OPTUS MOBILE PTY LTD and TOWN OF VINCENT
[2006] WASAT 179
•4 JULY 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: OPTUS MOBILE PTY LTD and TOWN OF VINCENT [2006] WASAT 179
MEMBER: MR L GRAHAM (SESSIONAL MEMBER)
HEARD: 20 AND 21 APRIL 2006
DELIVERED : 4 JULY 2006
FILE NO/S: DR 681 of 2005
BETWEEN: OPTUS MOBILE PTY LTD
Applicant
AND
TOWN OF VINCENT
Respondent
Catchwords:
Telecommunications facilities Heritage Need Streetscape Building facade Orderly and proper planning Visual effect Preservation of amenity
Legislation:
Metropolitan Region Scheme
Telecommunications (Lowimpact Facilities) Determination 1997
Telecommunications Act 1997(Cth), Sch 3, s 6.3
Town of Vincent Town Planning Scheme No 1, s 23(2)
Town Planning and Development Act 1928 (WA), s 5AA, s 61(1)(a)
Result:
Application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Mr C Stevenson
Respondent: Mr S Bain (As Agent)
Solicitors:
Applicant: Clayton Utz
Respondent: N/A
Case(s) referred to in decision(s):
Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490
Hutchison 3G Australia Pty Ltd and City of Mitcham & Ors [2006] HCA 12
Hutchison 3G Australia Pty Ltd v City of Mitcham [2005] SASC 249
Peter J and Janet C Moullin and Town of Cottesloe [2002] WATPAT 23
Taylor and City of Swan [2003] WATPAT 33
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application for review by Optus Mobile Pty Ltd has resulted from a decision of the Town of Vincent to refuse an application for a proposed telecommunications facility comprising two separate flush mounted antenna arrays 4.5 metres in height, together with a 600 mm radiocommunications dish and an equipment shelter positioned on the rooftop of the Alexander Buildings in Mount Lawley. The Alexander Buildings are classified as Management Category A (Conservation Essential) which is the highest heritage classification in the Town.
The review required an analysis of the need for and the location of the facility, together with relevant Commonwealth and State legislation and specific policies at State and local level; particularly those relating to telecommunications infrastructure and heritage.
In the view of the Tribunal, although an attempt had been made by the applicant to minimise the adverse effects of the proposed facility on the heritage building by way of contemporary design, positioning away from the front building façade and colour‑matching, no reasonable steps have been made to minimise the cumulative adverse effects with the existing Telstra facilities by way of co‑location.
Again, the height, bulk and visual impact of the proposed structures, together with the cumulative effects of the Telstra facilities, do impact adversely on the aesthetics of the heritage building, despite attempts by the applicant to lessen that impact. Accordingly, in the view of the Tribunal, an approval in these circumstances would not be consistent with the orderly and proper planning of the locality or the preservation of the amenity of the locality.
The application for review is dismissed.
Introduction
The application for review by Optus Mobile Pty Ltd (applicant), dated 16 December 2005, has resulted from a decision of the Town of Vincent (respondent) to refuse an application for a proposed telecommunications facility on the rooftop of the Alexander Buildings at the corner of Walcott Street and Beaufort Street, Mount Lawley.
The decision of the respondent, as taken at an Ordinary Meeting of Council on the 22 November 2005, advised:
"(i)the development is not consistent with the orderly and proper planning and the preservation of the amenities of the locality; and
(ii)the non‑compliance with the Town's Policies relating to the Mount Lawley Centre Precinct, Heritage Management – Development Guidelines, and Telecommunications Facilities, respectively."
Subject land
The subject land is located at 71‑77 Walcott Street, Mount Lawley and is described as Lot 62 on Deposited Plan 73028. It is situated on the south‑west corner of Walcott Street and Beaufort Street with Walcott Street providing the east‑west boundary between the Town of Vincent to the south and the City of Stirling to the north.
Lot 62 is part of what the Heritage Council of Western Australia (HCWA) refers to as the "Beaufort Street Commercial Precinct" with the two‑storey Alexander Buildings thereon described as an example of inter‑war Art Deco architecture.
Legislative framework
The subject land is zoned "urban" under the Metropolitan Region Scheme (MRS) and "district centre" under the Town of Vincent Town Planning Scheme No 1 (TPS 1).
Under s 5AA of the Town Planning and Development Act 1928 (the Act) provision is made for the Western Australian Planning Commission (WAPC) to prepare, with Ministerial approval, statements of planning policy. Under s 61(1)(a) of the Act the Tribunal is "to have due regard" to an approved statement of planning policy prepared under s 5AA.
Of relevance here is the WAPC Statement of Planning Policy No 5.2 (Telecommunications Infrastructure) (SPP 5.2) and an associated set of "Guidelines for the Location, Siting and Design of Telecommunications Infrastructure" of March 2004 (Guidelines).
The most relevant planning documents provided by the Town of Vincent are the Heritage Conservation Policy Statement (P 3.2.2), the Heritage Management – Development Guidelines Policy (P 3.6.1), the Telecommunications Facilities Policy (P 3.5.6) and the Mount Lawley Centre Precinct Policy (P 3.1.11).
The applicant has also brought to bear on the argument the provisions of the Telecommunications (Low‑impact Facilities) Determination 1997 (1997 Determination) prepared under subclause 6(3) of Schedule 3 of the Commonwealth's Telecommunications Act 1997 (Cth).
Respondent's position
The respondent's position is outlined in their Statement of Issues, Facts and Contentions dated 1 March 2006. They argue:
a)The proposal does not comply with cl 2 of P 3.1.11 which requires that:
"careful control is to be exercised over the nature of any commercial uses and the design and site layout of development in general to ensure levels of noise, visual amenity and privacy are appropriate to any adjacent residences."
b)The two proposed antennas protrude 4.3 – 4.5 metres above the existing roof line and will have an undue impact on the scale and visual aesthetic of the heritage building. Again, the proposed antennas and equipment shelter at the rear will be fully exposed to an activity area comprising retail outlets, restaurants and take‑away shops with the same resulting undue impact.
c)The proposal does not comply with cl 2(iii)(c) of P 3.1.11 which provides for development to be:
"consistent in style, form, rhythm and articulation of buildings."
The proposed antennas and equipment shelter are non‑compliant with this provision.
d)The proposal is non‑compliant with cl 4 of P 3.6.1 as the subject place has been classified as "Category A – Conservation Essential" and the proposed development will be visible from the north, south, east and west elevations. It will impact on the cultural heritage significance of the place.
e)The subject building is on the Municipal Heritage Inventory (MHI) and the proposal will have a detrimental impact on the buildings general aesthetic and the overall visual amenity of the area.
f)The proposed development does not appropriately consider the integration of antennas and poles within the existing structure or façade.
g)The building is currently being considered by the HCWA for inclusion on the State Heritage Register, as part of a precinct of buildings at the intersection of Walcott and Beaufort Streets.
h)The proposal is non‑compliant with cl 3 of P 3.5.6 in that it is only 50 metres from residences. The requirement is 300 metres.
i)The proposal is non‑compliant with cl 7 of P 3.5.6 which requires due consideration to be given to:
"heritage, visual and aesthetic matters."
j)The proposal is non‑compliant with cl 9 of P 3.5.6 which requires the:
"design to have a minimal impact on the streetscape and amenity of the surrounding area."
k)The proposal will undermine the heritage significance of the subject building and the extent of non‑compliances with the requirements of TPS 1 and associated policies will have a significant undue impact on the amenity and streetscape of the area.
Applicant's position
The position of the applicant is outlined in a responding Statement of Issues, Facts and Contentions dated 15 March 2006 as prepared by Clayton Utz, lawyers. The statement argues:
a)The proposal is consistent with the orderly and proper planning and preservation of the amenity of the locality because:
i)it is inherently appropriate in a District Centre zone; and
ii)the facility is needed to rectify a deficiency in the applicant's mobile phone network.
b)The applicant has carefully designed the facility to ensure that it complies, to the greatest extent possible, with both the WAPC and respondent's policies to minimise the impact of the facility on the visual amenity and heritage value of the locality.
c)Although the proposal is non‑compliant with cl 3 of P 3.5.6 that policy should be disregarded because the respondent has not provided any valid planning, scientific or environmental evidence to justify a 300 metre setback from residential areas.
d)Clause 2.1 of SPP 5.2 identifies that planning policies must balance the need for essential and beneficial telecommunications infrastructure against the impacts of the facilities on amenity.
e)SPP 5.2 contemplates that there will be situations where telecommunication facilities will need to be located in areas of cultural or heritage significance, and if that does occur that any adverse visual impact be minimised, not eliminated.
f)Whilst the applicant accepts the respondent's contention that the proposed development does not integrate the facility into the existing structure or façade of the building it has proceeded as proposed because:
i)as outlined in SPP 5.2 antennas must be clear of surrounding objects; and
ii)the proposed design delivers a better heritage conservation outcome because it does not disturb the original fabric of the building.
g)The respondent's reference to cl 2 of P 3.1.11 is erroneous because the policy relates to buildings and not structures such as the proposed facility.
h)In relation to cl 7 and cl 9 of P 3.5.6:
i)the applicant has incorporated design elements such as colour matching, setback from the street façade and a tall but simple structure to minimise its impact on the aesthetic heritage value of the building; and
ii)the applicant has designed the facility to the minimum height possible and with minimal impact on the streetscape and the amenity of the surrounding area. It is designed to blend into that area with neutral non‑reflective compatible colours.
i)Any adverse impact that the facility may have on the visual amenity and heritage significance of the building has been minimised in accordance with the WAPC and respondent's policies, and any such impact is outweighed by the community need for the facility.
Planning issues
The principal planning issue before the Tribunal is:
"Would a decision in favour of the applicant be consistent with the orderly and proper planning of the locality and the preservation of the amenity of the locality?"
Assessment of proposal
Background
On 8 July 2005, a development application was prepared by Greg Rowe and Associates on behalf of Optus Mobile Pty Ltd for lodging with the Town of Vincent for the construction of a new telecommunications facility on the rooftop of the Alexander Buildings at an estimated cost of $95 000. The application was accompanied by a signed authority from the registered proprietors (Silverleaf Investments Pty Ltd) to lodge a development application and building application.
The intent of the proposal is to install two separate flush mounted antenna arrays 4.5 metres in height, that are colour matched to the building colour. A 600 millimetre radiocommunications dish is to be fixed to the external façade at the rear of the building together with an equipment shelter and both are to be colour matched to the building colour.
The proposal also involves the construction of a masonry façade in the form of a gable designed in keeping with the architectural style and form of the existing building and intended to partially screen the equipment shelter at the rear of the property.
On the 22 November 2005, the application was refused by the respondent.
Selecting a site
The process of site selection is by way of a "Master Supply Agreement" between the consulting firm of Connell Wagner Pty Ltd (CW) and the applicant for their Mobile Network Roll Out programme. The obligations on CW are to identify potential sites for the location of mobile telephone antennas and associated equipment and cabling.
In an attachment "WWP2" to the witness statement of Mr WW Phillips, Site Acquisition Manager to CW, a list of 11 alternative sites was submitted along with the reasons for rejection. These reasons ranged from the unsuitability of the site in comparison to the subject land through to opposition from the landowner on the grounds of visual impact, electromagnetic energy (EME) levels and so on.
In the witness statement of Mr MA Turnbull, a qualified town planner with the consultancy firm of Greg Rowe and Associates (GRA), he advised that GRA were engaged by CW to provide an assessment of the planning and environmental aspects concerning a number of alternative sites.
Following a decision in October 2004 by CW, that the subject land was the preferred site, a desktop and site evaluation by GRA took place on all aspects relating to planning, heritage and telecommunications criteria. This information contributes significantly to the arguments of the applicant.
Of relevance is an answer given by Mr JJ Marshall to a question from Mr C Stevenson, counsel for the applicant. Mr Marshall, a qualified engineer and employed by the applicant as a Technical Specialist, advised:
"… there are buildings in the area which from a purely technical point of view would be preferred but taking all requirements into account for various reasons these buildings have not been able to be pursued."
The need for the facility
In the witness statement of Mr Marshall, and again at the hearing, he made the following points:
a)Optus has an existing 2G or GSM network operating in Perth. This older technology needs to be replaced, and the company has employed Nokia to deploy the advanced 3G network which is the same technology used by Telstra and Hutchison in parts of Perth.
b)The existing GSM mobile phone coverage to the business and residential areas of Mount Lawley in the vicinity of Walcott Street and Beaufort Street is poor.
c)Both Telstra and Hutchison have existing base station sites in the area which achieve good indoor coverage.
d)Without a new base station to deploy the new technology, and provide the required level of indoor coverage to match its competitors, Optus will remain uncompetitive.
e)Given that the size of the area to be covered is in excess of 1.5 square kilometres a new rooftop base station is necessary so that antennas are not blocked by other buildings which could cause reduced coverage.
In answer to a question from Mr Steveson to Mr Bain, a qualified town planner for the respondent, on the matter of "need" as a factor in a planning determination, Mr Bain responded:
"There are a number of issues and I think we've heard that it's really a balancing of all those issues. It needs to be considered ‑ ‑ each application needs to be considered on its merits. The need for telecommunication facilities is one component, and it's listed as one of the guiding principles."
The question of "need" was examined in Hutchison 3G Australia Pty Ltd v City of Mitcham [2005] SASC 249 and explained in this way:
"… the effect on visual amenity is not the only matter relevant to the planning assessment. The [Council's Development] Plan recognises that in certain circumstances there will be a need for a telecommunications facility. The need might be for a facility in the general area or it might be for a particular facility in a particular location. The question of need is relevant to the planning assessment and is to be weighed against the effect on visual amenity."
In the view of the Tribunal the question of "need" is a factor to be taken into account in a planning determination, but it is usually done so from the broad perspective of whether a particular land use activity such as a shopping centre, school or hospital is required in the absence of such facilities, rather than to restore the equilibrium from a technology viewpoint between competitors in the market place.
In other words it is not the responsibility of a planning authority, or indeed this Tribunal, to attempt to ensure that the demands of all business operators are accommodated on the basis of "need". In this particular case it appears that the users of Telstra and Hutchison in Mount Lawley may well be satisfied with their service provider, whereas the users of Optus may not.
The question that occurs to the Tribunal is:
"If there are ten operators in the market place and two are operating effectively is there an obligation on a planning authority, if a planning application is lodged by each of the other eight operators, to accommodate their proposals on the basis of need?"
The answer to this question is clearly in the negative.
Having said that, if an application is lodged it is incumbent on the planning authority, and this Tribunal if required at review, to consider the total merits of a proposal, including "need".
Existing and proposed facilities
At the present time there are three Telstra poles with antennas attached to the front of the façade at rooftop level on the Alexander Buildings.
Based on photographic evidence presented as Appendix E to the witness statement of Ms HL Eames, Senior Heritage Officer for the respondent, there were five separate poles with antenna attached to the front of the façade in 2004. Three of those are the existing Telstra facilities and the other two One‑Tel facilities have since been removed.
What is proposed are two 4.5 metre high monopoles that are set back from the front façade of the building and supported and fixed below the roof line. Each of the poles will house three antennae suitably oriented with the necessary infill panel/shroud located at the top 2.0 – 2.5 metres of the pole. The gap between the top of the roof line and the underneath of the antennae will also be shrouded to convey the effect of a single "slimline" structure some 4.5 metres high and some 900 mm wide.
As already described in [19] above it is intended that there will be a 600 mm radiocommunications dish and an equipment shelter located at the rear of the building.
The Tribunal was assisted in its appreciation of the proposed facilities by way of a site elevation drawing No P0287 – G5A dated 1 July 2005 as prepared by CW. The drawing shows the west elevation but a note stating "this drawing is diagrammatic only and should not be scaled" has tended to diminish its relevance. Nevertheless, an overall impression can be gained of the visual effect of the proposed structures when viewed from the west.
Two photo‑montages showing the proposed facilities were provided by the applicant and indicated the likely visual effect when viewed from the north‑east corner of Bulwer and Beaufort Streets and from the north side of Bulwer Street to the west of Beaufort Street.
An on site "view" was organised and the applicant arranged for two 4.5 metre [hand]‑held poles to be positioned at the proposed location of the two structures. This allowed the Member to assess the likely visual effect of the structures from various locations in both Bulwer Street and Beaufort Street.
On the important question from Mr Stevenson on the co‑location of the Telstra and Optus facilities, Mr Phillips responded:
"There's two options. You could fit more than three antennas on the pole. One option would be to have the pole an extra 3 metres high. The second option would be to have a head frame which Mr Marshall also briefly touched on. A head frame, essentially is a structure that is mounted on the pole that enables the antennas to be ‑ ‑ more antennas to be mounted than currently."
Again, on a question as to whether a joint structure would be much larger Mr Phillips responded:
"Quite a lot bigger, and we would also have some structural concerns with the building given its age and the ability to be able to put a structure that large on the building may require quite a bit of structural work to the roof."
It appears to the Tribunal from further evidence by Mr Phillips that although correspondence between the two carriers by way of a "co‑siting notification" from Optus to Telstra has taken place, there have been no discussions and/or agreements between them on an actual co‑location of facilities.
The question arises as to the likely visual and aesthetic effect of the removal of the Telstra facilities from the front façade and co‑locating them with the Optus facilities. The Tribunal can only speculate on the likely visual effect of co‑location from both the front and rear of the Alexander Buildings.
Commonwealth provisions
In his opening remarks Mr Stevenson advised:
"Now, the Tribunal may be aware of some of the legislation which applies to these types of structures but there is a Commonwealth determination which is referred to as a low impact determination and ordinarily these types of structures are covered by that low impact determination and do not require any planning approval at all.
So the purpose of that federal determination is to facilitate clearly the establishment of these facilities without them being delayed by development applications at a local planning level because of the importance of them to the nation and the community.
That determination may or may not apply in this case but Optus decided to be prudent and precautionary and to make a formal development application and the reason for that is because the building – and you'll hear evidence about the building – does clearly have a heritage value and significance which Optus recognises."
The most relevant Commonwealth provision is stated in the background to the 1997 Determination (as amended) made under subclause 6(3) of Sch 3 of the Telecommunications Act 1997. It states:
"Part 1 of Schedule 3 to the Telecommunications Act 1997 authorises a carrier to enter on land and install a facility if the facility is a low‑impact facility."
The matter is addressed by the High Court of Australia in the matter of Hutchison 3G Australia Pty Ltd and City of Mitcham & Ors [2006] HCA 12 of 6 April 2006. At [108] and [109] it states:
"From the earliest days of telecommunications law in the Commonwealth, it has been a purpose of federal law to encourage the use for telecommunications of suitable facilities belonging to non-federal bodies, generally subject to regulation by State law…
The policy behind such federal provisions includes the efficient establishment and maintenance of nationwide and international telecommunications facilities in Australia as the Constitution envisages in s 51(v); the economic use of existing infrastructure facilities; and, more recently, the minimisation of environmental concerns. To the extent that federal law so provides, State law, including any with respect to town planning, may not validly detract from, or inconsistently burden, the federal regulation."
State policies
The relationship between Commonwealth and State law was explained earlier in SPP 5.2 under cl 2.1:
"On 1 July 1997 the original Telecommunications Act was repealed and replaced by the Telecommunications Act 1997. The main effect of the new legislation was that it required the installation of telecommunication facilities, except those that are exempted specifically by the legislation, to comply with State (and local) planning environmental approval procedures."
Exemptions under the Telecommunications Act 1997 include:
"a low‑impact facility described in the Telecommunications (Low‑Impact Facilities) Determination 1997 and Amendment No. 1 1999 when installed by a carrier;"
From a reading of the 1997 Determination, including Sch 1, it is not absolutely clear that the proposed facility would be classified as low‑impact and this may well explain why a question from the Member on this point was answered by Mr Stevenson in the following way:
"Mr Graham: Is the point you're making that under Commonwealth law you could proceed with the structures anyway?
Mr Steveson: The point is that it is grey and we didn't want to exercise that power unilaterally. That's not the way this applicant does business and deals with councils and the community. It was grey and perhaps unclear. Other applicants may have gone ahead and done it but this applicant is not one of those types of applicants."
Since the applicant has chosen to seek a planning approval, the question of whether the proposed facility is or is not low‑impact falls away at this time. However, if it was low‑impact it would, as explained in cl 2.4 of SPP 5.2, still be required to comply with the Commonwealth Telecommunications Code of Practice 1997 which requires the carrier to:
"•take all reasonable steps to find out whether it is able to co‑locate its facility with an existing facility."
Under the 1997 Determination co‑located facilities are defined in this way:
"co‑located facilities means one or more facilities installed on or within:
(a)an original facility; or
(b)a public utility structure."
Whether the definition of co‑location would encompass the removal of the three existing Telstra facilities and to have them co‑located with the proposed new Optus facility is not clear. However, what is clear from the information before the Tribunal is that there have been no reasonable steps by the applicant to liaise with Telstra to achieve co‑location.
Under cl 5.1 of SPP 5.2 some guiding principles for the location, siting and design of telecommunications infrastructure are listed. These include:
a)"Telecommunications facilities should be located and designed to meet the communication needs of the community."
b)"Telecommunications facilities should be designed and sited to minimise any potential adverse visual impact on the character and amenity of the local environment, in particular, impacts on prominent landscape features, general views in the locality and individual significant views."
c)"Telecommunications facilities should be designed and sited to minimise adverse impacts on areas of natural conservation value and places of heritage significance..."
d)"Telecommunications facilities should be designed and sited to minimise adverse impacts on the visual character and amenity of residential areas."
e)"The design and siting of telecommunications towers … should be integrated with existing buildings and structures …"
f)"Co‑location of telecommunications facilities should generally be sought, unless such an arrangement would detract from local amenities or where operation of the facilities would be significantly compromised as a result."
A set of guidelines for the location, siting and design of telecommunications infrastructure to complement SPP 5.2 has been prepared by the WAPC and advises:
"Cultural and heritage sites should also be treated with sensitivity, and avoided altogether where a proposed facility is likely to detract from the characteristics for which the site has been identified (e.g. [sic] for example, cultural, historic, scenic)."
It appears to the Tribunal that a desirable scenario which is relevant to this review, and within the ambit of SPP 5.2, would be for a proposed facility to be co‑located with an existing structure on an existing building and positioned in such a way that any adverse impacts on residents in particular are minimised. If possible a heritage site should be avoided but, if it is chosen, the impact of the facility should also be minimised.
Local policy (telecommunications)
The relevant clauses at issue between the parties are clauses 3, 7 and 9 of P 3.5.6.
Clause 3 relates to the proximity of a proposed facility to adjacent residential areas with a requirement that the separation distance be 300 metres. The respondent argues that the proposed facility is only 50 metres from the closest residences.
The applicant submits that:
a)the basis of the setback policy is arbitrary and not supported on any valid planning, scientific or environmental grounds;
b)there is only one location (Britannia Reserve) in the Town that would comply with the policy.
c)the decision to apply the policy is discretionary.
A similar matter was addressed in Taylor and City of Swan [2003] WATPAT 33 where the relevant policy required a base transmitter station to be a minimum of 200 metres from a dwelling. At [41] of the reasons it states:
"No evidence was led to establish the rationale from any field of discipline to show the basis for such a figure. Without such direct evidence it can be seen to be arbitrary and in any event Council, as a policy, has a discretion in order to deal with the particular of each development application."
A similar circumstance applies in this case where telecommunication infrastructure is a use "not listed" in the zoning table of TPS 1 and may be permitted at the discretion of the respondent.
In relation to cl 7 there is a requirement that due consideration be given to "heritage, visual and aesthetic matters" and in relation to cl 9 the "design to have a minimal impact on the streetscape and amenity of the surrounding area".
The respondent argues that the antennas, poles and equipment shelter all protrude from the rooftop and, as they are visible from the north, south, east and west elevations, have a detrimental impact on the streetscape and amenity. They contend that the proposal minimises the heritage significance of the building and does not show due consideration to integrating the facility within the existing building fabric.
The applicant argues that the design, location and colour matching of the facility with the existing building are all intended to minimise its impact on the building, the streetscape and the amenity of the surrounding area.
On the question of the height of the proposed facility the evidence from Mr Marshall is relevant:
"Mr Marshall: I would say if the height was halved that the coverage would shrink more than 50 per cent compared to the coverage that would be achieved at the current height because the antennas would be well below the height of other buildings and the signal would be absorbed and reduced very quickly within, say, 100 or 200 metres from the site.
Mr Graham:So a proposition that the structures should be out of sight would, in effect, lower them to a point where their effectiveness would be reduced.
Mr Marshall: That's correct.
Mr Graham:To a point where it would almost not be worth constructing them. Would that be a fair comment.
Mr Marshall: Yes. That would be a fair comment."
Based on the evidence before it, the Tribunal accepts that it is not a realistic proposition from both a technical and commercial standpoint to integrate the facility within the existing building fabric where it is lowered behind the front façade and is essentially out of sight, with the exception of the west elevation.
The Tribunal also accepts that the design, location and colour matching of the facility with the existing building are all significant attempts by the applicant to minimise the visual effect of the facility on the streetscape and the amenity of the surrounding area.
Local policy (Mount Lawley precinct)
The respondent argues that the proposed does not comply with cl 2 and sub‑clause 2(iii)(c) of P 3.1.11 which require all new buildings to be consistent with the scale, style, form, rhythm and articulation of existing buildings and to ensure that the visual amenity is appropriate to adjacent residences.
The view is put that the height of the antennas protrude well above the existing roof line and have an undue impact on the scale and overall visual aesthetic of the heritage building.
The applicant argues that the respondent's reference to cl 2 of P 3.1.11 is erroneous because it relates to "buildings" and not "structures" such as the proposed facility.
The Tribunal is not concerned with this difference of view because the matter relates once again to the visual effect of the proposed facility on its surroundings.
What is relevant is the question of the scale of the proposed 4.5 metre facilities relative to the height of the existing building at say 10 or 12 metres high. This relationship is far more obvious to the viewer at ground level than if the same facility was set back from the rooftop edge of a 10 or 20 storey building.
Heritage
The heritage issues are addressed in the witness statement dated 30 March 2006 of Ms HL Eames, Senior Heritage Officer at the Town of Vincent. She argues:
a)The Alexander Buildings were included on the respondent's Municipal Heritage Inventory (MHI) in 1995 pursuant to cl 23(2) of TPS 1.
b)Under cl 4(i) of P 3.6.1 the Alexander Buildings have been given a Management Category A (Conservation Essential). This category applies to plans with the highest possible heritage significance within the Tower.
c)A Heritage Impact Statement (HIS) is to be prepared in the event of a planning application being made.
d)In 1995 no ancillary development to the roofscape was visible from the intersection of Walcott Street and Beaufort Street. Since that time additions in the form of telecommunications facilities have been added to the building, as well as some signage and alteration to the awning on the northern elevation.
e)The telecommunications facilities which have been added to the building over the last ten years are considered detrimental to the place in terms of heritage. As such, earlier telecommunications facilities to the place are not considered reason enough to disregard concern for the singular or cumulative effect of the current proposal.
f)The place is currently subject to assessment by the HCWA as part of the Beaufort Street Heritage Precinct for inclusion on the State Register of Heritage Places.
At attachment F to the witness statement of Mrs Eames a letter from the Heritage Council dated 17 March 2006 concludes:
"10. Based on the information provided, it is considered that the scale, form and location of the proposed telecommunications facility would detract from the architectural character and aesthetic significance of the Alexander Buildings.
11.It would also detract from the aesthetic qualities of the Beaufort Street Commercial Precinct.
12.It is therefore suggested that alternative designs for the telecommunications installation, or alternative sites, should be considered, with the aim of maintaining and protecting the aesthetic significance of both the Alexander Buildings and the Beaufort Street Commercial Precinct."
In his witness statement of March 2006 Mr R Bodycoat, a registered architect in private practice, stated on behalf of the applicant:
"I have no grounds to dispute the identification of the Alexander Buildings as a place of cultural heritage significance, nor that the designation at Management Category A Conservation Essential is appropriate."
However, in the assessment of the proposal, Mr Bodycoat concludes:
"(a)the heritage values of the Alexander Buildings are not diminished because:
(i)there is no intrusion into the heritage fabric of the facades nor of any relevant internal or rear spaces,
(ii)there is no conflict of style or materials which could impact upon a proper interaction of the culturally significant elements,
(iii)the aesthetic values of the building as viewed from the principal streets are not affected;"
The question of historical considerations was addressed in Peter J and Janet C Moullin and Town of Cottesloe [2002] WATPAT 23; 2 August 2002:
"19.… there is not justification for allowing historical considerations for precincts to be the sole criterion of the amenity of the locality. Historical considerations should not dominate the planning agenda. To do so is an error that is not within the purview of proper planing principles."
However, although the Tribunal accepts that historical considerations are but one factor to be considered along with other aspects of amenity, there has been an acceptance by both parties that the effect of the proposed facilities on the historic Alexander Buildings is a significant factor.
Although Mr Bodycoat concluded that the style of the facilities would not conflict with the culturally significant elements of the building, the Heritage Council concluded differently in their letter of 17 March 2006:
"6.… The key characteristic represented in the 1938 refurbishment of the Alexander Buildings is the strong horizontal banding, emphasised by the parapet and decorative detailing to the façade.
7.Vertical elements above the parapet, such as the existing Telstra facility and the proposed Optus facility, detract from this form and are inconsistent with the architectural character and aesthetic significance of the building."
The Tribunal is more inclined to accept the views of the Heritage Council in this matter of conflict between the proposed facilities and the style of the building. It is assisted in this regard by the photographic evidence showing an uncluttered rooftop in 1995 and the photo montage showing both the existing Telstra facilities and the proposed Optus facilities.
The Tribunal would further agree with the HIS in its statement:
"The clustering of several telecommunications panels around a single pole and the proposed sympathetic painting of the structures gives some assistance to minimising the number of poles required. However the height, bulk and visual impact of the proposed structures are still considered to impact on the aesthetics of the building, despite these attempts to shield the impact of the proposed development by painting and clustering the poles."
Orderly and proper planning
In the applicant's Statement of Issues, Facts and Contentions they advise that the courts have defined the concept of "proper planning" purpose. In Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63. McHugh, Gummow and Hayne JJ adopted Walsh J's comments in Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 in relation to the meaning of the expression "planning purpose":
"… that purpose was to be ascertained from a consideration of the applicable legislation and town planning instruments to which the responsible authority is subject rather than from 'some preconceived general notion of what constitutes planning'."
The applicant argues that as the review is a de novo consideration, the Tribunal is obliged to have due regard to relevant State and local policies and other relevant information when determining whether the proposed development is consistent with the orderly and proper planning and preservation of amenities of the locality, irrespective of whether the respondent considered the provisions of SPP 5.2 and its associated guidelines in its determination.
On this matter the Tribunal acknowledges that relevant policies and guidelines help to frame the concept of orderly and proper planning, and its overall assessment of the proposal has followed that path in this review.
Preservation of amenity and streetscape
The Mount Lawley Town Centre was legitimately described in the evidence of Mr N Catania JP, Mayor, Town of Vincent, as a "vibrant town centre" with its centre of gravity at the intersection of Beaufort and Walcott Streets. There are two‑storey buildings on the north‑west corner (Astor Theatre), the north‑east corner (Walcott Building), the south‑west corner (Alexander Buildings) and a single storey development (Planet Video Building) on the south‑east corner.
The four way intersection is heavily trafficked with the adjacent shopping along Beaufort Street, in particular, comprising a complex variety of retail uses coming together for the benefit of the local community and others.
A clear description of some of the elements in the streetscape is explained in the witness statement of Mr R Bodycoat:
"The photographs … demonstrate the current visual status of the buildings and intersection where substantial commercial advertising material on buildings, dominant street lighting standards, introduced palm trees, air conditioning plant on roofs to all buildings at the four corners of the intersection, exhaust vents and flues, television aerials, roof access frames, street lighting and traffic signage, and strong paint colours, already exist as visual elements of the streetscape and presentation of the buildings.
As a consequence, in my opinion it is not consistent nor reasonable for the Town of Vincent to overlook these existing elements and to refuse the introduction of the elements in the proposal."
In the view of the Tribunal, the existing amenity and streetscape can best be described within the context of a somewhat discordant combination of buildings and structures with a wide variety of land uses essentially focussed around the heavily trafficked Beaufort Street and Walcott Street intersection.
In that sense the proposed facilities would simply introduce another element into a highly varied streetscape although, as observed at the "view", it would not be possible for pedestrians to see the proposed facilities when walking towards the Alexander Buildings along Beaufort Street to the north and south of Walcott Street.
The Tribunal is not alarmed at the prospect of the amenity of the locality at a distance from the Alexander Buildings being diminished by the proposal, but more concerned with the amenity effects of the proposal in the immediate vicinity of the Buildings; particularly in Walcott Street to the east and west of Beaufort Street and from the rear of the buildings from the perspective of nearby residents.
What the Tribunal does not accept is the basis of the argument by Mr Bodycoat that the existence of other discordant elements in the streetscape is in itself a reason to approve the proposal.
Public response
In response to directions from the Tribunal the respondent completed a 21 day advertising period in relation to the application for review. Four submissions were received.
Of the submissions three were against the proposal and one in favour. The latter was from the owner of the subject land who argued on the basis that a precedent had already been set with the existing Telstra facilities and the former One Tel facilities, and that the applicant's proposal would simply replace the One Tel antennae.
The arguments against the proposal were largely based on the proximity of nearby housing and a consequential loss of amenity by way of visual effect, and also matters relating to the height of the structures above the roofline and their consequential effect on the heritage building and on the streetscape generally.
Although the arguments against the proposal are valid considerations, the small number of submissions appears to indicate a disinterest or public apathy with respect to the proposal.
Conclusions
The application for review has resulted from a decision of the respondent to refuse an application for a proposed telecommunications facility on the roof of the Alexander Buildings in Beaufort Street, Mount Lawley. The buildings are included in the Municipal Heritage Inventory and are classified as Management Category A (Conservation Essential) which is the highest possible level of heritage significance in the Town.
The reason for the refusal of the proposal, which includes the construction of two 4.5 metre high monopoles with antennae attached along with a 600 mm radiocommunications dish and equipment shelter at the rear of the building, is that it will have an undue impact on the scale and visual aesthetic of the heritage building and that the proposed antennae and equipment at the rear will be fully exposed to an activity area and within close proximity to nearby residences.
The respondent also argues that the proposal will have a detrimental impact on the streetscape and amenity of the surrounding area and that it does not consider the integration of the facilities within the existing structure or façade.
The applicant argues that there is a proven need for the facility and that it has been designed and positioned to ensure that it complies, to the greatest extent possible, with the WAPC and respondent's policies in order to minimise the impact of the facility on the visual amenity and heritage value of the locality. Also, that it is simply not possible, for technical reasons alone, to integrate the facility into the existing structure or façade.
With regard to the review itself the principal issue to be examined is whether a decision in favour of the applicant would be contrary to orderly and proper planning and the preservation of the amenity of the locality. With such a broad ranging question a number of planning matters required assessment.
In the assessment, the Tribunal accepts that from the perspective of the applicant there is a "need" for the facility to provide a better service to its mobile phone users and that it has made significant efforts to explore alternative sites. In this regard evidence was given that from a technical viewpoint there are other buildings that would be preferred but, for various reasons ranging from sites not being available through to direct opposition from landowners that these sites could not be pursued,
The telecommunications situation on the subject land is that post‑1995 there have been up to five monopoles with antennae attached to the external façade of the building overlooking Beaufort Street and Walcott Street. Three have been positioned by Telstra and the other two by One Tel which have since been removed.
What the Tribunal is being asked to support are two so‑called "slimline" structures which are some 4.5 metres in height and some 900 mm wide. Quite clearly the relative height of the structures to the height of the building at some 10 to 12 metres is proportionally very high, and this accounts in part as to why they have been set back from the edge of the building.
The Tribunal accepts the argument of the applicant that for operational reasons the height of the structures must be as proposed for maximum effect, and that to house them out of sight within the building structure behind the façade would render them ineffective.
What the applicant has also done to advance their case is to bring to bear on the argument the relevant provisions of Commonwealth and State law. This is highly appropriate because a low‑impact facility is excluded from State and local planning and environmental approval procedures.
Although there is some conjecture as to whether the proposed facility is low‑impact the applicant is still required if it is to take all reasonable steps to co‑locate its proposed facility with an existing facility.
The implication of this is that the Optus facilities would need to be co‑located with the Telstra facilities but, because of their minimalist design, could not accommodate the taller and heavier Optus structures. However, there appears to be no reason why the Telstra facilities could not be removed from the external façade of the building and co‑located with the Optus facilities.
In fact in his evidence before the Tribunal Mr Catania, Mayor of the Town of Vincent, did advise that he would support the removal of the Telstra facilities but how this could occur legally within current contractual arrangements and under Commonwealth law is unclear. However, with a compliant landowner and the willingness of Telstra and the applicant it may well be possible to achieve an overall improved result.
In evidence before the Tribunal the question of co‑location was briefly canvassed and it does appear that the weight of a combined structure on the rooftop of the ageing building could require significant structural work. Also, that a combined structure(s) would need to see an increase in the height of the monopole(s) unless a bulkier head frame was used.
The Tribunal appreciates the logic of this position but a detailed engineering and design exercise for co‑located facilities has simply not been done or, if it has, it has certainly not been brought before the Tribunal. Again, although the applicant can legitimately argue that they have sought to minimise any adverse effects by way of a contemporary design of the proposed facilities, it would appear that no reasonable steps have been taken to minimise the overall adverse effects of the telecommunications infrastructure by way of co‑location. This is a requirement of the Commonwealth Telecommunications Code of Practice 1997 as outlined in [51] above.
On the question of the impact of the proposal on the overall amenity of the locality it was clear from photographs brought into evidence, and from the on site view, that at some distance from the Alexander Buildings, and even within close proximity on the west side of Beaufort Street to the north and south of Walcott Street that the proposed facilities could not be seen.
However, from Walcott Street to the east and west in close proximity to the Alexander Buildings one or more of the proposed facilities could be seen and the Tribunal would accept that the height, bulk and visual impact of the structures, together with the cumulative effects of the Telstra facilities, do impact adversely on the aesthetics of the heritage building despite attempts to lessen these effects by way of contemporary design and the setback of the structures from the façade.
Once again, if a co‑location exercise was undertaken and, if achievable, appropriate housing and/or gables were constructed to hide the base of the combined facilities that a more acceptable visual effect may be possible.
One argument that the Tribunal does not accept, is that the existence of other discordant elements in the vicinity of, or on, the Alexander Buildings is a reason to support the proposal.
In the final analysis, the simple fact is that the Alexander Buildings have been given a Management Category A (Conservation Essential) status which is the highest heritage classification in the Town. In this respect the "Guidelines for the Location, Siting and Design of Telecommunications Infrastructure" produced to complement SPP 5.2 relevantly state:
"Cultural and heritage sites should also be treated with sensitivity, and avoided altogether where a proposed facility is likely to detract from the characteristics for which the site has been identified (e.g. [sic], cultural, historic, scenic)."
It is the case that SPP 5.2 does provide for telecommunications facilities to be designed and sited on places of heritage significance where adverse effects have been minimised but, as expressed in [110], this has not been done to the complete satisfaction of the Tribunal. Accordingly, in the view of the Tribunal, a decision in favour of the applicant in these circumstances would not be consistent with the orderly and proper planning of the locality or the preservation of the amenity of the locality.
Orders
For the foregoing reasons, the Orders of the Tribunal are as follows:
1.The application for review is dismissed.
I certify that this and the preceding [117] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR L GRAHAM, SESSIONAL MEMBER
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