NBN CO LTD and CITY OF SWAN
[2018] WASAT 10
•15 FEBRUARY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: NBN CO LTD and CITY OF SWAN [2018] WASAT 10
MEMBER: MS M CONNOR (MEMBER)
HEARD: 13 AND 14 NOVEMBER 2017
DELIVERED : 15 FEBRUARY 2018
FILE NO/S: DR 150 of 2017
BETWEEN: NBN CO LTD
Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning - Development - Telecommunications infrastructure - Fixed wireless transmission facility - 30 metre monopole and ancillary facilities - Rural Residential Landscape Character Unit - Visual impacts - Degree of impact - 'Significant view' - Impact on possible future development - Conditions
Legislation:
City of Swan Local Planning Scheme No. 17 (WA), cl 1.6, cl 4.2, cl 4.2.13, cl 5.1.1, cl 5.1.2, cl 5.8, cl 10.2, Sch 1, Pt 5
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 3, cl 67, cl 67(c), cl 77
Planning and Development Act 2005 (WA), s 241(1)(a), s 252(1), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 31
Swan Valley Planning Act 1995 (WA), s 8
Telecommunications (Low-impact Facilities) Determination 1997 (Cth)
Telecommunications Act 1997 (Cth)
Town Planning Regulations 1967 (WA) Appendix B (Model Scheme Text), cl 10.2
Result:
The application for review allowed
Decision of respondent set aside and a decision substituted
Summary of Tribunal's decision:
NBN Co Ltd applied, pursuant to the State Administrative Tribunal Act 2004 (WA), for review of a decision of the City of Swan refusing to grant development approval for Telecommunications Infrastructure and Ancillary Facilities on Lot 285 (No 158) Hardwick Road, Millendon.
The telecommunications facility included the following components: a 30 metre high monopole; four panel antennas and eight remote radio units; one parabolic dish antenna; two outdoor cabinets at ground level; a 2.4 metre high chain link security compound fence; and ancillary equipment associated with the operation of the facility.
The issue for determination in this matter was whether the visual impact of the monopole was such that the proposed development warranted refusal.
The respondent accepted that the proposed development would produce a community benefit, in that it would make available fixed wireless broadband service to the NBN network that would be available to approximately 256 dwellings in the Millendon area but argued that the monopole was inappropriately located and would have a significant impact on the visual amenity afforded to No 161 Loton Road and No 60 Range Road, Millendon and therefore development approval should be refused.
The Tribunal, in considering the circumstances of the case and having regard to the planning framework, was satisfied that the development was consistent with the principles embodied in State Planning Policy 2.5 - Telecommunications Infrastructure and with the aims of the City of Swan Local Planning Scheme No 17, particularly clause 1.6(3); did not offend the objectives of the Swan Valley Rural Zone or the relevant planning objectives of the Swan Valley Planning Act 2005 (WA); and was persuaded that the community benefits derived from the proposed facility outweighed the consequential visual impacts on the locality. Consequently, the application for review was allowed and development approval was granted subject to two conditions.
Category: B
Representation:
Counsel:
Applicant: Mr P McGowan
Respondent: Mr C Slarke
Solicitors:
Applicant: Clayton Utz
Respondent: McLeods
Case(s) referred to in decision(s):
NBN Co Limited and City of Albany [2016] WASAT 61
Puma Energy Australia and City of Cockburn [2016] WASAT 36
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Aurecon Australasia Pty Ltd on behalf of NBN Co Ltd (applicant) made application to the City of Swan (respondent, Council or City) in July 2016 for development approval for telecommunications infrastructure on Lot 285 (No 158) Hardwick Road, Millendon (subject land).
The application was advertised from 4 August 2016 to 1 September 2016 to landowners within 200 metres of the subject land with a total of 13 submissions received, comprising 12 objections and one non-objection. The majority of the objections were concerned that the development would have unacceptable impact on visual amenity. The application was referred to the Swan Valley Planning Committee who recommended the respondent's staff explore alternative locations.
The respondent, at its meeting of 12 April 2017, resolved to refuse to grant development approval for 'Telecommunications Infrastructure and the Ancillary Facilities' on the subject land for the following reasons:
1.The telecommunication infrastructure will have an adverse impact on the visual amenity of the locality.
2.The proposed telecommunication infrastructure is inconsistent with the provisions of the City's policy POL-TP-126 and POL-C-080.
3.The proposed telecommunications infrastructure is inconsistent with State Planning Policy 5.2 and POL-C-059 with regards to colocation and joint coordinated rollout requirements.
The applicant, on 27 April 2017, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. The applicant seeks an order that the respondent's decision be set aside and the application for development approval be granted.
On 18 August 2017, the applicant was given leave to amend the development application the subject of review by reducing the height of the proposed monopole from 40 metres to 30 metres, and substituted plans for that purpose. The Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA), invited the respondent to reconsider its decision.
The respondent, at its meeting on 27 September 2017 reaffirmed its previous decision.
The plans titled Site No: 6ELB 51 - 06 filed with the Tribunal on 18 August 2017 (Exhibit 3 Tab 7) are the plans the subject of this review.
Subject land and locality
The subject land is more particularly described as Lot 285 on Plan 3598, being the whole of the land contained in Certificate of Title Volume 752 Folio 14 and is 5.014 hectares in area. The subject land is bounded to the north by Hardwick Road and to the east by Range Road. It is located in a semirural area comprising lots of approximately 4 to 6 hectares.
The northern third of the lot is well vegetated. It contains a shed towards the northwest corner adjacent to Hardwick Road and a single residence further south towards the Range Road boundary. The eastern boundary of the subject land is well vegetated while the remainder of the site is open grazing land.
The nearest dwellings to the proposed location of the telecommunications infrastructure are: No 161 Loton Road, Millendon (No 161) approximately 234 metres to the south; and No 60 Range Road, Millendon (No 60) approximately 200 metres north-west on the eastern side of Range Road.
The proposal
The proposed development (as amended) comprises telecommunications infrastructure which includes the following components:
•a 30 metre high monopole;
•four panel antennas and eight remote radio units. The headframe and antennas extend above the monopole by approximately 1 metre;
•one parabolic dish antenna;
•two outdoor cabinets at ground level;
•a 2.4 metre high chain-link security compound fencing around 8 metres x 10 metres compound; and
•ancillary equipment associated with the operation of the facility, including a 300 millimetre wide cable tray, cabling, safe access methods, bird proofing, earthing, electrical works and air-conditioning equipment.
The proposed facility is to be located in the southeast corner of the subject land, adjacent to the Range Road boundary to the east and No 161 to the south.
Planning framework
The subject land is zoned 'Rural' under the Metropolitan Region Scheme and 'Swan Valley Rural' under the City of Swan Local Planning Scheme No. 17 (LPS 17 or Scheme). It is also located within 'Area B' of the Swan Valley Planning Act 1995 (WA) (SVP Act).
Local scheme and 'Deemed Provisions'
The aims of LPS 17 are set out at cl 1.6 of the Scheme and include the following:
…
(c)Encourage development that will strengthen the economic base of the District and provide convenient and efficiently located employment for the community.
…
(e)Protect and enhance the quality of the urban and rural living environments of the District, and to provide for such development as is consistent with the maintenance of efficient services and amenities within the District[.]
The objectives of the zones are set out in cl 4.2.13 of LPS 17. The objectives for the Swan Valley Rural Zone are:
(a)promote the core area of the Swan Valley primarily as a horticultural, recreational, tourism and landscape resource;
(b)provide for limited rural living within the Swan Valley, subject to locational, design and landscaping requirements to enhance the character and amenity of the valley and to ensure compatibility with productive rural activities;
(c)recognise the occurrence of high quality horticultural soils and scarce plastic clays and to protect these resources from development which would jeopardise their current and future use;
(d)ensure that the development and use of land accords with the planning objectives for Area B as specified in the Swan Valley Planning Act (2005).
The relevant planning objectives for Area B set out in s 8 of the SVP Act are as follows:
…
6.The compatibility of design, siting and landscaping with the character of the area.
7.The discouragement of uses that are incompatible with the rural character and traditional agricultural activities of the area.
The term 'telecommunications infrastructure' is defined in Sch 1 Dictionary of Defined Words and Expressions of the Scheme as meaning:
[L]and 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 and includes Radio & T.V. Installations used for business purposes or commercial gain[.]
There is no dispute between the parties that the proposed development falls within the definition of 'telecommunication infrastructure'. Telecommunication infrastructure is a use class listed in the Zoning Table of the Scheme and is designated as a 'D' use, which is a use not permitted unless the local government, or the Tribunal on review, has exercised its discretion by granting planning approval. In exercising discretion, it is intended that the objectives of the zone will be applied by the decisionmaker to determine the appropriateness of discretionary uses: cl 4.2 of LPS 17.
Clause 5.8 of the Scheme specifically addresses telecommunications infrastructure and provides as follows:
When considering an application for planning approval for Telecommunications Infrastructure, the Council shall have regard to any relevant planning policy adopted by the Council pursuant to clause 2.4, WAPC State Planning Policy 5.2 (Telecommunications Infrastructure), any other relevant State Planning Policy and to the following objectives:
(a)To encourage co-location as a means of preventing unnecessary proliferation and duplication of such infrastructure;
(b)To minimise the visual impact of such infrastructure on the surrounding locality; and
(c)To prevent ad-hoc development of such infrastructure by requiring applicants to provide a report in accordance with the requirements of WAPC State Planning Policy 5.2 and any other relevant State Planning Policy and to demonstrate an industry-wide strategic approach to the location of such infrastructure throughout the City.
Part 5 of the Scheme sets out the general development requirements for all zones. All development of land is to comply with the provisions of the Scheme and have due regard for any relevant planning policies effective under the Scheme: cl 5.1.1. Clause 3 of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme area.
In determining an application, the decisionmaker is to have regard to any relevant local planning policies adopted under the Scheme: cl 5.1.2 of LPS 17. The relevant local planning policy referred to by the parties is City of Swan Local Planning Policy POLC059 Telecommunication (Mobile Phone) Facilities Policy.
Clause 10.2 of LPS 17 sets out the matters to be considered in determining the application. However, the Tribunal, in Puma Energy Australia and City of Cockburn [2016] WASAT 36, found that, by virtue of s 257B(3) of the PD Act, that cl 67 of the Deemed Provisions has replaced all the equivalent provisions in local planning schemes in Western Australia based on cl 10.2 of the former Model Scheme Text. Clause 10.2 of LPS 17 is such a provision.
Clause 67 of the Deemed Provisions provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government (and the Tribunal on review), those matters are relevant to the development the subject of the application. The pertinent matters relating to this application are as follows:
•the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any approved State planning policy (subclause (c));
•any local planning policy for the Scheme area (subclause (g));
•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 (subclause (m));
•the amenity of the locality including the character of the locality (subclause (n));
•the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals (subclause (x)); and
•any submissions received on the application (subclause (y)).
In addition to subclause 67(c) of the Deemed Provisions, the Tribunal pursuant to s 241(1)(a) of the PD Act is required to have due regard to any State planning policy which may affect the subject matter of an application for review. The parties agree that State Planning Policy 5.2 Telecommunications Infrastructure (September2015) (SPP5.2) is such a policy.
State Planning Policy 5.2 Telecommunications Infrastructure
It is agreed between the parties, and the Tribunal accepts that under the relevant provisions of the Telecommunications (Lowimpact Facilities) Determination 1997 (Cth) the proposed development has been determined not to fall within the parameters for 'lowimpact' and therefore requires an application and an approval under the relevant planning legislation.
Clause 2 of SPP 5.2 describes the intent of the policy as follows:
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.
SPP 5.2 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) Telecommunications Act). The telecommunications infrastructure under consideration in this application is not one exempted under that legislation. Clause 3.6 of SPP 5.2 requires that '[d]ue regard should be given to this policy by State and local government planning decisionmakers for … [d]evelopment proposals for telecommunications infrastructure'.
The policy objectives of SPP 5.2 are specified as follows: cl 4:
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.
Clause 5 of SPP 5.2 set out policy measures in respect to visual impacts and 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 colocated 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.
Further, cl 6.3 of SPP 5.2 provides 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.
In regards to the preparation of local planning policies, cl 6.1 of SPP 5.2 specifies that local governments should ensure that buffer zones and/or setbacks not be included in local planning policies.
Issue
The issue for determination in this matter is whether the visual impact of the monopole is such that the proposed development warrants refusal.
The respondent accepts that the proposed development will produce a benefit in that it will make available fixed wireless broadband service to the NBN network that will be available to approximately 256 dwellings in the Millendon area. However, the respondent contends that the monopole is inappropriately located and will have a significant impact on the visual amenity afforded to No 161 and No 60. Although the proposed development will be visible from other private properties and various public locations in the area, the respondent is predominantly concerned with the impact of the proposed development on the affected properties as it considers the visual impact to be most severe on these two properties.
The respondent asserts that the location of the proposed development in the south-east corner of the subject land is unusual and significant as it is located as far as possible from the dwelling on the subject land and as close as possible to No 161, thereby minimising the impact on the dwelling on the subject land and maximising the impact on No 161. The respondent submits that the visual impact on the northern part of No 161 will be so severe that it will effectively sterilise that part of the land from further development for a dwelling or tourism purposes.
The monopole is also closer to the dwelling on No 60 than the dwelling on the subject land. The dwelling on No 60 is oriented toward the southwest, looking toward and directly over the proposed monopole location. The respondent submits that the monopole will be prominent and will have a significant impact on what is a highly valued view from this property, which encompasses the Swan Valley to the City skyline.
Site selection
Mr Andrew Carrabin, who is employed by NBN Co Ltd in the role of RF Design and Capacity Manager and is currently acting as the General Manager of the Transit Engineering Network, was called by the applicant to give evidence on site selection and Fixed Wireless site design.
Mr Carrabin's evidence in relation to the site selection process and the design requirements for the Fixed Wireless network was not disputed by the respondent. Mr Carrabin explained that NBN's Fixed Wireless network depends on basestation sites that can provide adequate coverage and consistent service to each enduser premises in the wireless served area (WSA). According to Mr Carrabin, five locations were initially investigated by NBN as part of the site selection process and included:
•20 Range Road, Millendon;
•70 Range Road, Millendon;
•161 Loton Road, Millendon;
•326 Haddrill Road, Baskerville; and
•the subject land.
Of these, the first three sites were eliminated as land tenure could not be obtained and the fourth site was considered to be unsuitable as the visual impact of a facility on this property was considered to be much greater than the subject land.
A further four sites, suggested by the respondent and/or the community, were investigated but each one found to be either too far removed from the enduser to meet coverage objectives or raised issues relating to land tenure or residential separation and vegetation disturbance.
In selecting the subject land, Mr Carrabin told the Tribunal that 'nbn … sought to balance its objective of siting the basestation in a manner that minimises its visual intrusion and other environmental impacts, with the need to install the facility in proximity to endusers'. He pointed out that NBN had originally proposed a 40 metre monopole as the optimal coverage solution for this locality but agreed to amend the proposal to a 30 metre monopole in response to visual amenity concerns raised by the respondent and the adjacent neighbours. In his witness statement at paragraphs 49 52, Mr Carrabin outlined the implications of lowering the monopole from 40 metres to 30 metres on coverage and considers the current 30 metre height to be the lowest acceptable height as further reductions would result in unacceptable coverage limitations due to terrain and clutter in the vicinity.
He also told the Tribunal that the proposed 30 metre monopole, is not an uncommon height for a telecommunications tower and is of typical design and is generally consistent with other NBN facilities established nationally within rural residential type areas. He considers that 'the proposed development will provide an important community benefit to the Millendon locality by providing coordinated and open access shared communication infrastructure, and therefore greatly improved [sic] Fixed Wireless internet coverage within the local area'.
Visual impact
The Tribunal had the benefit of expert evidence from Mr Howard Mitchell, a chartered landscape architect and Mr Stephen Allerding, a town planning consultant, called on behalf of the applicant; and Mr David Kaesehagen, an environmental scientist specialising in landscape visual assessment and Mr Neil Teo, a town planning consultant, called on behalf of the respondent.
Visual impact assessment reports were prepared by EPCAD (EPCAD report), relied on by Mr Mitchell, and Ecoscape (Ecoscape report) relied on by Mr Kaesehagen.
The Ecoscape report primarily focused on the visual impact of the monopole on two properties, namely No 161 and No 60 and more specifically from the following three locations chosen by the respondent:
•Viewpoint A between the residence and shed on No 161;
•Viewpoint B adjacent the lower dam on No 161; and
•Viewpoint C front verandah on No 60.
Similarly, Mr Teo's evidence focused on the visual impacts of the proposed facility on No 161 and No 60. Mr Teo did indicate that the monopole is likely to be visible from other properties on Range Road, but is unable to say what the visual impact will be on those properties.
The EPCAD report assessed the broader and specific landscapes, which included both publically accessible vantage points and private residences on the subject land and No 60. There was a third visual landscape assessment report prepared by Aurecon (Aurecon report) that was contained in the respondent's section 24 bundle of documents (Exhibit 3 Tab 2) and referred to during the hearing.
The visual experts agreed that the regional setting of the subject land is the 'Darling Uplands Landscape Character Unit' and at a local level, the subject land sits within the 'Rural Residential Landscape Character Unit'. The visual experts, in their joint statement, described the landscape setting as follows:
The dominant characteristics that comprise the district landscape character can be summarised as rolling topography, graduating to the Darling Scarp Ridgeline to the east, a matrix of large lots, open grassed paddocks and fields separated often by mature boundary vegetation, large trees and other endemic vegetation with occasional exotic trees and shrubs. The dominant visual horizontal lines are comprised of fences, farm houses and livestock ancillary outbuildings, mainly related to equestrian practices. The landscape has various colours such as the light green paddocks, dark green remnant vegetation and various colours of exotic vegetation. Water form occurs as farm dams nestled into the drainage lines of the landscape which are not visually dominant.
The description of the locality by the planning experts is consistent with that of the visual experts.
The viewshed analysis undertaken in the Ecoscape report suggests that at least the top of the monopole will be visible for all three viewing locations and will extend above the horizon line. The outcome of the visual impact analysis of the photomontages prepared for each of the locations by Ecoscape assessed the level of impact of the monopole on Viewpoint A as blending and Viewpoints B and C as prominent. The Ecoscape report concluded the following:
Viewpoints B and C have been assessed as having a Level 1 visual impact …, meaning that the proposed NBN facility is likely to be at variance with the visual management objective of best practice siting and design.
Viewpoint A has been assessed as having a Level 3 visual impact meaning that the proposed NBN facility is unlikely to be at variance with the visual management objective of best practice siting and design.
The EPCAD report identifies seven key locations, for which photomontages were produced for each of the locations. The visual impact assessment involved the assessment of the likely changes in the landscape and the anticipated visual effects of the proposed NBN facility. The report concludes as follows:
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•If the compound is viewable from publically accessible locations, it will be only from the immediate vicinity/directly adjacent to the compound, from Range Road;
•The existing landscape screens the proposed site from view, meaning that if any of the proposed NBN Mast is viewed from the wider public realm, it would only be a section of the top of the pole along with the headworks;
•The existing landscape character already includes a diverse range of manmade elements including rural buildings and infrastructure, power poles, fence lines and other tall manmade structures. The introduction of the NBN Mast will just add another manmade element to this landscape. Nor would the NBN Mast be a feature that would dominate within the landscape.
•The top of the monopole will be viewed from selective points within the immediate locality of the proposed site, however it will be seen from the surrounding roads, which have speed limits of between 50km and 80km/h, indicating that views would be between stands (sic) of roadside vegetation;
•Retained vegetation directly around the proposed site will be important to maintain the screen of vegetation that currently exists within the Lot of the proposed site;
•The pole would have very little visual impact on the surrounding public domain as there are already significant manmade structures within the immediate locale;
The effects of the proposed NBN Mast will be limited to nearby surrounding properties. Its visual impact on the surrounding publically accessible areas will be minimal as it is generally screened from view by existing vegetation, both remanent and installed by man or will be a minor element within a broad landscape.
Mr Kaesehagen did not dispute any of the conclusions made in the EPCAD report in relation to the visual impact of the proposed monopole on the broader landscape as his assessment had concentrated on the three viewpoints identified by the respondent. The Tribunal accepts Mr Mitchell's opinion that 'when viewed from roads and public spaces the [monopole] will not be a dominant feature within the broader landscape' and that the monopole 'will occasionally break the ridge line of the Darling Scarp however when seen in contrast against the dark vegetation of the scarp it would barely be visible', therefore blending within a view. Mr Allerding's assessment of the visual impact of the proposed development on the wider locality is consistent with the views expressed by Mr Mitchell.
Further, the Tribunal accepts that two of the three viewpoints identified by the respondent, those being Viewpoints B and C, are the locations most likely to be visually impacted by the proposed monopole.
The Tribunal received witness statements from Mr David Hughes, who resides at No 161 and Mr Mark Edman of No 60. Mr Hughes expresses concern that the proposed monopole will completely dominate the view from the northern part of his property and will have a significant impact on the use and enjoyment of his property. He also refers to possible future development options for the northern portion of the lot and asserts that the proposed monopole will, in effect, sterilise the use of that portion of the lot due to the unacceptable visual impact of the proposed development. Mr Edman's property has views across the Swan Valley and 'uninterrupted views of the City skyline'. His residence has been designed to capture the primary view toward the City and he is concerned that the proposed monopole will 'destroy [his] primary view' and that the capital spent to capture this view will have been wasted. Further, he expresses concern that the proposed tower will destroy the potential for further development of his property for tourism purposes.
The Tribunal recently considered the weight that should be given to residents' opinion regarding visual amenity in NBN Co Limited and City of Albany [2016] WASAT 61 at [50] - [52] as follows:
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.
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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 concerns expressed by the residents were addressed by all the experts in their evidence.
The visual experts agreed that the monopole will be a prominent visual element when viewed generally from about midpoint of No 161 to the northern boundary of the lot, although, it was accepted that there may be areas within this portion of the land where the monopole would not be visible due to vegetation screening. Mr Mitchell conceded that the monopole will be a significant change to the landscape when viewed from north of the existing shed, however, he tempered this concession by emphasising that the prominence of the views on No 161 are to the south/southwest.
The Tribunal accepts that the monopole will be a visually dominant element within the landscape of the northern portion of No 161 and would detract from the individual's view. The Tribunal is satisfied that the photomontage prepared by Ecoscape for Viewpoint B is representative of the view of the monopole from that location.
In respect to Viewpoint C, which is the view of the monopole from the verandah of No 60, the Tribunal is not convinced that either of the photomontages produced are representative of the view. It would appear that the height and location of the monopole in the EPCAD photomontage is incorrect and the Ecoscape photomontage takes a static view which focuses on the telecommunications facility distorting the field of view of the foreground. However, notwithstanding the difficulties with the photomontages, it was clearly established, and agreed by all the experts, that approximately 16 metres of the upper part of the monopole will be visible above the tree line and breaking the skyline.
The view of the locale confirmed that the monopole will be prominent in the landscape as viewed from the Viewpoint C, however, this landscape is not pristine. As identified by Mr Mitchell, there are numerous manmade structures visible in the panoramic view, the most prominent structure being the blue basketball court constructed on No 60.
The evidence before the Tribunal establishes that in the broader landscape, the proposed monopole will blend with the surrounding landscape and that the visual impact will be minimal as it will be generally screened by existing vegetation. As to the impacts on No 161 and No 60, the Tribunal is convinced by the evidence, and confirmed by the view, that the proposed monopole will be visually prominent in the landscape as viewed from the northern portion of No 161 and from the front verandah of No 60.
The question before the Tribunal is whether the visual impacts of the proposed monopole on Viewpoints B and C are sufficient to warrant refusal of the application. As Mr Craig Slarke, counsel for the respondent submits, it is open to the Tribunal to refuse an application because of the extent of the impact on part of the locality or on a single property: see Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74: (2006) 150 LGERA 116.
The Western Australian Planning Commission's State Planning Strategy 2050 (2014) recognises the importance of telecommunication services in Western Australia and advocates for the provision of an effective statewide telecommunications network. One of the aims of LPS 17 provides for the provision 'for such development as is consistent with the maintenance of efficient services and amenities within the District'. Telecommunications infrastructure is considered as essential infrastructure for business, personal and emergency reasons and as such, should be located and designed to meet the communication needs of the community.
The technological requirements of providing this service means that in all likelihood the infrastructure required to service the community will be visible. SPP 5.2 recognises that telecommunications infrastructure may have visual impacts and therefore it is necessary to balance the need for effective telecommunications services with the visual impact on the surrounding area.
SPP 5.2 advocates for telecommunications infrastructure to be sited and designed to minimise visual impact on the character and amenity of the local environment and whenever possible, amongst other things, 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'.
The Tribunal is satisfied that a need exists for the proposed facility. Further, the evidence clearly shows that there have been considerable efforts made by the applicant to minimise the visual impact of the proposed development, firstly through the initial site selection process followed by the subsequent design modifications and further consideration of alternative sites.
The Tribunal does not accept the respondent's submission that the siting of the telecommunications facility on the south-east corner of the subject land is 'unusual and significant', but rather an outcome of locating the facility on a low point of the subject land to reduce the visual impact on the surrounding locality. Notwithstanding these efforts, the proposed development will be a visually prominent element in the landscape as viewed from the northern portion of No 161 and from the verandah of No 60. As to whether these views are considered to be 'significant' views, the visual experts agreed that the views in this locality have local value characteristics and it is an important landscape to the users in the locality, particularly the views from the escapement over the Swan Valley. However, as pointed out by Mr Mitchell, the 'landscape surrounding the subject [land] includes a variety of manmade elements such as dwellings, out buildings, roads, power transmission lines and pole. These landscape elements reinforce that although rural, the landscape is not natural'. The Tribunal is not convinced that in the context of SPP 5.2, cl 5.1.1(ii)(b), these views are 'significant' views and therefore is satisfied that the proposed development is consistent with the principles set out in SPP 5.2.
Further, the Tribunal accepts that the proposed monopole may have a visual impact on possible future developments on No 161 and No 60. However, the degree of that impact will be dependent on the design and location of any potential development, which could be designed to minimise impacts on any social and landscape values associated with any proposed development. The commerciality of any possible future venture is a matter for the developer of any project and not this Tribunal.
The Tribunal, in considering the circumstances of this case and having due regard to the planning framework, is satisfied that the proposed development is consistent with the principles embodied in SPP 5.2 and with the aims of the Scheme, particularly cl 1.6(3); does not offend the objectives of the Swan Valley Rural Zone or the relevant planning objectives of the SVP Act and will provide a community benefit of an effective telecommunication service that overall balances with the visual impact on the surrounding locality. Therefore in the exercise of planning discretion, the Tribunal considers that development approval is warranted subject to the imposition of appropriate conditions.
Conditions
As required by direction of the Tribunal, the respondent prepared 'without prejudice' draft conditions (draft conditions) to be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate. The following two conditions were submitted which state:
1.This approval is for the telecommunications infrastructure (30m monopole, equipment shelter and ancillary equipment) as shown on the following plans:
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•6ELB 51 06 MLLE C1 Rev 02
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2.The development must be carried out, and may only be continued, in accordance with the approved plans.
The applicant provided the following response to the draft conditions. The applicant agreed to condition 1, save that the referenced plans be amended to reflect the reduction in the number of parabolic antennas proposed and the reduction in the number of outdoor cabinets. With respect to condition 2 the applicant submitted that condition should be amended to state:
Subject to the Telecommunications Act 1997, development must be carried out, and may only be continued, in accordance with the approved plans or as otherwise approved by the local authority.
The respondent indicated that it had no difficulties with condition 1 as put forward by the applicant, but did not agree with amending the wording of condition 2 as it is neither necessary or appropriate to reference the Telecommunications Act or include that development be carried out as otherwise approved by the local authority for the following reasons; with which the Tribunal agrees. Firstly, cl 77 of the Deemed Provisions makes provisions for an application to amend a development approval therefore the reference in the condition is considered redundant and inconsistent with the fact that the Deemed Provisions set out a process for amending development approvals. Secondly, referencing the Telecommunications Act likewise is considered redundant as if the Telecommunications Act allows a development to be amended without planning approval then that is the law and therefore it is unnecessary to restate it in a condition.
Orders
For the above reasons, the Tribunal makes for the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 12 April 2017 refusing to grant development approval for Telecommunications Infrastructure and Ancillary Facilities on Lot 285 (No 158) Hardwick Road, Millendon, is set aside and a decision is substituted that development approval is granted for Telecommunications Infrastructure and Ancillary Facilities on Lot 285 (No 158) Hardwick Road, Millendon subject to the following conditions:
(a)This approval is for the telecommunications infrastructure (30 metre monopole, equipment shelter and ancillary equipment) as shown on the following plans:
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•6ELB 51 06 MLLE C1 Rev 02
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(b)The development must be carried out, and may only be continued, in accordance with the approved plans.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS M CONNOR, MEMBER
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