Telstra Corporation Limited and Shire of Murray - [2009] WASAT 117

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: TELSTRA CORPORATION LIMITED and SHIRE OF MURRAY [2009] WASAT 117

MEMBER: MR P McNAB (MEMBER)

HEARD: 24 MARCH 2009 AND 17 APRIL 2009

DELIVERED : 17 JUNE 2009

FILE NO/S: DR 443 of 2008

BETWEEN: TELSTRA CORPORATION LIMITED
Applicant
AND
SHIRE OF MURRAY
Respondent

Catchwords:

Town planning - Development application - Telecommunications infrastructure - Mobile telephone tower proposed to be built in rural area - Tower servicing Perth to Bunbury Highway and immediate surrounding areas - Site zoned 'Rural' - Site surrounded by 'Special Rural' (rural residential) lots - Use not listed under Town Planning Scheme - Technical, social and communications justification for facility made out by Telstra - Whether use compatible with a rural zone - Weight to be afforded in planning framework to State Planning Policy 5.2 Telecommunications Infrastructure (SPP 5.2) - Suitable height of tower to meet its function recognised in SPP 5.2 and planning cases - Establishment of telecommunications infrastructure in rural areas favoured by SPP 5.2 - Amenity impact on neighbours - 'Perception' of radiation health risk - Mere perceptions rejected by Tribunal - Impact on visual amenity considered by Tribunal to be minimal and otherwise justified - Tower not inconsistent with rural zoning and rural objectives of zonings - Review allowed and Tribunal approved development upon conditions

Legislation:

Peel Region Scheme, cl 12
Planning and Development Act 2005 (WA), s 241(1)
Shire of Murray Town Planning Scheme No 4, cl 2.2(i), cl 2.3, cl 3.4, cl 5.2.3

Result:

Application for review allowed and conditional approval given

Category: B

Representation:

Counsel:

Applicant: Mr PJ Ward
Respondent: Mr R Peake (Acting as Agent)

Solicitors:

Applicant: Blake Dawson
Respondent: Shire of Murray

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

Gugliotti v City of Preston (1988) 1 AATR 97
LWP Property Group Pty Ltd and City of Swan [2006] WASAT 308
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238
Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex Parte Solomon [2009] WASC 116
Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10
Telstra Corp Ltd v Pine Rivers Shire Council [2001] QPELR 350

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Telstra Corporation Limited had for a number of years been planning telecommunications infrastructure that would serve both various points along the new Perth ‑ Bunbury Highway and, where necessary, surrounding areas. After a process, one of the sites eventually chosen by Telstra was near to the Highway and near to the subject land at Stake Hill in the Shire of Murray. Land belonging to Main Roads WA was not available for this purpose, but a nearby landowner with a 'Rural' zoned block had agreed to lease a small part of his land to Telstra. Planning permission was sought for a 56 metre high mobile phone tower. The site was on land which was surrounded by 'Special Rural' land, that is land that was (or was to become) rural residential in character.
A proposal went before the Shire Council in September 2008 but did not obtain the prescribed number of majority votes under the Shire of Murray Town Planning Scheme No 4. The officers had recommended approval of the proposal.
In the Tribunal, the Shire argued that the rural character of the area would be compromised by the height of the tower; that insufficient planning or coordination had gone into the telecommunications infrastructure proposals connected with the Highway; that the tower was more of a utility service rather than development relevantly 'rural'; and that there were genuine perceptions of adverse health effects caused by electromagnetic radiation. Moreover, the Shire argued against the tower because Telstra was 'unable to guarantee that the facility will not cause negative health impacts'. The Shire did not, however, challenge any of Telstra's technical and telecommunications planning evidence.
The Shire argued that planning approval should be refused for these reasons.
Telstra argued that the planning framework, particularly State Planning Policy 5.2 ‑ Telecommunications Infrastructure contemplated telecommunication infrastructure in rural areas and that, in any event, its proposal had a benefit for the community, was justified in terms of service demand, and had, in its proper context, minimal impact upon the amenity of the immediate precinct.
The Tribunal agreed with Telstra and rejected all of the Shire's arguments. The Tribunal gave significant weight to State Planning Policy 5.2 ‑ Telecommunications Infrastructure. The Tribunal found that rural zones were earmarked for such facilities; that the need and justification for the tower had been made out; and that such a facility was not necessarily incompatible with rural values expressed in the planning framework. The Tribunal was satisfied that the placement of the tower minimised its visual amenity impact, even though this was significant because of the tower's height.
The Tribunal was particularly critical of the Shire's 'perceptions' argument saying:
Perceptions, without more, are an unsuitable basis for elevating amenity concerns to the point where a proposal which is otherwise justified and compliant should be refused planning approval.
The uncontradicted evidence pointed to the safe operation of the tower. The Tribunal said that it was 'disingenuous to demand a guarantee of no adverse health impact when all the currently available expert material in this field suggest[ed] that the issue simply does not arise on the basis of present knowledge and research'.
The Tribunal was also critical of the Shire's failure to retain an independent planner to give evidence in the case, given that the officers had originally supported the proposal.
The review was allowed and planning approval was given upon certain conditions.

Introduction: Telstra's proposal

The applicant, Telstra Corporation Limited (Telstra or applicant), applied to the respondent, the Shire of Murray (Shire or respondent) for planning approval to construct a mobile telephone tower on the south‑western corner of Lot 202, Lymon Road, Stake Hill (subject land) in the Shire .
The applicant's proposal comprises a 50 metre (plus 6 metre extension on top), self-supporting, lattice steel tower with some base equipment. I understand that no real issue is taken with the base equipment ‑ only the height of the tower. The site is one of a series of towers connected with coverage for the new Perth ‑ Bunbury Highway and the Perth ‑ Mandurah Railway line. The site will be approximately 400 metres to 475 metres from residences surrounding the subject land. Four of these have been identified. The tower will be approximately 280 metres from a building (not, apparently, a residential building) on the subject land. The site of the tower and its base will occupy less than 0.1% of the land comprising the subject land.

The subject land and its context

The subject land is described by Telstra's planning expert (Mr S Allerding), as follows:
The site of the proposed development … is more particularly described as Lot 202 on Plan 14556, Volume 2088, Folio 376. The site has a total area of 18.5807 [hectares].
The subject lot is current[ly] utilised for rural purposes.
The site is bound on its western side by Lymon Road and [is] in close proximity to the Freeway extension immediately adjacent to the western boundary of Stock Road as it abuts the subject lot. To the west of the land reserved for the Freeway is the Centennial Park Estate within the City of Mandurah designated for Urban Development.
The subject land is surrounded on its northern, eastern and southern sides by Special Rural land [that is, land which is or will become rural residential land].
The subject land is located in a precinct which, according to the respondent, has some special characteristics, including the following:
Lymon Road is proposed to link into an on ramp to the new Perth ‑ Bunbury Highway and is the only entrance road into a Special Rural estate of approximately 100 lots. [The subject land] is located at the entrance of the estate.

History of the proposal

The respondent originally deferred the applicant's application in June 2007 'until alternative sites had been investigated by the applicant'. This led, in August 2008, to a modified proposal which 'included the relocation of the [proposed] facility to a point approximately 280 metres north of the Stock Road/Lymon Road intersection'. According to the applicant, the modified proposal had the effect of reducing visual impact. That proposal failed to obtain the requisite majority of votes in Council in September 2008 and the matter became a deemed refusal under cl 3.4 of Shire of Murray Town Planning Scheme No 4 (TPS 4). Importantly, however, the Shire's own Planning and Development Services Committee and its officers had earlier recommended that the modified proposal be accepted.
Previous advertising of the proposal had led to approximately 14 objections in opposition (received in evidence in this hearing) which focused upon 'the visual impact of the facility and [its] perceived health impacts'. The applicant's views on these objections are set out below.
The applicant commenced proceedings in the Tribunal for a review in late November 2008.
Mediation was attempted in the matter and significant progress was made in early 2009 towards a possible solution involving nearby land owned or controlled by Main Roads (WA) (MRWA). For reasons that are unnecessary to relate here, those proposals did not lead to any positive solution within a satisfactory timetable, and Telstra pressed on with its review. The matter was heard in late March 2009 with a further hearing in mid‑April 2009 concerning the draft conditions exchanged by the parties.

Planning framework

It is common ground that a mobile phone tower facility (whether described as a 'base station' or by some other name) is not a land use classification regulated under TPS 4. It is a 'use not listed'. Accordingly, the Shire (and, on review, this Tribunal) may determine that the proposed use 'is one which is consistent with the objectives and purposes of a particular zone and thereafter follow the advertising procedures of [cl] 5.2.2 [in TPS 4]' or determine that the use 'is one which is not appropriate for any particular site in any particular zone and refuse the use accordingly' (see cl 5.2.3 of TPS 4).
The land is zoned 'Rural' under both the Peel Region Scheme (PRS) and TPS 4. The subject land is located within 'Planning Precinct No 2 ‑ Serpentine Lakes'.
The Shire has a relevant specific local planning policy, namely the Shire of Murray Telecommunications Infrastructure Policy (Local Planning Policy No 36). In addition, the State has published State Planning Policy 5.2 ‑ Telecommunications Infrastructure (SPP 5.2).
In Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 (Optus), I said of SPP 5.2:
[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.'
…
[47]In the Tribunal's view, considerable weight must be given to SPP 5.2 in the exercise of any discretion under DPS 2 [the town planning scheme, there under consideration]. 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 …
Here, of course, there is a relevant local policy in place, but as I read that policy it is not inconsistent with SPP 5.2 and covers similar ground. Thus, for example, both policies talk in terms of design, service and location in terms of 'meeting the needs of the community'; both policies contemplate rural areas as places for telecommunication infrastructure to be located in.
Optus is also important for one other matter. This concerns questions as to the height of such facilities and their impact on visual amenity:
[59]While it is true that the tower will be higher than any other point in the immediate vicinity of the subject land … 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 … [emphasis added]
More on this topic appears later in these reasons.

Respondent's arguments

Mention has been made earlier in these reasons of the Shire's own Planning and Development Services Committee recommendation that the proposal be approved. Mr R Peake, who appeared for the Shire (and who is a senior manager and in effect the senior planner for the Shire), must be taken to have supported and participated in that recommendation. Indeed, he acknowledged that he had 'reviewed the [officers'] report and read the report before it went on the agenda'. Nevertheless, he gave evidence in this review to the opposite effect of the officers' views. To avoid apparent conflicts of interest such as that (and, in effect, the expression of contradictory expert opinions), the universal practice of respondent local governments in such a position is to brief out the matter to a lawyer or consultant planner or both, as necessary. In any event, the Tribunal usually insists that this course be followed to avoid such conflicts.
This did not occur here, and in normal circumstances such a matter may well have led to an adjournment of the proceedings, perhaps even with an order for costs thrown away. Despite concerns on the part of both the Tribunal and the applicant, the matter proceeded, nevertheless, because of the relative urgency of the applicant's need for some certainty, given the impending opening of the Perth ‑ Bunbury Highway. However, the practice adopted by the Shire in this case is not to be encouraged; indeed it is to be deprecated. These comments should not be taken as being critical of Mr Peake who did his best to represent the Shire in the circumstances presented to him.

The respondent, in its statement of issues, facts and contentions, submitted as follows (emphasis added):
The Local Rural Strategy Development Guidelines for Planning Precinct No. 2 ‑ Serpentine Lakes make provision for additional rural residential (Special Rural) zonings after the satisfactory update of existing Special Rural zones. The existing Special Rural zones in this precinct are now developed. In accordance with the Local Rural Strategy provisions and the surrounding zonings, appropriate future use of [the subject land] is therefore Special Rural.
Given the relatively close subdivision pattern characteristic of Special Rural zones and the focus on environmental and landscape character, locating a telecommunications base station in the Planning Precinct No. 2 ‑ Serpentine Lakes and on land identified as suitable for future Special Rural is considered contrary to orderly and proper planning.
There is no coordinated strategic approach to the planning and development of telecommunications base stations as provided for under the Shire's Telecommunications Infrastructure Planning Policy or State Planning Policy 5.2 Telecommunications Infrastructure.
Without such a strategic context, and given the conflict with the Local Rural Strategy objectives, approval of the proposal represents an ad‑hoc approach to planning and development of telecommunication base stations within the Shire, which does not provide for maximum possible benefit to the identity and amenity and would therefore be contrary to orderly and proper planning.
By reference to the rural and agricultural objectives or references in both TPS 4 and the PRS (see TPS 4, cl 2.2(i), cl 2.3; PRS cl 12) the respondent, secondly, submitted as follows, (emphasis added):
The proposal is not considered agricultural and is considered more characteristic of a utility service than consistent with the rural landscape.
It is therefore difficult to determine, pursuant to clause 5.2.3 of TPS 4, that the proposed use is one which is consistent with the objectives and purposes of the rural zone and therefore a permissible use.
On amenity aspects, the respondent, thirdly, submitted that (emphasis added):
The area is currently rural in character and the proposal has a substantial vertical element [that is, its height] which extends well beyond existing development in the area or the height of surrounding vegetation.
[The subject land] is located adjacent to the only entrance to a Special Rural estate and is largely devoid of any vegetation that would effectively screen the proposal from the street and abutting lots.
In addition there are perceived health impacts associated with electro magnetic energy emissions from the facility, and the operator is unable to guarantee that the facility will not cause negative health impacts.
The proposal therefore negatively impacts on amenity of the area due to its visual impact and the concerns the proposal will have amongst local residents over potential health impacts associated with electromagnetic energy which will be emitted from the facility.
Finally, the respondent submitted that regard should also be had to proposals to limit access to Stock Road 'once work is completed on the realignment of Lymon Road'.
These various matters are dealt with in reply by Mr Allerding's evidence given on behalf of Telstra, set out below.
In his evidence for the Shire, Mr Peake noted that land to the north and east of the subject land had been zoned for 'Special Rural' purposes; that land to the south had been similarly zoned but was 'not yet subdivided or developed for such purposes'; and that land to the south‑east was 'reserved for Regional Open Space and will form part of the future Peel Regional Park surrounding the Serpentine River'. He saw the subject land's future as 'Special Rural'.
Mr Peake, by reference to cl 5.2.3, cl 2.2(i), and cl 2.3 of TPS 4 (and an associated Zone Objectives Planning Policy), and by reference to State Planning Policy 2.5 ‑ Agriculture and Rural Land Use Planning, submitted that there were 'consistent themes' in the planning framework aimed at fostering or protecting agricultural use, natural resources and rural landscape settings. He therefore submitted that the applicant's proposal was not consistent with these aims and objectives.
Further, he submitted that the principle of 'orderly and proper planning' was not met because the planning aims for the 'Special Rural' zones would be undermined by this essentially unplanned for, visually prominent, non‑rural structure (if approved).

Finally, he submitted that the specific parts of the planning framework which dealt with telecommunication infrastructure expressly recognised amenity concerns and called for locations to be chosen which minimised adverse effects on the landscape, environment and neighbouring landholders. He, in effect, extended those matters to include perceptions of adverse health impacts. In summary, Mr Peake submitted that the applicant's proposal (if approved) would effectively ignore such goals or standards.

Applicant's case

Mr L Antulov, an acquisition specialist employed by Telstra, denied that the telecommunications infrastructure planning process had been 'ad hoc', pointing to a history of local government consultation (starting in 2004) in connection with planning for the Perth ‑ Bunbury Highway. His evidence was not challenged by the respondent and it may be accepted.
Mr B Savage of United Group Services was engaged by Telstra in connection with the acquisition of sites for Telstra's mobile network. He gave evidence of the orderly process of selecting potential sites and the consultation with relevantly affected landowners, including MRWA. His evidence was to the effect that the subject land was the most suitable option in all of the circumstances. This included consideration of the servicing of areas of proposed urban development. None of his evidence was challenged by the respondent and it may be accepted.
Mr B Lake is employed by Telstra as a radio external plant design expert. He gave evidence to the Tribunal, the effect of which was to explain why a 50 metre (plus a 6 metre extension on top) self‑supporting lattice steel tower was the best technical option in all of the circumstances. Again, none of his evidence was challenged by the respondent and it may be accepted.
Mr C Lewis is employed by Telstra as a design specialist. He gave comprehensive, expert evidence in connection with the site, the type of tower needed, the expected coverage, the necessary height of the tower (given its coverage and surrounding land forms) and its likely radiation (electromagnetic) exposure. Importantly, none of his evidence was challenged by the respondent, and it may be accepted. His evidence includes detailed estimations of radio energy exposure, including those related to nearby residential sites. He told the Tribunal that:
The outcome for the antennas at 54 [sic] [metres high] was that the worst case radio energy at ground level was 0.19% of the ARPANSA [the Australian Radiation Protection and Nuclear Safety Agency] Maximum Permitted Public Exposure Limit, 251[metres] from the site. That is, the highest exposure level is one five hundredth of the exposure level permitted for the general public (24 hour continuous exposure). This level is set by ARPANSA, with a safety margin, below a level for which there have been no reported biological effects of radio frequency energy in the band used by mobile phones.
Mr Lewis' evidence is also important because it marries the height of the proposed tower with the required coverage to various sites, particularly to the east and west of the subject land, comparing a 38 metre high antenna on a monopole versus a 54 metre tower.
Mr Allerding, an experienced town planner, gave expert evidence for Telstra. His evidence was, in effect, based upon the advice or assumptions of the other Telstra witnesses set out above. After reviewing all of the facts and circumstances and the planning framework identified above, Mr Allerding concluded that the relevant 'community need' for the facility had been established. Further, he submitted that the proposed location was in a preferred area, namely a non‑conservation rural area.
Given the evidence and the respondent's case in rebuttal on these points (such as it was), I agree with Mr Allerding's observations.
On the question of the impact of the proposal on visual amenity, Mr Allerding's views were as follows:
Both [the local policy and SPP 5.2] refer to the siting of the tower such that it should minimise any potential adverse visual impact on the character and amenity of the local environment. [SPP 5.2] further notes [that] it ought to minimise impacts on prominent landscape features, general views in the locality and individual significant views.
In considering the impact on visual amenity, consideration has been given to the character and landscape of the general area and in particular the existence or otherwise of views of significance in the locality. Consideration has also been given to the separation of the facility from prominent areas and proximity to dwellings.
The area is rural in nature comprising a range of larger parkland and/or substantially cleared rural lots used for grazing and farming purposes. Other areas comprise smaller rural residential lots which also comprise a mixture of parkland or substantially cleared lots. In both areas remnant vegetation can be found.
The topography of the area to the east of the Perth ‑ Bunbury Highway is devoid of any substantially [sic] undulation and consequently is relatively flat. Therefore the degree of visual appearance of the tower is dependant on the proximity of a particular vantage point and the location of vegetation.
The visual effect of the tower will be most apparent from Stock Road where the tower will be located. However this is not contemplated as being an undue or adverse impact because such infrastructure is not unusual along such roads which already contain other infrastructure including Western Power electrical distribution cables and the like. Further, the existence of remnant vegetation along this section of road further masks the visibility of the tower from some vantage points. As part of the development of the Perth ‑ Bunbury Highway, Stock Road, north of Lymon Road, as it abuts the subject land, will be disconnected and discontinue as a road. Therefore, the western interface to the immediate west will subsequently be the Perth - Bunbury Highway.
On the related question of the visual impact on residents and occupiers of habitable dwellings, Mr Allerding's opinion was based upon an inspection and a photomontage prepared by Telstra that 'the tower does not significantly impact on any views of general or specific significance'. He did acknowledge, however, that screening might be needed to ameliorate any visual impact as regards the nearest affected dwelling, Lot 23, Evergreen Loop. (The scope of the photomontage is explained at T:8.)
As has been mentioned above, expressions of opinion on the visual impact of such a facility ‑ at least as to its height ‑ must be proffered in the knowledge that a facility which is otherwise capable of approval (because of matters such as its satisfactory location relevant to other non‑preferred locations, and because of proved relevant need) must necessarily have a degree of functionality that is not inimical to the facility's required technical operation. Thus, without sufficient height the facility will not perform its function. This principle is expressly recognised in the planning framework. These matters will, as I suggested in Optus at [59], 'influence any discussion of the impact on visual amenity'. This is so, in my view, in respect of both rural and non‑rural settings. In this case, the technical evidence as to the height of the facility and, for that matter, its lattice structure, have not been, as has been mentioned, relevantly challenged by the respondent.
On the other matters raised by the respondent, Mr Allerding noted that there had been coordinated planning as regards transport, communications and energy infrastructure; that there was a demonstrated need for telecommunications services in relation to the Perth ‑ Bunbury Highway; and that such a facility would also assist rural communities 'by providing access to telecommunications services'.

In respect of the four specific matters raised by the applicant's statement of issues, facts and contentions, in summary Mr Allerding submitted:
(1)that there had been strategic planning related to the development of the Perth - Bunbury Highway;
(2)that telecommunications infrastructure was not inconsistent with the objectives of a rural zone and in fact 'assist[ed] rural communities';
(3)that the impact on amenity expectations must take into account a planning framework which anticipated the potential for such infrastructure to be erected; and
(4)that access was provided for by the owner of the subject land and that potential road closures or restrictions were irrelevant to the central issues in the review.
Mr P Ward, who appeared for Telstra, produced a detailed rebuttal of the objectors' evidence, as follows:
(a)[T]he respondent says that 14 submissions were received from local residents. In fact the … documents indicate that only 9 submissions were received in opposition to the development, plus one telephone complaint regarding the adequacy of advertising. Of the 9 objections, one was from the former owner of Lot 201, which has since been acquired by [MRWA], and the current owner [of the subject land] has not raised any objection.
(b)Of the 8 remaining objectors, 6 included reference to perceived health impacts, presumably linked to electro-magnetic emissions (EME), 7 referred to visual impact, 5 referred to perceived devaluation of their properties and 2 raised environmental concerns. Two unique objections were raised:
(i)One objector asserted that the proposed development was not consistent with the rural nature of the locality.
(ii)One objector raised alternative sites.
(c)Of the objections going to visual impact, all were concerned with the development originally being [in 2007] at the entrance point to the subdivision, being the intersection of Lymon and Stock Roads. The respondent's statement of facts also suggests … that the proposed development is at the entrance point to the subdivision. In fact, it is apparent from road works presently under construction on Lot 201 that MRWA is realigning Lymon Road to move the entrance point further South. Accordingly, the site of the proposed development will be, in effect, further removed from the intersection than was proposed in the August 2008 [modified proposal from Telstra], which was supported by Council officers in a recommendation to the Council and which was supported by 6 of 9 Councillors present and voting in September 2008.
(d)The respondent understands that the section of Stock Road North of Lymon Road is to be terminated. Accordingly, there will be no traffic passing the proposed development.
On the respondent's arguments concerning the future rezoning from 'Rural' to 'Special Rural', Mr Ward submitted that:
There is no evidence of any present proposal for rezoning and it would be inconsistent with the current operation of a nursery business on Lot 202 [the subject land]. In any event, the owner of Lot 202, who has agreed to the proposed development, is the party whose rezoning prospects would be affected.
Mr Ward also submits that the objectives, as interpreted and advanced by Mr Peake, are in fact only concerned 'with preserving agricultural land for agricultural uses' and Telstra's proposal is not inconsistent with this objective.
On amenity issues, Mr Ward submitted that:
There is a demonstrable gap in mobile telephone coverage in this district, which can only be filled adequately by a tower of the height proposed. The new tower will service not only the residents of Lakelands, but also commuters on the Perth - Bunbury Highway and residents of the existing and future residential subdivisions to the West of the Highway.
This need and benefit has to be weighed against the visual impact and the concerns raised as to health impacts. In that balancing exercise, the weight to be given to objectors' concerns regarding perceived health impacts must be assessed in light of the evidence as to the level of EME that the development will emit. Although the objectors no doubt genuinely have concerns, the evidence is clear that the level of emissions from the proposed development is only a fraction of a percentage of the relevant standard.
Accordingly, the concerns do not outweigh the benefit of approving the development.
Finally, Mr Ward makes these points concerning visual amenity:
(a)The principal concern of objectors was as to the development being at the entrance point to the subdivision as originally proposed. This concern has been resolved by moving the site 280 [metres] North along Stock Road and any such effect on visual amenity has been further mitigated by the realignment of Lymon Road and the termination of passing traffic on Stock Road.
(b)The style of tower - a slim open lattice - has been selected to minimise visual bulk. It will have less visual impact than the alternative of a solid monopole.
(c)The nearest affected neighbour is approximately 400 [metres] away.
(d)The development will be screened at the base and will sit in the foreground of a view to a ridgeline and the Perth ‑ Bunbury Highway embankment. It will therefore be partly obscured.
(e)Any relevant outlook toward the tower will also be an outlook to the Highway, with its attendant street lighting, traffic, on‑ and off‑ramps, etc. The visual amenity in that direction has already been affected substantially by the Highway. The net additional effect of the proposal is limited in that context.

Discussion of the case

In my view, the opinions of Mr Allerding should be accepted. The submissions of Mr Ward, based upon that and other evidence, should also be accepted.
It is clear that on the relevant (and largely unchallenged) Telstra evidence, the applicant has engaged to the best extent that it could in an orderly process of planning for, or the coordination of, telecommunication facilities to service the Perth ‑ Bunbury Highway and the surrounding urban or rural communities (present and foreshadowed). The need for such services has been established. The proposal thus 'meet[s] the [communication] needs of the community' under SPP 5.2.
Further, SPP 5.2 says, at cl 2.1 (emphasis added):
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 …
The regard that this Tribunal must have to State planning policies under s 241(1) of the Planning and Development Act 2005 (WA) has recently been reinforced by the Supreme Court of this State in Re Application for a Writ of Certiorari against the State Administrative Tribunal; Ex Parte Solomon [2009] WASC 116.
Telstra have selected a suitable rural site, with the owner's consent, which on the unchallenged evidence meets reasonable service requirements and minimises to the greatest extent practicable the impact upon the neighbours of the subject land. The equipment proposed, although prominent in height, is necessary to the task so established. Cf Telstra Corp Ltd v Pine Rivers Shire Council [2001] QPELR 350 (Telstra) where Newton DCJ said, at [48], (emphasis added):
There is no doubt that the proposed [mobile phone] tower will be able to be seen from many points within the neighbouring locality. However, visibility is not the test and no-one has a right to preservation of a particular view, although interference with a view may have an effect on amenity … In particular, there is no requirement for facilities such as those proposed to be located so that they cannot be seen. Indeed, the nature and operational requirements will ordinarily require them to be elevated structures visible to heights which exceed that of the existing vegetation. It must be remembered that the proposal is not something which is prohibited by the planning scheme. The facilities are a permissible form of development in the zone …
Importantly, SPP 5.2 expressly foreshadows such mobile telephone infrastructure in rural zones, as here. (There are, in any event, no current proposals to rezone the subject land to, say, 'Special Rural'.)
Thus, the planning framework's various objectives of protecting rural lifestyle, rural amenity, agricultural land and the like (however expressed), must also take into account SPP 5.2 which recognises, amongst other things, the importance of 'an effective state‑wide telecommunications network in a manner consistent with the State's economic, environmental and social planning objectives' (SPP 5.2, cl 21.1). Even if the tower is classified as a 'utility', then such a state of affairs is not, when seen in context, incompatible with a rural zone.
All of these matters also outweigh the concerns expressed by some parties as to the proposal's visual impact which, in any event, in my view is ameliorated by the distances involved to the nearest habitable dwellings; the proposed screening (see further below); the lack of traffic on Stock Road; and the proposed realignment further south of the entrance to the 'Special Rural' subdivision. Further, such infrastructure will mostly appear against the backdrop of the Perth ‑ Bunbury Highway (and a ridge line to the west), and could not, in any event, be said nowadays to be an unfamiliar presence in rural areas.
A broadly similar conclusion was reached in Telstra where Newton DCJ said, at [49], (emphasis added):
I have already referred to the provisions of … the Local Planning Policy in relation to visual amenity. It will be noted that the paragraph speaks of 'limiting' visual impact and ensuring that such impacts are 'minimised'. Having regard to the evidence … that the proposal is acceptable from a town planning perspective in relation to visual amenity, and accepting that the Appellant has undertaken to design the proposed tower to minimise visual impact in terms of its shape, height and colour, I am satisfied that any adverse impact on the visual amenity of the surrounding area is not such as to warrant refusal of the proposal. The visibility of the tower to nearby residents must be balanced against those policy provisions of the planning scheme which permit the provision of this form of infrastructure. It must also be balanced against the general community benefit to be derived from the development of a comprehensive telecommunication network. In this context I am satisfied that the visual impact of the proposal is not unacceptable.
On the question of radiation exposure, SPP 5.2 says this, at cl 2.3 (original emphasis):
[The use] of mobile phones has raised public interest in possible health issues associated with exposure to electromagnetic emissions. All carriers are required to comply with the Australian Communications Authority's Radiocommunications (Electromagnetic Radiation - Human Exposure) Standard (2003). This incorporates substantial safety margins to address concerns for potentially sensitive groups in the community such as children, pregnant women, the infirm and aged.
Research undertaken by [ARPANSA] has reported that environment radiofrequency levels near base stations for the digital mobile phone network are extremely low. The ARPANSA study reported that the highest daily average level was well below one per cent of the Australian Communications Authority's public exposure limits and concluded that 'given the very low levels recorded and the relatively low power of these types of transmitters, it is unlikely that the radiofrequency radiation from base stations would cause any adverse health effects, based on current medical research'.
See also, Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10 at [184]; Telstra Corp Ltd v Pine Rivers Shire Council [2001] QPELR 350.

The respondent relies upon some objectors' perceptions of potential health problems and submits that Telstra 'is unable to guarantee that the facility will not cause negative health impacts'. Perceptions, without more, are an unsuitable basis for elevating amenity concerns to the point where a proposal, which is otherwise justified and compliant, should be refused planning approval. As the former Victorian Tribunal said in Gugliotti v City of Preston (1988) 1 AATR 97:
It has long been held by various divisions of this Tribunal that the mere perception of loss of amenity by objectors is insufficient reason to deny a [planning] permit. There must be a real and genuine prospect that the apprehensions expressed in objections are more likely than not to eventuate. (Cited and followed in Blumberg v Port Phillip CC [2005] VCAT 1398 at [21].)
See also, Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10 at [189] ‑ [198]; Telstra Corp Ltd v Pine Rivers Shire Council [2001] QPELR 350.
Further, it is disingenuous to demand a guarantee of no adverse health impact when all the currently available expert material in this field suggests that the issue simply does not arise on the basis of present knowledge and research.
In my opinion, the provisions of TPS 4 (so far as they are, or can be made, applicable) should be invoked to determine that Telstra's approval is a use not listed but that it is a use which is nevertheless consistent with the objectives and purposes of the 'Rural' zone and it should therefore be approved upon certain conditions.

Conditions to be imposed

As mentioned above, a further short supplementary hearing was necessary on the question of conditions, if approval were to be given to the proposed development.
The substance of Telstra's obligations, and the corresponding draft conditions were largely agreed upon in principle as between the parties, but with some minor areas of disagreement. I should mention that although agreement was reached on the colour of the base sheds (see below, condition 5), the consensus is that galvanised grey would best minimise the visual impact of the tower; weathering turning the structure a soft grey over time. Therefore, no condition appears in relation to the structure's colour.
These remaining differences boiled down to whether maximum sums of expenditure for vegetation screening should be expressly indicated in the conditions, and as to the extent of Telstra's obligations for ongoing maintenance of that vegetation. The number of plants or trees and their type (native vegetation) were more or less agreed upon.
In my view, it is unnecessary to specify maximum expenditure when indicative numbers of plants or trees (and their type) have been fixed. Given that we are dealing with native vegetation, ongoing maintenance (that is, after the plants and trees are established) should be limited where possible. There is a case for ongoing maintenance beyond establishment in the Lymon Road reserve, but that should be limited to two years. Cf LWP Property Group Pty Ltd and City of Swan [2006] WASAT 308, at [2]: 'two years after completion of the landscape area is a reasonable rule of thumb'.
Having carefully considered the alternatives, I determine that the following obligations (to be expressed as conditions of approval) are reasonable in terms of maintaining or enhancing the amenity of the area:
1.Telstra shall submit to the Shire a landscape plan for approval showing native vegetation sufficient to screen the base of the facility. The plan shall indicate approximately 30 plants or trees suitable for the purposes of screening. Telstra shall plant landscaping in accordance with the approved plan prior to the facility first becoming operational, and thereafter maintain the same until at least the point where they become established.
2.Telstra shall offer to the owners of Lot 22 and Lot 23, and if agreed to by those owners, plant screening vegetation on their land along the boundary with Lot 202, being up to approximately 10 native trees of up to approximately 2 metres in height for Lot 22 and up to approximately 20 native trees of up to approximately 2 metres in height for Lot 23, or an equivalent as agreed with the landowners.
3.Telstra shall submit to the Shire a landscape plan for approval showing suitable screening vegetation in the Lymon Road reserve being up to approximately 50 native trees of up to approximately 2 metres in height or equivalent as agreed with the Shire. Telstra shall plant landscaping in accordance with the approved plan prior to the facility first becoming operational and thereafter maintain the vegetation in a healthy condition for two years.
4.Telstra shall use a common access point as approved by the Shire.
5.Telstra shall construct its base equipment sheds in standard Colorbond pale green colour.

Orders

For the reasons given above, the application for review will be allowed and conditional approval will be given to Telstra's proposed development. I make the following Orders:
1.The application for review is allowed.
2.The decision under review is set aside and in lieu thereof there will be a grant of planning approval for the construction and erection of a mobile phone tower and associated works, in accordance with Telstra Corporation Limited's proposal as at September 2008, subject to the following conditions:
(i)Telstra shall submit to the Shire a landscape plan for approval showing native vegetation sufficient to screen the base of the facility. The plan shall indicate approximately 30 plants or trees suitable for the purposes of screening. Telstra shall plant landscaping in accordance with the approved plan prior to the facility first becoming operational, and thereafter maintain the same until at least the point where they become established.
(ii)Telstra shall offer to the owners of Lot 22 and Lot 23, and if agreed to by those owners, plant screening vegetation on their land along the boundary with Lot 202, being up to approximately 10 native trees of up to approximately 2 metres in height for Lot 22 and up to approximately 20 native trees of up to approximately 2 metres in height for Lot 23, or an equivalent as agreed with the landowners.
(iii)Telstra shall submit to the Shire a landscape plan for approval showing suitable screening vegetation in the Lymon Road reserve, being up to approximately 50 native trees of up to approximately 2 metres in height or equivalent as agreed with the respondent. Telstra shall plant landscaping in accordance with the approved plan prior to the facility first becoming operational and thereafter maintain the vegetation in a healthy condition for two years.
(iv)Telstra shall use a common access point as approved by the Shire.
(v)Telstra shall construct its base equipment sheds in standard Colorbond pale green colour.
3.There is liberty to apply reserved for 14 days.

I certify that this and the preceding [74] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER