OPTUS MOBILE PTY LTD and CITY OF STIRLING - [2019] WASAT 31

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   OPTUS MOBILE PTY LTD and CITY OF STIRLING [2019] WASAT 31
MEMBER:   MS M CONNOR, MEMBER
MR S WILLEY, MEMBER

HEARD: 16 JANUARY AND 17 JANUARY 2019
FURTHER WRITTEN SUBMISSIONS RECEIVED 31 JANUARY 2019, 15 FEBRUARY 2019 AND 1 MARCH 2019

DELIVERED          :   24 MAY 2019
FILE NO/S:   DR 104 of 2018
BETWEEN:   OPTUS MOBILE PTY LTD
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Town planning - Development - Telecommunications tower - Fixed wireless transmission facility - 18.5 metre monopole supporting a 3 metre high shroud covering panel antennas and ancillary facilities - Need - Visual impact - Alternative locations - Conditions

Legislation:

City of Stirling Local Planning Scheme No 3, cl 4.2.4(b), cl 6.12, cl 6.12.3, cl 10.2
Commonwealth Telecommunications Act 1997 (Cth)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 3, cl 8, cl 67, cl 67(b), cl 67(m), cl 67(n), cl 68, cl 76(2)
Planning and Development Act 2005 (WA), s 241(1)(a), s 257B(3)
State Administrative Tribunal Act 2004 (WA), s 31

Result:

Application for review allowed
Decision of respondent set aside and a decision substituted

Summary of Tribunal's decision:

Optus Mobile Pty Ltd sought review by the Tribunal of the refusal of the City of Stirling of a development application for the installation of a 20 metre monopole with an overall height of 21.6 metres (including all equipment) and ancillary facilities on Lot 110 (No 366) Grand Promenade, Dianella.
As a consequence of mediation, the design of the telecommunications infrastructure was modified and included the following components: an 18.5 metre high monopole supporting a 3 metre high shroud covering panel antennas; a 2 metre high, four bay above ground cabinet encasing the associated ancillary equipment; underground and internalised cabling; and the installation of protective bollards.
The following two issues arose for determination in this matter:

Whether, in having regard to the planning framework, the visual impact of the proposed development is acceptable; and
Whether the location of the proposed development is consistent with cl 5.1.1 v) b) of State Planning Policy 5.2 Telecommunications Infrastructure?

As part of the respondent's case it argued that the need for the proposed Telecommunications infrastructure was a 'commercial need' as the need was already satisfied by another telecommunications carrier, and therefore the aim of State Planning Policy 5.2 Telecommunications Infrastructure to balance the need for effective telecommunication services with the community interest in protecting the visual character of local areas, did not arise in this case.
The Tribunal did not accept this proposition and found that the planning framework plainly cogitates service delivery of telecommunications facilities by multiple carriers and that the proposed development was needed for effective telecommunications service provision of an effective telecommunications service and network, be it for the Optus network, as it would facilitate continuous network coverage and improve the telecommunications services to the community within the Dianella South locality and the public in general.

The Tribunal in considering the substantive merits of this particular case and having due regard to State Planning Policy 5.2 Telecommunications Infrastructure and the relevant matters identified in cl 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) was satisfied on the evidence that the proposed development had been sited and designed to minimise its visual impact on the character and amenity of the locality and found that the visual impact of the proposed development was acceptable. The Tribunal determined that, in the exercise of discretion, the proposed development warranted approval subject to the imposition of appropriate conditions. Consequently, the application for review was allowed and development approval granted subject to three conditions.

Category: B

Representation:

Counsel:

Applicant	:	Mr M Etherington
Respondent	:	Mr A Roberts

Solicitors:

Applicant	:	Clayton Utz
Respondent	:	McLeods

Case(s) referred to in decision(s):

Puma Energy Australia and City of Cockburn [2016] WASAT 36

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Service Stream Ltd on behalf of Optus Mobiles Pty Ltd (applicant or Optus) made an application to the City of Stirling (respondent, Council or City) in September 2017 for development approval for the installation of a Telecommunications infrastructure, comprising a 20 metre monopole with an overall height of 21.6 metres (including all equipment) and ancillary facilities on Lot 110 (No 366) Grand Promenade, Dianella (subject land).
The application was refused by the respondent under delegated authority on 4 April 2018 for the following reasons:
1.The proposal is inconsistent with State Planning Policy 5.2 relating to telecommunications infrastructure in that it is not sited to minimise visual impact (i.e. located on the site where visual landscape values will be compromised and not sympathetic to the surrounding landscapes).
2.The proposal is inconsistent with Clause 67(b) of the Planning and Development (Local Planning Schemes) Regulations 2015 as the proposal is contrary to orderly and proper planning of the locality.
3.The proposal is inconsistent with Clause 67(m) of the Planning and Development (Local Planning Schemes) Regulations 2015 as the proposed development is incompatible within its setting, in particular in relation to the residential zoned land on the north and north eastern side of Waverley Street.
4.The proposal is inconsistent with Clause 67(n) of the Planning and Development (Local Planning Schemes) Regulations 2015 as the proposed development is considered to have an undue impact on the amenity of the area.
5.The proposed (sic) is inconsistent with the objectives of the Dianella Centre Special Control Area as set out by Clause 6.12 of the City's Local Planning Scheme No. 3, which seeks to ensure that development benefits the community.
The applicant, on 2 May 2018 made application under the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions), Sch 2 cl 76(2) 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.
As part of the proceedings in this matter, the parties engaged in mediation process, which resulted in an amended application being provided to the respondent. The Tribunal, pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), invited the respondent to reconsider its decision in light of the revised proposal.
The Council, at its meeting of meeting of 21 August 2018, reconsidered the matter and refused to grant development approval for the following reasons:
a.The development application does not satisfy Clause 5.1.1 (ii) (a) and (b) of State Planning Policy 5.2 as the application is not considered to be sited and designed to minimise the visual impact of the development within the locality;
b.The development application does not satisfy Clause 5.1.1 (ii) (d) of State Planning Policy 5.2 as the proposed structure due to its scale will not display design features that are sympathetic to the surrounding landscape;
c.The development application does not satisfy Clause 5.1.1 (ii) (v) of State Planning Policy 5.2 as the applicant has not adequately demonstrated that the telecommunications facility could not be colocated with existing telecommunications facilities in the locality;
d.The development application does not satisfy the objectives of the District Centre Zone of Local Planning Scheme No. 3 as a design and siting of the telecommunications facility does not provide a high standard of amenity and contribute towards a sense of place and community due to its visual impact on prominent position on the Waverley Street façade of the building;
e.The development application does not satisfy Clause 67 (b) of the Planning and Development (Local Planning Schemes) Regulations 2015 as the siting of the telecommunications infrastructure is contrary to orderly and proper planning as it will have a detrimental visual impact on the surrounding locality;
f.The development application does not satisfy Clause 67 (m) of the Planning and Development (Local Planning Schemes) Regulations 2015 as a proposed telecommunications infrastructure is incompatible with its existing setting and has a detrimental visual impact upon public and private land in the locality including Waverley Pola Reserve; and
g.The development application does not satisfy Clause 67 (n) of the Planning and Development (Local Planning Schemes) Regulations 2015 as the telecommunications infrastructure will have a detrimental impact on the amenity of the area due to its siting and visual impact.
The matter proceeded to final hearing for adjudication by the Tribunal.

Subject land

The subject land is more particularly described as Lot 110 on Diagram 72485, being the whole of the land contained in Certificate of Title Volume 1818 Folio 586 and is 5.1753 hectares in area.
The subject land is more commonly known as Dianella Plaza, No 366 Grand Promenade, Dianella and is bounded by Waverley Street to the northeast, vacant land zoned 'Hotel' (No 160 Alexander Drive) and a betting agency (No 158 Alexander Drive) to the north, Alexander Drive and a petrol station (No 372 Grand Promenade) to the northwest, a petrol station and motor vehicle repairs (No 360 Grand Promenade) to the south, Grand Promenade to the southwest and to the southeast by the Dianella Library, a church, a school and vacant land zoned 'Residential' with an RAC2 coding (No 36 Chester Street).
Improvements on the subject land include:
(a)Dianella Plaza Shopping Centre and associated car parking and service areas. The shopping centre building is the largest of the four buildings and centrally located on on-site. The service area for the shopping centre is located on the northern side of the building;
(b)A fast food outlet (Charcoal Chicken) located on the southwestern side of the shopping centre building and facing Grand Promenade; and
(c)A motor vehicle wash facility and a fast food outlet (Red Rooster) to the northwest of the shopping centre building.

The proposal

The modified proposal, the subject of these proceedings, involves the installation of an 18.5 metre high monopole supporting a 3 metre high shroud covering panel antennas located 1.1 metres from the northeastern wall of the shopping centre building (coloured to match the external façade of the building); a 2 metre high, four bay above ground cabinet encasing the associated ancillary equipment; underground and internalised cabling; and the installation of protective bollards located 1.9 metres from the wall of the shopping centre building (proposed development).
The proposed development will cover approximately 12.35 m² of land in northeastern corner of the subject land located approximately 35 metres from Waverley Street. The area between the monopole and Waverley Street encompasses four rows of car parking bays, two circulation driveways, a footpath and a partially landscaped verge.
A landscape plan has been submitted which shows seven trees planted within the subject land (directly adjoining the verge along Waverley Street) and three trees within the verge adjoining Waverley Street.

Statutory framework

Telecommunications Act 1997

As the proposed development involves a freestanding monopole, associated antennas and equipment it cannot be considered as lowimpact and as such, pursuant to the Telecommunications (Lowimpact Facilities) Determination 1997, is not exempt from State and local planning laws and therefore the provisions of the Planning and Development Act 2005 (WA) (PD Act) and the City of Stirling Local Planning Scheme No 3 (LPS 3 or Scheme) are applicable.

Planning and Development Act 2005 (WA)

Pursuant to s 241(1)(a) of the PD Act, the Tribunal is required to have due regard to any State planning policy that may affect the subject matter of an application for review. The parties agree that State Planning Policy 5.2 Telecommunication Infrastructure (September 2015) (SPP 5.2) is such a policy. 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).
Clause 2 of SPP 5.2 describes the intent of the policy as follows:
… This planning policy aims to balance the need for effective telecommunications services and effective rollout 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.
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 in 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 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.
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.
The respondent's planning expert also referred to State Planning Policy No 4.2 Activity Centre For Perth and Peel, with particular reference to objectives e), g), and i) and cl 3.3 which relates to pedestrian movement and walkability of activity centres.

Planning schemes and Deemed Provisions

The subject land is zoned 'Urban' in the Metropolitan Region Scheme and 'District Centre' under LPS 3.
The proposed development is classified as 'Telecommunications Infrastructure' in the Scheme, which means, as defined in Schedule 1 Dictionary of Defined Words and Expressions:
[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.
Telecommunications Infrastructure is a use class listed in Table 1 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.
LPS 3 does not contain any specific development standards or objectives directed specifically to telecommunications infrastructure. However, cl 4.2.4(b) of LPS 3 provides the following objective for the District Centre Zone:
To ensure the design and siting of development provides a high standard of safety and amenity and contributes towards a sense of place and community
Further, the subject land is located in the Dianella Centre Special Control Area. The objectives and development standards applicable to the special control area are set out in cl 6.12 of LPS 3. Clause 6.12.3 of LPS 3 also requires that the Dianella Centre Plan (DCP) be read in conjunction with the provision of cl 6.12.
Clause 10.2 of LPS 3 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 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 3 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)); and
•any submissions received on the application (subclause (y)).

Clause 3 of the Deemed Provisions empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme Area. The respondent's planning expert also referred to Local Planning Policy 4.2 Mixed Use and Commercial Centre Design Guidelines, citing the policy objectives as applicable to sites zoned District Centre. However, no evidence was adduced as to the application of this policy in respect to this matter.
Pursuant to cl 68 of the Deemed Provisions, the local government (and the Tribunal on review) may determine an application for development by:
(a)granting development approval without conditions; or
(b)granting development approval with conditions; or
(c)refusing to grant development approval.

Issues

At the commencement of the final hearing the following two issues were identified for determination in relation to this matter:
1)Whether, in having regard to the planning framework, the visual impact of the proposed development is acceptable; and
2)Whether the location of the proposed development is consistent with cl 5.1.1 v) b) of SPP 5.2.
The Tribunal will address each issue in turn.

Whether, in having regard to the planning framework, the visual impact of the proposed development is acceptable

As submitted by the respondent in closing arguments, there are a number of matters that the Tribunal, as decisionmaker, is required to give due regard to in the determination of this matter (see [27]). The appropriate weight to be given to the individual relevant matters lies, relevantly, within the discretion the Tribunal: S & L Lenz Pty Ltd v Shire of Serpentine Jarrahdale [2017] WASC 191 at [172]. SPP 5.2 clearly identifies the need to assess the visual impact of the proposed development, and a component of the consideration of subclauses (b), (m) and (n) of cl 67 involves an assessment of the visual impact of the proposed development in terms of its compatibility with its setting and the degree of impact on the amenity of the locality, which amongst other things informs orderly and proper planning for the locality.
The respondent in essence argues two points, firstly the 'need' for the proposed development is a 'commercial need' and therefore the balancing exercise as identified in SPP 5.2 does not arise. Secondly, that the siting and design of the proposed development is inconsistent with cl 5.1.1 ii) of SPP 5.2, in particular subclauses 5.1.1 ii) a), 5.1.1 ii) b) and 5.1.1 ii) d), the relevant objective of the District Centre Zone and will have an unacceptable visual impact on the amenity of the locality.

Need

SPP 5.2 accepts that adequate and reliable telecommunications are essential for all aspects of contemporary community life and recognises that the provision of that infrastructure may have visual impacts. SPP 5.2 acknowledges that there is a tension between the objectives of providing effective telecommunication services and effective rollout of networks to meet the community needs and with the community's interest in protecting the visual character of local areas.
'Need' as a consideration finds expression in the following clauses of SPP 5.2:

Clause 2. Policy Intent, which states:

…. This planning policy aims to balance the need for effective telecommunications services and effective rollout of networks, with the community interest in protecting the visual character of local areas[.]

Clause 4 a), which states:

facilitate the provision of telecommunications infrastructure in an efficient and environmentally responsible manner to meet community needs[.]

Clause 6.3 b), which states:

The need for services to be located to optimise coverage[.]

In respect to this issue, the applicant adduced evidence from Mr Giovanni Di Noto, who is the Senior Technical Specialist, State Radio Planning and Quality WA for the applicant. Mr Di Noto has a Bachelor of Electronic Engineering and approximately 18 years' experience in the telecommunications industry. In this role as a Planning Engineer he addresses sites that do not have adequate coverage and considers how the applicant should respond to the issues involved in locating a site.
Mr Di Noto explained that with the advancement of technology there has been an increase in demand for data and as a result, the 'concern from consumers has shifted from simply having coverage to having coverage which meets certain levels and capacity'. In essence, 'coverage' means the reach of the network and 'capacity' relates to the quality and speed of the coverage area.
According to Mr Geoffrey Simon Piper, who is the National SAED (Site Acquisition, Environment and Design) Program Manager, Mobile Deployment for the applicant, the demand for mobile data offered by 4G services has increased dramatically since 2013. The traditional habits of web and social media browsing has changed to live streaming, which creates additional demand on the network and requires greater signal strength and increased capacity.
Mr Di Noto told the Tribunal that there is a service level gap located in the Dianella South locality and as a result there are constraints on providing the requisite data throughput that is currently required, which will be exacerbated in the future as the demand for data throughput increases. He also identified a further consideration being the need to service the transit corridors (Alexander Drive and Grand Promenade) as the capacity requirements for the transit corridors are greater than the surrounding residential areas due to the large volume of passengers and passing through traffic accessing data.
Mr Di Noto contends that 'Optus cannot currently meet the levels required in the Dianella South locality for data throughput based on the increased use of data by devices'. He prepared images to demonstrate the change in coverage to the Dianella South locality resulting from the proposed development. The comparison shows that within the building areas and transit corridors there are considerable areas currently experiencing service at subtarget levels and that the gaps in coverage will, to a significant degree, be resolved as a result of the proposed development.
Mr Di Noto also undertook a real time analysis of signal levels, refer to as 'drive test data', which identified a 'poor' and 'marginal' coverage capability in the Dianella South locality affecting both residents and passing road traffic.
Mr Di Noto concluded that '[b]ased on [his] investigations, [he] consider[s] that the proposed development is required at the [subject land] to provide levels of coverage and capacity to the Dianella South locality that are commensurate with community expectations for the next 5-10 years (which is Opus' network planning horizon)' and that the subject land offers the best level of coverage and capacity for the locality.
The respondent did not challenge the evidence adduced regarding the applicant's need to upgrade service levels in the locality but argued that 'need' is not established for the purposes of SPP 5.2 because the applicant wishes to match the service levels of its principal competitor, that being Telstra.
Mr Piper confirmed in oral evidence that Optus '[has] a large gap to Telstra in terms of both capacity and coverage' and that the proposed development will effectively deliver the same level of service in terms of coverage and capacity as Telstra currently provides so that people will have an alternative (ts 11:30:28, 16 January 2019).
There is no doubt that the proposed development will improve the existing services which Optus offers within the locality and the Tribunal accepts that these improvements will in effect deliver a level of service that is already provided by another telecommunication carrier in the locality. The Tribunal does not accept the proposition put forward by the respondent that if another telecommunications carrier already provides the telecommunications services which the proposed telecommunications infrastructure is intended to provide, then the need for the telecommunication services is already satisfied by the other carrier and there is no need for the proposed telecommunications infrastructure for the following four reasons.
Firstly, no evidence was adduced to substantiate that the service levels provided by other telecommunication networks are adequate to meet the community's need in the locality.
Secondly, the planning framework plainly cogitates service delivery of telecommunication facilities by multiple carriers in order to provide an effective telecommunications network. State Planning Strategy 2050 (Strategy) aims 'to enable access to affordable services and the digital economy on an equal basis'. The Strategy recognises that '[t]elecommunications services in Western Australia are provided through a mixture of fixed, wireless and satellite-based networks operated by a number of licensed commercial carriers' and that planning requires a coordinated and collaborative approach from all levels of government and telecommunications providers. The strategic planning response to the provision of telecommunications infrastructure finds force in SPP 5.2 which clearly envisages that the delivery of efficient telecommunication networks that services the community's need will involve more than one carrier, as this policy complements the Telecommunications Act and other relevant and subordinate legislation (cl 3.7 of SPP 5.2) and specifically addresses the need for colocated facilities (cl 5.1.1 v) of SPP 5.2).
Thirdly, the approach to 'need' advanced by the respondent is contrary to SPP 5.2 and the planning framework generally. The Tribunal does not agree with the respondent that SPP 5.2 can be read as inviting an assessment of 'need' based on the level of service provided by competing telecommunications networks and carriers as part of the assessment of a development application. Nowhere in SPP 5.2 nor in the Deemed Provisions does it direct or otherwise allow a planning authority to undertake that kind of inquiry. To the extent that SPP 5.2 requires information about network capacity and gaps in service (cl 6.3.1. b)) that information only relates to the network operated by that carrier. That is so because cl 3.3.1 of SPP 5.2 refers to the general operation and maintenance of mobile telephone networks (emphasis on plural). However, cl 6.3.1 b) of SPP 5.2 which sets out the information to be submitted with a development application only requires the network capacity to be addressed. Indeed it would be impractical, unrealistic and onerous for a carrier to be made to provide detailed information about the performance of any other carrier in a particular locality at a particular time in pursuing a development application. The level of service offered at any one time by any other telecommunications carrier is not a relevant consideration under cl 6.3 of SPP 5.2.
Fourthly, the commercial need for the upgrade of the Optus network is irrelevant, however, there is clearly a public interest need in the sense that one of the telecommunication networks that delivers services to residents within the locality and commuters along the transit corridors is deficient and is in need of upgrade. To assert that because one telecommunications carrier already services the locality the 'need' for effective telecommunications services is satisfied is misconceived and denies the reality of competition and its part in providing an effective statewide telecommunications network. The ability for one telecommunication carrier to deliver an adequate and reliable services in a locality does not translate to the community's needs being met.
The respondent also argued that nature and the extent of the 'need' for the proposed development should be a consideration. The respondent contends that the provision of infrastructure that provides high level data throughput for uses should be attributed lesser weight than the need for essential telecommunications services, such as phone calls and emergency calls and minimal weight should be given to the need relating to the provision of services for the transit corridors 'as this relates to transitory deficit which ceases when vehicles move beyond these sections'.
The respondent is attempting to read words into the policy and misconstrues the 'need for effective telecommunication services'. If it is demonstrated that the infrastructure is required to provide for an effective telecommunications service, then 'need' is established. However, an assessment of the nature and extent of need for a proposed development may be a relevant consideration when assessing the nature and extent of the visual impact of the proposed development, particularly where a departure from the policy measures as set out in SPP 5.2 are contemplated. This Tribunal does not consider this matter to be such a case.
The Tribunal is satisfied that the proposed development is needed to ensure the provision of an effective telecommunications service and network, be it for the Optus network, as it will facilitate continuous network coverage and improve the telecommunications services to the community within the Dianella South locality and the public in general.

Visual impact

The Tribunal had the benefit of expert evidence from Mr Howard Mitchell, a landscape architect with extensive experience spanning over 35 years and Mr Ben Doyle, a town planning consultant, called on behalf of the applicant and Mr Patrick Jordan, a landscape architect with 16 years' practical experience and Ms Giselle Alliex, Senior Planning Officer at the City, called on behalf of the respondent. The Tribunal, together with representative of the parties and their experts, also had the benefit of a view of the subject land and the immediate area.
Visual impact assessment reports were prepared by EPCAD (EPCAD report), relied on by Mr Mitchell and by Mr Jordan. Although both landscape architect experts (visual experts) acknowledged that their assessments were generally undertaken in accordance with the Western Australian Planning Commission's Visual Landscape Planning in Western Australia: a Manual for evaluation, assessment, siting and design (2007) (VLP Manual) and Guidelines for Location Siting and Design of Telecommunication Infrastructure (2004) (Guidelines) each had adapted the methodology steps according to their assessment of the relevant landscape issues pertinent to this matter.
As advocated by the VLP Manual a visual landscape evaluation was undertaken in both visual impact assessments, which included a desktop investigation to understand the landscape context of the study area and the identification of locations that may theoretically have a view of the proposed development (refer to Map 3 of Annexure 1 of Exhibit PJ WS). Both agreed that the visual management objective (VMO) that was most appropriate for this study area is 'best practice siting and design'. Site investigations were undertaken and both visual experts defined the visual landscape character for a comparatively similar study area.
Both visual experts agreed the following in their joint witness statement:
a) At a local level the proposal site sits within an 'Urban' Landscape Character Unit (LCU) being described as 'CommericalCivic LCU' by Mr Jordan and the 'Urban Landscape of the District Centre' by Mr Mitchell.
b) The Urban Landscape Character Unit exhibits many characteristics but all are urban in nature. The dominant characteristics that make up the district landscape character can be summarised as:
i.The District Centre comprising broad areas of ground level car parking, limited tree cover except to the entry off Waverley Street opposite Pitt Street and the immediate vicinity.
ii.The built form of the Dianella Plaza shopping centre.
c)The Residential neighborhoods (sic) have a character comprising level topography, a matrix of suburban residential lots with a diverse range of housing styles, although primary (sic) single storey detached dwellings.
d)Waverley Street is the divide between the character of residential streets and the commercial centre. The street itself has overhead power lines supported by timber poles.
e)The Park known [as] Waverley Pola Reserve is heavily vegetated with mature trees around a central pond that forms a landscape feature.
The area of disagreement between the visual experts in respect to the identification of the Landscape Character Units (LCU) was whether the streets and roads themselves had a separate character or formed part of the residential LCU. Despite this difference, both agreed that 'the main area that relates to the potential visual impact of the [proposed development] is Waverley Street'.
The approach adopted by the visual experts in their assessment of the visual impact of the proposed development on Waverley Street and its surrounds differed. The EPCAD report assessed the proposed development in the context of the visual landscape character areas and the capacity of the landscape to accommodate the change. In essence, it was a broader analysis of the viewing experience of areas most likely to be visually impacted by the proposed development. The assessment also considers the measures to be implemented to mitigate the visual impact of the proposed development. Mr Howard concludes as follows:
5.1The development will not compromise the visual landscape values of the site and surrounding areas.
5.2The proposed location of the development is sympathetic to the surrounding urban landscapes and complies with the guidance for siting and design as outlined in VLPWA Part 3 Guidelines for Location, Siting & Design, Pg 137-140.
5.3The proposed [development] complies with the Guiding Principles for the Location, Siting and Design of Telecommunications Infrastructure as set out in Section 5.1 of [SPP 5.2].
…
5.4As the [proposed] development does not adversely visually affect the site or its surroundings it must be considered compatible with its setting and residential land adjacent.
5.5A proposal for additional planting to Waverley Street will enhance the streetscape, provide additional screening and is an appropriate proposal to meet visual management objectives for the locality.
5.6There is not a substantial visual impact on the site or the surrounding areas. The change to the location will be perceived as minimal to the majority of the general public that visit and use the location for shopping and community purposes.
Mr Jordan's approach involved a photo montage analysis of five view points within the public realm along Waverley Street using the methodology developed by Ecoscape (refer to Annexure 3 of Exhibit 5). The outcome of this analysis assessed the level of impact of the proposed development on viewpoints A and E as 'blending' and having a level 3 visual impact and therefore unlikely to be at variance with the visual management objective of best practice siting and design. Whereas, viewpoints B, C and D were assessed as 'prominent' and as having a level 1 visual impact, meaning that the proposed development is likely to be at variance with the visual management objective of best practice.
Mr Jordan acknowledges that the distance from the viewpoint is a key factor in whether the proposed development has an adverse impact on view experience. He concludes as follows:
… As the distance between the viewpoint and [the proposed development] increases, its impact decreases and it is also more likely that the views to the monopole will be obscured by tree canopy and/or built form. The view experience from locations further away than viewpoints A and E, approximately 160 180m from the monopole, would not be expected to be adversely affected by visual impact.
Conversely, the viewing experience for locations between viewpoints B and D along Waverley Street are expected to have an adverse visual impact owning to their proximity to the [proposed development], although this will vary depending on screening from existing and proposed vegetation screening[.]

Based on the outcome of the photo montage assessment, Mr Jordan considers the proposed development likely to be at variance with the VMO of best practice siting and design for the study area.
The Tribunal prefers the evidence of Mr Howard for the following reasons. Mr Jordan was unable to fully explain the rationale behind the ranking of the visual impact levels, as represented in Table 1 of Exhibit 5 (Table 1), and conceded that 'prominence' is not mentioned as a criteria for the best practice and design objective. This admission clearly raises doubt in relation to the ranking accorded to the visual impact level for the VMO Best Practice Siting and Design as contained in Table 1.
There were also other concerns identified in respect to the methodology. Mr Jordan conceded that his assessment did not identify the 'least preferred built landscape characteristics' within the study area and as such, there is an underlying bias on the preferred preference indicators to establish visual character. Further, the photo montage produced for viewpoint C is manipulated so as to distort the viewing experience from this location. In addition, the visual assessment involved a static analysis of views looking directly at the proposed development on a site-by-site basis where in this instance, a broader visual assessment was also required because, as Mr Howard pointed out and Mr Jordan agreed, the majority of public viewing this location will do so when travelling in a vehicle or when walking along the street or from a parked vehicle and that view will be obtained obliquely to the line of travel. This approach undoubtedly leads to an overevaluation of the prominence of the proposed development within the viewing context of the locality.
The planning experts in their evidence also identified the relevant locality for assessing the visual impact of the proposed development and agreed that the 'primary' area of potential visual significance was:
… as Waverley Street between Alexander Drive and the southeastern extent of Waverley Pola Reserve, and including Lot 888 (36) Chester Street (on the southern side of Waverley Street) and [an area extending into Jesmond Place, Pitt Street and Waverley Place].
The key area of view along Waverley Street was further refined during the course of the final hearing and was considered to be along Waverley Street between Pitt Street and Waverley Place and within Pitt Street, Jesmond Place, Waverley Place for a depth of two to three lots.
Mr Doyle characterised the southern side of Waverley Street from the eastern car park entrance of the shopping centre to Alexander Drive (approximately 300 metres) as 'a degraded urban environment, with relatively poor visual amenity'. This characterisation is consistent with the DCP which describes the blank walls of the 'big box' shopping centre as a 'negative visual impact'.
He also considers that the future visual amenity of this area is unlikely to change as the future planning strategy, as detailed in the DCP, indicates 'the area is intended to remain as the inactive ''back'' of the shopping centre, potentially with additional loading areas to service future development of other parts of the site'.
Ms Alliex considers the locality to be an active area due to the close proximity of various land uses (Dianella Shopping Centre, Our Lady's Assumption Primary School, Dianella Public Library, Dianella Community Centre, Church of Christ Community Centre, Waverly Pola Reserve and residential dwellings) resulting in pedestrian movement across and along Waverley Street. She acknowledges that Dianella Plaza and associated car parking area is highly visible from Waverley Street due to the lack of mature vegetation but considers the streetscape view along Waverley Street as a 'significant view' for the purposes of cl 5.1.1 of SPP 5.2.
Ms Alliex does not argue that the proposed development should not be located on the subject land and accepts that there will be some level of visibility given the nature of the proposed development. She considers that the proposed development is not sited and designed to minimise visual impact on the surrounding locality and will detract from a 'significant view of a streetscape' for the following reasons:
i)the existing service area of the shopping centre to be more appropriate;
ii)the pedestrians walking on either side of Waverley Street between Waverley Place and Pitt Street will have unobstructed views of the proposed development;
iii)the outdoor living area of No 66 Waverley Street is likely to have an unobstructed view of the proposed development; and
iv)the siting of the proposed development on the periphery of the Dianella Plaza Shopping Centre building, its proximity to Waverley Street, the height and form of the structure and the contrasting colour of the portion of the monopole above the building against the sky is not sympathetic with the surrounding landscape and will detract from the Waverley Street streetscape.
The Tribunal is not persuaded by Ms Alliex's arguments for the following reasons and prefers the evidence of Mr Doyle.
Ms Alliex accepted during crossexamination that the existing service area of the shopping centre is not an appropriate alternate location for the proposed development given the strategic direction advocated in DCP (see [80] [84] below).
Further, Ms Alliex understanding of 'a significant view … of a streetscape' (see cl 5.1.1 ii) b) of SPP 5.2) in the context of visual landscape assessment is misguided. During the final hearing, it was established that Ms Alliex has no experience in undertaking visual impact assessments and her opinions were drawn from her own perception. Ms Alliex failed to express the visual attributes of the streetscape that would lead to a conclusion that within the Waverley Street streetscape there is a 'significant view' that should be avoided in the location of the proposed development. She also conceded that the DCP did not identify Waverley Street as a significant pedestrian linkage.
The Tribunal prefers the evidence of Mr Doyle and Mr Mitchell in their assessment of the visual significance of the Waverley Street streetscape, which as confirmed on the view, is a degraded urban environment with relatively poor visual amenity that generally exhibits a predominance of least preferable landscape characteristics. Waverley Street is the divide between a highly developed commercial landscape comprising the rear blank and inactive shopping centre façade, car parking and vacant commercial land and a residential character landscape. Waverley Street is 'typically straight and ordered, meeting at right angles with intersecting roads' (Exhibit 5). Sections of both sides of Waverly Street do not have a footpath and there are occasional mature trees that are randomly space along its length with more located at the eastern end' (Exhibit 11) and power lines, poles and lighting are dominant elements in the streetscape. On the residential side of Waverley Street, dwellings orientate to front onto the local streets or fencing and other ancillary structures have been constructed to obscure views of the commercial centre. Further, there is a commercial presence through the conversion of two dwellings adjacent to the shopping centre for nonresidential activities.
There is no doubt that at certain points along Waverley Street the proposed development will be visible from the public domain. The Tribunal concurs with Mr Mitchell's visual amenity assessment that:
[w]hen viewed from roads and public spaces the [proposed development] will not be dominant feature within the broader landscape and even when viewed in close proximity, the installation when seen, will be observed within the context of its immediate environment that contains elements such as overhead power lines and poles that are already dominant elements within the scene.
The consideration is not that the telecommunications infrastructure is visible, as it is generally accepted that the technological requirements of providing an effective telecommunications network means that in all likelihood the infrastructure required to service the community will be visible, but whether the telecommunications infrastructure has been sited and designed to minimise its visual impact on the character and amenity of the locality.
Firstly, the telecommunications infrastructure has been located in a District Centre Zone, which is consistent with the Guidelines that advocate for such structures to be located in industrial, commercial, business and rural areas.
Secondly, design techniques have been utilised to minimise the visual impact of the proposed development. Mr Di Noto informed the Tribunal that the height of the proposed development is as low as practically possible to accommodate the service levels. The Tribunal notes that the overall height of the proposed development (21.6 metres) is considerably less than the maximum height identified in cl 5.1.1 iii) a) of SPP 5.2, which advocates for the exemption of telecommunications infrastructure from the requirement for development approval where, amongst other criteria, the infrastructure has a maximum height of 30 metres from finished ground level.
In addition, the lower portion of the monopole is proposed to be colour matched to the façade of the existing building and the addition of a shroud to mitigate the visual impact of the panel antennas have been incorporated into the design. In order to further reduce the visual impact of the proposed development additional tree planning is proposed to the verge in Waverley Street. Ms Alliex's conceded that nothing further could be undertaken to further minimise the visual impact of the proposed development.
The Tribunal is satisfied on the evidence that the proposed development has been sited and designed to minimise its visual impact on the character and amenity of the locality both in the accordance with the principles embodied in SPP 5.2 and in the context of subclauses (m) and (n) of cl 67 of the Deemed Provisions and considers that the visual impact of the proposed development is acceptable.

Whether the location of the proposed development is consistent with cl 5.1.1 v) b) of SPP 5.2

Ms Alliex in her witness statement asserts that the proposed telecommunication facility is inconsistent with cl 5.1.1 v) b) of SPP 5.2 for the following two reasons. Firstly, she contends that the siting of the proposed development on the periphery of the shopping centre adjacent to an 8 metre high wall does not align with the intent of the term 'colocation'. She asserts that the purpose of colocating is to minimise visual impact of the proposed development and in this instance, siting the telecommunication infrastructure with higher infrastructure (air conditioning) and infrastructure of a similar nature (that is, service area) located on the site is considered more appropriate and aligns with the intent of colocation.
Ms Alliex gave oral evidence that she is not adverse to a telecommunication facility being located on the subject land but is concerned about the siting of the proposed development on the subject land (ts 4:32, 17 January 2019). Initially, Ms Alliex considered the existing central service area of the shopping centre a more preferable location for the siting of the telecommunication infrastructure. It seems from Ms Alliex's oral evidence that this alternate location was premised on the existing configuration of the shopping centre remaining unchanged. She told Tribunal that 'if there was some sort of certainty that the site was to be redeveloped then [she] wouldn't be suggesting that [location], I just don't have that certainty' (ts 2:17:21, 17 January 2019). However, on considering the alternate location in light of the DCP she conceded 'it would not be a suitable location' for the proposed development. Mr Doyle also considered the alternative location, in terms of likely future amenity, would not be a suitable location for the proposed development.
The DCP is intended to guide future development of the Dianella Centre Special Control Area and is to be read in conjunction with cl 6.12 of LPS 3. Given the intent of the DCP to relocate the existing service area to provide for a pedestrian link to a new transit stop and introduce an activated street frontage, the alternative location originally suggested by Ms Alliex, is clearly not consistent with the future strategic opportunities identified for the Dianella District Centre.
Secondly, she identified two possible alternative sites in the locality that she considered could be explored as potential preferable site for the location of telecommunications infrastructure, being No 106 and No 140 Creswell Road, Dianella (the Water Corporation site) and Breckler Park at No 70 Cornwall Street, Dianella. Under crossexamination, Ms Alliex admitted that she had not undertaken any assessment of those alternate sites and accepted that Berkkler Park is not a feasible alternate site both in terms of providing network coverage and the visual impact of a telecommunication on the recreation site would not be acceptable (ts 4:34:31, 17 January 2019). The respondent, in closing submissions, conceded that the evidence does not disclose any viable offsite colocation opportunities.
The Tribunal is satisfied on the evidence that the location of the proposed development is consistent with cl 5.1.1 v) b) of SPP 5.2.

Conclusion

As the Tribunal articulated in Vodafone Hutchinson Australia Pty Ltd and City of Cockburn [2018]WASAT4 at [45]:
In order to come to the correct and preferable decision, the task of the Tribunal is to balance the need for effective telecommunication services against the community interest in protecting the visual character of local areas and in doing so must take into consideration the relevant matters identified in cl 67 of Sch 2 of the Planning Regulations 2015 and LPS 3 and in SPP 5.2[.]
The Tribunal, in considering the substantive merits of this particular case and having due regard to the planning framework as outline above, is satisfied that, in the exercise of discretion, the proposed development warrants approval subject to the imposition of appropriate conditions.

Conditions

As required by the 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 three conditions were submitted, which state:
1.The development is to comply in all respects with the following approved plans:
(a)Overall Site Plan Drawing No. P0652G2Revision 01 – dated as received on 15 December 2017;
(b)Site Layout and Setout Plan Drawing No. P0652G3Revision 01 dated as received on 15 December 2017;
(c)Site Elevation Drawing No. P0652-G4Revision 01 dated as received on 15 December 2017;
(d)Landscape Proposal Drawing No. OD001Revision A dated 28 June 2018.
2.The monopole and shroud must be painted in an appropriate colour scheme to reduce reflectivity and blend in with the surrounds. Details of the colour scheme must be submitted to, and approved by, the City of Stirling, before the development is commenced.
3.A Construction Management Plan shall be submitted to, and approved by, the City of Stirling prior to commencement of the development. The Construction Management Plan shall address the ways in which the following issues are to be managed while the development is being undertaken: access to and from the site, dust, noise, waste management, the parking arrangements for contractors and subcontractors, storage of materials, traffic and site safety/security. The approved Construction Management Plan is to be complied with for the duration of the construction of the development.
The applicant does not oppose draft conditions 1 and 3 but objects to draft condition 2 and contends that the condition should be deleted or the following alternative condition be imposed:
Up to the roof height of the adjacent building, the monopole must be painted to colour match with the building façade. The part of the monopole (and shroud) above roof height is to remain unpainted. The unpainted portion of the proposed development must comprise low reflective materials.
Ms Alliex, in oral evidence, informed the Tribunal that the respondent did not oppose the wording of the alternative condition as put forward by the applicant.
The Tribunal considers that draft conditions 1 and 3 as proposed by the respondent and reworded draft condition 3 as put forwarded by the applicant are appropriate conditions that should be imposed on the development approval.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 21 August 2018 refusing to grant development approval for 'Commercial Mobile Telecommunications Facility' on No 366 (Lot 110) Grand Promenade, Dianella is set aside and a decision is substituted that development approval is granted under the Metropolitan Region Scheme and City of Stirling Local Planning Scheme No 3 for Telecommunications Infrastructure on No 366 (Lot 110) Grand Promenade, Dianella, subject to the following conditions:
(i)The development is to comply in all respects with the following approved plans:
(a)Overall Site Plan Drawing No. P0652G2Revision 01 dated as received on 15 December 2017;
(b)Site Layout and Setout Plan Drawing No. P0652G3Revision 01 dated as received on 15 December 2017;
(c)Site Elevation Drawing No. P0652-G4Revision 01 dated as received on 15 December 2017;
(d)Landscape Proposal Drawing No. OD001Revision A dated 28 June 2018.

(ii)Up to the roof height of the adjacent building, the monopole must be painted to colour match with the building façade. The part of the monopole (and shroud) above roof height is to remain unpainted. The unpainted portion of the proposed development must comprise low reflective materials.
(iii)A Construction Management Plan shall be submitted to, and approved by, the City of Stirling prior to commencement of the development. The Construction Management Plan shall address the ways in which the following issues are to be managed while the development is being undertaken: access to and from the site, dust, noise, waste management, the parking arrangements for contractors and subcontractors, storage of materials, traffic and site safety/security. The approved Construction Management Plan is to be complied with for the duration of the construction of the development.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M CONNOR, MEMBER
24 MAY 2019