Optus Mobile Pty Ltd v City of Stirling
[2008] WASAT 238
•10 OCTOBER 2008
OPTUS MOBILE PTY LTD and CITY OF STIRLING [2008] WASAT 238
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 238 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:432/2007 | 24 - 25 JUNE 2008 | |
| Coram: | MR P McNAB (MEMBER) | 10/10/08 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Application for review allowed Proposed development approved upon conditions | ||
| B | |||
| PDF Version |
| Parties: | OPTUS MOBILE PTY LTD CITY OF STIRLING |
Catchwords: | Town planning Development application Telecommunication infrastructure Mobile telephone tower proposed to be built in vibrant commercial, restaurant and heritage area Site a modern bank building but located close to buildings of heritage value Technical, social and communications justification for facility made out Tower to be in a colour coded shroud and set well back from main street Whether Heritage Protection Area (HPA) status applied to commercial buildings Tribunal held HPA only applied to residential zonings Principles of statutory interpretation as applied to planning instruments discussed Tribunal not permitted to rewrite scheme Location, design and function of tower held to be complementary to actual site Primacy in planning framework to be given to State Planning Policy 5.2 Telecommunications Infrastructure (SPP 5.2) Suitable height of tower to meet its function recognised in SPP 5.2 Difficulty of applying City's general design guidelines to such telecommunication infrastructure Amenity impact on heritage buildings, residential objectors and businesses considered by Tribunal to be minimal and otherwise justified Review allowed and Tribunal approved the development upon conditions |
Legislation: | City of Stirling District Planning Scheme No 2, cl 1.3, cl 1.3.5.1(f)(vi), cl 1.3.5.1(f)(xiv), cl 1.3.5.4, Pt 2, cl 2.2.3.2(c), Pt 3, Sch 4 Metropolitan Region Scheme Planning and Development Act 2005 (WA) |
Case References: | Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162 Marshall and City of Rockingham [2006] WASAT 249 Optus Mobile Pty Ltd and the Town of Vincent [2006] WASAT 179 Province of Bombay v Municipal Corporation of Bombay [1947] AC 58 Slusarczyk and City of Stirling [2008] WASAT 194 Telstra Corporation Ltd v City of Mitcham (2001) 79 SASR 509 Total Communications Infrastructure Pty Ltd and City of South Perth [2006] WASAT 272 |
Orders | 1. The application for review is allowed.,2. The decision under review is set aside and in substitution for that decision there will be a decision granting planning approval under DPS 2 for the development indicated in site number plan P8021A (or equivalent plan held by the City) upon the condition that the development is colour coded to harmonise with the site building and treated to reduce glare in order to minimise any potential visual impacts. |
Summary | Optus Mobile Pty Ltd sought a review of the refusal of the City of Stirling to give planning approval for the construction of a 5 metre mobile telephone tower proposed to be built in a vibrant commercial, restaurant and heritage area in Mount Lawley.,The site was a relatively modern commercial building housing a bank. The tower was proposed to be a shrouded, colour coded facility, set well back from Beaufort Street. The technical, social and communications justification for the facility were made out by Optus. The Tribunal, after receiving expert evidence, held that, considered by itself the tower complemented this 'commercial building of international style dating from the late twentieth century'.,The tower would be, however, located in a Heritage Protection Area under the City's town planning scheme. The Tribunal held that the scheme's Heritage Protection Area applied only to residential zonings in the areas indicated on certain scheme maps. The Tribunal held that to decide otherwise would have required the Tribunal to engage in an impermissible exercise in 'rewriting' the scheme under the guise of a liberal interpretation. ,The Tribunal considered that the State Planning Policy 5.2 Telecommunications Infrastructure was to be given primacy in the planning framework. Further, that instrument, amongst other things, recognised that the height of such facilities must be adequate for their purpose. All evidence concerning, say, the visual impact of the tower must be, so the Tribunal held, assessed against that requirement. The Tribunal also expressed doubts about the extent to which generalised design guidelines applicable to the subject land usefully contemplated telecommunications infrastructure, given such matters as the need for an operational height, as here, higher than other structures in the immediate locality. ,These conclusions did not mean, however, that either heritage considerations or other amenity impacts were to be ignored in favour of the tower. For example, both the City of Stirling District Planning Scheme No 2 (DPS 2 or Scheme) and State Planning Policy 5.2 Telecommunications Infrastructure recognised heritage concerns. The Tribunal held that the reduction in visual amenity (such as it was) and the impact of the proposed development on the surrounding heritage properties and the streetscape in the Mount Lawley Commercial Precinct and otherwise in the locality were not so critical that refusal of planning approval was warranted. Here, 'the justification for the facility [was] otherwise made out and its design and location minimise[d] that impact.',The review was therefore allowed and planning approval was given on certain agreed conditions. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : OPTUS MOBILE PTY LTD and CITY OF STIRLING [2008] WASAT 238 MEMBER : MR P McNAB (MEMBER) HEARD : 24 - 25 JUNE 2008 DELIVERED : 10 OCTOBER 2008 FILE NO/S : DR 432 of 2007 BETWEEN : OPTUS MOBILE PTY LTD
- Applicant
AND
CITY OF STIRLING
Respondent
Catchwords:
Town planning - Development application - Telecommunication infrastructure - Mobile telephone tower proposed to be built in vibrant commercial, restaurant and heritage area - Site a modern bank building but located close to buildings of heritage value - Technical, social and communications justification for facility made out - Tower to be in a colour coded shroud and set well back from main street - Whether Heritage Protection Area (HPA) status applied to commercial buildings - Tribunal held HPA only applied to residential zonings - Principles of statutory interpretation as applied to planning instruments discussed - Tribunal not permitted to rewrite scheme - Location, design and function of tower held to be complementary to actual site - Primacy in planning framework to be given to State Planning Policy 5.2 Telecommunications Infrastructure (SPP 5.2) - Suitable height of tower to meet its function recognised in SPP 5.2 - Difficulty of applying City's general design
(Page 2)
guidelines to such telecommunication infrastructure - Amenity impact on heritage buildings, residential objectors and businesses considered by Tribunal to be minimal and otherwise justified - Review allowed and Tribunal approved the development upon conditions
Legislation:
City of Stirling District Planning Scheme No 2, cl 1.3, cl 1.3.5.1(f)(vi), cl 1.3.5.1(f)(xiv), cl 1.3.5.4, Pt 2, cl 2.2.3.2(c), Pt 3, Sch 4
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
Result:
Application for review allowed
Proposed development approved upon conditions
Category: B
Representation:
Counsel:
Applicant : Mr P McGowan
Respondent : Mr A Roberts
Solicitors:
Applicant : Clayton Utz
Respondent : McLeods
Case(s) referred to in decision(s):
Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390
Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162
Marshall and City of Rockingham [2006] WASAT 249
Optus Mobile Pty Ltd and the Town of Vincent [2006] WASAT 179
Province of Bombay v Municipal Corporation of Bombay [1947] AC 58
(Page 3)
Slusarczyk and City of Stirling [2008] WASAT 194
Telstra Corporation Ltd v City of Mitcham (2001) 79 SASR 509
Total Communications Infrastructure Pty Ltd and City of South Perth [2006] WASAT 272
(Page 4)
Summary of Tribunal's decision
1 Optus Mobile Pty Ltd sought a review of the refusal of the City of Stirling to give planning approval for the construction of a 5 metre mobile telephone tower proposed to be built in a vibrant commercial, restaurant and heritage area in Mount Lawley.
2 The site was a relatively modern commercial building housing a bank. The tower was proposed to be a shrouded, colour coded facility, set well back from Beaufort Street. The technical, social and communications justification for the facility were made out by Optus. The Tribunal, after receiving expert evidence, held that, considered by itself the tower complemented this 'commercial building of international style dating from the late twentieth century'.
3 The tower would be, however, located in a Heritage Protection Area under the City's town planning scheme. The Tribunal held that the scheme's Heritage Protection Area applied only to residential zonings in the areas indicated on certain scheme maps. The Tribunal held that to decide otherwise would have required the Tribunal to engage in an impermissible exercise in 'rewriting' the scheme under the guise of a liberal interpretation.
4 The Tribunal considered that the State Planning Policy 5.2 - Telecommunications Infrastructure was to be given primacy in the planning framework. Further, that instrument, amongst other things, recognised that the height of such facilities must be adequate for their purpose. All evidence concerning, say, the visual impact of the tower must be, so the Tribunal held, assessed against that requirement. The Tribunal also expressed doubts about the extent to which generalised design guidelines applicable to the subject land usefully contemplated telecommunications infrastructure, given such matters as the need for an operational height, as here, higher than other structures in the immediate locality.
5 These conclusions did not mean, however, that either heritage considerations or other amenity impacts were to be ignored in favour of the tower. For example, both the City of Stirling District Planning Scheme No 2 and State Planning Policy 5.2 Telecommunications Infrastructure recognised heritage concerns. The Tribunal held that the reduction in visual amenity (such as it was) and the impact of the proposed development on the surrounding heritage properties and the streetscape in the Mount Lawley Commercial Precinct and otherwise in the locality were not so
(Page 5)
- critical that refusal of planning approval was warranted. Here, 'the justification for the facility [was] otherwise made out and its design and location minimise[d] that impact.'
6 The review was therefore allowed and planning approval was given on certain agreed conditions.
Introduction
7 The applicant, Optus Mobile Pty Ltd (Optus), has sought a review of the refusal by the respondent City of Stirling (City) on 28 November 2007 of planning approval in respect of a 5 metre high mobile telephone tower proposed to be built on an existing bank building (a building built in the 1980s) in Beaufort Street, in or close to a Mt Lawley heritage and commercial precinct. No question of the co-location of telecommunication infrastructure arises.
8 The proposal follows the failure in 2006 of Optus to erect two antennae on a heritage building in close proximity to the subject land, but in the neighbouring municipality and under a different planning framework: Optus Mobile Pty Ltd and the Town of Vincent [2006] WASAT 179. That case affirmed a decision of the Town of Vincent not to permit the installation of certain Optus telecommunications infrastructure because of heritage concerns. In Optus Mobile Pty Ltd and the Town of Vincent, the Tribunal (Sessional Member L Graham) held (at [112] - [114], emphasis added):
[F]rom 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 [existing] Telstra facilities, do impact adversely on the aesthetics of the heritage building despiteattempts 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.
(Page 6)
9 As will appear below, despite the subject land here not being itself a heritage site (which was the case with the 2006 proposal), similar issues still arise in this review.
The proposal and the subject land
10 The following outline of facts, so far as relevant and modified as appropriate by the Tribunal, have been provided by the respondent. They are common ground, and are as follows:
1) The land the subject of the proceedings is Lot370 (No678) BeaufortStreet, Mt Lawley (site or subject land).
2) The site:
(a) has an area of 1,010 squaremetres;
(b) accommodates a branch of the National Australia Bank (NAB) and offices for real estate and financial planning businesses;
(c) has a rear parking area;
(d) is bounded by BeaufortStreet to the west, a public parking area to the north, a laneway to the east and a commercial building to the south;
(e) is located in an area on BeaufortStreet which comprises predominantly one and twolevel buildings containing various commercial businesses.
3) The building on the site is approximately 6metres from BeaufortStreet and is 7.6metres in height.
4) Regional road widening under the Metropolitan Region Scheme affects the first 2.5metres of the site to BeaufortStreet.
5) The site is zoned:
(a) 'Business' under City of Stirling District Planning Scheme No 2 (DPS 2); and
(b) 'Urban' under the Metropolitan Region Scheme.
(Page 7)
- 6) Properties on the western side of Beaufort Street opposite the site are zoned either 'Business' or 'Civic', while properties to the east of the site are zoned 'Restricted Business'. The nearest lot zoned 'Residential' is 35metres to the east of the site.
7) In addition, the site (according to DPS 2 or local policy maps) is located within:
(a) the Mt Lawley Heritage Protection Area; and
(b) the Mt Lawley Commercial Precinct Design Guidelines area.
8) The proposed telecommunications infrastructure consists of:
(a) three dualband panel antennas and a parabolic antenna enclosed within a cylindrical shroud with a height of 5metres, to be mounted on the upper roof level of the existing building on the site;
(b) an equipment shelter to be mounted on the lower roof level of the existing building at the site;
(c) a 600millimetre wide cable access ladder; and
(d) a roof walkway with handrails.
9) It is proposed that the cylindrical shroud on top of the existing building be located approximately 26metres from BeaufortStreet, towards the rear southeast corner of the existing building.
10) The distance between ground level and the top of the shroud would be 12.6metres.
11 In addition, it may be noted that the NAB building has been 'constructed with double-brick masonry wall and Hardiflex fascia, with [a] metal deck roof'. The site has a 'depth of approximately 48 metres' with the NAB building set back, as appears above, 'between 6 and 7 metres'. As is also mentioned above, the building is thought to be approximately 20 years old. The building is described as 'an example of a commercial building of international style dating from the late twentieth century'. Any tower and its associated infrastructure erected upon the building would,
(Page 8)
- according to a draft agreed condition, be 'colour coded to harmonise with the building' and 'treated to reduce glare in order to minimise any potential visual impacts'.
The respondent's rejection of the proposal
12 The respondent has rejected the proposal upon the following four grounds:
a) the proposal will have an adverse impact on the character and appearance of the Mt Lawley Heritage Protection Area(HPA);
b) the proposal will have a detrimental impact on the amenity of the locality;
c) the proposal is not consistent with orderly and proper planning; and
d) the submissions received on the application objecting to the proposed development identifying the negative impact the structure would have on the amenity of the area.
13 As to (d), the respondent 'received 17 pro forma letters and eight individual submissions'. All of these submissions 'opposed the installation of the proposed telecommunications infrastructure'. Some of these objectors have been called as witnesses in these proceedings.
14 The respondent's case as to these various matters is discussed below.
The main issues and the hearing
15 As we shall see below, the main issues arising in these proceedings are the extent to which amenity and heritage values would be diminished by the proposed development. However, the relationship of the proposed development to its own site is also in issue.
16 There have been significant attempts by the Tribunal to mediate an agreed outcome in this matter, but no such result could be achieved. Accordingly, the Tribunal conducted a two day hearing into the matter which included an extensive site visit (including visits to objecting neighbours' yards and houses). Both parties were represented by counsel. Both planning and heritage experts gave evidence. The Tribunal was also assisted by various photomontages showing the site and its surrounds. The photomontages helpfully show an indicative tower shroud point in situ, erected with the assistance of a crane.
(Page 9)
The planning framework
17 The principal planning instrument is DPS 2, which does not specifically regulate 'telecommunications infrastructure', nor are there local policies or standards in place dealing with the same. Cf Total Communications Infrastructure Pty Ltd and City of South Perth [2006] WASAT 272. The respondent submits as follows:
For the purposes of [DPS 2], telecommunications infrastructure is a 'use not listed' and [is], therefore, subject to clauses 1.3.2.4 and 1.3.2.5 of [DPS 2]. Consequently, the application was advertised for public comment.
18 Thus, it is common ground that the applicant's development may be approved (whether upon conditions or not) under DPS 2 in the exercise of a discretion given to the respondent and, on review, this Tribunal.
19 As we have seen, the subject land is zoned 'Business' under DPS 2. This is how it appears on the 'Zoning Map' of the relevant area, namely Planning Management Area 15 - Scheme Map (Mt Lawley) read with the 'Legend' [PMA 15]. See also cl 1.3 of DPS 2 ('Zones'). 'Business' zoning is described in the Legend as one of the 'Commercial Zones'.
20 However, PMA 15 also appears to show that the subject land and other parcels of land are in or are the subject of a HPA. The City's various HPAs are shown on Sch 4 of DPS 2. Curiously however, HPAs originate solely in the text of DPS 2 in connection with Part 2 of the scheme which is headed 'Residential Provisions' (emphasis added). They were inserted into the text of DPS 2 on 8 May 2000 (see Amendment No 364). The text, as amended, reads as follows:
2.1 PRELIMINARY
This Part of the Scheme [that is, 'PART 2: RESIDENTIAL PROVISIONS'] shall apply to the development of all residential dwellings and other uses which are permitted or may be permitted by the Council in any of the Residential Zones within the Scheme Area listed in Clause 2.2.1.
[Thereafter follows a reference to the 'Residential Zones' under DPS 2] …
2.2.3 HERITAGE PROTECTION AREAS
- 2.2.3.1 INTENT OF THE HERITAGE PROTECTION AREAS
It is the intention of the Council to ensure that any new development within a Heritage Protection Area is in harmony with and reflects:
(a) the character of existing dwellings in the area; and
(b) the local streetscape and existing pattern of development.
The land comprising the Heritage Protection Areas is depicted in Schedule 4 of the Scheme and is also delineated accordingly on the Scheme Map.
2.2.3.2 DEVELOPMENT WITHIN A HERITAGE PROTECTION AREA
Development within a Heritage Protection Area shall comply with the following:
(a) the intention of the Council under Clause 2.2.3.1 of Scheme [see immediately above];
(b) unless otherwise approved by the Council, the conservation of architectural elements or features of an existing building or buildings which are considered to significantly contribute to the streetscape or character of the area; and
(c) the Character Retention Design Guidelines adopted by the Council.
22 A threshold question arises as to whether the HPA framework has application to the subject land. This issue might affect the proceeding in two ways. First, there is the question of any exemption from the need for planning
(Page 11)
- approval arising under a law of the Commonwealth. See SPP 5.2, cl 5.4 for background. The respondent says:
The application was submitted to the City on the basis that as the [subject land] was located within the Mt Lawley Heritage Protection Area, it did not meet the requirements of the Telecommunications (Low Impact Facilities) Determination 1997 [Cth] and, therefore, required planning approval under [DPS 2].
24 The Tribunal does not understand, however, the applicant's position to be that if the HPA framework does not in fact apply to the subject land then these proceedings would be abandoned. Cf the debate on this issue in Optus Mobile Pty Ltd and the Town of Vincent at [45] - [52]. It is unnecessary to consider this matter further as the applicant has, in any case, voluntarily submitted to the jurisdiction of the Tribunal.
25 Secondly, and more relevantly, if the HPA framework does not apply, then there might be, speaking generally, much less emphasis on the heritage aspects of the case.
26 Mr McGowan, counsel for the applicant, argues that HPA status does not apply to the subject land. He argues, using orthodox principles of statutory interpretation, that it was the clear intention of the drafter, as manifested in the text referred to above, to confine the application of HPAs to residential land uses.
27 Amongst other arguments in reply, Mr Roberts, for the City, points to the obvious fact that in the relevant Mount Lawley precinct, and near to the subject land, there exist well-known non-residential buildings of substantial heritage value. The nearby Art Decostyle Astor Theatre is an obvious example (see the Mt Lawley Commercial Precinct Design Guidelines, referred to below, which mention this building). Such buildings are included within the designated area map in the corresponding HPA amendment (Sch 4, introduced also by Amendment No 364) and Mr Robert's argument is that the text must be read in that light and the obvious purpose of the HPA scheme. Further, Sch 4 itself carries the notation: 'NOTE: Clause 2.2.3 [set out above] applies to those lots contained within the dashed lines'. The subject land is, on the face of it, such a lot.
(Page 12)
28 In Optus Mobile Pty Ltd and the Town of Vincent the Tribunal observed, at [9], as follows:
Lot 62 [the subject land in that case, on the corner of Walcott and Beaufort Streets and close to the subject land in this case], is part of what the Heritage Council of Western Australia (HCWA) refers to as the 'Beaufort Street Commercial Precinct' with the twostorey Alexander Buildings thereon [Lot 62] described as an example of inter-war Art Deco architecture.
29 It is no doubt a truism that ordinarily heritage protection regulation encompasses both commercial and non-commercial premises. Indeed, some of the most significant community campaigns directed at heritage conservation have been focussed on preserving iconic heritage buildings which are or have been commercial buildings. Thus, State Planning Policy 3.5 Historic Heritage Conservation (SPP 3.5), extracts of which appear in Slusarczyk, is drafted in terms of buildings and places of heritage significance.
30 The Heritage Protection Areas of Mount Lawley, Menora and Inglewood: Character Retention Design Guidelines date from July 2006 (Guidelines). In Slusarczyk, I said, at [18]:
The Guidelines are an extensive document and include coverage of the character and history of each area (with illustrations). It is … common ground that this document is the instrument described as the 'Character Retention Design Guidelines adopted by the Council' referred to in cl 2.2.3.2 of DPS 2 [set out above].
31 So it is here. Prior to March 2007, cl 2.2.3.2(c) of DPS 2 referred instead to the 'Heritage Protection Area Design Guidelines' (Guidelines) which dated from 1999.
32 Importantly, both the Guidelines and its predecessor from 1999 pay proportionately much less attention to commercial premises than they do to residential premises. The 2006 Guidelines do, however, set out the following apparently relevant goals (see cl 3.7, dealing with 'Commercial Development'):
Objectives
• Ensure the conservation and retention of existing traditional shops and commercial buildings.
• Ensure new commercial development [is] consistent with 'main street', mixed-use design principles, and consistent with the heritage character of the locality.
(Page 13)
- • Ensure refurbishment of more recent development [is done] in a manner in keeping with traditional heritage-character commercial buildings.
33 On the other hand, the Mt Lawley Commercial Precinct Design Guidelines (which do apply to the subject land and also apparently to the applicant's proposal, and which are cross-referenced at cl 3.7 of the 2006 Guidelines) date from 2000 and purport, at page 3, 'to complement the City's Heritage Area's [unspecified] guidelines and provisions'. They require, so far as is relevant, that the following objectives should be addressed in respect of proposals for development ('including alterations and extensions'):
…
• Retention and conservation of heritage and character buildings;
• New development of contemporary design may be supported but should respect the pattern and proportions of traditional development; …
• Building height of one or two storeys, in proportion to the existing scale of the area; …
34 A question might arise as to how far telecommunication infrastructure proposals are contemplated for regulation by any of these guidelines. Certainly, in respect of heritage buildings themselves, as Optus Mobile Pty Ltd and the Town of Vincent illustrates, the principle of '[r]etention and conservation of heritage and character buildings' might be directly affected by such proposals. Outside of this situation, such as is the case here, the issue is, I think, more problematic.
35 On the question of DPS 2, I have previously drawn attention to the relevant principles of interpretation of town planning schemes when such apparent difficulties of drafting or interpretation present themselves. In Marshall and City of Rockingham [2006] WASAT 249 I observed that (at [34] [36]):
In Chiefari v Brisbane City Council [2005] QPELR 500, Wilson SC DCJ said, at 502 (emphasis added):
'[The definitions under review] are included in [sic] to provide an explanation of the meaning of terms used in the Scheme. They are obviously of general application and intended to cover a variety of circumstances. They will ordinarily be construed in a manner which acknowledges that planning schemes are largely the work of town planners, not parliamentary counsel; ergo, they should be read as a whole and applied in a practical and commonsense, and
- not an overly technical way, and in a fashion which will best achieve their evident purpose.'
- See also PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144 at 158 to similar effect speaking generally of town planning schemes, and see further Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPELR 648 at [25]: '[P]lanning schemes are to be construed broadly, rather than pedantically or narrowly, and with a sensible practical approach'; '[A]lthough planning schemes have the force of law, they are largely the work of town planners, and are not drawn with the precision of an Act of Parliament'. It has been relatedly observed on more than one occasion that '[p]lanning instruments are often poorly drafted but [tribunals] must make some sense of them': Stradbroke Island Management Organisation Inc v Redland Shire Council (2002) 121 LGERA 390 at 402.
Nevertheless, because Schemes have the force of law, orthodox legal principles of interpretation should prima facie apply in their construction …
36 Such 'orthodox legal principles' may not be as limiting as might otherwise be thought to be the case. Chief Justice Dixon, in an oft-quoted dictum, has suggested that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397.
37 In Telstra Corporation Ltd v City of Mitcham (2001) 79 SASR 509 the Full Court said (at 515 - 516, internal citations omitted):
The Court has repeatedly stated that the provisions of the Development Plan are not to be construed like a statute ... A development plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates … [T]he Plan does not always use expressions in a consistent manner. Thus, in order to determine the intended meaning it may be necessary to have regard to either or both the overall purpose and objectives of the relevant zone and of the Plan.
38 Notwithstanding these approaches, which might suggest that it may be possible to read the HPA framework so that it has 'maximum impact' (and would thus include non-residential properties in the relevant precincts), I have concluded that the HPA framework was intended only (and drafted accordingly) to apply to properties zoned residential in the relevant precincts. This is so notwithstanding the generality of the associated maps and the existence
(Page 15)
- of cl 3.7 in the 2006 Guidelines dealing with 'Commercial Development'. This conclusion has been reached for the following reasons.
39 First, the textual amendment itself (that is, its deliberate insertion in Part 2 of DPS 2 only) suggests that it was, as the principal clause it amended says (cl 2.1), to apply to residential dwellings and other uses permitted in 'Residential zones'. To adapt and apply the words of the Privy Council 'it must always be remembered that, if it be the intention of the [drafter, here to extend the HPA scheme to non-residential land zonings], nothing is easier than to say so in plain words.' Province of Bombay v Municipal Corporation of Bombay [1947] AC 58, at 63.
40 The latitude and flexibility that has been suggested with respect to the interpretation of planning instruments should not extend to, in effect, 'rewriting' DPS 2:
[I]t is the function of [a] Court to interpret [an] Act by reference to its intention but the Court has no warrant to rewrite it in the light of its purpose. National Safety Council of Australia Victorian Division (in liq) v Fordham, Supreme Court of Victoria, McDonald J, 18 September 1992, [BC9200649].
41 Secondly, the associated Guidelines from 2006 and 1999 focus - albeit not exclusively - on residential heritage character. It was those parts (that is, the bulk of them) which were intended for regulating planning decisions in 'Residential zones'. In any event, such a subsidiary instrument should not control the meaning of text which has the force of law, at least not so as to expand its application to citizens' property without clear words of intent.
42 Finally, other components of the planning framework (see, for example, the Mt Lawley Commercial Precinct Design Guidelines, applicable under cl 1.3.5.1(f)(vi) of DPS 2; SPP 3.5; and cl 1.3.5.1(f)(xiv) and cl 1.3.5.4 of DPS 2 dealing with the preservation of amenity) already require assessment of development approvals for commercial properties by reference to generalised heritage considerations.
43 But the conclusion that the HPA framework or status does not apply to the subject land does not mean, of course, that the heritage character of nearby properties (or the precinct taken as a whole) are thus irrelevant to the question to be decided for, as I have just indicated, heritage considerations are already a part of the planning framework. However, those considerations are not additionally bolstered by HPA status.
(Page 16)
44 In any event, it is unlikely that the result of the Tribunal's review in this case would have been materially different even if the HPA had applied of its own force. Similarly, where a witness has given evidence in these proceedings coloured by HPA considerations, their evidence has not been considered by the Tribunal to have been materially weakened by that approach. The conclusion of the Tribunal in relation to HPAs might have more practical impact upon proposals for demolition in non-residential zones; in any case, the respondent should put the matter beyond doubt by appropriate amendments to DPS 2.
45 Of some importance to this review are State Planning Policy 5.2 Telecommunications Infrastructure (SPP 5.2) and its associated Guidelines (2004). In Crown Castle Australia Pty Ltd and Western Australian Planning Commission [2008] WASAT 162 the Tribunal referred to that policy in these terms (at [65]):
Clause 5.1 of SPP 5.2 sets out guiding principles for the location, siting and design of telecommunications infrastructure. The Commission [in that case] relie[d] on the following guiding principles:
'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.
...
Telecommunications facilities should be designed and sited to minimise adverse impacts on the visual character and amenity of residential areas.
...
Unless it is impractical to do so telecommunications towers should be located within commercial, business, industrial and rural areas outside identified conservation areas.'
(Page 17)
47 In the Tribunal's view, considerable weight must be given to SPP 5.2 in the exercise of any discretion under DPS 2. To the extent of any apparent 'conflict' between these instruments, if any, SPP 5.2 should largely control the outcome in respect of telecommunications infrastructure planning decisions. This is especially the case where, as here, neither the local scheme nor any local policy specifically addresses the issue of regulating telecommunications infrastructure. Of course, the generalised expressions of the regard that should be had to values related to heritage places which are found in SPP 5.2, DPS 2 and SPP 3.5 would still need to be taken into account.
The applicant's case
48 The applicant's proposal has been outlined above. The applicant called Mr Howard Game (Optus), Mr Jeff Marshall (Optus) and Ms Rebecca Hollett (a town planning consultant) to give the necessary background to the proposal. Their evidence dealt with matters such as planning, site availability and location, capacity and demand for services, competitor services, existing reception problems and technical issues (including issues of height and design). None of this evidence was seriously challenged by the respondent and it may be accepted.
49 The Tribunal is satisfied that the proposal is technically compliant (including as to the expected level of electromagnetic emissions), meets a commercial need and is otherwise a rationally-based engineering proposal. In short, the proposal is a mobile telephone network of the type expressly contemplated by cl 2.3 of SPP 5.2. Thus, on its face, this development must be recognised as part of telecommunication facilities which are 'an essential and beneficial element in the life of [the community]': cl 2.1 of SPP 5.2.
50 The applicant's case on questions of amenity and heritage issues, in response to that of the respondent, is discussed below.
The objectors' views
51 The respondent called four business operators or local residents. These objectors' evidence may be summarised as follows.
1) MrEMatusik, who owns a jewellery shop on BeaufortStreet, located approximately 40metres from the site, pointed out the surrounding heritage properties and submitted that the tower would be at odds with existing forms and heights of buildings in the immediately
- surrounding streetscape. To similar effect is the evidence of MrPKeenan, who owns commercial premises in close proximity to the subject land. He said that he was 'not aware [that] any of these buildings [that is, a 'mix of styles' with one or two storeys] have obvious structures protruding from their roofs'.
- 2) MrGRochow, who resides with his family in nearby AlvanStreet, concurred with these opinions and added that:
[T]he mobile phone tower would be a very visible and aesthetically unpleasant structure affecting the view from the rear yard and family room of my Property. It would spoil what is presently a very pleasant view and outlook.
In my view, where residential and commercial areas are mixed or in close proximity, as is the case with Alvan and Beaufort Streets, the commercial and residential buildings should be in harmony with and complement one another. The proposed mobile phone tower would not do this.
As a mobile phone user, I appreciate that infrastructure related to that service must be installed somewhere. However, I do not think it should be placed in an area where it is visually obtrusive and inconsistent with the surrounding commercial and residential areas.
3) MsMFox also resides in AlvanStreet with her family. She is a journalist who has long campaigned (privately) against the proposed tower. She acknowledges that her property is zoned 'Restricted Business'. MsFox shares the opinions set out above, noting that her visual amenity would be particularly affected from her rear yard by an 'obvious and visually intrusive structure'.
52 Properly, none of these objectors were cross-examined and their views may be accepted as valid observations concerning the built form of and activities in the precinct (consistent in any event with the experts' observations), and as valid expressions of concern about relevant aspects of diminished amenity.
The experts' evidence
53 There is no real dispute as between the planners on both sides (Ms Hollett and Mr David Spencer) and the heritage experts (Mr Ronald Bodycoat and Ms Nerida Moredoundt) that in close proximity to the subject land there
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- exist a considerable number of buildings of heritage interest in this vibrant shopping, commercial and restaurant precinct. These are, for example, noted by Mr Spencer, for the respondent, as follows:
Within the … locality, there are two (2) buildings located on the State Register of Heritage Places - Astor Theatre (House Numbers 659 - 665 Beaufort Street) and the Beaucott Building located at House Number 654 Beaufort Street). Both of these properties are less than 80 metres from the Subject Site. There are two (2) further properties that are on the assessment program for the State Register, or awaiting assessment. These are situated at House Numbers 686 and 670 Beaufort Street and these are both located approximately 40 metres from the Subject Site. There are a further 11 properties within the City's Municipal inventory with the closest being House Number 677 Beaufort Street (directly across from the Subject Site) and House Numbers 7 and 11 Alvan Street (located behind the Subject Site).
55 The essential points of difference between the heritage experts both on this question and the relationship of the proposed development to its own site, as appear in their joint experts' statement, are as follows:
We are in agreement that the building [on the subject land] makes a neutral contribution to the Mount Lawley Heritage Protection Area and the Mount Lawley Commercial Precinct as a consequence of its built form and architectural style, and would not meet the current Design Guidelines due to its design and its setback from the street boundary of the lot, which characteristics do not conform to the traditional commercial buildings.
Our opinions differ in regard to the scale of the proposed antenna to be erected towards the rear southeast corner of the existing building. Ronald Bodycoat argues that the proposed antenna will be complementary to the existing building. Nerida Moredoundt argues that the proposed antenna will be over-scaled.
Our opinions differ in regard to the proportions of the proposed antenna. Ronald Bodycoat argues that the proposed antenna will be compatible with the existing building and will not have an adverse impact on the built fabric of the locality. Nerida Moredoundt argues that the proposed antenna will be out of proportion to both the traditional and infill buildings in the locality.
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- Our opinions differ in regard to the characteristics of the proposed antenna and its place in the existing streetscape. Ronald Bodycoat argues that the proposed antenna will not have an adverse impact on the existing streetscape and argues that whereas the proposed antenna will be of a technological aesthetic it will fit into the existing streetscape as a consequence of its low visual impact on that streetscape; further, that its character will not present as an industrial aesthetic but rather as a sophisticated adjunct to the existing building. Nerida Moredoundt argues that the proposed antenna will be of a technological/industrial aesthetic which does not fit into the existing streetscape.
Our opinions differ in regard to typology in the Mount Lawley Heritage Protection Area. Nerida Moredoundt argues that the proposed antenna will not be of a typology evident in the Heritage Protection Area. Ronald Bodycoat argues that the proposed antenna will present visually as an essential amenity of the present day and will conform both to the architectural style of newer infill buildings in the Mount Lawley Commercial Precinct, and will be less visually apparent than the introduced and visually dominant street lighting poles in the locality.
Our opinions differ in regard to the objectives of the Precinct Guidelines. Nerida Moredoundt argues that the proposed antenna does not respect the pattern and proportions of traditional development, as required by the Precinct Guidelines, as its form and materials are not in keeping with the traditional built form. Ronald Bodycoat argues that the proposed antenna is compatible with the existing building and the adjacent infill building, both of which do not conform to the traditional development in the Commercial Precinct, because those buildings represent present-day infill developments which were not intended to replicate the traditional commercial pattern and proportions nor at the time were they required to conform.
Our opinions differ in regard to the proportion of the proposed antenna to the existing scale of the area. Ronald Bodycoat argues that the proposed antenna is in proportion to the scale of the existing building and will not be visually intrusive nor a dominant visual element. Nerida Moredoundt argues that the proposed antenna is not in proportion to the existing scale of the area being significantly higher than the surrounding buildings.
56 This debate is also reflected in the differences of opinion between the two planners: see their joint statement at pars [18] - [21]. On the question of amenity impacts, the joint evidence of the planners is as follows:
Both experts agreed that 'locality' and 'amenity' are not defined in [DPS 2], and are generally not well defined in the planning framework and therefore the subjective opinions of the experts differ.
Both experts did not agree to the definition of the locality.
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- Rebecca Hollett considers that locality cannot be defined without understanding the purposes for which the 'locality' is being determined.
David Spencer considers that in this instance, an identifiable geographic locality can be determined. Locality is generally defined by reference to the area within which the development will have an impact. For the purposes of this proposal it is considered that the locality includes the area bounded by Queens Crescent to the north (180 metres away), Alvan Street due east (at 55 metres from the Subject Lot), Walcott Street to the south (approximately 100 metres away) and Astor Lane located to the west (70 metres away). This area contains approximately 50 properties. Direct visual impact of the structure will be obtained at the rear of the properties containing residences and the majority of properties on the western side of Beaufort Street.
Both experts did not entirely agree [on] the definition of the amenity of the locality.
Rebecca Hollett considers that amenity includes not only visual amenity, but also lifestyle amenity including the provision of functional communications networks. Therefore amenity in this area is considered to be improved, with any potential impact on visual amenity being minimised through the setback of the antennas from the streetscape, and integration with the existing building.
David Spencer considers that amenity encapsulates all those factors such as visual, aesthetics, character, harmony, pleasantness, noise and light which together create and shape the character of a particular area. It includes those living, working and passing by a specific area. In this instance, amenity includes the exterior appearance of the development and the potential impact that the development has on the quality of the environment …
Discussion of the issues in the case
57 The first issue to be addressed is the relationship of the proposed development to the subject land and to the building it is proposed to be erected on. It is important to recall that the building is 'an example of a commercial building of international style dating from the late twentieth century' and that any tower will be 'colour coded' to harmonise with the building and treated to reduce glare in order to minimise any potential visual impacts.
58 The Tribunal therefore, largely agrees with Mr Bodycoat that the tower, given its technological function, location, integration, design and colour 'will be complementary to [that] building' and 'that its character will not present as an industrial aesthetic but rather as a sophisticated adjunct to the existing building'.
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59 While it is true that the tower will be higher than any other point in the immediate vicinity of the subject land (adopting for convenience, Mr Spencer's view of what constitutes the 'locality'), such height is an integral part of the successful functioning of the infrastructure, a matter recognised by SPP 5.2, cl 2.3 ('mounted clear of surrounding obstructions'). The weight to be afforded to SPP 5.2 in the planning framework is, as has been explained above, significant. Importantly, this finding has effect in relation to both the subject land and its immediate vicinity, and will influence any discussion of the impact on visual amenity. In addition, I have already drawn attention to the difficulties of applying, say, the generalised heritage and other concerns to be found in, for example, the Mt Lawley Commercial Precinct Design Guidelines to telecommunications infrastructure contemplated by SPP 5.2.
60 There is no doubt that the proposed development will, to some extent, be visible from various points (and to varying degree) in the locality on Beaufort Street and, more particularly so, from the rear of properties on Alvan Street (given its set back on the rear of the building). However, that impact, viewed from, say, points both northwards and southwards (towards the City) along Beaufort Street, is ameliorated by both its design and its set back from Beaufort Street. At the back, when viewed from, say, Alvan Street and Beaucott Lane, it must be recalled that a passerby or resident is looking at the rear of commercial properties, parked cars and garages. Such a landscape is, in contrast to Beaufort Street, already visually uninspiring.
61 In any event, that reduction in visual amenity (such as it is) and the impact of the proposed development on the surrounding heritage properties and the streetscape in the Mount Lawley Commercial Precinct and otherwise in the locality, are in the Tribunal's view not so critical that refusal of planning approval is warranted where, as here, the justification for the facility is otherwise made out and its design and location minimise that impact.
62 Therefore, the development will be approved upon the agreed conditions.
Orders
63 For the reasons given above, the Tribunal orders:
1. The application for review is allowed.
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- 2. The decision under review is set aside and in substitution for that decision there will be a decision granting planning approval under DPS2 for the development indicated in site number plan P8021A (or equivalent plan held by the City) upon the condition that the development is colour coded to harmonise with the site building and treated to reduce glare in order to minimise any potential visual impacts.
I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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