TELSTRA CORPORATION LIMITED and CITY OF MANDURAH
[2013] WASAT 135
•27 AUGUST 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: TELSTRA CORPORATION LIMITED and CITY OF MANDURAH [2013] WASAT 135
MEMBER: MR J JORDAN (MEMBER)
HEARD: 5 JUNE 2013
DELIVERED : 27 AUGUST 2013
FILE NO/S: DR 63 of 2013
BETWEEN: TELSTRA CORPORATION LIMITED
Applicant
AND
CITY OF MANDURAH
Respondent
Catchwords:
Town planning Development Refusal Proposed telecommunications monopole tower to height of 25 metres Located in rear yard of existing telephone exchange Hospital to north of site Urban development zone to south and west across road Retirement village to northwest Antennae on pole must be above tree line Impact on local visual amenity State planning policy for telecommunications infrastructure Local planning scheme objectives for locality Local structure plan Extent to which facility is necessary Alternative sites
Legislation:
City of Mandurah Town Planning Scheme No 3, cl 4.9.1, cl 7.1.1, cl 7.5, cl 7.5.1, cl 7.5.1(c), cl 7.5.1(x)
Peel Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
Residential Design Codes of Western Australia (2013)
State Administrative Tribunal Act 2004 (WA), s 31
Result:
Application upheld and development of the monopole telecommunications facility approved
Summary of Tribunal's decision:
The City of Mandurah refused an application for planning approval for a 25 metre high monopole telephone base station at the rear of an existing telephone exchange in Lakes Road, Greenfield because it considered that the adverse visual impact of the monopole would outweigh the benefit to telecommunications in the locality. The City considered that an alternative site would provide the same wireless coverage with less impact on visual amenity.
It was common ground that there was a gap in wireless coverage for mobile devices in this locality and that the telecommunications policy was directed to balancing providing the necessary facilities with impact on local amenity.
The Tribunal found that the proposed monopole facility could be supported because it would be in a location that would best serve existing and planned land uses in the locality and would not have an impact on visual amenity that would outweigh the benefit to local telecommunications.
The Tribunal decided to grant development approval for the proposed telecommunications facility.
Category: B
Representation:
Counsel:
Applicant: Mr P Ward with Mr L Magistro
Respondent: Mr C Slarke
Solicitors:
Applicant: Ashurst Australia
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Aurecon Australia Pty Ltd and Shire of Waroona [2012] WASAT 179
Telstra Corporation and City of Wanneroo [2011] WASAT 77
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings involved an application brought by Telstra Corporation Limited (Telstra or applicant), pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), for review of the refusal by the City of Mandurah (City, Council or respondent) to grant planning approval for the development of a 25 metre high telecommunications monopole and attached antennae at Lot 4087 (No 66) Lakes Road, Greenfields (site).
Site and locality
The site has an area of approximately 660m2 with a 24 metre frontage to Lakes Road and a depth of about 27.5 metres. Set back 10 metres from the front, or western, boundary and 5 metres from the rear boundary, is a single storey brick building housing a telephone exchange.
Adjoining the northern and rear boundaries of the site is a lot of about 6,000m2 containing two administration buildings and a parking area used by the Silver Chain Nursing Association (Silver Chain). Trees on this lot immediately abut the site's northern boundary. Abutting the northern and rear boundaries of the Silver Chain lot is a large lot of about 18.5 hectares containing the Peel Health Campus. The Peel Health Campus is developed as a series of single storey buildings, mostly towards the northern boundary of the lot, with car parking along the 400 metre frontage to Lakes Road. Directly to the east of the Silver Chain lot, the Peel Health Campus site is undeveloped scrub, with similar undeveloped land between the current health campus buildings and residential area to the east.
Abutting the southern boundaries of the site, the Silver Chain lot and the Peel Health Campus lot, is Lot 3 of about 2.1 hectares, which contains a single house and has mature eucalypts near the common boundary with the site. The next lot to the south is Lot 4, also of about 2.1 hectares, with a single house. To the south of Lot 4, and east of Lot 3 and Lot 4, are residential lots with houses.
Lakes Road is a dual carriageway, with a median strip planted with immature eucalyptus trees. Immediately over Lakes Road to the west of the site is the southeastern corner of an extensive retirement village which extends to the west and northward along Lakes Road. Dwellings in the retirement village back onto Lakes Road. To the south of the retirement village a larger lot is currently used for rural residential purposes, but is planned for future residential development.
A general description of the topography of this locality is 'flat'.
The Tribunal viewed the site, Lakes Road and nearby lots, prior to the hearing, accompanied by representatives of the parties.
Planning framework
The site is reserved for public purposes under the Peel Region Scheme (PRS). On 23 October 2012 the Western Australian Planning Commission (WAPC or Commission), in considering the proposed telecommunications facility pursuant to the PRS, determined that 'the application for approval to commence development in accordance with the plans submitted thereto is granted unconditionally'.
The site, the Silver Chain lot and the Peel Health Campus, have no reservation or zoning under the City of Mandurah Town Planning Scheme No 3 (TPS 3). TPS 3 provides at cl 7.1.1 that all development, other than types not relevant to this matter, requires approval of the City 'to give full effect to the provisions and objectives' of TPS 3.
The lots to the south of the site, and opposite to the west and southwest, are zoned Urban Development under TPS 3. Clause 4.9.1 of TPS 3 'Purpose and Intent of Zone' states that the intention of the Urban Development zone is:
… to provide for future residential and urban related development after comprehensive planning … has been carried out [of the relevant areas] resulting in an approved Outline Development Plan.
To the southeast, about 150 metres from the site, lots are zoned Residential under TPS 3.
Clause 7.5.1 of TPS 3 lists matters to be considered when considering an application for planning approval. These include:
a)the provisions of this scheme and any other relevant town planning scheme operating within the district;
…
c)any approved Statement of Planning Policy of the Commission;
…
e)any planning policy, strategy or plan adopted by the Council under the provisions of clause 9.6 of this Scheme;
…
g)the requirements of orderly and proper planning;
h)any relevant submissions or objectives received on the application;
…
j)any effect that a development may have on the landscape or scenic quality of the locality;
…
m)the character, location siting, bulk, scale, shape, size, height, density, design or external appearance of that development;
n)the size and shape of the land to which the development application relates, the siting of any building or works thereon and the area to be occupied by that development;
…
p)the relationship of that development to development on adjoining land or on other land in the locality;
…
x)the existing and likely future amenity of the neighbourhood;
y)the public interest; and
z)any other planning considerations which the Council considers relevant.
The Commission has adopted State Planning Policy 5.2 Telecommunications Infrastructure (SPP 5.2). The proposed development is consistent with the definition of 'Telecommunications Infrastructure' at section 6 Appendix 1 of SPP 5.2, which states:
… means any part of the infrastructure of a telecommunications network and includes any line, equipment, apparatus, tower, antenna, tunnel, duct, hole, pit, or other structure used, or for use, in or in connection with a telecommunications network.
There is no dispute between the parties that, as stated at section 2 of SPP 5.2, telecommunications services are 'an essential and beneficial element in the life of communities and in the State and national economy'.
The parties agreed that the guiding principles under SPP 5.2 are centred around the provision of essential and beneficial telecommunication facilities while minimising any adverse effect on the amenity, character and environment of the local area. The relevant guiding principles relating to the proposed development are found at s 5.1 of SPP 5.2 and include the following:
Guiding Principles for the Location, Siting and Design of Telecommunications Infrastructure
Telecommunications infrastructure should be located, sited and designed in accordance with the following Guiding Principles:
•There should be a co-ordinated approach to the planning and development of telecommunications infrastructure, although changes in the location and demand for services require a flexible approach.
•Telecommunications infrastructure should be strategically planned and co-ordinated, similar to planning for other essential infrastructure such as transport networks and energy supply.
•Telecommunications facilities should be located and designed to meet the communication needs of the community.
•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 and areas outside identified conservation areas.
•The design and siting of telecommunications towers and ancillary facilities should be integrated with existing buildings and structures, unless it is impractical to do so, in which case they should be sited and designed so as to minimise any adverse impact on the amenity of the surrounding area.
•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.
•Measures such as surface mounting, concealment, colour coordination, camouflage and landscaping to screen at least the base of towers and ancillary structures, and to draw attention away from the tower, should be used, where appropriate, to minimise the visual impact of telecommunications facilities.
…
•Construction of a telecommunications facility (including access to a facility) should be undertaken so as to minimise adverse effects on the natural environment and the amenity of users or occupiers of adjacent property, and ensure compliance with relevant health and safety standards.
The Commission has adopted the Guidelines for the Location, Siting and Design of Telecommunications Infrastructure March 2004 (design guidelines). The design guidelines were adopted to provide a framework in relation to the location, integration, facility design and landscaping elements for telecommunications infrastructure consistent with the 'Guiding Principles' referred to in SPP 5.2. Section 5.1 of the design guidelines states that:
Where there are existing structures such as … base stations, additional facilities can often be accommodated without significantly contributing to the visual impact of the structure. This includes colocation with an existing telecommunications facility and integration with any other structure …
The Council adopted the 'Mandurah East Structure Plan' in April 2009 (ME Structure Plan). The respondent considered this structure plan could be considered as an outline development plan for the purpose of cl 4.9.1 of TPS 3. The purpose of the ME Structure Plan is for assessment of subsequent outline development plans and subdivision and development applications as required by the underlying zoning of the land under TPS 3. The site is on land identified as 'Community and Public Purpose' in the ME Structure Plan.
The ME Structure Plan is hatched to show 'Potential Mixed Use Opportunities' along both sides of Lakes Road, abutting and to the south of the site, and states at point 8:
…Lots adjacent to Lakes Road having the opportunity to provide for nonresidential land uses, integrated into residential area through building design and site layout.
The ME Structure Plan refers at point 6 to the widening of Lakes Road by 5 metres on the eastern side for cycle lanes and safe turning movement, and a parallel service road providing frontage to development. To the south of Lot 4, Lakes Road reserve was widened to about 30 metres to include Kelso Lane, a parallel carriageway providing frontage access to houses.
'Mixed use development' is defined in the Residential Design Codes of Western Australia (2013) (R Codes) as 'buildings that contain commercial and other nonresidential uses in conjunction with residential dwellings in a multiple dwelling configuration'.
The ME Structure Plan shows the land to the east of the hatched strip as 'Residential Development' with the details to be determined by an Outline Development Plan.
In December 2012 the Council endorsed and sent to the Commission an Outline Development Plan for the development of Lot 4 to the south of the site into a 120 bed private hospital for St John of God Healthcare Group. This is a change from the 'Residential Development' of the ME Structure Plan.
Proposed development
The proposed galvanised steel monopole would be 25 metres high, to be above tree height. It would be sited to the rear of the telephone exchange building 2.5 metres from the rear boundary of the site and 6 metres from the southern boundary. This location is referred to as 'candidate C' in certain of the exhibits.
The pole would be 1 metre in diameter at the base and 600 millimetres in diameter at the top. Three 'collar mounted' panel antennae, 2.63 metres by 0.37 metres, would be attached to, and would extend about 2.5 metres above, the top of the pole. Simply put, the three antennae are arranged to each service a third of the area surrounding the monopole, although the service areas do overlap on the margins. Feeder cable would be inside the pole emerging about 2.5 metres above ground to extend to equipment inside the existing telephone exchange building. It is proposed that the pole would be left to weather to dull grey, as, in the applicant's experience, this is the colour that least intrudes.
The elevation sketches of the monopole depict below the proposed panel antennae future positions for additional panel antennae and remote radio units.
The refusal
The respondent first refused the application on 29 January 2013 and reiterated that decision on 26 March 2013 after being invited to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA).
Issues
The respondent said that it had accepted that a telecommunications facility was required to provide the wireless services lacking in this locality. The Tribunal noted that the respondent had accepted that the level of electromagnetic emission from the facility was too low to be an issue. The respondent submitted, however, that in considering such a facility, the relevant planning instruments required a balance between impact on visual amenity and the service benefits of antennae on a monopole in a particular location.
The applicant identified the issues as being:
1)whether the proposed development is consistent with SPP 5.2;
2)whether the proposed development is consistent with TPS 3; and
3)whether minimisation of 'any potential adverse impact on the amenity of the local environment' is a determinative factor, and the design of the proposed facility is so adverse as to warrant refusal.
The relevant provisions of the different planning documents are cross-referenced and overlap. Considerations and conclusions relevant to the provisions of one instrument inform matters to be considered under another.
Discussion
TPS 3 and SPP 5.2
Mr Chris O'Neill, a planner called by the respondent, said the respondent did not have a specific policy relevant to telecommunications facilities, but the objectives of TPS 3 include:
…to secure the amenity and health of the inhabitants living within, and visitors to, the district. To secure effective provision of services and infrastructure for the inhabitants of, and visitors to, the City of Mandurah.
Mr O'Neill expressed the opinion that to answer the question of whether this development should be allowed, it was necessary to have regard to this TPS 3 objective, which required a balance between amenity and provision of services. In considering this objective, cl 7.5.1 of TPS 3 required consideration of orderly and proper planning, which includes policies, strategies and plans adopted by the respondent, the future development of areas adjacent to the site, guidelines and planning principles and the broader public interest.
Mr O'Neill said it was clear that, in addition to the residential use of the retirement village to the north-west of the site, the adjoining areas immediately to the south and the southwest zoned Residential Development under TPS 3 are intended for residential use, with the possibility of some mixed use residential development along Lakes Road, as shown on the ME Structure Plan.
Under cl 7.5.1(x) of TPS 3, it was necessary to have regard to the existing and likely future amenity. In Mr O'Neill's submission, because the immediate locality of the site was to be predominantly residential, then a reasonable level of residential amenity is to be expected of the locality. The reserved land occupied by Silver Chain and the Peel Health Campus to the north and northeast of the site was not residential and so a different level of amenity would be expected for those uses.
TPS 3 also requires, at cl 7.5.1(c), that regard be had to any State planning policy. The respondent submitted that references to the protection of visual character and amenity were central to SPP 5.2. Such references were to be found in the introduction at section 2.1 of SPP 5.2, in the list of objectives at section 3, which refers to minimum disturbance to the environment and loss of amenity, and at section 5.1 in eight of the listed guiding principles for the location and design of telecommunications infrastructure, although not all of these were relevant to the proposed tower.
The respondent also referred to section 5.2 of SPP 5.2, which lists matters to be considered when determining a planning application. The list includes the extent to which the proposal enhances or maintains visual amenity, including streetscape, minimises adverse visual impact, and the extent to which the proposal adheres to the guiding principles at section 5.1 of SPP 5.2.
The respondent cited the design guidelines, which, at clause 5.3, repeat from SPP 5.2 the requirement that the design and location address visual impact and, at section 6(v), ask how the proposed facility would address the guiding principles at section 5.1 of SPP 5.2. Both the design guidelines, at clause 5.1, and SPP 5.2, at section 5.1, refer to the principle that, unless it is impractical, towers should be located within commercial, business, industrial and rural areas, and should be designed to reduce adverse impacts on residential areas.
It was the opinion of Mr O'Neill that the proposed candidate C monopole on the site would have an adverse impact on the residential amenity of the proposed nearby Residential Development zoned land and the rear outdoor spaces of the nearby retirement village homes because of its size and appearance. He considered that the mature eucalypts abutting the site to the south would be removed as part of the future residential and mixed used development on Lot 3, and the 'stark, imposing' monopole would have a significant visual impact on residential amenity and the streetscape, particularly when viewed from the south.
Mr Stephen Allerding, a planner called by the applicant, expressed the opinion that the monopole would have negligible impact in the streetscape of Lakes Road, which he described as a significant distributor road used by heavy vehicles and with tall, steel light poles in a 'cluttered' mixed use locality. Mr Allerding said that adjacent mature trees and the maturing trees in the median strip would interrupt the view to, and so would soften any impact of, the monopole.
The respondent said that the planning controls, particularly in SPP 5.2 and the design guidelines, were directed to balancing the best location with the least visual impact. The applicant's proposed candidate C on the site was not the best location for the monopole because of the impact it would have on the local visual amenity. In this respect, it was the respondent's submission that at least one other site identified by the applicant, candidate B, would be a better location for the monopole because it provided the same radio coverage with less visual impact. This, the respondent said, tips the balance against the proposal.
Mr Lloyd Antulov, employed by Telstra as a senior acquisition specialist, and Mr Martin Wittek, employed by Telstra as a technology specialist, were called as witnesses by the applicant. Both witnesses referred to consideration given to locations for monopoles illustrated on Attachment MZW6 of Mr Wittek's statement. Candidate C is the monopole location the subject of this application. Mr Wittek marked a cross on an aerial photograph in Exhibit 5 indicating the location of candidate B. Candidate B is located adjacent to the eastern edge of the carpark between the Peel Health Campus buildings and Lakes Road, about 80 metres from the road and about 40 metres from the hospital buildings. A monopole at candidate B would require its own equipment shed at the base and an individual connection to the electricity supply.
Mr Wittek explained that the lack of radio penetration from existing antennae to this location was in part due to the growing demand from users closer to the existing towers. He said that both candidate B and candidate C would equally cover the gap in wireless coverage. Mr Antulov said the main disadvantage of candidate B at this time related to the time it might take to address difficulties associated with negotiation for and the cost of a lease.
Counsel for the applicant rejected the respondent's submission that possible alternative locations for the monopole were a consideration. The applicant said it was necessary to consider the proposed development in the location applied for, and other possible locations were irrelevant. The applicant cited from Telstra Corporation and City of Wanneroo [2011] WASAT 77 at [71] and [72] where it states:
… whether there might be other sites available is not determinative of this matter. While another site might be found, the essence of the matter before the Tribunal is whether the visual impact of the proposed facility on the site would be such that the development should be refused, notwithstanding the benefits it would bring to telecommunications …
The applicant went on to further cite from Aurecon Australia Pty Ltd and Shire of Waroona [2012] WASAT 179 (Aurecon), at [92], where it was found that with respect to a development application for a proposed telecommunications facility:
… the possible availability of other sites is not determinative of this matter. It is the findings of the Tribunal on the other issues which are determinative of this matter.
It was the applicant's submission that, from these cases, the applicant was not required to eliminate all alternative sites or demonstrate that the site chosen is the best available for the facility (although the applicant said this is the case in this instance). The submission of the applicant was that it was the merits of the proposed monopole on the site, having particular regard to SPP 5.2, which were determinative of the matter.
The respondent's submission was that the two cases cited by the applicant could be distinguished. In those cases, no other sites were identified for comparison. In this matter, the respondent said there were other sites and there was sufficient known to conclude that while the alternatives might not produce a quicker, easier and more commercial development, at least one other site, candidate B, had sufficient attributes to tip the balance against the proposal.
The Tribunal would comment that consideration of this matter was a matter of context and balance, as submitted by the respondent. Whether other sites might be available was not of itself the determining factor. It might well be, however, when that factor is considered in context of other elements required to be considered, that the result might well determine whether a proposed tower is either allowed or refused. If it were clearly established that there was one site, and one site only, available for the tower, then this would be a most significant consideration, because to refuse the tower on the basis of its impact on visual amenity would strike at the introductory statement at clause 2.1 of SPP 5.2 which states:
The importance of telecommunications services in Western Australia is recognised in the Western Australian Planning Commission's State Planning Strategy (1997), which advocates the provision of an effective statewide telecommunications network in a manner consistent with the State's economic, environmental and social planning objectives.
Modern telecommunications are an essential and beneficial element in the life of communities and in the State and national economy. New communications technology is rapidly advancing and being developed to meet the growing demand for better communication at home, in business, health and welfare and in public services. For opportunities and benefits to be realised it is important that appropriate and adequate telecommunications infrastructure is provided and that it is available to all on a costcompetitive basis.
The applicant was correct in that the Tribunal had before it an application for approval for development on a specific site. The Tribunal did not accept, however, the assertion that the potential existence of other sites was irrelevant. The starting point must be whether, on balance, the site that was the subject of the application for the telecommunications tower is acceptable. In making that determination, the existence of potential other sites simply lessens the weight to be afforded any argument that a refusal of the proposed tower would deprive this locality of the needed additional wireless capacity.
In light of the evidence that there is at least one other site that would also serve to satisfy the demand for wireless service in this locality, the Tribunal does not believe that a specific site chosen by the applicant for a telecommunications tower must be approved as a matter of course. SPP 5.2 also includes the need to have regard to visual amenity, as referred to above. Hence, again, the relevance of the balancing act. If the impact of a monopole when erected in a particular location is so great as to outweigh the benefits, that is a material consideration. This is particularly relevant in circumstances where it is apparent that other sites might be made available in the vicinity.
The applicant submitted that the objectives at section 3 of SPP 5.2 required that telecommunications infrastructure be provided in an efficient, cost effective and environmentally responsible manner to meet community needs. Erecting the proposed monopole on a site already owned by Telstra and containing a telephone exchange would assist in this regard. In addressing the guiding principles at section 5.1 of SPP 5.2, the applicant emphasised that the proposed development was part of a coordinated approach to providing telecommunication facilities, was strategically planned, and would meet the telecommunications needs of the community, particularly the Peel Health Campus and the proposed St John of God Health Care Group's development on Lot 4 to the south.
The applicant said that a tower on the site would have an impact, but the impact would not be so adverse as to outweigh the benefits. It was the applicant's submission that the impact would be limited because of the minimum height proposed and the monopole design.
The monopole and visual amenity
In support of its submissions, the applicant cited Aurecon in which it was found at [85] in respect of visual amenity:
On balance, the Tribunal concludes that the overall impact of the tower on the visual amenity of the locality is not significantly adverse to outweigh the increased reliability of telecommunication services that will be provided.
As stated in this reference, the balance to be addressed is the adverse impact on visual amenity and the increased reliability of the telecommunications services.
The respondent said that the guidelines were directed towards what was described as 'best practice' and this included a strategic planning approach to reduce the visual impact of new telecommunications facilities. It was simply not a matter of picking a site that was most convenient. The objective of the planning documents was the best location with the least impact. This was the balance that was required and, in the respondent's submission, the proposed site was not the best location for the monopole because it was too close to future residential development and did not sufficiently address visual amenity.
The applicant put into evidence a letter to the Chief Executive Officer of Telstra from the Peel Health Campus dated 18 October 2012 complaining of problems with the lack of wireless coverage, saying why it was important that there be adequate coverage and asking that the issue be addressed. Mr Wittek said it was important that the antennae be located between the Peel Health Campus and the proposed St John of God Hospital site so that each institution made use of a different antenna, because both institutions would be heavy users of the technology.
Mr Allerding said the respondent's approval of the St John of God Hospital on Lot 4 was evidence that the ME Structure Plan was flexible and subject to variation. He advanced the hypothesis that Lot 3, which is adjacent to the site, may not be developed for residential use now that it would be adjacent to two hospitals, a telephone exchange and the offices of Silver Chain. Mr O'Neill pointed out the obvious speculative nature of this suggestion and submitted that decisions on the monopole must be considered in the light of the proposed land use currently in the planning documents. The ME Structure Plan shows the mixed use hatching extending eastward of the rear boundary of the site. Again, however, guessing at any possible mix of residential and nonresidential uses serves no real purpose, other than that a mix might occur.
The parties also had no specific knowledge of any plans for the extension of the buildings within the Peel Health Campus reserve, particularly into the vacant space extending about 175 metres between the existing hospital buildings and the southern boundary of the reserve. Candidate B is due west of the southernmost existing hospital building adjacent to the carpark. Any extension of the hospital buildings southward on the hospital reserve would leave the antenna on that monopole central to the hospital rather than south of it. Any suggestion of the form of future development of the hospital is also speculative, but, having regard to possible future hospital use, similar to the regard for the proposed residential use of Lot 3, is consistent with the current planning for the locality.
By having regard to the existing and potential future use of all land surrounding the site, the Tribunal has formed the view that that the objective of providing efficient and costeffective telecommunications facilities would be compromised if the antennae were to be located other than between the two hospital sites. Candidate B would be inconsistent with this objective, although Mr Wittek confirmed that the proposed antenna would free capacity on existing antennae, which capacity might then be available to the Peel Health Campus.
The question then is whether the proposed monopole on the site has sufficient adverse impact on local visual amenity to warrant refusal. The site, being reserved land used for a nonresidential purpose, is consistent with the objective that communications facilities be 'located within commercial, business, industrial or rural areas'. The site is, however, adjacent to land planned for predominantly residential use.
The respondent described the monopole as 'unattractive, utilitarian infrastructure'. The Tribunal has formed the view that Lakes Road at least along approximately 1 kilometre from near Waldron Boulevard to the north of the site, south to Lot 4, which is the site of the St John of God Hospital is a streetscape of utilitarian uses. The streetscape has a high standard of construction and is softened by vegetation and a school oval. The streetscape is comprised, however, of the rear fences of the retirement village, the commercial buildings and front setback parking of the telephone exchange, the hospital, Silver Chain offices, two churches, an aged care hostel and two medical centres. The Tribunal has concluded that the monopole in this environment would not cause such an adverse visual impact to warrant refusal.
The monopole would intrude into the view from certain of the retirement village dwellings because of its height. It is likely that it would be within the northern aspect of certain residences built in the future on Lot 3. The Tribunal has further concluded, however, that, overall, the impact of the monopole on residential visual amenity would not be so widespread and intrusive as to warrant refusal.
The respondent submitted that, were the Tribunal to allow the application for review, there should be a condition that the development must be carried out in accordance with the details shown on the approved plans.
Orders
1.The application for review is allowed.
2.The respondent's refusal of 29 January 2013, reiterated on 26 March 2013, is set aside and planning approval is granted for the development of the proposed communications building (monopole and antennae) on Lot 4087 Lakes Road, Greenfields, as shown on drawings W107148, sheets DC, S1, S1-1, S3 and S3-1, all dated '10.09.12'.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER
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