret Walmsley and Mr Gordon Walmsley, Mr Dean Shekell and Ms Marena Williams. Mr Tweedle lives at No 150 Robinson Road, Robinson and owns another property at No 173 Robinson Road, Robinson. Mr and Mrs Walmsley live at No 308 Robinson Road, Robinson and also own properties at Nos 148, 278 and 325 Robinson Road, Robinson. Mr and Mrs Walmsley operate a tourist accommodation business that utilises the property at No 278 Robinson Road, Robinson and another property, owned by a relative, at No 200 Robinson Road, Robinson. Mr Shekell resides at No 245 Robinson Road, Robinson and his property abuts the western boundary of the site. Ms Williams resides at No 165 Robinson Road, Robinson. All of the properties owned or operated by these witnesses are within the locality of the proposed development.
Additionally, the Tribunal has a number of documents that address the issue of visual amenity. These include:
•planning report prepared by Daly International Pty Ltd (dated October 2014) provided to the respondent in support of the application for development approval: Exhibit 4, pages 16‑70;
•visual impact assessment by EPCAD dated 13 July 2015: Exhibit 4, pages 114‑152;
•visual amenity impact assessment supplemental report dated 20 November 2015: Exhibit 20, attachment 2; and
•view‑shed analysis: Exhibit 19, attachment 2.
Both of the town planners agreed that when considering the issue of impact on visual amenity by the proposed development, the starting point is to apply the approach specified for this purpose by SPP 5.2. Such an approach is plainly consistent with the relevant planning framework that applies, and gives effect to the policy intent specified in SPP 5.2 as well as within the locally applicable Strategy. There was no submission put forward that there was some exceptional reason why the policy's approach to assessment of visual impact should be departed from in this instance, and no such reason was apparent from the evidence before the Tribunal. Therefore, this is the approach that the Tribunal should adopt in this matter.
Expert evidence
EPCAD was engaged by the applicant to undertake a visual amenity impact assessment. Mr Mitchell described that the preparation of this included an assessment of the zone of visual influence determined by topography and analysis of maps and aerial photography, followed by a site investigation. The site investigation included travelling the road network and checking the likelihood of visibility of the proposed development, as well as visiting key tourist destinations to ascertain whether any portion of the proposed development would be visible from those locations. Photographs were taken from various publicly accessible viewpoints. The supplemental report includes a number of representative viewpoints utilising a computer model upon which scale images intended to be representative of the proposed development are superimposed (montages). In this process, survey data provided by a licenced surveyor was used to ensure accurate ground levels and heights.
All of the experts accepted that the montages provided a reasonably realistic and accurate prediction of how the proposed development would appear from the depicted viewpoints. It is apparent from the montages that from the viewpoints depicted, the proposed development will be visible in part only, appearing as a slender form rising to varying heights above the existing tree line.
Mr Mitchell's evidence was that the prevailing character of the locality is of a rural landscape, typically affected by agricultural management practices. He noted that there is a significant amount of remnant vegetation with large mature gum trees that hide the elevated parts of land. Mr Mitchell observed that the landscape in the locality includes a variety of manmade elements such as power transmission lines and poles and some streetlights. Mr Mitchell observed that it would be rare within the locality for the view of the monopole from the road network to be aligned in the direction of travel. When travelling on the roads, the monopole of the proposed development would generally be visible only off to the side.
Mr Mitchell concluded that the proposed development would not be a dominant feature within the broader landscape even when viewed in close proximity, with the monopole being seen through vegetation and only from limited locations. In large part, views of the monopole would be glimpse views, which, in his opinion, have less impact on visual amenity than static, panoramic views. While accepting that his assessment was limited to viewing points that are publically accessible, Mr Mitchell's opinion was that there would not be a significant amenity impact and that landscape values in the locality will not be adversely affected by the proposed development.
Mr Boonzaaier prepared a view-shed analysis that involved the use of Department of Water elevation data (including vegetation height) and appropriate software to create computer generated images aimed at assisting in the assessment of the visual impact of the proposed development.
Firstly, Mr Boonzaair produced a series of images illustrating the height of the monopole of the proposed development relative to existing vegetation as viewed from various locations in the vicinity of the site. The images show the location and height of the visible part of the proposed development by using a red line to depict a linear object of approximately double the diameter of the proposed monopole. The Tribunal was satisfied that, if the inaccuracy in relation to the colour and width of the proposed development as compared to the red line used in these images is taken into account, Mr Boonzaair's images are consistent with the photo montages produced by EPCAD, and could be accepted as reasonably representative of the amount of the proposed development that could be expected to be visible from the specified viewpoints.
Secondly, Mr Boonzaair produced an image of the view‑shed surface analysis, which depicted the locations from which the monopole of the proposed development would be visible. There was no dispute that this surface analysis was an accurate representation of those areas that would have a view (without specifying the degree or amount of that view) of the proposed development. The Tribunal accepted that this evidence established that at least some part of the proposed development would be visible from a range of locations within the locality. Mr Boonzaair did not offer any opinion in relation to the visual impact of the proposed development as this was not an area within his expertise.
Mr Allerding was of the opinion that the proposed development:
a)will not be prominently visible from significant viewing locations such as scenic routes, lookouts and recreation sites;
b)will not detract from any significant view;
c)is not located where environmental cultural heritage, social and visual landscape values may be compromised; and
d)is able to be designed in a way that materials, external colours and finishes can be sympathetic to the surrounding landscape,
and therefore will not have a detrimental impact on the landscape character, and therefore amenity, of the locality. In reaching this conclusion, Mr Allerding applied the approach to assessment of visual impact of a telecommunications infrastructure specified by SPP 5.2.
Mr Hofland agreed with statements made by others to the effect that the proposed development would be visible from selected points in the surrounding public realm, including from various locations on public roads in the vicinity, and that from many of these points, views would be glimpses of the monopole of the proposed development only. However, Mr Hofland disagreed with the conclusion that there would therefore be very little impact on the landscape character and visual amenity as a result.
Mr Hofland noted that there is a bridle trail that traverses the locality, in particular along the reserve of Manni Road. In addition, Robinson Road forms part of a nominated cycling route. The visual impact assessment reports show that the monopole of the proposed development will be visible from parts of each of these locations. Therefore, in Mr Hofland's opinion, these recreational facilities would be detrimentally impacted by the proposed development. Mr Hofland was not able to advise the Tribunal in relation to the extent and regularity of the use of either of these recreational facilities or their relative importance within the community.
Mr Hofland also considered that the monopole of the proposed development would be visible from a number of privately‑owned residences and tourist accommodation properties to the south (including south‑east and south‑west) of the site. In Mr Hofland's opinion, to the extent that the monopole of the proposed development was visible from these private locations, it would cause a detrimental impact on the existing visual amenity.
Other evidence/submissions
Ms Williams' home is oriented to the north‑west aspect and therefore, based on Mr Boonzaaier's computer‑generated images, she believes the monopole of the proposed development will be visible from various locations on her property, including from her front garden and driveway. Ms Williams is strongly opposed to the proposed development being located in the site, as she believes it will introduce an 'industrial' structure into her currently rural view. She also believes that the proposed development will intrude upon and diminish the attraction of the Stidwell Bridle Trail, which she says is used by a variety of people from within and outside of the area.
Mr Shekell accepts that the proposed development will not be highly visible from his home but he is, nonetheless, strongly opposed to the proposed development being located on the site. He feels the proposed development will negatively impact on the natural and rural character of the locality. In Mr Shekell's opinion, the locality is very picturesque and natural, with infrastructure kept to a minimum. It is also his opinion that the proposed development would detrimentally impact on the current and future potential of the locality as a tourist location.
Mr Tweedle also objects to the proposed development being located on the site. He says that while it will not be highly visible from his home as it currently stands, he plans to extend his home and he believes that when he does this, the proposed development will become visible. Mr Tweedle considers that the proposed development will be visible above the tree line from areas of his lot that have been cleared, and consequently, it will have an adverse visual impact on his property. Mr Tweedle believes that there are other locations where the proposed development could be located that would not have an adverse impact on the locality.
Mr and Mrs Walmsley object to the proposed development being located on the site because they believe it will have a negative visual impact on the landscape and uniqueness of the locality.
Conclusion
While the evidence and submissions made by the property owners within the locality are matters to be taken into account in determining whether or not to grant development approval, their opinions in relation to the visual impact of the proposed development, and any possible impact on tourism in the area, cannot be given significant weight because none of these witnesses was established as having any relevant expertise on which opinions of this type could be said to be based. Their opinions must be understood, and taken into account, only as their personal, subjective opinions and beliefs as people living in the locality.
There can be no doubt that part of the proposed development will be visible from a number of locations within the locality. The Tribunal is satisfied, however, that only the upper part of the monopole (and its attachments) will be visible.
The fact that part of the proposed development will be visible does not, of itself, mean that the proposed development will have a negative impact on the visual amenity of the locality. As can be seen from SPP 5.2, factors such as the prominence of the development within the landscape, the extent to which visual aspects of value to the community as a whole might be compromised, and the degree to which the development is sympathetic to the surrounding landscape are relevant to this assessment.
The applicant argued that Mr Mitchell, as a landscape architect, was the only expert qualified to give opinion evidence in relation to the assessment of visual impact on the landscape – or, at least, he was the best qualified and should be preferred over the town planners. While it is not accepted that this is a matter solely within the expertise of a landscape architect, or outside of the expertise of town planners, in this case, the evidence of Mr Mitchell and Mr Allerding is preferred over that of Mr Hofland.
The Tribunal accepts Mr Mitchell's evidence, which was not effectively challenged, that the proposed development will not be a dominant feature within the broader landscape even when viewed in close proximity. Mr Mitchell's opinion that the limited visibility of the proposed development that could be expected would not result in a significant visual amenity impact is supported by the montages produced by EPCAD and by the images produced by Mr Boonzaair.
The view of the locality undertaken by the Tribunal confirmed that, as was the evidence of all relevant witnesses, the locality is one with an attractive rural character. It was also apparent that, as had been stated by Mr Mitchell, it was not an entirely pristine environment, having the usual manmade structures such as power poles and some light poles which generally accompany modern living.
Mr Allerding's opinion on the visual impact of the proposed development was based on an assessment, which took into account the nature of the likely views of the proposed development (largely through, or above, vegetation), the amount of the development that would be visible, the direction of the views of the development as compared to direction of travel on roads in the locality, and the lack of prominence of the visibility of the proposed development from places of importance to the community. The Tribunal was satisfied that this reasoning was sound and supported the conclusion on the impact on visual amenity that Mr Allerding reached.
In contrast, Mr Hofland's opinion on this topic was expressed in a way that suggested an overreliance on the fact that the proposed development would be visible from various locations (including recreational sites) without showing any more subtle analysis. It was not apparent that Mr Hofland had weighed all of the aspects about the nature and degree of the visibility of the proposed development and whether any place where such views were considered of prominence were places of relative importance to the community. The visibility of the proposed development from the Stidwell Bridle Trail and from a cycling route was apparently significant to Mr Hofland's determination of adverse visual impact; however, he did not have any information about the level of use or other factors that might assist him determine the relative importance of these facilities to the community. The Tribunal had some limited information from Ms Williams in relation to the Stidwell Bridle Trail: that she sees 'a number of people walking, horse riding or cycling along [it]'; as well as what seem to be her assumptions about where people who use the trail come from. However, this is not a sufficient basis on which the Tribunal could find support for Mr Hofland's expressed opinion, or itself form any conclusion about the significance of the trail to the community.
The Tribunal is satisfied that the proposed development will not have an adverse impact on the visual amenity of the locality.
Whether the proposed development is consistent with orderly and proper planning
Mr Andrew Carrabin is an Electrical Engineer with expertise in telecommunications who gave evidence about the site selection process and the reasons why the site was selected as the location for the proposed development. He explained that as part of the NBN initiative, a need for a fixed wireless facility to provide high speed broadband service for the Robinson area was identified. The process for selecting the site involved a desktop analysis in order to identify a relevant search area of locations capable of providing the required coverage, followed by a visit to the area in order to observe the terrain and other factors. In considering suitable locations, the applicant seeks to balance its objectives of siting telecommunications infrastructure in a manner that minimises its visual intrusion and other environmental impacts with the need to provide an effective service to end users. As a result of these investigations, preferred locations (candidates) for the proposed development were chosen. In this case, a small number of candidates were identified but only one of those, the site, was able to be pursued, as the owners of all other candidates were not interested in having the proposed development on their property.
In response to queries raised by the respondent, Mr Carrabin analysed whether some alternative proposed locations in and around Albany racecourse to the south of Robinson Road, Robinson would be suitable for the proposed development. Mr Carrabin concluded that the area near the racecourse was not a suitable location because if the proposed development was located here, it would not be able to provide sufficient coverage and signal strength to premises to the north of Robinson Road. Mr Carrabin also confirmed that no suitable opportunities for co‑location of the proposed development with an existing telecommunications infrastructure existed. In expressing these opinions, Mr Carrabin provided reasoning that the Tribunal accepted as sound. He showed that he had been open to potential alternative locations but that he had been unable to be satisfied that a service of sufficient quality could be achieved from any of these.
The respondent does not dispute that there was a need for fast and reliable internet services in the locality. Nor does it dispute that there is a need for additional telecommunications infrastructure in order to achieve this. Its objections to the proposed development were based on its concern about the impact on the visual amenity of the locality, and its belief that the necessary infrastructure could and should be placed in an alternative location.
The Tribunal is persuaded by Mr Carrabin's evidence that a thorough analysis of the potential locations has been done and that there are good reasons why the site was identified as the location for the proposed development. It is satisfied that the alternative location for the proposed development identified by the respondent is not a viable alternative capable of achieving satisfactory outcomes.
The proposed development will be visible from some locations within the locality. It is, in fact, necessary that this be so, as this type of infrastructure must be elevated above its surroundings in order for it to be effective. However, as stated above, the nature and degree of that visibility in the context of the surrounding locality is such that the proposed development will not adversely impact on the visual amenity of the locality.
The proposed development is consistent with aspects of the Strategy that promote the extension of high quality telecommunications for the whole Albany district and is not inconsistent with any other provisions of the Strategy.
The Tribunal is satisfied that the proposed development is consistent with orderly and proper planning.
Conclusion and orders
The correct and preferable decision is that the application for approval for the proposed development should be granted. The Tribunal therefore makes the following orders:
1.The decision of the respondent made on 9 April 2015 to refuse the application is set aside; and instead ‑
2.The application for development approval to construct a fixed wireless transmission facility (in accordance with the amended plans labelled 6ALN‑51‑01‑ALBA‑C1 to 6ALN‑51‑01‑ALBA‑C4, R4 dated 01.11.15) on No 241 (Lot 105) Robinson Road, Robinson is allowed subject to the following conditions:
1)Unless varied by a condition of approval or a minor amendment to the satisfaction of the City of Albany, all development shall occur in accordance with the stamped, approved plans.
2)The telecommunications pole shall not exceed a height of 40 metres above the natural ground level of the site where the telecommunications pole is to be situated.
3)Prior to commencement of the development, details of the finished colour of the telecommunications pole shall be submitted to the City of Albany for approval.
4)A Construction Management Plan shall be submitted to the City of Albany for approval in writing and implemented to the satisfaction of the City of Albany.
5)Lighting devices are to be positioned and shielded so as not to cause any direct, reflected or incidental light to encroach beyond the property boundaries, in accordance with Australian Standard AS4282/1997.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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