OPTUS MOBILE PTY LTD and CITY OF SWAN
[2016] WASAT 137
•28 NOVEMBER 2016
OPTUS MOBILE PTY LTD and CITY OF SWAN [2016] WASAT 137
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 137 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:70/2016 | 7 TO 8 SEPTEMBER 2016 | |
| Coram: | MS D QUINLAN (MEMBER) | 28/11/16 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Development approved subject to conditions | ||
| B | |||
| PDF Version |
| Parties: | OPTUS MOBILE PTY LTD CITY OF SWAN |
Catchwords: | Town planning Development application Telecommunications infrastructure 40 metre monopole Rural Residential zone Whether capable of approval No adverse impact on amenity |
Legislation: | City of Swan Local Planning Scheme No 17, cl 4.2.17, cl 4.3.2, cl 5.8.1, cl 5A, Sch 1 Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 27, cl 67 Planning and Development Act 2005 (WA), s 252(1)(c)(i), s 257B(3) |
Case References: | Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 NBN Co Limited and City of Albany [2016] WASAT 61 |
Orders | 1. The application for review is allowed.,2. The decision of the respondent on 10 February 2016 refusing the proposed development is set aside.,3. The development application for telecommunications infrastructure (installation of a new telecommunications monopole, equipment shelter at ground level and installation of ancillary equipment, cabling, access and safety facilities) at Lot 600 (No 22) Crestmoor Pass, Bullsbrook as shown on the plans stamped as received by the respondent on 16 June 2015, is approved subject to the following conditions:,(a) The development shall not include any light (whether flashing or otherwise) or any other form of illumination; and,(b) Any development other than that shown in the approved plans shall require the further approval of the City of Swan. |
Summary | The application for review concerned a refusal for development approval for telecommunications infrastructure comprising a 40 metre monopole, ground level equipment shelter and ancillary equipment at 22 Crestmoor Pass, Bullsbrook. The subject site is in the Rural Residential zone under the City of Swan Local Planning Scheme No 17 (LPS 17) and is classified as a 'D' use which means it is not permitted unless the Tribunal has exercised its discretion by granting approval.,The Tribunal determined that the proposed facility was capable of approval under LPS 17. The Tribunal considered that, in having 'due regard' to the respondent's relevant structure plan by applying cl 27 of the Deemed Provisions in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), the building envelope depicted could not be determinative of the outcome of this matter and the proposed facility was therefore capable of approval.,The Tribunal having considered the evidence of the significant number of local residents who objected to the proposed facility on the relevant basis of their view that it would have an adverse impact on amenity, as well as the expert evidence in relation to amenity, State Planning Policy 5.2 and having had the benefit of a site view concluded that the proposed facility would not have an adverse impact on amenity. After considering the relevant planning framework and the evidence, the Tribunal concluded that in exercising its discretion in determining this matter, the balance tipped more heavily in favour of approving the proposed facility. Therefore, the Tribunal considered that it was consistent with orderly and proper planning for the proposed facility to be approved subject to conditions. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : OPTUS MOBILE PTY LTD and CITY OF SWAN [2016] WASAT 137 MEMBER : MS D QUINLAN (MEMBER) HEARD : 7 TO 8 SEPTEMBER 2016 DELIVERED : 28 NOVEMBER 2016 FILE NO/S : DR 70 of 2016 BETWEEN : OPTUS MOBILE PTY LTD
- Applicant
AND
CITY OF SWAN
Respondent
Catchwords:
Town planning Development application Telecommunications infrastructure 40 metre monopole Rural Residential zone Whether capable of approval No adverse impact on amenity
Legislation:
City of Swan Local Planning Scheme No 17, cl 4.2.17, cl 4.3.2, cl 5.8.1, cl 5A, Sch 1
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 27, cl 67
Planning and Development Act 2005 (WA), s 252(1)(c)(i), s 257B(3)
Result:
Development approved subject to conditions
Summary of Tribunal's decision:
The application for review concerned a refusal for development approval for telecommunications infrastructure comprising a 40 metre monopole, ground level equipment shelter and ancillary equipment at 22 Crestmoor Pass, Bullsbrook. The subject site is in the Rural Residential zone under the City of Swan Local Planning Scheme No 17 (LPS 17) and is classified as a 'D' use which means it is not permitted unless the Tribunal has exercised its discretion by granting approval.
The Tribunal determined that the proposed facility was capable of approval under LPS 17. The Tribunal considered that, in having 'due regard' to the respondent's relevant structure plan by applying cl 27 of the Deemed Provisions in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA), the building envelope depicted could not be determinative of the outcome of this matter and the proposed facility was therefore capable of approval.
The Tribunal having considered the evidence of the significant number of local residents who objected to the proposed facility on the relevant basis of their view that it would have an adverse impact on amenity, as well as the expert evidence in relation to amenity, State Planning Policy 5.2 and having had the benefit of a site view concluded that the proposed facility would not have an adverse impact on amenity. After considering the relevant planning framework and the evidence, the Tribunal concluded that in exercising its discretion in determining this matter, the balance tipped more heavily in favour of approving the proposed facility. Therefore, the Tribunal considered that it was consistent with orderly and proper planning for the proposed facility to be approved subject to conditions.
Category: B
Representation:
Counsel:
Applicant : Mr M Etherington
Respondent : Mr C Slarke
Solicitors:
Applicant : Clayton Utz
Respondent : McLeods
Case(s) referred to in decision(s):
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
NBN Co Limited and City of Albany [2016] WASAT 61
Introduction
1 On 16 June 2015, Optus Mobile Pty Ltd (applicant) made an application to the City of Swan (respondent) for development approval to develop a mobile base station facility at Lot 600 (No 22) Crestmoor Pass, Bullsbrook (subject site).
2 The development proposal comprises a 40 metre high steel monopole, headframe, three panel antennae, ground level equipment shelter and ancillary equipment, cabling, access and safety facilities (proposed facility or proposal). The proposed facility is to be located towards the southwestern corner of the subject site, set back 10 metres from the western side boundary; 38 metres from the southern rear boundary; and 110 metres from the nearest dwelling (on the adjoining property to the west).
3 On 10 February 2016, the Council of the respondent considered the proposed facility. Contrary to the planning officer recommendation, the Council resolved to refuse the proposed facility for the following reasons:
1. The telecommunication infrastructure proposed will have an adverse impact on the visual amenity of the locality.
2. The proposed telecommunications 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 SPP5.2 and POL-C-059 with regards to co-location and joint coordinated rollout requirements.
4 On 15 March 2016, the applicant sought a review of the respondent's refusal in the Tribunal pursuant to s 252(1)(c)(i) of the Planning and Development Act 2005 (WA) (PD Act).
Subject site
5 The following facts were agreed by the parties regarding the subject site:
a) it has an area of approximately two hectares;
b) it is located on the crest of the hill, fronting Crestmoor Pass (to the north), and slopes generally upwards toward the rear (south); and
c) it has on it a single dwelling and shed.
Locality
6 The locality relevant to the proposed facility is an area of land approximately 36 kilometres northeast of Perth and three kilometres east of the Bullsbrook townsite, contained wholly within the 'Rural Residential' zone under the City of Swan Local Planning Scheme No 17 (LPS 17 or Scheme). The approximate boundaries for the locality extend from Clearview Retreat to the north, intersection of Jenkins Road and Ashmere Drive to the northwest, the intersection of Chittering Road and Smith Road to the west, Shady Hills View to the south and Fraser Road to the east. The area covered by the locality is approximately 2612 hectares or 26km².
7 The terrain is undulating in nature, comprising of hills and valleys throughout the locality. The locality comprises of large lifestyle allotments accessed by a conventional loop and culdesac sealed bitumen road network. Approximately 22% of the locality is covered with large native trees varying 15 to 20 metres in height.
8 It is not a coincidence that the locality is similar to the proposed coverage area. The expert planners all agreed that the proposed facility must, for operational reasons, be located on peaks or higher ground with a clear line of sight between the proposed facility and receiving antennas on surrounding land. Accordingly, the proposed facility cannot be rendered completely screened from view.
Planning Framework
9 The proposed facility falls within the use class 'Telecommunications Infrastructure' under LPS 17. The proposed facility is classified as a 'D' use in the Rural Residential zone, which means that the use is not permitted unless the respondent (or the Tribunal standing in the shoes of the respondent) has exercised its discretion by granting approval pursuant to cl 4.3.2 of LPS 17.
10 Clause 4.2.17 of LPS 17 relevantly provides that the objectives of the Rural Residential zone are to provide for low density residential development and associated rural residential activities. Clause 4.2.17 also provides that an objective of the Rural Residential zone is to recognise the environmental characteristics of the landscape and to ensure as far as practicable that these characteristics are not compromised by development and use of the land.
11 Clause 5.8.1 of LPS 17 specifically provides for Telecommunications Infrastructure 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.
12 Pursuant to cl 5A.1.1(d) of LPS 17, the Rural Residential zone is a structure planning area. Outline Development Plan 61 (ODP 61) has been adopted as a structure plan which applies to the subject site which falls within an area known as the Shady Hills Estate. ODP 61 depicts building envelopes and includes a building envelope for the subject site. Clause 5A.1.4.4 of LPS 17 provides that where building envelopes are depicted on a structure plan all buildings shall be located within the building envelopes shown on those plans. However, cl 5A.1.4.5 of LPS 17 provides an exception to cl 5A.1.4.4 in that approval may be given to construct the following 'structures' outside of building envelopes:
…
(a) water tanks;
(b) windmills;
(c) stock watering and feed troughs; and
(d) roofed structure open on all sides for the purpose of providing shelter to animals.
13 Schedule 1 of LPS 17 defines 'building envelope' as meaning 'an area of land within a lot marked on a plan approved by the responsible authority within which all buildings and effluent disposal facilities on the lot must be contained'.
14 The Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) provide in cl 67 of Sch 2 a number of provisions which are deemed to be included in the local planning scheme text (Deemed Provisions) and regarding which the local government is to have due regard. The subclauses in cl 67 of Sch 2 of the Deemed Provisions that are relevant to these proceedings are: (a) aims and provisions of LPS 17; (b) requirements of orderly and proper planning; (c) any approved State planning policy; (g) any relevant local planning policy; (h) any structure plan; (m) compatibility of the proposal with its setting and locality; (n) amenity; (x) impact on the community notwithstanding the impact on particular individuals; and (y) any submissions received.
15 Pursuant to the operation of s 257B(3) of the PD Act, if a Deemed Provision is inconsistent with a provision of LPS 17, 'the deemed provision prevails and the other provision is to the extent of the inconsistency of no effect'. The Deemed Provisions work together with the provisions of LPS 17 and prevail to the extent of any inconsistency. The Deemed Provisions do prescribe matters that are relevant but they do not act as a code which prescribes all matters that are to be considered.
16 The respondent's local planning policy POLTP126 Building and Development Standards Rural Zones (LPP 126) relevantly provides:
a) that the standards it applies are to ensure the development of land within rural areas is consistent with the principles of proper and orderly planning and furthers the objectives of the relevant zone;
b) that all buildings and structures are to be in a form which does not detract from the visual amenity of the locality (cl 2.2);
c) that remnant vegetation shall not be removed or modified in any way except where necessary for the purpose of building envelopes and access ways or where trees are a hazard or for firefighting purposes; (cl 2.4) and
d) that side setbacks are to be 20 metres in the Rural Residential zone (cl 2.11 and Table 1).
17 The objectives of the respondent's local planning policy POLC059 Telecommunications (Mobile Phone) Facilities Policy (LPP 59) are to:
a) prescribe development standards for telecommunication facilities and promote a consistent approach in the preparation, assessment and determination of applications for development approval for telecommunication facilities;
b) manage the impact of telecommunication facilities on the built and natural environment, and the amenity of an area; and
c) promote colocation of telecommunication infrastructure on existing or proposed telecommunication facilities.
18 LPP 59 notes that the main community concerns regarding telecommunication facilities are related to their perceived health effects and visual amenity. In respect to public health, LPP 59 notes the advice of the Australian Communications Authority that the weight of national and international expert opinion concludes that there is no substantiated evidence that living near a mobile phone tower causes adverse health effects.
19 LPP 59 provides in cl 7.1.6 that there is a general presumption against locating telecommunications facilities in any zone where the predominant intent of the zone is for residential development. LPP 59 provides in cl 7.2.1 that a telecommunications facility will not generally be supported unless it is set back a minimum 200 metres from any dwelling or residential zone land. However, LPP 59 provides in cl 7.2.2 that where the proposed facility is unable to satisfy the 200 metre requirement in cl 7.2.1, the applicant must demonstrate that the reduced setback will not adversely impact upon the amenity of the area.
20 The respondent's local planning policy POLC80 Building Envelopes (LPP 80) is concerned with assessing a development application for the construction of a 'building' outside the building envelope, the placement of a building envelope on land and where the development of a 'structure' outside the building envelope may be approved.
State Planning Policy 5.2 Telecommunications Infrastructure
21 The policy intent of State Planning Policy 5.2 Telecommunications Infrastructure (SPP 5.2) is described at cl 2 as:
Installation of telecommunications network infrastructure usually involves the development of land and/or alteration to the appearance of buildings or structures, which may have visual impacts. This planning policy aims to balance the need for effective telecommunications services and effective 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.
22 Clause 4 provides that the policy objectives of SPP 5.2 are to:
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.
23 Clause 5 of SPP 5.2 identifies policy measures. Clause 5 specifies that visual impacts of an infrastructure development proposal should be assessed by applying the following relevant set of policy measures to guide the location, siting and design of the structure:
5.1.1 The 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 colocated with existing infrastructure and/or within existing infrastructure corridors and/or mounted on existing or proposed buildings.
25 Clause 6.3 of SPP 5.2 states that:
In considering a development application, the local government should give consideration to:
a) The extent to which the proposal adheres to the policy measures outlined in Section 5 of this policy[;]
b) The need for services to be located to optimise coverage; and
c) Documentation to be submitted under Section 6.3.1 of this Policy.
Issues for determination
26 The issues for the Tribunal to determine in this matter are as follows:
Issue 1: Is the development capable of being approved in the proposed location?
Issue 2: Will the proposed development adversely impact the amenity of the locality?
Issue 3: Is the proposed development consistent with orderly and proper planning?
Site view
27 At the commencement of the hearing, the Tribunal had the benefit of a site view where the Tribunal inspected the subject site and the locality which included, in particular, the immediate neighbours to the east, west and south who objected to the proposed facility. The Tribunal observed the location of the proposed facility on the subject site and its relationship with a number of vantage points in the locality as detailed in the expert landscape architect report of Mr Howard Mitchell.
The evidence
28 The applicant provided expert evidence from Mr Howard Mitchell, as well as town planners Mr Benjamin Doyle and Mr Adam Wood. Mr Howard Game, who is the applicant's national site acquisition and regulatory manager, provided evidence as to the operational need for the proposed facility in the locality.
29 The respondent provided expert evidence from town planner, Mr Joe Algeri. The respondent also provided witness statements from a significant number of residents which are detailed further below.
30 The Tribunal has also had the benefit of a joint statement prepared by the expert town planners.
Mr Game
31 The Tribunal considers that the evidence provided by Mr Game was honest and forthright. In particular, the Tribunal finds that Mr Game's evidence concerning matters such as the operational need for the proposed facility was given from a position of knowledge and expertise in the area. The Tribunal accepts his evidence as reliable and credible.
32 The Tribunal also notes that the respondent accepted that the proposed facility would improve service in the locality. Mr Game provided evidence that parts of the Bullsbrook area have poor mobile coverage and that quality coverage is required in this locality. The applicant has been planning for a facility in the local area since 2007 and has faced considerable challenges in finding a suitable site.
Local residents
33 The Tribunal was provided with a significant number of witness statements from local residents, two former residents and a local real estate agent all objecting in the strongest possible terms to the proposed facility. By the Tribunal's calculations, there were approximately 96 witness statements from residents who reside in 67 properties in the locality.
34 The Tribunal was also provided with a map showing the properties that filed witness statements, declined to file witness statements or properties that are presently vacant. This map indicates two matters of significance. Firstly, that most of the properties within the immediate locality objected to the proposed facility. Secondly, the two neighbours across the road from the subject site declined to make a statement from which the Tribunal can neither infer objection nor support for the proposed facility.
35 A number of matters mentioned or comments made in the witness statements of the local residents were objected to by the applicant and were sought to be struck from the statements. The Tribunal declined to make such a ruling and determined that these objections would be taken as submissions as to weight to be afforded to those matters. Those matters were identified as follows:
a) Concern regarding the proposed facility causing a reduction in property values;
b) Concern regarding electromagnetic energy or 'EME';
c) Concern regarding a flashing light;
d) Concern regarding the proposed facility affecting bird life;
e) Proposed alternative sites; and
f) Concern profits would go offshore.
36 It is the opinion of Mr Lester Fitzgerald, a local real estate agent, that property values will decrease because of the proposed facility, but he is not prepared to speculate by how much. The Tribunal understands the respondent's submission that property value and amenity are interwoven. The Tribunal is obliged to have due regard to whether the proposed facility has an adverse impact on amenity. Mr Fitzgerald did not provide any examples nor any supporting evidence for his opinion which affects the weight to which the Tribunal can afford such an opinion. Furthermore, the Tribunal is not convinced that an opinion about an expected decline in property values is a relevant consideration. None of the resident witnesses are qualified to provide an opinion regarding property values and that evidence is given no weight by the Tribunal.
37 The proposal does not include a flashing light and, in any event, the respondent has suggested a condition which is not opposed by the applicant, that the proposed facility shall not include a light, whether flashing or otherwise. Matters of EME and bird life are opinions which none of the residents are qualified to give and that evidence is given no weight by the Tribunal. Proposed alternative sites and concern about profits are not relevant.
38 The local residents also expressed almost identical opinions regarding their view that there was no need for the proposed facility. None of these witnesses had any direct knowledge or expertise concerning this issue and in this regard their evidence carries no weight.
39 However, what the Tribunal does consider relevant and appropriate to note from this evidence is the significant objection from many local residents to the proposed facility and their concern that it will adversely impact on the amenity of their local area.
Issue 1: Is the development capable of being approved?
40 The respondent submits that the proposed facility cannot be approved in the specific location proposed as it is located outside of the building envelope depicted on ODP 61.
41 It is common ground that ODP 61 has been adopted as a structure plan under LPS 17 which applies to the subject site. ODP 61 depicts a somewhat centrally located single building envelope for each lot. It is also common ground that the proposed facility sits outside the building envelope depicted on ODP 61.
42 Clause 5A.1.4.4 of LPS 17 provides that where building envelopes are depicted on a structure plan all 'buildings and effluent disposal facilities' shall be located within that building envelope. Clause 5A.1.4.5 provides a discretion to approve certain 'structures' outside of building envelopes. The proposed facility does not fall within one of the listed 'structures'. The definition of 'building envelope' in Sch 1 of LPS 17 only refers to 'buildings' and not 'structures'. The parties disagreed as to how to interpret the use of the terms in these clauses. For the reasons which follow, the Tribunal does not consider it is necessary to determine that disagreement.
43 The respondent's submission, if accepted, incorporates ODP 61 into the Scheme and elevates the building envelope depicted in ODP 61 on the subject site to possessing the legislative force of the Scheme. The Tribunal, by operation of the Deemed Provisions, does not accept this submission.
44 Clause 27 of the Deemed Provisions replaces cl 5A.1.3.1 of LPS 17. Clause 27 of the Deemed Provisions requires the Tribunal to have 'due regard' to ODP 61. Clause 5A.1.3.1 previously required development to be 'generally in accordance with' ODP 61. Arguably, whether the Tribunal is to have 'due regard' or the proposed facility is to be 'generally in accordance with' ODP 61, the Tribunal's finding in this matter would ultimately be the same.
45 There are two interpretations open. Firstly, that the specific provision in cl 5A.1.4.4 overrides the general provision in the previous cl 5A.1.3.1 or the present cl 27 in the Deemed Provisions; that the ODP 61 has been elevated to forming part of LPS 17 and the proposed facility is incapable of approval as it sits outside the building envelope. The second interpretation is that ODP 61 cannot be held to be absolutely determinative of the location of a building envelope; it cannot be elevated to forming part of the Scheme; the Tribunal is to have due regard to the building envelope depicted; and that the proposed facility is capable of being approved.
46 The Tribunal prefers the second interpretation. Whilst the Tribunal is bound to follow LPS 17 as it has legislative force, pursuant to cl 27 of the Deemed Provisions, the Tribunal is required to have 'due regard' to the area depicted as the building envelope for the subject site in ODP 61. In most cases, the Tribunal would expect that the building envelopes depicted in ODP 61 would be given significant weight in deciding whether to approve an application. It is a matter of discretion whether the site of the proposed facility is appropriate having due regard to ODP 61.
47 Therefore, the Tribunal finds that the proposed facility is capable of being approved. The Tribunal must now determine whether the proposed facility should be approved.
Issue 2: Amenity
48 The expert planners agreed in their joint statement that within a locality that has undulating terrain, the most efficient location for telecommunications infrastructure is generally on peaks or higher ground where the facility is to be of an appropriate height, clear of any existing vegetation to avoid the loss of coverage to ensure the line of sight connection to other facilities is achieved for network integration. The expert planners also agreed that the visibility and prominence of the proposed facility is not determined solely by relative proximity but also by vegetation and the topography of the surrounding land. Further, the expert planners agreed that a mere glimpse of the proposed facility does not make it offensive when assessing visual amenity, but rather, it is the nature of those views and quality of the outlook.
49 Mr Algeri's opinion is that the proposed facility would adversely impact the amenity of the locality given the high regard to the natural environment as set out in the objectives of the Rural Residential zone. Mr Algeri's concern is that, in particular for those residents southeast of the subject site, numerous properties will be subjected to more than just a glimpse of the proposed facility and it would dominate skyline views.
50 Mr Wood's opinion was that such infrastructure is not invisible and any assessment (in accordance with SPP 5.2) should be whether the visual impact of the proposed facility has been adequately minimised. Mr Wood's opinion was that the proposed facility had been appropriately sited and designed to effectively minimise any visual impacts.
51 Mr Doyle acknowledges that the proposed facility will be visible from other properties in the locality; however, he considers the impact of the proposed facility is mitigated by the topography, existing mature vegetation and distances from which the facility would be visible. Mr Doyle's opinion was that the proposed facility would not have a significant impact on the visual amenity of the locality.
52 Mr Mitchell gave expert landscape architecture evidence where his expert opinion was effectively unchallenged. The visual and landscape assessment undertaken was by site inspection and generally in accordance with the guidelines: Visual Landscape Planning in Western Australia published jointly by the Western Australian Planning Commission and the Department for Planning and Infrastructure in 2007.
53 Mr Mitchell opined, from an observer's perspective, that the proposed development will not be a dominant feature or major component within the broader landscape, largely even when viewed in close proximity. Mr Mitchell's opinion that the limited visibility or 'glimpses' of the proposed facility that could be expected would not result in a significant visual amenity impact is supported by the montages attached to his report which, in Mr Mitchell's expert opinion, give as close as an impression of the field of view of a person that can be achieved.
54 Mr Mitchell was of the view that, although some local interests and visual landscape values may be affected by the proposed facility, in his opinion the proposed facility complies with the principles in cl 5.1.1 of SPP 5.2 as to assessing the impact on visual amenity.
55 The Tribunal is obliged to have due regard to the significant objection from many local residents to the proposed facility and their concern that it will adversely impact on the amenity of the local area.
56 The Tribunal recently considered the weight that should be given to residents' opinions 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.
There can be no doubt that part of the proposed development will be visible from a number of locations within the locality. The Tribunal is satisfied, however, that only the upper part of the monopole (and its attachments) will be visible.
The fact that part of the proposed development will be visible does not, of itself, mean that the proposed development will have a negative impact on the visual amenity of the locality. As can be seen from SPP 5.2, factors such as the prominence of the development within the landscape, the extent to which visual aspects of value to the community as a whole might be compromised, and the degree to which the development is sympathetic to the surrounding landscape are relevant to this assessment.
57 The Tribunal has also had the benefit of a view of the locality which confirmed the evidence of witnesses, that the locality is one with an attractive rural residential character. It was also apparent from the site view and the montages attached to the report of Mr Mitchell as well as his oral evidence, that the locality is not an entirely pristine environment. The locality includes the usual infrastructure components such as power poles which generally accompany contemporary living whether rural or urban.
58 Having considered the expert evidence in relation to visual amenity, the policy considerations in SPP 5.2 and having had the benefit of a site view with the montages attached to Mr Mitchell's statement, the Tribunal finds that the locality does not come within the definition of 'significant view' in cl 5.1.1(ii)(b) of SPP 5.2.
59 The Tribunal is of the view that, whilst the views of the planners are relevant, Mr Mitchell's expertise should carry more weight, in particular as to the prominence of the proposed facility to the naked eye when viewed from various locations in the locality. The Tribunal considers further that Mr Algeri's opinion that the proposed facility would have an adverse impact on amenity, in particular for those residents southeast of the subject site, suggested significant reliance on the fact that the proposed facility would be more visible from certain locations, which is to be expected in undulating terrain. The opinion of Mr Algeri in this regard is not preferred in comparison to the more subtle analysis found in Mr Mitchell's evidence and which is consistent with the Tribunal's observations at the site view.
60 Therefore, whilst the Tribunal finds that the proposed facility will have some impact on the amenity of the locality, the Tribunal is satisfied that the proposed facility will not have an adverse impact on the amenity of the locality.
Issue 3: Orderly and proper planning
61 The Tribunal, in addition to the findings in relation to amenity and SPP 5.2 above, must now consider whether approval of the proposed facility is consistent with orderly and proper planning having regard, in particular, to LPS 17, LPP 59, LPP 80, ODP 61 and SPP 5.2.
62 What constitutes an appropriate assessment as to whether a proposal is consistent with 'orderly and proper planning' was considered recently by her Honour Justice Pritchard in Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [178][183].
LPP 126 Building and Development Standards Rural Zones
63 The respondent submits that the proposed facility is inconsistent with LPP 126. The respondent submits that LPP 126 provides as an objective of the policy that the standards it applies are to ensure that development is consistent with orderly and proper planning and further the objectives of the relevant zone. The respondent also refers the Tribunal to cl 2.2 (visual amenity of the locality), cl 2.4 (remnant vegetation) and cl 2.11 as well as Table 1 (side setback of 20 metres in Rural Residential zone). Visual amenity has been discussed above in relation to issue 2. Vegetation is discussed below in relation to LPP 80. The proposed facility is to be located towards the southwestern corner of the subject site, set back 10 metres from the western side boundary; 38 metres from the southern rear boundary; and 110 metres from the nearest dwelling (on the adjoining property to the west).
64 The proposed facility does not comply with LPP 126 in relation to the western side boundary with 16 Crestmoor Pass in that a 10 metre setback is proposed and the policy requires a 20 metre setback in the Rural Residential Zone. Mr Algeri noted in his evidence that if the proposed facility was to be compliant with LPP 126 (that is, by moving 10 metres), this does not address the other issues as to the prominence of the proposed facility or the proximity to adjoining dwellings. The Tribunal, having had the benefit of a site view, as well as considering the views of all the expert planners, finds that a 10 metre noncompliance with side setback requirements in LPP 126 would not of itself preclude approval.
ODP 61 and LPP 80 Building Envelopes
65 The respondent submits that the proposed facility is inconsistent with cl 4.2.17(a) of LPS 17 in that as it is proposed to be outside the building envelope depicted in ODP 61, it is not an appropriate example of development in a comprehensively planned estate.
66 The respondent further submits that as the proposed facility is situated outside the building envelope depicted in ODP 61, it is not only inconsistent with LPS 17, it is also inconsistent with LPP 80. Whilst the Tribunal is to determine this matter as proposed, having due regard to the building envelope depicted on ODP 61, this requires some consideration to be given to the appropriateness of the proposed facility being sited within the building envelope as presently depicted on the subject site. In considering all of the evidence and having had the benefit of a site view, the Tribunal finds that the location of the proposed facility on the subject site is the most appropriate location on the subject site and it would not be appropriate to locate the proposed facility within the building envelope as depicted on ODP 61 (that is, very close to the existing dwelling).
67 The Tribunal considers that, when consideration is given to the purpose and context of LPS 17, LPP 80 and ODP 61, such a structure as the proposed facility (which is permitted as a discretionary use under the Scheme) is incongruous with the presently depicted building envelope. The Tribunal finds that the purpose, context and controls associated with building envelopes in LPS 17, LPP 80 and ODP 61 fit neatly with the buildings and structures expected in a rural residential area but do not neatly fit with the scenario presented in relation to the proposed facility. Put simply, the difficulty in attempting to strictly apply these aspects of the policy framework to a consideration of the proposed facility reveals it is inappropriate to inflexibly apply LPS 17, LPP 80 and ODP 61. This raises the issue of the weight to be applied to LPP 80 and ODP 61 in determining whether to approve the proposed facility.
68 LPP 80 provides for the relocation and modification of a building envelope and contemplates that a building envelope can be split into two parts on the subject site. LPP 80 notes in its policy statement that building envelopes are utilised by the respondent to control the location of buildings and development within certain rural zones in order to protect vegetation.
69 The Tribunal finds that the proposed facility, whilst 40 metres high, will actually occupy a comparatively small area on the ground, will involve only minimal trimming of vegetation and with no tree removal being required. There are no concerns in relation to remnant vegetation that could preclude approval.
LPP 59 Telecommunication (Mobile Phone) Facilities Policy
70 The respondent submits that the proposed facility is inconsistent with LPP 59. The principal issues raised by Mr Algeri concerning compliance with LPP 59 relate to the general presumption in the policy against locating the telecommunication facilities in any zone where the predominant intent is for residential development and that the policy does not generally support a facility being located within 200 metres of any dwelling or residential zoned land. Mr Algeri considers that the subject site is a zone for residential development within a rural landscape and not a zone specified for the purposes of rural pursuits.
71 Mr Algeri appears to have a view that the proposed facility should not be approved principally because he considered it would have an adverse impact on amenity. Secondly, and interrelated with his view concerning amenity, Mr Algeri has a view that the proposed facility should also not be approved because it does not comply with the planning framework that includes LPS 17, ODP 61, SPP 5.2, LPP 126, LPP 59 and LPP 80. Mr Algeri expressed the view that if there is to be serious contemplation of telecommunication towers in this locality there needs to be amendments to the planning framework, for example, to allow telecommunication towers outside of building envelopes. The Tribunal considers, with all due respect to the expertise of Mr Algeri, that this view is too rigid an application of policy and does not assist in the exercise of the Tribunal's discretion as to whether to approve the proposed facility.
72 Mr Algeri qualifies his opinion by stating that he is not generally opposed to telecommunication towers as he accepts they are vital infrastructure for modern living. However, Mr Algeri considers the proposed location to be inappropriate given the proximity of residential dwellings and the nature of the rural landscape. The Tribunal has made findings concerning the issue of amenity above. In relation to proximity to residential dwellings, this is a serious issue for the Tribunal to consider and accord appropriate weight. The proposed facility is sited to be within 110 metres of the nearest adjoining dwelling. LPP 59 provides that a telecommunication facility will generally not be supported unless it is set back 200 metres from any dwelling or residential zoned land.
73 The respondent also submits that, in considering cl 67(m) of the Deemed Provisions, that the proposed facility is incompatible with its setting. The Tribunal does not accept this submission. The proposed facility is a necessary part of modern infrastructure, in many respects no different to infrastructure such as power poles, with one exception. The exception is the issue of visibility above the tree line (around 15 to 20 metres) which affects visibility from a number of locations and regarding which the Tribunal has already determined as to the issue of the impact on amenity of the locality.
Conclusion
74 On balance, having considered the relevant planning framework and the evidence in this matter, in particular to:
a) the significant local opposition to the proposed facility and its perceived impacts on amenity;
b) the objectives of the Rural Residential zone in cl 4.2.17 of LPS 17;
c) the proposed facility will be only 110 metres from a dwelling and therefore would not generally be supported under LPP 59;
d) the fact the proposed facility will be noncompliant with LPP 126 by being only 10 metres from a side boundary;
e) the fact that the proposed facility would be located outside the building envelope depicted in ODP 61;
f) the Tribunal's finding that, whilst the proposed facility would have an impact, it would not have an adverse impact on the amenity of the locality; and
g) the other matters considered above that carry significant weight in favour of approval such as the real need for this infrastructure in the locality and the other policy considerations in SPP 5.2,
- the Tribunal concludes in exercising its discretion in determining this matter that the balance of (f) and (g) weigh more heavily in favour of approval than the matters in (a) to (e).
75 To the extent that it may be necessary, the Tribunal would modify the approved building envelope on the subject site to include an additional area to encompass the proposed facility so that the location of the proposed facility accords with LPS 17. This is an unusual case in the determination of an appropriate building envelope/s and the Tribunal would consider that, in the ordinary course, the building envelopes as presently depicted in ODP 61 would be generally applied in order to achieve the purpose and objectives of that policy framework.
76 Finally, the Tribunal concludes it is consistent with orderly and proper planning and that the correct and preferable decision on review is to approve the proposed facility, subject to conditions.
Orders
77 Accordingly the Tribunal makes the following orders:
1. The application for review is allowed.
2. The decision of the respondent on 10 February 2016 refusing the proposed development is set aside.
3. The development application for telecommunications infrastructure (installation of a new telecommunications monopole, equipment shelter at ground level and installation of ancillary equipment, cabling, access and safety facilities) at Lot 600 (No 22) Crestmoor Pass, Bullsbrook as shown on the plans stamped as received by the respondent on 16 June 2015, is approved subject to the following conditions:
(a) The development shall not include any light (whether flashing or otherwise) or any other form of illumination; and
(b) Any development other than that shown in the approved plans shall require the further approval of the City of Swan.
I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS D QUINLAN, MEMBER
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