| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : TELSTRA CORPORATION LIMITED and TOWN OF COTTESLOE [2014] WASAT 28 MEMBER : MR P DE VILLIERS (SENIOR SESSIONAL MEMBER) HEARD : 21 FEBRUARY 2014 DELIVERED : 12 MARCH 2014 FILE NO/S : DR 274 of 2013 BETWEEN : TELSTRA CORPORATION LIMITED Applicant
AND
TOWN OF COTTESLOE
Respondent
Catchwords: Town planning Development application Refusal Proposed mobile phone towers Application of State Planning Policy 5.2 Telecommunications Infrastructure Meeting communities' needs for telecommunications Potential alternative sites Minimising loss of amenity Visual impact Impacts on places of heritage significance Weight to be given to heritage significance Legislation: Environmental Protection (Noise) Regulations 1997 (WA), reg 13
Metropolitan Region Scheme
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 29(3), s 31
Telecommunications (Low-impact Facilities) Determination 1997 (Cth)
Telecommunications Act 1997 (Cth)
Town of Cottesloe Town Planning Scheme No 2, cl 2.2, cl 2.3, cl 5.1.1, cl 6.1.2 Result: Application for review allowed
Planning approval granted subject to agreed conditions
Summary of Tribunal's decision: In May 2013 the Town of Cottesloe received an application on behalf of Telstra Corporation Limited for the erection of six panel antennas on two mounting poles on the existing Telephone Exchange building located at No 1 (Lot 4) Congdon Street, Cottesloe.
The application was refused by the respondent at its ordinary meeting of Council in June 2014 and an application for review was subsequently lodged by the applicant with the Tribunal.
Essentially the background and planning framework in this matter was agreed between the parties and it was accepted that the Statement of Planning Policy 5.2 Telecommunications Infrastructure should be given primacy in the planning framework.
In terms of the need for the proposed facility, the Tribunal accepted that the removal of the current Telstra facility on the Sundowner Hostel site would put a strain on the existing Telstra wireless network and its infrastructure, and that while the facility located at the Grove Shopping Centre could adequately service the southern portion of the area currently served by the Sundowner Hostel facility, an additional facility was required to service the northern portion of this area.
In terms of the more general impacts on the locality, the Tribunal found that while there would be a perceptible effect on visual amenity, in the context of the number of trees in the locality, some of which are higher than the proposed masts, the impacts of the proposed development were not substantive.
In regard to the more specific impacts on Congdon Street, the Tribunal found that both the limited views through the trees from the footpath in front of Nos 7 and 9, and the partial view and potential views from the rear gardens of Nos 5, 7 and 9, were again in the context of existing trees in the locality, not unacceptable. In addition, while the masts would clearly be visible from the rear of No 11, this would be from a distance of approximately 95 metres and could not be regarded as dominating the visual outlook from that premises.
In regard to the more substantive impacts at and adjacent to No 3 Congdon Street, the Tribunal found that these will clearly involve a reduction in visual amenity to the residents of No 3 during the time they spend in the front garden and to pedestrians using that section of the footpath immediately outside this residence.
However, the Tribunal accepts that in providing two masts of reduced height rather than a single mast of greater height and taken in the context of the nature of the impacts identified above, the current proposal complies with the general principles of the applicable policy.
In regard to the specific impact on cultural heritage significance, the criterion is to 'minimise adverse impacts on … places of heritage significance'. Given that the applicant has on the evidence before the Tribunal sought to minimise the impacts of the development, and that limited weight can be given to the cultural heritage significance of a group of residences which the respondent, in spite of recommendations to do so, has chosen to take no action to formally protect, suggests the relevant test has been met.
For these reasons, and in the context of all the evidence before it in this matter, the application for review was allowed and planning approval granted subject to agreed conditions.
Category: B
Representation: Counsel:
Applicant : Mr L Magistro
Respondent : Mr J Skinner
Solicitors:
Applicant : Ashurst Australia
Respondent : Jackson McDonald
Case(s) referred to in decision(s):
Filton Pty Ltd and Town of Vincent [2006] WASAT 70
Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238
Telstra Corporation Limited and City of Wanneroo [2011] WASAT 77
REASONS FOR DECISION OF THE TRIBUNAL:
Background 1 On 3 May 2013 the Town of Cottesloe (respondent, Town or Council) received an application from Planning Solutions (Australia) Pty Ltd, on behalf of Telstra Corporation Limited (Telstra), for the erection of six panel antennas on two mounting poles on the existing Telephone Exchange building located at No 1 (Lot 4) Congdon Street, Cottesloe (subject site). 2 This proposal arose in response to a request from the registered proprietor of the Sundowner Hostel aged care facility in Airlie Street, Claremont for Telstra to remove its existing telecommunications infrastructure from that building as a result of the closure of the Hostel. As the removal of these facilities will impact on the mobile telephone coverage Telstra is able to provide in the immediate and surrounding area, Telstra is seeking to provide an appropriate alternative location for the infrastructure in the area both to maintain its current services and to provide for rapidly growing demands for wireless internet and data services in the area. 3 The application was referred to Main Roads Western Australia (MRWA) and was advertised. In response to advertising, the respondent received 10 submissions, all objecting to the proposal, which raised issues in regard to visual amenity, location in a residential area, health concerns, alternative sites, property values, structural integrity, compliance with the relevant industry code and concerns over the proposed height of the two masts. 4 At its ordinary meeting of Council on 24 June 2013, the respondent refused the application for the following reasons: 1) The proposal would have a significant detrimental visual impact on the appearance of the Telephone Exchange building, which is listed in the Town's Municipal Inventory, and on the surrounding heritage listed and nonheritage listed buildings and the streetscapes in the locality. 2) The proposal does not adequately satisfy the 'Guiding Principles' of the Guidelines for the Location, Siting and Design of Telecommunications Infrastructure which complement the Statement of Planning Policy No 5.2 Telecommunications Infrastructure (SPP 5.2 or Policy). 3) The proposal does not satisfy the requirements of the Town of Cottesloe Town Planning Scheme No 2 (TPS 2 or Scheme) in respect to general building heights and appearances of buildings. 4) The proposal would add to visual clutter of infrastructure in the locality to the detriment of the character and amenity of the area. 5) Significant objections have been lodged by surrounding property owners and residents concerning the visual, amenity, streetscape, heritage and health impacts that the proposal would have on the character and wellbeing of the locality and its inhabitants. 6) That Council invites the applicant and other telephone carriers to discuss options for local coverage with Council staff and report back to Council if needed. 5 An application for review was subsequently lodged by the applicant with the Tribunal. Following mediation the respondent was invited to reconsider its decision pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The only amendment to the revised proposal was the removal of the chimneylike shrouds initially proposed around the antennas. 6 In response, the Council at its ordinary meeting of 25 November 2013 resolved to affirm its decision of 24 June 2013 to refuse the application, with or without the two faux brick chimneys.
Site and locality 7 The land the subject of this review is No 1 (Lot 4) Congdon Street, Cottesloe. 8 The site comprises 885m2 in area and contains a Telephone Exchange built in 1930 in the Interwar functionalist architectural style which occupies most of the site. The property is identified in the Municipal Inventory. 9 The land is situated close to a local topographical highpoint which occurs in the block to the southwest on the other side of Stirling Highway. 10 While the locality is predominantly residential in use, the building to the immediate south across Clive Road facing Stirling Highway is an Automasters facility (formerly the Seaview Garage) and to the northeast across Congdon Street, also facing Stirling Highway, is the State heritage listed former Claremont Fire Station constructed in 1914 and now used for office accommodation. 11 The established residential properties to the north of the subject site on Congdon Street, between Clive Road and Grant Street, comprise seven original contiguous dwellings which are all identified on the Municipal Inventory. These lots also have rear access from Pennefeather Lane on their western boundaries. Congdon Street has a generous median strip containing mature trees at the southern end. 12 Clive Road falls away as you travel west from Stirling Highway and the two residential dwellings in Clive Road to the south of Pennefeather Lane, which face a vacant block on the southern side of the street, are also identified in the Municipal Inventory.
The proposal 13 The application involves the establishment of the following telecommunications infrastructure at the existing Telephone Exchange building: • The installation of six (6) panel antennas on two (2) mounting poles mounted on the rear section of the southern face of the existing roof of the Telephone Exchange building approximately 28 metres and 33 metres from the Congdon Street frontage. • The tops of the mounting poles are approximately 7.5 metres above the ridge line of the building and approximately 16 metres above natural ground level in Clive Road. • These mounting poles are 5 metres apart and the antenna panels are each 2,494 millimetres high and 353 millimetres by 209 millimetres. One panel on each pole is mounted at approximately 11.5 metres above natural ground level and two panels at approximately 14.5 metres above natural ground level. • Ancillary cabling and equipment is proposed to be contained within an equipment room accommodated within the roof space of the existing building. • The original proposal included two faux brick shrouds around the antennas designed to resemble chimneys, but this component of the proposal has subsequently been deleted.
Planning framework 14 The subject site is predominantly reserved as 'Primary Regional Road' under the Metropolitan Region Scheme (MRS), with a small section in the northwestern corner reserved under TPS 2 for 'Public Purposes Commonwealth Government'. 15 Clause 2.2 of TPS 2 requires thata person shall not carry out any development on land reserved under the Scheme, other than the erection of a boundary fence, without first applying for and obtaining the written approval of the Council. 16 In giving its approval, under cl 2.3 of TPS 2, the Council is required to have regard to the ultimate purpose intended for the reserve, and shall, in the case of land reserved for the purpose of a Public Authority, confer with that Authority before giving its approval. 17 The general policy for building heights is established in cl 5.1.1 of TPS 2 and 'favours low rise development of no more than 2 storeys to maintain privacy, views and general amenity notwithstanding that Council may consider the circumstances and merits of each case in terms of the amenity and development control provisions of this Scheme'. 18 Clause 6.1.2 of TPS 2 provides that: If the Council resolves that any place of natural beauty or any historic building or object of historical or scientific interest should be protected by the conservation and preservation provisions of this Part the Council may initiate an amendment to the Scheme to add the place, building or object to Schedule 1. 19 Under the relevant provisions of the Telecommunications (Lowimpact Facilities) Determination 1997 (Cth) the proposed development has been determined not to fall within the parameters for 'low-impact' and therefore requires an application and an approval under the relevant planning legislation. 20 The Western Australian Planning Commission (WAPC or Commission) has adopted SPP 5.2. 21 The objectives of this Policy include to: • facilitate the provision of telecommunications infrastructure in an efficient, cost-effective and environmentally responsible manner to meet community needs; • facilitate the development of an effective statewide telecommunications network in a manner consistent with the economic, environmental and social objectives of planning in Western Australia as set out in the Town Planning and Development Act 1928 and the State PlanningStrategy; … • minimise disturbance to the environment and loss of amenity in the provision of telecommunications infrastructure[.] 22 The policy provisions under section 5 of SPP 5.2, set out under clause 5.1 'Guiding Principles for the Location, Siting and Design of Telecommunications Infrastructure', include the following: … • Telecommunications facilities should be located and designed to meet the communication needs of the community. • Telecommunications facilities should be designed and sited to minimise any potential adverse visual impact on the character and amenity of the local environment, in particular, impacts on prominent landscape features, general views in the locality and individual significant views. • Telecommunications facilities should be designed and sited to minimise adverse impacts on areas of natural conservation value and places of heritage significance or where declared rare flora are located. … • Telecommunications facilities should be designed and sited to minimise adverse impacts on the visual character and amenity of residential areas. … • Unless it is impractical to do so telecommunications towers should be located within commercial, business, industrial and rural areas and areas outside identified conservation areas. … • 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. … • 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. 23 Clause 5.2 of SPP 5.2 establishes matters to be considered when determining planning applications fortelecommunications infrastructure andrequires that local government should consider and have regard to a number of factors which include: • need to ensure continuity of supply of telecommunications services to people and businesses in the local area or region; • effect of the proposal on any place of cultural heritage significance on or near the land; … • extent to which the proposal enhances or maintains visual amenity including streetscape and minimises adverse visual impacts[.] 24 Clause 5.4 of SPP 5.2 provides that the WAPC may prepare more detailed guidelines on application preparation and assessment procedures for telecommunication infrastructure and the Commission, in March 2004, adopted Guidelines for the Location, Siting and Design of Telecommunications Infrastructure (Guidelines). 25 While the Guidelines are intended to apply at the strategic planning stage, including town planning scheme review, amendment or structure planning and in the assessment of planning applications involving telecommunications facilities, they are advisory only. 26 The Guidelines reiterate the guiding principles set out in section 5 of SPP 5.2 and provide at clause 5.1 the following in regard to the location of telecommunications facilities: … Where there are existing structures such as water towers or base stations, additional facilities can often be accommodated without significantly contributing to the visual impact of the structure. This includes co-location with an existing telecommunications facility and integration with any other structure. 27 The Guidelines also provide a range of techniques for minimising adverse impacts which include adjustments to the height, colour matching, screening and disguising the facility as another structure.
The issues 28 The respondent identified the following issues in the matter under review: 1. Whether the Revised Development has an adverse effect on or detracts from places of cultural heritage significance in the immediate locality of the Property. 2. Whether the Revised Development has an adverse effect on or detracts from the visual amenity of the locality. 3. Whether the Revised Development has an adverse effect on or detracts from streetscape[s] from Congdon Street, Grant Street, Stirling Highway and other adjacent streets. 4. Whether the Revised Development sufficiently adheres to the Guiding Principles for the Location, Siting and Design of Telecommunications Infrastructure set out in section 5.1 of SPP5.2 and the Guidelines. (Respondent's Statement of Issues, Facts and Contentions). 29 In response, the applicant argued the issues identified by the respondent were 'merely elements of broader issues to be determined by the Tribunal …' (Responsive Statement of Issues, Facts and Contentions) and, at paragraph 24, put forward the following issues: (a) Is the proposed development consistent with SPP5.2? (b) Is the proposed development consistent with TPS2? (c) Is the Respondent's consideration regarding the design of the proposed facility and the conclusion that the proposed facility will have a '… detrimental visual impact … on the surrounding heritage-listed and non-heritage listed buildings and the streetscape in the locality' a determinative factor and so adverse, when weighed against the public benefit of improved telecommunications, as to warrant refusal of the development application?
The viewing 30 A viewing was conducted with the parties on 21 February 2014. This involved consideration of the locality of the proposed development and included a view from Stirling Highway, both to the south and east of the subject site, from Clive Road, Pennefeather Lane, the Grant Street Park, and a more detailed consideration of Congdon Street. In regard to the latter, access was provided both to the rear pool room and upstairs rear balcony of No 11 Congdon Street and to the front and rear garden areas of No 3 Congdon Street.
The heritage evidence 31 The heritage experts, Mr I Hocking called by the respondent and Ms L Gray by the applicant, agreed that the 'metal mounting poles on the roof of the subject telephone exchange building are an historical extension to the original use of the telephone exchange building' (paragraph 8, Joint Statement of Expert Witnesses), but that they would 'have some impact on the original fabric of the telephone exchange building and some impact on its heritage value' (paragraph 9, Joint Statement of Expert Witnesses). 32 In addition, they agreed that 'No's 315 Congdon Street have been identified as a potential Heritage Area, and are worthy of that listing as a group of Federation residences' (paragraph 11, Joint Statement of Expert Witnesses), although they conceded at paragraph 12 that 'despite recommendations regarding the Heritage Area listing … the Town of Cottesloe has not yet been able to implement that action'. 33 However, their opinions differed in regard to the impact of the application the subject of this review on the Congdon Street streetscape and places of cultural heritage significance in the immediate locality of the property. 34 Ms Gray, drawing on the State Heritage Office's Criteria for the Assessment of Local Heritage Places and Areas submits that 'cultural heritage significance is specific to each place as listed, unless a heritage area is designated' and 'is not impacted by an element [upon another building]' (paragraph 16, Joint Statement of Expert Witnesses). 35 Mr Hocking, drawing on Article 8 of the Burra Charter and SPP 5.2, argues that the Burra Charter 'requires the retention of an appropriate visual setting and other relationships that contribute to the cultural significance of the place' (paragraph 13, Joint Statement of Expert Witnesses), and that SPP 5.2 requires that 'the impact on the character and amenity of the local environment, places of heritage significance and visual character and amenity of residential areas should be addressed (paragraph 14, Joint Statement of Expert Witnesses). 36 Ms Gray concluded that '[a]lthough the antennae will have a visible impact upon the Telephone Exchange on which it is located and the residential area in proximity, in addition to vistas from Stirling Highway, it is the degree of that impact that in my opinion will not contribute to any loss of heritage value of identified heritage places' (paragraph 17, Joint Statement of Expert Witnesses). 37 However, Mr Hocking argues that 'SPP 5.2 clearly states that the impact … and amenity of the local environment, places of heritage significance and visual character and amenity of residential area should be addressed. The Applicant has failed to demonstrate a compatible balance between the utility of the proposed telecommunications antennas and the amenity of this area of high heritage value' (paragraph 14, Joint Statement of Expert Witnesses).
The planning evidence 38 Mr M Casselton, the expert planning witness called by the respondent, argued that: … the visual and amenity impacts on Congdon Street, a highly intact streetscape of significant value containing heritage buildings are so significant that they outweigh the telecommunications need on this particular occasion, particularly having regard to the general height limitation of two storeys for development in the Respondent's district as set out under TPS2 and the nature of the existing streetscape which has limited vertical elements currently breaking roof lines.
(Paragraph 8, Joint Witness Statement of the Planning Experts) 39 More particularly, in regard to the Congdon Street streetscape, Mr Casselton submitted: Whilst mature vegetation exists along some parts of Congdon Street and on some individual private properties, there are significant gaps where the proposed development would be able to be clearly viewed as an intrusive incompatible visual element from both the street and private properties. (Paragraph 12, Joint Witness Statement of the Planning Experts) 40 In dealing with the potential impacts on Clive Road it was Mr Casselton's evidence that: … there will be adverse visual and amenity impacts on the Clive Road streetscape due to the proximity of the development compared to Congdon Street but [he] believes that the impact is mitigated to some degree by the relative narrowness of the street, the screening effect of the telephone exchange building, the vacant site to the south of Clive Road, the setting back of the character dwellings on the northern side of the street and the contemporary character of the two storey dwellings at the western end of the street. (Paragraph 9, Joint Witness Statement of the Planning Experts) 41 Mr Allerding, the expert planning witness called by the applicant, noted that: … advice from Telstra that there is a genuine telecommunications need for this facility with the removal of existing facilities at the Sundowner site which does not appear to be in dispute with the Respondent. (Paragraph 16, Joint Witness Statement of the Planning Experts) Mr Allerding also submitted, at paragraph 20, that: The planning framework under SPP 5.2 and the associated guidelines [do] not require that antennas be invisible. However it recognises the need to ensure that antennas are designed to minimise visual impacts in the context of their metropolitan setting[.] 42 In that regard Mr Allerding believes that: … Telstra has achieved that through the co-location of the antennas within the Telstra exchange building such that the cabling and other infrastructure at the base of the antenna is screened from view leaving only the narrow monopoles visible above the roofline of the exchange building. The use of monopoles is recognised as an acceptable and preferred design treatment in a metropolitan setting under the SPP guidelines.
(Paragraph 20, Joint Witness Statement of the Planning Experts) 43 However, Mr Casselton submitted: Whilst the proposed development would be located on an existing single storey telephone exchange building, the proposed development does not meet the colocation intent of the applicable policy framework as this relates to colocating with other telecommunications providers on similar infrastructure.
(Paragraph 13, Joint Witness Statement of the Planning Experts) Mr Casselton also argued that '[t]he availability of alternative sites is a relevant consideration', and that '… the telecommunications need for the area could be adequately met in an alternative location(s), including those identified by the Applicant, that do not compromise [the] intact character streetscapes [of] Congdon Street. (Paragraphs 23 and 24, Joint Witness Statement of the Planning Experts)
Weighing the evidence 44 Essentially, the background and planning framework in this matter was agreed between the parties and it was accepted that SPP 5.2 'Telecommunications Infrastructure' should be given primacy in the planning framework. 45 An assessment of the proposal therefore needs to be read in the context of the following objectives of the Policy: 46 The initial step in such an assessment is to establish the need. While counsel for the respondent, in closing, challenged the need for the proposed facility, noting that the services of other carriers would not be affected and Telstra customers could improve access with personal antennas, no expert evidence was provided by the respondent to challenge the evidence of Mr M Wittek, the radio frequency design specialist called by the applicant. 47 In spite of the issues raised by the respondent in regard to Mr Wittek's evidence, in broad terms, the Tribunal accepts his evidence in regard to the technical need for the facility; that is, the Tribunal accepts that the removal of the current Telstra facility on the Sundowner Hostel site will put a strain on the existing Telstra wireless network and its infrastructure, and that while the facility located at the Grove Shopping Centre could adequately service the southern portion of the area currently served by the Sundowner Hostel facility, an additional facility was required to service the northern portion of this area. 48 In addition, in response to questions from the Tribunal, Mr Wittek gave evidence that: • there was a technical requirement for six antennae in the proposed facility to cater for current and projected demand in the area; • the six antennas could be mounted on a single mast. However, such an option, while it would improve the technical operation of the facility, would involve a substantial increase in the height of the mast; and • it would not be possible to mount two antennas on three lower masts due a technical requirement establishing a minimum height for the lowest antennas. 49 This evidence was not challenged by the respondent. 50 In order to meet the need to service the northern section of the area currently served by the Sundowner Hostel, it is logical to locate the facility at or near a topographical high point. In this instance, the highest point in the locality is to the southeast of the subject site in the residential area on the other side of Stirling Highway. Given the predominance of residential uses on both sides of Stirling Highway, and in seeking to minimise adverse impacts on the visual character and amenity of residential areas, it is logical to locate the facility on a commercial building on Stirling Highway. 51 Of those commercial buildings available, given that the listed former Claremont Fire Station site is not appropriate on heritage grounds, the other options appear to be the currently proposed Telephone Exchange building or the Automasters building on the southern side of Clive Road. The additional locations of the Department of Fire & Emergency Services facility in Congdon Street and the dental clinic south of Eric Street, where landowner approval was not forthcoming, would in any event require increased height to fulfil the technical requirements of Telstra. In this context, the Automasters site appears to be the logical alternative site and evidence was provided that this option had been investigated in some depth. 52 However, as counsel for the respondent acknowledged 'neither party has an ''onus'' to either establish the existence of, or exclude the possibility of, potential alternative sites' (paragraph 4, Respondent's Outline of Submissions). 53 In Telstra Corporation Limited and City of Wanneroo [2011] WASAT 77, the Tribunal dealt with the issue of alternative sites at [72], and found: 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 … which are determinative of this matter. 54 Thus, the task of the Tribunal in the current matter is to determine whether or not to affirm the refusal of the application for the proposed facility on the subject site, or to set aside the refusal and grant planning approval: s 29(3) of the SAT Act. 55 The likely impact of the currently proposed facility was subject to a reasonably rigorous assessment at the viewing. The more general impacts can be briefly summarised as follows: 56 More specifically, and what was identified as the substantive issue in this review by the respondent, was the impact on Congdon Street, which can be summarised as follows: • Along the western pavement in the vicinity of Nos 7 and 9 when a view between the trees opens up, the masts will be seen by pedestrians on the footpath. • The masts will be visible from the rear upstairs verandah of No 11 and one of the masts will be visible from the pool room in the rear garden of No 11. • There may be glimpses of the masts from the rear gardens of No 3 (northwestern corner only) and No 5, and possibly somewhat more open views from No 7. • Pedestrians on the pavement in front of No 3 will have an uninterrupted view of the two masts. • The masts will be clearly visible from the majority of the front setback of No 3. 57 The planning experts agreed that the impacts from Stirling Highway were acceptable, and Mr Casselton, expert planning witness called by the respondent, accepted that the impact on Clive Road would be mitigated to some degree by the relative narrowness of the street, the screening effect of the Telephone Exchange building, the setting back of the character dwellings on the northern side of the street and the contemporary character of the two storey dwelling at the western end of the street. 58 The restricted area of the Grant Street Park affected appears to fulfil the role of an area of landscape relief to the residences facing onto it, rather than an area of active recreational use, and from this position the limited view is more than 160 metres from the proposed masts. 59 In this context, the Tribunal is of the view that while there would be a perceptible effect on visual amenity, the general impacts, particularly in the context of a number of trees higher than the proposed masts, are not substantive. 60 In regard to the more specific impacts on Congdon Street, the Tribunal believes that both the limited views through the trees from the footpath in front of Nos 7 and 9, and the partial view and potential views from the rear gardens of Nos 5, 7 and 9, again in the context of existing trees in the locality, are not unacceptable. In addition, while the masts will clearly be visible from the rear of No 11, this will be from a distance of approximately 95 metres and could not be regarded as dominating the visual outlook from that premises. 61 The more substantive impacts are those seen from the footpath in front of No 3 and from the front garden of No 3. The masts will be seen from a distance of approximately 25 to 35 metres, although the shrubs along the southern boundary of the front garden will provide some limited screening to the southern section of the front garden of these premises. These impacts will clearly involve a reduction in visual amenity to the residents of No 3 during the time they spend in the front garden and to pedestrians using that section of the footpath immediately outside this residence. 62 The Tribunal accepts, however, that in providing two masts of reduced height rather than a single mast of greater height, and taken in the context of the nature of the impacts identified above, the current proposal complies with the principles of SPP 5.2 'to minimise any potential adverse visual impact on the character and amenity of the local environment' and 'to minimise adverse impacts on the visual character and amenity of residential areas'. 63 This leaves the questions of the 'effect of the proposal on any place of cultural heritage significance on or near the land' and the need to 'minimise adverse impacts on … places of heritage significance …'. 64 In general terms, the Tribunal accepts the evidence of the heritage experts that 'No's 315 Congdon Street have been identified as a potential Heritage Area, and are worthy of that listing as a group of Federation residences' (paragraph 11, Joint Statement of the Expert Witnesses). In doing so, it needs to be recognised that the extent of vegetation both within those lots and in the public domain currently undermines the ability to read the group as a whole. 65 However, a recommendation to provide protection to these residences as part of the Claremont Hill Precinct heritage area was put to the Council in 1995 and again in 2001. While the Tribunal accepts that TPS 2 does not make provision for 'heritage areas', it would have been open to the Council to either amend the Scheme to include such a provision or, failing that, to at least provide protection under the Scheme to the individual residences utilising the provisions of cl 6.1.2 of TPS 2. 66 In Filton Pty Ltd and Town of Vincent [2006] WASAT 70, the Tribunal found at [29]: The effect of the site not being designated in the Heritage List is simply that provisions of the Scheme which serve to protect listed items have no application. It is not that the cultural heritage significance of the site and the effect of the development on that significance is an irrelevant consideration in the overall exercise of planning discretion. 67 However, given that the respondent has over an extended period of time taken no action to recognise or protect the residences in Condgon Street under powers available to it suggests that to argue that in the current matter the impact on the heritage values of adjoining residences should be determinative of the outcome is questionable. It would remain questionable even in the context of substantive demonstrated impacts on such places, which is clearly not the case in the current matter. 68 The test is to 'minimise adverse impacts on … places of heritage significance'. Given that the applicant has on the evidence before the Tribunal sought to minimise the impacts of the development, and that limited weight can be given to the cultural heritage significance of a group of residences which the respondent, in spite of recommendations to do so, has chosen to take no action to formally protect, suggests the relevant test has been met. 69 In arguing this matter, the respondent made reference to Optus Mobile Pty Ltd and City of Stirling [2008] WASAT 238 (Optus). In doing so, it was conceded that Optus was distinguishable from the matter currently under review. In the Tribunal's view, the fact that in that matter, at [3], '[t]he tower would be, however, located in a Heritage Protection Area under the City's town planning scheme', substantially differentiates the weight to be given to any assessment of impacts on places of heritage significance. 70 The respondent also raised the issue of co-location. SPP 5.2 suggests '[c]o-location of telecommunications facilities should generally be sought'. While the respondent conceded that on a narrow technical interpretation colocation was proposed, this did not include colocation with other telecommunication service suppliers. Given the 'co-location' proposed and the aspirational rather than mandatory requirement of the Policy, the Tribunal does not believe this issue should carry substantive weight in the current review. 71 A final issue in this matter goes to conditions. In response to the respondent's 'Draft Without Prejudice Conditions of Approval', the applicant objected to condition 2, which read as follows: The external profile of the development as shown on the approved plans, not being changed, whether by the addition of any service plant, fitting, fixture or otherwise, except with the written consent of Council. 72 The objection was raised on the basis that such a condition could potentially fetter rights established under the Telecommunications Act 1997 (Cth), which authorises certain maintenance and low impact activities without planning consent. The respondent accepted the logic of this argument. 73 In doing so, however, concerns were raised in regard to the introductory provisions of the Telecommunications (Low-impact Facilities) Determination 1997 (Cth) which seemed to suggest a 5 metre extension to an existing tower may be regarded as a lowimpact facility not requiring planning consent. The detailed provisions set out in the schedule to this legislation, however, appear to be far more restrictive in terms of the potential height of lowimpact facilities.
Conclusion 74 The provision of telecommunication infrastructure has generated considerable debate and concern in many communities. It is problematic in the sense that while most people would accept that such facilities are an essential and beneficial element in the life of communities and the economy, they would also defensibly seek to protect the visual character and amenity of local areas within which they live from what they see as the potentially adverse impact of such facilities. 75 SPP 5.2 provides the framework for the assessment and determination of applications seeking planning approval for telecommunications facilities. 76 Determinations under SPP 5.2 require an assessment of the need for the proposed facility against the potential impacts on the locality in which it is proposed. 77 In the current case, the need for the proposed facility has been adequately demonstrated, and while there are clearly impacts on the locality in which it is to be located, those impacts are not so critical that refusal of planning approval would be warranted. 78 In this context and having considered all the evidence before it in this matter, the review is allowed and planning approval granted, subject to agreed conditions.
Orders The Tribunal makes the following order. The application for the erection of six Telstra panel antennas on two mounting poles and associated infrastructure at the existing Telephone Exchange building at No 1 (Lot 4) Congdon Street, Cottesloe (as indicated on plans W101389 S1, S3, S3-1, S3-2 and S3-3 amended 9/10/13) be approved subject to the following conditions: 1. All construction work being carried out in accordance with the Environmental Protection (Noise) Regulations 1997 (WA), Regulation 13 Construction sites. 2. At Building Permit stage, at the applicant's cost, a fully detailed and annotated photographic record of the Telephone Exchange building, internally and externally, shall be prepared and submitted to the Town of Cottesloe, to the satisfaction of the Manager Development Services. 3. At Building Permit stage, details of the proposed colour of the mounting poles and antennas, selected to cause the least visual and heritage impact, shall be submitted to the Town of Cottesloe for approval, to the satisfaction of the Manager Development Services. (Respondent's 'Draft Without Prejudice Conditions of Approval', dated 11 February 2014, minus condition 2). |