TELSTRA CORPORATION LIMITED and CITY OF WANNEROO - [2011] WASAT 77

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: TELSTRA CORPORATION LIMITED and CITY OF WANNEROO [2011] WASAT 77

MEMBER: MR J JORDAN (MEMBER)

HEARD: 1 FEBRUARY 2011 AND LAST DOCUMENTS FILED 9 FEBRUARY 2011

DELIVERED : 10 MAY 2011

FILE NO/S: DR 374 of 2010

BETWEEN: TELSTRA CORPORATION LIMITED
Applicant
AND
CITY OF WANNEROO
Respondent

Catchwords:

Town planning Development application Refusal Proposed mobile telephone base station Monopole construction Overall height 40.4 metres Located in rural resource zone 12 metres from road Residential development zone on opposite side of road 300 residential lots within 500 metres State policy on telecommunications infrastructure Local policy on mobile telephone base stations Visual impact Impact on local amenity Extent to which facility is necessary Capacity for facility to be located elsewhere

Legislation:

City of Wanneroo District Planning Scheme No 2, cl 3.17.1, cl 3.17.2, cl 5.2, cl 6.8
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004 (WA), s 29(3)
Telecommunications Act 1997 (Cth), Sch 3

Result:

The application for review is allowed
The decision of the City of Wanneroo to refuse the application set aside and conditional planning approval granted for the proposed mobile telecommunications facility

Category: B

Representation:

Counsel:

Applicant: Mr P Ward with Mr L Magistro
Respondent: Mr D Nicholson

Solicitors:

Applicant: Blake Dawson
Respondent: McLeods

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

Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238
Telstra Corporation Limited and Shire of Murray [2009] WASAT 117
Telstra Corporation Limited v Yarra Ranges SC [2009] VCAT 2441 (16 November 2009)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

This matter involved an application for review of the refusal by the City of Wanneroo to grant planning approval for the development of a facility comprising a 40.4 metre tall monopole mobile telephone base station in a rural zone adjacent to residential zoned land at Pinjar Road, Mariginiup. The City of Wanneroo said the proposed facility would be in conflict with its policy on mobile telephone base stations because it would be within 500 metres of residential land and would have an adverse impact on the visual amenity of the locality. The facility was also said to be in conflict with the State policy on mobile telephone infrastructure because of the impact it was considered the facility would have on visual amenity of the locality.
The Tribunal found that there were existing inadequacies in the mobile telephone and data transfer services in the locality and these most likely would become worse. The Tribunal further found that the proposed facility was a desirable addition to the applicant's telecommunications network in the service area. The proposed facility would satisfy the requirements of the State and City of Wanneroo policies for an appropriate level of mobile telephone services to be delivered and maintained.
The Tribunal also formed the opinion that the impact of the proposed facility would be reduced by its profile and by the variations in topography across the locality. The Tribunal found that, on balance, the overall impact of the facility on the locality would not be so significant as to outweigh the benefits that would result from the addition to the telecommunications services for the service area.
In the circumstances, the Tribunal decided to grant development approval for the proposed facility.

Introduction

These proceedings involve 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 decision of the City of Wanneroo (Council or respondent) to refuse a planning application for development of a mobile telephone base station at No 294 (Lot 39) Pinjar Road, Mariginiup (No 294 Pinjar Road).

Site and locality

The development would be within an area 10 metres by 6 metres (site) within No 294 Pinjar Road, leased from the owners.
No 294 Pinjar Road has an area of 26.5 hectares with a frontage of about 420 metres to Pinjar Road at the western end. No 294 Pinjar Road is 537 metres deep at the northern boundary and 770 metres deep at the southern boundary. The site would be set back 12 metres from the front boundary about midway along the Pinjar Road frontage. No 294 Pinjar Road is developed with orchards and market gardens and, towards the rear, a poultry farm. In the north-west corner of No 294 Pinjar Road is an area of about 5 hectares of remnant bushland. The site is at the southwest corner of this bushland.
East of Pinjar Road is generally rural lots developed for market gardening and small orchards. Immediately opposite the site west of Pinjar Road is an area of open space containing Pinjarup Swamp. Around Pinjarup Swamp to the north, south and west is a residential area being developed with single dwellings. Immediately to the west of the site is the suburb of Tapping, to south of Tapping is Ashby, to the north-west Carramar, and to the north Banksia Grove.
The site is at an elevation of just below 45 AHD. About 800 metres to the west of Pinjar Road is a ridge that rises to nearly 60 AHD. To the southwest of the site, the ridge rises to 65 AHD and, to the north-west, to 70 AHD. The topography then falls to Wanneroo Road and Lake Joondalup about 3 kilometres to the west.

Planning framework

No 294 Pinjar Road is zoned rural resource under City of Wanneroo District Planning Scheme No 2 (DPS 2). Land to the north-east, east and south of No 294 Pinjar Road is also zoned rural resource.
To the west of Pinjar Road, which is in a reserve 30 metres wide, the area is zoned urban development. Immediately opposite the site at the southern end of Pinjarup Swamp public open space is an area of 28 lots with a residential density code of R40. Much of the remainder of the residential zone has a density coding of R20.
The proposed development is a 'D' (discretionary) use in the rural resources zone of DPS 2. Clause 3.17.1 of DPS 2 states that the objectives of the rural resources zone are to:
(a)protect from incompatible uses or subdivision, intensive agriculture, horticultural and animal husbandry areas with the best prosects for continued or expanded use;
(b)protect from incompatible uses or subdivision basis raw materials priority areas and basic raw materials key extraction areas.
Clause 3.17.2 of DPS 2 says that, when considering development in the rural resources zone, regard shall be had to the relevant matters listed at cl 6.8 of DPS 2. These include:
(a)the aims and provisions of this Scheme and any other relevant town planning scheme(s) operating within the Scheme area;
(b)the requirements of orderly and proper planning …
(c)any approved statement of planning policy of the Commission;
…
(e)any relevant policy or strategy of the Commission or any relevant policy adopted by the government of the State of Western Australia;
…
(g)any local planning policy of the Council adopted under the provisions of clause 8.11 of the Scheme;
…
(i)the compatibility of a use or development within its setting;
…
(n)the preservation of the amenity of the locality;
(o)the relationship of the proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal;
…
(y)any relevant submissions received on the application including any relevant submission received by the applicant;
…
(aa)any other consideration the Council considers relevant.
The Council has adopted and included in its policy manual a policy entitled Mobile Telephone Base Stations (Base Stations Policy). The objective of the Base Stations Policy is:
[t]o facilitate a well planned network of mobile telephone base stations throughout the city, in a manner which:
•proactively provides for comprehensive and reliable mobile telephone coverage throughout the city[;]
•locates and designs mobile telephone base stations in a manner that provides for high standards of amenity and minimal exposure to electromagnetic energy[;]
•allows for the legitimate concerns of the community about the location and health impacts of these facilities to be taken into account[;] and
•provides guidance to telecommunication carriers concerning the development of mobile telephone base stations.
Relevant provisions of the Base Stations Policy will be included in the discussion below. To note, however, is that under location criteria is the following:
2.1new base stations must:
2.1.1not be located within 500 metres from sensitive land uses (residential, childcare centres, schools and other similar uses as determined by Council on an individual basis), and
2.1.2be located and designed so that the base station will cause minimal visual impact.
…
The Western Australian Planning Commission policy relevant in this matter, and to which the Tribunal must have regard, is State Planning Policy No 5.2 Telecommunications Infrastructure (SPP 5.2). At cl 3 of SPP 5.2, the list of objectives includes:
•facilitate the provision of telecommunications infrastructure in an efficient, costeffective and environmentally responsible manner to meet community needs;
…
•minimise disturbance to the environment and loss of amenity in the provision of telecommunications infrastructure; …
At cl 5.1 of SPP 5.2 is a list of guiding principles for the location, siting and design of telecommunications infrastructure. This includes:
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 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 facility should be designed and sited to minimise adverse impacts on the visual character and amenity of residential areas.
…
•Unless it is impracticable 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.
Clause 5.2 of SPP 5.2 lists matters to be considered when determining planning applications. This provides that regard should be had to the:
•need to ensure continuity of supply of telecommunications services to people and businesses in the local area or region;
…
•extent to which the proposal enhances or maintains visual amenity including streetscape and minimises adverse visual impacts.

Proposed development

Proposed within the 60 square metre site, is a mobile telephone base station (facility) comprising an equipment shelter at ground level and adjacent to which would be a circular steel monopole 33.8 metres high, tapering from a diameter of 1 metre at the base to about 450 millimetres at the top. On top of the monopole would be a turret headframe 6.6 metres high with the same profile as the monopole. This would give an overall height of 40.4 metres. Three flush mounted antenna panels would be attached to the headframe at 38.8 metres, with plans for three more antenna panels at the 35.6 metre level.

Council's decision

At its meeting of 19 October 2010, the Council refused the application for the proposed development for the following reasons:
(i)the proposal does not comply with the City's Mobile Telephone Base Station Policy in that the proposal is located within 500 metres from sensitive land uses;
(ii)the proposal is likely to adversely impact on the visual amenity of the locality; and
(iii)there is local resident opposition to the proposal.

The issues

The issues said to arise in this matter are:
1)whether and to what extent the proposed facility is necessary, desirable or an important part of the applicant's telecommunications network;
2)whether the proposed facility would comply with SPP 5.2;
3)whether the proposed facility would comply with the Base Stations Policy;
4)whether the impact of the proposed facility on the visual amenity of the locality would be acceptable; and
5)whether there is the capacity for a similar structure to be located elsewhere and achieve the technical objectives.

Discussion

Issue 1: Whether and to what extent the proposed facility is a necessary, desirable or an important part of the applicant's telecommunications network

It was the evidence of the applicant that its current mobile telephone and data transfer coverage to the suburbs of Ashby, Tapping and Carramar is provided from a series of mobile telephone base station towers (facilities) about 4 kilometres from the centre of the service area. To the north these facilities are along the alignment of Flynn Drive, to the west they are to the west of Lake Joondalup and are clustered around Joondalup city centre, and to the south the applicant's facility is in the vicinity of the Wanneroo town centre. The towers in these facilities have antenna panels attached to them and these antennas are focussed on different 'sectors' that are numbered.
Mr Christopher Lewis, a 'design specialist' for the applicant, appeared as a witness. He referred to an aerial photograph, which plotted the location of existing facilities and facilities to be constructed (Exhibit 11). He said new facilities to be built at Banksia Grove and near Flynn Drive would assist in improving service for Carramar. His evidence was that he had examined the applicant's call initiation information for Ashby, Tapping and Carramar and had determined that the bulk of the traffic in Ashby and Tapping is being carried either by Wanneroo Sector 3 (north facing) or Joondalup Sector 4 (east facing). His examination of data showed that for sectors in Joondalup and Wanneroo there was adequate or spare capacity in resources to carry the traffic offered, except for Joondalup Sector 4 and Wanneroo Sector 3. These latter two sectors had no spare capacity to carry additional traffic and it was his evidence that they had a negative headroom estimate, which indicated a degree of overload. Telstra has made adjustments to the focus of antennas at Joondalup to service current demand at Carramar, Tapping and Ashby, but is unable to make any further adjustment to the Wanneroo Sector 3 facility serving Ashby and Tapping. A limiting resource on the sectors is also transmitter power. This is related to the distance between an existing base station and the mobile telephone. Mr Lewis said good quality call and data transfer performance could realistically be achieved with a facility serving an area of about 1.5 kilometre radius.
In Mr Lewis' opinion, with the growth in mobile telephone and mobile data usage over time, there is need for an infill facility to maintain sufficient network capacity to service Ashby and Tapping (service area). The present deficiency in coverage in the centre of the service area in these suburbs has resulted in dropped calls, poor signal strength (particularly indoors) and slow data transmission rates. This has led to complaints by customers and to address these, Telstra needs to take action to increase its network capability in that service area.
Mr Lewis said he considered the proposed facility on the site 'a reasonable compromise to achieve the objective' of serving Tapping and particularly eastern Ashby. In respect of the proposed development being described as a compromise, the evidence of Mr Lloyd Antulov, a senior acquisitions specialist for the applicant who appeared as a witness, said that sites at a higher contour and central within the residential area would provide greater coverage and a higher level of service, but there are no suitable alternative sites presently available. With the site available, the height of the facility had to be adjusted to accommodate the topography.
When questioned, Mr Lewis said that the facilities planned at Banksia Grove and Carramar would leave capacity at the existing Flynn Drive facility to serve Ashby and Tapping, but in his experience, once it was found that service improved, a latent demand for that service quickly used up that capacity. In addition, continuing residential development in the locality would add additional demand.
It was the respondent's submission that the service area presently received telecommunications coverage but not 'optimal' telecommunications coverage. The respondent said that while an improvement in coverage may be desirable, it did not accept it to be a necessity. To the extent that improved coverage is considered necessary, the respondent does not accept that the need justifies locating the facility as proposed in circumstances where it would have an adverse impact on visual amenity and would not comply with SPP 5.2 and the Base Stations Policy. The respondent said that if the facility was an important part of the telecommunications network, then it should be located further removed from the adjacent residential area to minimise visual amenity impact. The respondent submission was that, when assessed against the planning criteria, the design and location of the proposed facility militated against the grant of planning approval.
The Tribunal had before it from the applicant submissions about the complaints of poor or no mobile telephone service in the locality. The Tribunal heard from witnesses called by the respondent, Mrs Debbie Fegredo, a resident of nearby Crossthwait Circle, and Cr Diane Guise who had been approached by some local residents, that the local service was adequate and the intrusive facility was not wanted.
The Tribunal has formed the view that the provision of the proposed facility would be a desirable addition to the applicant's telecommunication network. This is because it is considered that existing, and future, residents of this service area might reasonably expect reliable, rather than the apparently intermittent, mobile telephone coverage, and because growth in this locality and in other localities neighbouring the service area will result in demand that will diminish further the level of service from the existing facilities. A facility located near Ashby and Tapping might be desirable to provide a level of service, but it remains that a proposed facility, in this instance on the site, must be assessed in light of the planning controls in place. The issues below are concerned with this assessment.

Issue 2: Whether the proposed facility would comply with SPP 5.2

The applicant said SPP 5.2 requires a balancing exercise between need and impact. On need, the applicant referred to cl 2.1 of SPP 5.2 which states that '[m]odern telecommunications are an essential and beneficial element in the life of communities and in the State and national economy' and that 'it is important that appropriate and adequate telecommunications infrastructure is provided'. As referred to under issue 1 above, the applicant considers it desirable that the facility be established and, as discussed further in issue 5 below, that the site is the only location presently available.
In respect of impact, the applicant referred to cl 2.3 of SPP 5.2 where it is said that 'antennas generally need to be mounted clear of surrounding obstructions like trees and buildings to avoid loss of reception and allow the mobile phone base station to cover its intended cells with minimum transmitted power'. The applicant referred to the 'Guiding Principles for the Location, Siting and Design of Telecommunications Infrastructure' at cl 5.1 of SPP 5.2, which require that facilities be designed and sited so as to 'minimise adverse impact on the surrounding area'. The applicant's submission was that it is implicit that there will be some impact. It is not the objective of the policy to avoid impact, particularly when impact can only be avoided by having no facility at all or infrastructure of a lower height that would have limited technical capability. The applicant said that there was no design that would have lesser impact than the proposed facility.
The applicant's contention was that SPP 5.2 has been complied with because the proposed facility has been designed and sited as far as possible 'to minimise adverse impact on the surrounding area'. The applicant said that, on the evidence, the objector's concerns do not outweigh the benefit of approving the proposed development.
The respondent also referred to the guiding principles at cl 5.1 of SPP 5.2. The applicant said that it was plain from cl 5.1 and cl 5.2 of SPP 5.2 that SPP 5.2 actively discourages locating telecommunications towers within residential areas.
Preferred locations for base stations and antennas under SPP 5.2 include 'rural areas'. The respondent's submission was that the facility, while in a 'rural area', is not in any 'real sense' in a rural area, because it is only 12 metres from Pinjar Road, and all the land west of Pinjar Road and to the north is urban land being developed for residential use, with the R40 residential area commencing 50 metres from the site. Councillor Guise referred to the rural resources zone, within which the site is located, being designated for future residential in the East Wanneroo Structure Plan recently released by the Western Australian Planning Commission.
The respondent acknowledged that SPP 5.2 also requires a balancing of amenity and related considerations with the actual need for the proposed facility. This includes consideration of the social and economic benefits of affordable and convenient access to modern telecommunications for people in businesses throughout the State and in the local area. The respondent's submission was that while the facility should be located and designed to meet these needs, SPP 5.2 does not dictate that the communication needs of the community should necessarily prevail over other guiding principles and considerations, including those referred to which seek to minimise the adverse visual impact of telecommunications facilities.
As discussed under issue 1 above, the Tribunal has formed the view that a facility in this locality would be a desirable and important addition to the applicant's telecommunications network. In this regard, the proposed development would be consistent with the objectives of SPP 5.2. If the facility were to be developed on the site, then the monopole design would be the least obtrusive for a telecommunications tower. The question, therefore, is whether, on balance, the facility located as proposed would have such an impact on the visual amenity of the locality to warrant the facility not being granted planning approval.
Setting aside the impact on visual amenity at this point, the Tribunal considers the proposed facility would otherwise be consistent with SPP 5.2. Impact on visual amenity of the proposed facility is addressed more particularly as issue 4 below. Before that consideration, it is necessary to consider whether the proposed facility would be consistent with the Council's Base Stations Policy.

Issue 3: Whether the proposed facility would comply with the Base Stations Policy

Significant in the consideration of this matter are the 'location criteria' at cl 2 of the Base Stations Policy. Clause 2.1 states that 'new base stations must':
2.1.1not be located within 500m from sensitive land uses (residential, child care centres, schools and other similar uses as determined by Council on an individual basis), and
2.1.2be located and designed so that the base station will cause minimal visual impact …
It was the submission of the applicant that the Base Stations Policy should be regarded as invalid. This was because, in its submission, the Base Stations Policy buffer zone was solely directed to perceived electromagnetic emissions (EME) risks.
The applicant said reference by the respondent to visual impact as a reason for requiring the 500 metre separation from residences was, 'a smokescreen'. The applicant said the buffer zone, measured from 'sensitive land uses' including childcare centres and schools, was clearly related to EME concerns, not visual impact. The applicant said that, because the development will produce maximum EME of less than 1/300th of the Australian Radiation Protection and Nuclear Safety Agency Exposure Limit, there was no scope for application of the policy of imposition of a 500 metre buffer zone to protect against perceived EME risks. This, it was argued, would be a legal error.
In its statement of contentions, the applicant said that, by defining sensitive land uses to include residential uses, the Base Stations Policy excluded most of the City from being areas in which mobile base stations may be provided (except where permitted as low impact structures on existing buildings, as authorised by the Telecommunications Act 1997 (Cth)) (Telecommunications Act). In effect, the policy would operate to exclude the discretionary power from being exercised by Council. The applicant said that such a policy is inconsistent with the enabling legislation granting discretion and should be regarded as invalid.
The applicant further argued that, to the extent that the Base Stations Policy would prevent construction of a base station on the proposed site, it is directly inconsistent with the provisions of SPP 5.2, which favour locating telecommunications infrastructure within rural zones. SPP 5.2 must prevail over the Council's policy: Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 at 45] [47].
The applicant pointed out that there was no dispute that the existing remnant vegetation on No 294 Pinjar Road and the site would screen the base of the monopole and equipment shed and so, in this regard, the proposal would comply with cl 2.5 of the Base Stations Policy.
Clause 3 of the Base Stations Policy lists design criteria. The applicant submitted, and there was no dispute, that the proposed development would be consistent with the list of criteria. Proposed is a monopole tower, as encouraged by cl 3.1, and the antennas and dishes would be flush mounted, as required by cl 3.2 of the Base Stations Policy. The applicant said it would accept a condition of approval to paint the tower the colour the respondent preferred, as required by cl 3.2 of the Base Stations Policy. Mr Brian Lake, Radio External Plant Design expert for Telstra, who appeared as a witness, said that, while the tower would be painted if required, in his experience, a galvanised tower, once the galvanising weathered after about 18 months, presented the most neutral finish.
The final design criterion at cl 3.4 of the Base Stations Policy is that new towers be designed to facilitate colocation of other telecommunication carriers. Mr Brian Lake, a radio external plant design expert, who appeared as a witness for the applicant, said that the height of the proposed tower would enable colocation of antennas of other carriers to be sited below the Telstra antennas. Evidence was provided of an approach by Vodafone for such colocation.
Mr Lake said that if the tower were reduced in height, antennae below the Telstra antennas would not be higher than the ridge to the west and would be largely ineffective. In such circumstances, the second carrier would have to erect its tower elsewhere in the locality. The applicant said this would not be minimising the impact of base stations on the local amenity.
The respondent acknowledged that EMEs from the facility were not an issue in the context of the current application and are not contended by the respondent to be a justification for an increased distance between the facility and nearby residential areas.
In the submission of the respondent, cl 2.2 of the Base Stations Policy is consistent with SPP 5.2 in that it requires new base stations to be located and designed so as to cause minimal visual impact. SPP 5.2 does not stipulate a buffer distance, but the Base Stations Policy and SPP 5.2 are consistent to the extent that the policy objectives actively discourage locating telecommunication facilities in or near residential areas.
In was the submission of the respondent that the Base Stations Policy cannot be considered manifestly unreasonable in its terms, given that it is broadly consistent with SPP 5.2 and also with criteria relevant to the grant of a facility installation permit pursuant to Sch 3 of the Telecommunications Act, in that a facility installation permit may not be granted when the facility is proposed to be located near a communitysensitive site, including 'residential areas, child care centres, schools, aged care centres, hospitals, playgrounds and regional icons' unless certain preconditions have been met. The respondent said it did not oppose some reduction in the 500 metre separation, suggesting a location near the house and sheds on No 294 Pinjar Road. There are, however, 300 houses within 500 metres, with the closest within 50 metres, and the impact on the proposed 40.4 metre high tower on the site would have sufficient impact on the visual amenity of the locality, in conflict with the Base Stations Policy and the considerations under cl 6.8 of DPS 2, to warrant the development being refused.
The Tribunal has found no reference to EMEs in the Base Stations Policy. The Tribunal notes that the proposed facility, with about 300 houses within 500 metres, would clearly be in conflict with the buffer requirement of cl 2.1.1 of the Base Stations Policy. The Base Stations Policy does not include any explanation of the need for a 500 metre separation distance but the distance would ensure the minimal visual impact required by cl 2.1.2 of the policy. Also noted is that a separation distance required by the Base Stations Policy makes difficult achieving the optimal service area for the facility of 1.5 kilometres described by Mr Lewis.
The Tribunal has formed the view that if there is a requirement that a facility be provided for the service area then consideration can be given to a reduced setback from the residences in the service area. As concluded under issue 1, the Tribunal considers there is a case for a facility to be provided in this service area. The question again is whether a facility on the proposed site would have an impact on visual amenity that would outweigh the benefits to the service area. This is addressed next.

Issue 4: Whether the impact of the proposed facility on the visual amenity of the locality would be acceptable

Any impact the proposed facility would have on the visual amenity of the locality would be from the extent that the monopole tower extends above the screening vegetation at the base. The applicant pointed out that height of the tower is dictated by the need for the antennas to be clear of the top of the ridge to the west. Being clear of obstructions is consistent with cl 2.1 of SPP 2.5. The applicant's submission is that, for a facility on the site, there is no other design of tower of this height that would have less visual impact.
The alternative design is a selfsupporting lattice tower. Mr Lake described a lattice tower of this type to be about 6 metres by 8 metres at the base and about 1.5 metres square at the top. In his opinion, a lattice tower would be less intrusive from close by, because the view would generally be through the lattice members. In his experience, however, from a distance, a lattice tower was more intrusive, because the structural members were more obvious and the tower was of a greater bulk than a monopole construction. A lattice tower would also have visible antennas and a 300 metre wide cable tray serving the antennas from the equipment shed below.
Mr Antulov's evidence included a series of photographs taken from various vantage points looking towards the site from streets to the west and southwest. Most photographs could be interpreted to reveal that the top part of the tower would be visible against the skyline from most of these locations. However, because of the topography, light poles in the immediate foreground at some locations would appear higher than the more distant monopole. For locations closer to the site, the monopole would have a profile similar to that of a light pole, but would extend further above the skyline. It was the submission of Mr Antulov that the monopole would not appear visibly greater than most poles invisible to a viewer, because most views were downhill towards the site. The tower would appear against the sky and not intrude into the view of a particular landmark.
It was Mr Antulov's submission that the closest houses in the R40 density subdivision about 50 metres away would not have a direct view of the monopole. This was because of a rear 2 metre high wall on the Pinjar Road boundary of these lots and the houses being built close to this wall.
In the submission of the applicant, visual amenity concerns cannot be elevated to a degree where they would deny the effective operation of the facility: Telstra Corporation Limited and Shire of Murray [2009] WASAT 117 at [46] (Telstra and Shire of Murray). The present design was considered by the applicant to have the least impact and should be allowed.
The applicant further submitted that one aspect of amenity of a locality is an amalgamation of many factors, including access to utilities. It was argued that visual amenity must be balanced against the need for improved telecommunications facilities in the district. The demonstrable gap in mobile telephone coverage in the district could only be filled by a tower in this location; the site was the only one available and a facility of the height proposed was required. The applicant says that the impact of the proposed facility on the local amenity is not sufficient to outweigh the benefits the proposed facility would bring to local residents and businesses.
The respondent said it did not contest the proposed height of the facility, but rather its siting in close proximity to a residential area. Mrs Fegredo expressed her belief that the height of the facility proposed would be clearly visible from the front of her house, from her street and from the local open space she used. She believed that the facility would appear significantly higher than the light poles and intrude into the skyline. This she considered would have an adverse impact on the visual amenity of her locality. Councillor Guise said other residents had expressed the same opinion to her and copies of objecting correspondence were filed with the respondent's bundle of documents.
The respondent said the comments of local residents were to be afforded weight, as residents were well placed to express an opinion on the particular characteristics of the locality which contribute to their visual amenity: Canning Mews Pty Ltd and City of South Perth [2005] WASAT 272 at [48].
The respondent also said that in an objective assessment of the impact of the proposed facility, motorists on Pinjar Road would see the facility well above the skyline and, as conceded by Mr Antulov, north and east facing houses in the R40 residential subdivision would see the tower. The site being close to Pinjar Road, and the residential area maximised rather than minimised the visual amenity impact of the facility and this impact would be negative.
The respondent said the comments of the Tribunal in Telstra and Shire of Murray were not intended to mean that visual amenity concerns must necessarily be subordinated to the technical requirements of and need for a telecommunications facility. SPP 5.2 does not suggest any such hierarchy and provides that any adverse visual impact should be minimised by the appropriate siting of the facility. The respondent submitted that the negative impact on visual amenity of the facility in the location proposed was sufficient to outweigh the apparent need for the facility.
In addition to the evidence of the witnesses, the Tribunal also had the benefit of photographs to illustrate the potential height of the facility from various vantage points, mostly to the west and south of the site. The Tribunal formed the view from the evidence that while the proposed facility is high, because of the topography and development pattern, the facility would not be visible from all locations and would vary in prominence depending upon the location of the viewer. The impact on visual amenity would vary significantly from within the residential area. With respect, the Tribunal concluded that Mrs Fegredo's situation would not be repeated commonly within the residential area.
The respondent referred to Telstra Corporation Limited v Yarra Ranges SC [2009] VCAT 2441 (16 November 2009) in which a facility was refused a grant of planning approval because it was a 30 metre monopole on a ridgeline that would be too 'visually prominent'. The Tribunal notes that the proposed facility is at a low point in the topography, offset by an increase in height. The Tribunal also notes that the facility is not placed on the top of a local topographic feature, views to the facility are minimal from parts of the residential area and, relatively, the facility need not dominate the skyline because of local development and relative heights. The Tribunal has concluded that, on balance, the overall impact of the facility on the visual amenity of the service area is not sufficient to outweigh the reliable telecommunications services that would be provided.

Issue 5: Whether there is the capacity for a similar structure to be located elsewhere and achieve the technical objectives

Mr Lewis and Mr Antulov made the general comment that a site at a higher contour and central to the residential area of Tapping and Ashby would be preferable and would require a shorter monopole. The respondent had made it clear, however, that it objected to any site within the residential zone or on open space within the residential zone.
Mr Antulov said that consultants, formerly acting on behalf of the applicant, had made enquiries of other landowners in the vicinity of the site about leasing land for the facility. It was Mr Antulov's experience that when consultants found that more than one suitable location was available, these were recommended and the applicant made a choice. In this instance, the only site recommended by the former consultants as currently available was that now proposed.
Mr Antulov said he had not taken part in the examination of other sites and had not had explained specifically to him why any other sites were not available. Mr Antulov said he had no details of the work the former consultants had undertaken, other than sighting a marked map which had not been explained to him.

Mr Antulov said he did have more knowledge of discussions held with the owner of No 294 Pinjar Road. These had related to locating the facility further east in the vicinity of the owner's poultry sheds and house. The owner of No 294 Pinjar Road had eventually informed the applicant that the only portion of No 294 Pinjar Road he was willing to lease was the site, because locating the facility elsewhere on No 294 Pinjar Road could disrupt his plans for the development of the property.
The respondent argued that it had not been proven by the applicant that the site was the only possible location east of Pinjar Road available for the facility. In respect of Ashby and Tapping, the assertion of the applicant is not supported by evidence, either by way of the consultant who conducted the investigation being a witness or by any documents.
The respondent said, in principle, it remained possible to situate the facility elsewhere within No 294 Pinjar Road or within the rural resource zone east of Pinjar Road to comply or substantially comply with the Base Stations Policy buffer of 500 metres. The respondent said that this would minimise the visual impact of the facility and still achieve the applicant's technical objectives.
The Tribunal has found it agrees with the respondent that there is an absence of evidence to support the assertion that no other sites east of Pinjar Road might be available. It might be that another site could be negotiated east of Pinjar Road. In this respect, the Tribunal is of the view that if the facility were not to be developed on the site, it might not necessarily result in it being impossible to provide a facility to service the locality. On the other hand, no other site has been specifically identified by either party other than further to the east on No 294 Pinjar Road adjacent to the house and chicken sheds and so no conclusion can be drawn on this point.
The Tribunal did have before it, however, a proposal to erect the proposed facility on the site. The task of the Tribunal, therefore, was to determine whether or not to affirm the refusal of the application for the proposed facility on the site or to set aside the refusal and grant planning approval: s 29(3) of the State Administrative Tribunal Act 2004 (WA).
The Tribunal considers that 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 in Tapping and Ashby. It is the findings of the Tribunal on the other issues, particularly issues 2, 3 and 4 above, which are determinative of this matter.

Conclusion

The Tribunal has found that the proposed facility is desirable and would be an important addition to the applicant's telecommunications network in the service area. This is because a service is provided and the facility would ensure that the policy standard of a reliable standard of mobile telephone and data transfer coverage could be delivered and maintained, particularly in the eastern parts of Ashby and Tapping. In providing this service, the proposed facility would satisfy the requirements of SPP 5.2 and the Base Stations Policy for an appropriate level of service.
The proposed facility, while within a rural zone, would, however, be on a site with, currently, up to 300 dwellings within a 500 metre radius. The proposed facility would not therefore satisfy the requirement for a 500 metre setback from residential development under the Base Stations Policy. This then poses the question of whether the proposed facility could satisfy the requirement in SPP 5.2 and the Base Stations Policy that the facility cause minimal visual impact.
In its submission, the applicant said the advantages arising from this addition to the telecommunications infrastructure outweighed any impact on visual amenity. The respondent was of the opposite view. It submitted that while the proposed facility might provide an improvement in telecommunications service, the height of the pole and its proximity to houses had a significant adverse impact on the visual amenity of the locality. In circumstances where there was already a level of service in the locality and other sites might be found for the facility and therefore the level of telecommunications service could still be offered, the adverse impact outweighed technical improvement in telecommunications.
The Tribunal has formed the opinion, from the evidence of the witnesses and consideration of the photographs provided, that the impact of the proposed facility would be diminished by the view to the upper levels of the monopole being reduced or obscured by variations in topography across the locality and by the relative height of other infrastructure near vantage points. On balance, the Tribunal found that the overall impact of the facility on the locality would not be so significant as to outweigh the benefits that would result from reliable telecommunications services for the service area.
In the circumstances, the Tribunal has decided to grant development approval for the proposed facility.

Conditions

The respondent provided, without prejudice to its position, a condition it would want proposed, were the development allowed. This condition required that the applicant submit a schedule of colours and materials demonstrating that the pole and equipment shelter would complement the surrounding rural area as far as practical. The applicant said it would be prepared to submit a schedule of colours, but noted that Mr Lake, who has experience in the erection and treatment of facilities, was of the view that the most neutral finish is to allow a galvanised monopole to weather, and this would ultimately have less impact. The Tribunal considers that the condition should be imposed and part of the submission to the Council could include a comment about weathered galvanising as an alternative to colour, and the Council could then decide how it would want the monopole treated.

Orders

1.The application for review is allowed.
2.The decision of the City of Wanneroo to refuse the application is set aside and planning approval is granted for the proposed mobile telecommunications facility at No 294 Pinjar Road, Mariginiup, subject to the following condition:
1)A schedule of colours and materials demonstrating that the monopole and equipment shelter will complement the surrounding rural area as far as practicable shall be submitted to the Council for approval prior to the issue of a building licence.

I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J JORDAN, MEMBER