Total Communications Infrastructure Pty Ltd and City Of South Perth

[2006] WASAT 272

TOTAL COMMUNICATIONS INFRASTRUCTURE PTY LTD and CITY OF SOUTH PERTH [2006] WASAT 272

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 272
Act:	PLANNING AND DEVELOPMENT ACT 2005 (WA)
Case No:	DR:167/2006	Heard:	MEDIATIONS HELD ON 1 AUGUST 2006 AND 11 AUGUST 2006
Coram:	MS M CONNOR (MEMBER)	Delivered:	16/08/06
No of pages:	12	Judgment Part:	1 of 1
Result:	The application for review is allowed Planning approval is granted subject to one condition
Category:	B
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Parties:	TOTAL COMMUNICATIONS INFRASTRUCTURE PTY LTD CITY OF SOUTH PERTH
Catchwords:	Town planning ­ Development ­ Installation of telecommunication infrastructure facility ­ Revised proposal not "so great" as to constitute a new development ­ No planning issues in dispute ­ Whether revised proposal is a low­impact facility within the meaning of the Telecommunications (Low­impact) Facilities Determination 1997 ­ Subject land contained within an area listed on the Department of Indigenous Affairs Register of Aboriginal Sites ­ Whether the revised proposal is a mobile telephone tower within the meaning of the City of South Perth Town Planning Scheme No 6 ­ Impact on amenity ­ Orderly and proper planning
Legislation:	Aboriginal Heritage Act 1972 (WA) City of South Perth Town Planning Scheme No 6, cl 1.6, cl 1.6(a), cl 1.6(e), cl 1.6(f), cl 1.6(g), cl 1.6(h), cl 1.6(k), cl 3.3, cl 3.3(5), cl 6.15, cl 6.15(a), cl 6.15(c), cl 7.5, cl 7.5(a), cl 7.5(b), cl 7.5(c), cl 7.5(f), cl 7.5(h), cl 7.5(i), cl 7.5(j), cl 7.5(o), cl 7.5(r), cl 7.5(w), cl 7.8, Sch 1 Metropolitan Region Scheme Planning and Development Act 2005 (WA), s 252(1) State Administrative Tribunal Act 2004, (WA) cl 54(10) Telecommunications Act 1997 (Cth) Telecommunications (Low-impact Facilities) Determination 1997 (Cth), Pt 3, Schedule, cl 2.5, cl 3.1, cl 3.1(2)
Case References:	Prime Holdings Pty Ltd and Ors v City of Cockburn TPAT Appeal No 22 of 1994 Nil
Orders	1. The application for review is allowed.,2. Planning approval is granted for the installation of a telecommunications facility on Lot 5 (No 6) Melville Parade, South Perth as detailed on Drawing Nos. 88004A-G3 Rev B, 88004A G1 Rev A, 88004A-G2 Rev B, subject to the following condition:,a) The panel antennas, the shroud, the mounting pole and all other items that form part of the Revised Proposal are to be either:,(i) colour matched to the colour of the building on which the Revised Proposal is to be located; or,(ii) painted in a colour agreed in writing between the applicant and the respondent.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : TOTAL COMMUNICATIONS INFRASTRUCTURE PTY LTD and CITY OF SOUTH PERTH [2006] WASAT 272 MEMBER : MS M CONNOR (MEMBER) HEARD : MEDIATIONS HELD ON 1 AUGUST 2006 AND 11 AUGUST 2006 DELIVERED : 16 AUGUST 2006 FILE NO/S : DR 167 of 2006 BETWEEN : TOTAL COMMUNICATIONS INFRASTRUCTURE PTY LTD

Applicant

AND

CITY OF SOUTH PERTH
Respondent

Catchwords:

Town planning ­ Development ­ Installation of telecommunication infrastructure facility ­ Revised proposal not "so great" as to constitute a new development ­ No planning issues in dispute ­ Whether revised proposal is a low­impact facility within the meaning of the Telecommunications (Low­impact) Facilities Determination 1997 ­ Subject land contained within an area listed on the Department of Indigenous Affairs Register of Aboriginal Sites ­ Whether the revised proposal is a mobile telephone tower within the meaning of the City of

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South Perth Town Planning Scheme No 6 ­ Impact on amenity ­ Orderly and proper planning

Legislation:

Aboriginal Heritage Act 1972 (WA)

City of South Perth Town Planning Scheme No 6, cl 1.6, cl 1.6(a), cl 1.6(e), cl 1.6(f), cl 1.6(g), cl 1.6(h), cl 1.6(k), cl 3.3, cl 3.3(5), cl 6.15, cl 6.15(a), cl 6.15(c), cl 7.5, cl 7.5(a), cl 7.5(b), cl 7.5(c), cl 7.5(f), cl 7.5(h), cl 7.5(i), cl 7.5(j), cl 7.5(o), cl 7.5(r), cl 7.5(w), cl 7.8, Sch 1
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 252(1)
State Administrative Tribunal Act 2004, (WA) cl 54(10)
Telecommunications Act 1997 (Cth)
Telecommunications (Low-impact Facilities) Determination 1997 (Cth), Pt 3, Schedule, cl 2.5, cl 3.1, cl 3.1(2)

Result:

The application for review is allowed

Planning approval is granted subject to one condition

Category: B

Representation:

Counsel:

Applicant : Mr M Gregory
Respondent : Mr S McLaughlin (Acting as Agent)

Solicitors:

Applicant : Minter Ellison
Respondent : City of South Perth

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

Prime Holdings Pty Ltd and Ors v City of Cockburn TPAT Appeal No 22 of 1994
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</CRJ>

Case(s) also cited:

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Edited transcript of reasons given ex tempore

1 Planning Solutions on behalf of Total Communications Infrastructure Pty Ltd (applicant) made application to the City of South Perth (respondent) for the installation of a telecommunications infrastructure facility on Lot 5 (No 6) Melville Parade, South Perth (subject land). The purpose of the installation was to facilitate the operational effectiveness of Vodafone's mobile telephone network within the locality.

2 The proposal comprised the installation of three new panel antennas attached to a pole, mounted on the rooftop of the existing two storey building on the subject land. The plans indicate the height of the facility as approximately 12.5 metres above natural ground level. The application also included two outdoor unit equipment shelters located on the ground level behind the main building. According to the applicant the site selection process was influenced by the ability to consolidate telecommunications facilities at a site where existing telecommunication facilities are located.

3 The development application was refused by the respondent at its ordinary meeting on 26 April 2006. In refusing the application, the respondent gave the following reasons:

"(a) the proposal does not comply with cl 6.15(a) of the City of South Perth Town Planning Scheme No 6;

(b) the proposal does not comply with the objectives listed within cl 1.6 of the City of South Perth Town Planning Scheme No 6;

(c) the proposal conflicts with matters listed in cl 7.5 of the City of South Perth Town Planning Scheme No 6; and

(d) the proposal does not comply with the provisions of Council Policy P394 - Telecommunications Infrastructure. "

4 The applicant, on 24 May 2006, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed.

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5 The applicant submitted a revised proposal with the respondent by letter dated 7 July 2006. The revised proposal formed the basis of submissions at the mediation held on 1 August 2006.

6 The revised proposal is essentially the same as the original application submitted to the respondent, except for a reduction in the height of the facility. The length of the pole, between the top of the building and the lowermost part of the antennas is 3 metres. The plans indicate the height of the facility as approximately 10.0 metres above natural ground level. The other components of the application are essentially the same.

7 The parties did not consider the revised proposal to be a significant change or substantially different from that which was originally submitted to the respondent. The Tribunal is of the view that the revised proposal is not "so great" as to constitute a new development and as such has jurisdiction to consider it as part of this review (see Prime Holdings Pty Ltd and Ors v City of Cockburn TPAT Appeal No 22 of 1994).

8 The parties filed a joint statement of issues with the Tribunal for discussion at the mediation held on 1 August 2006. Submissions were made by the parties at the mediation and it was clearly evident that there were no planning issues in dispute in respect to the revised proposal. The parties considered the option of the member taking part in the mediation determining the application based on the parties' submissions. At the mediation held on 11 August 2006 the parties, pursuant to cl 54(10) of the State AdministrativeTribunal Act 2004 (WA) (SAT Act) consented to the member determining the matter on the following materials:

(i) submissions made by the parties at the mediation held on 1 August 2006;

(ii) list of issues – identified by the respondent in letter dated 31 July 2006;

(iii) Parties Agreed Statement of Issues, and Joint Submissions, for the mediation – filed with the Tribunal on 11 August 2006;

(iv) the revised proposal as shown on Drawing Nos. 88004A-G3 Rev B; 88004A-G1 Rev A; 88004-G2 Rev B and photographs;

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(v) the original development application submitted to the respondent on 1 January 2006;

(vi) Telecommunication (Low-impact Facilities) Determination 1997 (Cth) (the Determination);

(vii) City of South Perth Town Planning Scheme No 6 (TPS 6 or Scheme);

(viii) State Planning Policy No 5.2 – Telecommunications Infrastructure (SPP 5.2);

(ix) City of South Perth Planning Policy P394 – Telecommunications Infrastructure (Council Policy P394);

(x) an aerial photograph of the immediate locality;

(xi) Department of Indigenous Affairs Aboriginal Heritage Inquiry System for Site 3705; and

(xii) joint statement of proposed draft conditions.

Site context

9 The subject land is more particularly described as Lot 5 on Plan 2875, being the whole of the land contained in Certificate of Title Volume 1230, Folio 553.

10 The subject land is adjoined by a pedestrian access way to the west which separates the land from the Kwinana Freeway. The subject land is bounded by residential zoned land to the south, Melville Parade to the east and a public open space reserve to the north. The surrounding area is predominantly residential in nature, with the foreshore area developed as public open space for passive recreation. The "Old Mill" is located approximately 70 metres north of the subject land.

11 There is an existing two storey residential building located on the subject land, upon which an existing Telstra panel antenna is located in the north-western corner of the rooftop of this building. The existing antenna is of a lower height than that proposed under the revised proposal.

12 The subject land is contained within an area listed on the Department of Indigenous Affairs Register of Aboriginal Sites, being Site 3705 - Foreshore Camping Ground. The area identified as Site 3705 includes the

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foreshore area along the Swan River, as well as the Kwinana Freeway and residential to the east.

Planning framework

13 The subject land is zoned "Urban" in the Metropolitan Region Scheme and "Residential" with a permitted site density of R60/80 under TPS 6.

14 The relevant provisions of the Scheme that are required to be considered in this determination in this matter include;

• cl 1.6 Scheme Objectives, more particularly subclauses (a), (e), (f), (g), (h), and (k);

• cl 3.3 Land Use Control within Zones;

• cl 6.15 Telecommunications Infrastructure; and

• cl 7.5 Matters to be Considered by the Council, more particularly subclauses (a), (b), (c), (f), (h), (i), (j), (o), (r), and (w).

Other relevant legislation

15 In order to determine whether the proposed telecommunications infrastructure is a "low-impact facility" it is necessary to turn to the Telecommunications (Low-impact Facilities) Determination 1997 (Cth) (as amended).

16 As the subject land is incorporated within an area designated on the Department of Indigenous Affairs Register of Aboriginal Sites, consent of the Minister for Indigenous Affairs is required for works within the Aboriginal site. Any planning consent of the proposed facility under the planning legislation would not obviate the obligations of the applicant to obtain the necessary approvals under the Aboriginal Heritage Act 1972 (WA).

Planning issues

17 As a part of the mediation process, a list of issues was prepared by the respondent for discussion at the mediation. The identified issues were as follows:

"1. Whether the revised proposal delivered to the City by the applicant by letter dated 7 July 2006 is a low-impact

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facility within the meaning of the Telecommunications (Low-impact Facilities) Determination 1997;

2. Whether the revised proposal is a mobile telephone tower within the meaning of cl 6.15 of the City's Town Planning Scheme No 6;

3. If the answer to 1 is no, and the answer to 2 is yes:


(a) may the revised proposal be considered under cl 7.8 of the Scheme - discretion to permit variations from Scheme provisions; and

(b) is the revised proposal otherwise consistent with the objectives of the Scheme as listed at cl 1.6 of the Scheme considered in light of the matters set out in cl 7.5 of the Scheme."

18 The Tribunal will address each issue in turn.

Whether the revised proposal delivered to the City by the applicant by letter dated 7 July 2006 is a low-impact facility within the meaning of the Telecommunications (Low-impact Facilities) Determination 1997?

19 The relevant provision relating to the determination of low-impact facilities is contained in Part 3 and the Schedule of the Determination. The applicant submitted that the revised proposal falls within Item 3 as described in Column 2 of the Schedule, being:

"Panel, yagi or other like antenna;

(a) not more than 2.8 metres long; and

(b) if the antenna is attached to a structure - protruding from the structure not more than 3 metres; and

(c) either;


(i) colour-matched to its background; or

(ii) in a colour agreed in writing between the carrier and the relevant local authority."

20 The respondent agreed with the categorisation of the proposed facility. The Tribunal also agrees.

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21 Further, cl 3.1 of the Determination states that a facility described in Column 2 of the Schedule is a low-impact facility only if it is installed or to be installed in an area mentioned in Column 3 of the Item. The areas identified in Column 3 where such structures may be constructed include residential, commercial, industrial and rural. The area where the proposed structure is to be installed is within a residential area.

22 However, cl 3.1(2) of the Determination states that a facility is not a low-impact facility if the area, as mentioned in Column 3 of the Item, is also an area of environmental significance. As the subject land is situated within "an area of environmental significance", as defined in cl 2.5 of the Determination, that being Site 3705, the proposed facility cannot be determined as a low-impact facility.

23 The parties submitted that if it were not for the fact that the subject land was located within an area of environmental significance, neither the physical, construction or siting of the revised proposal would be a matter for consideration under the City's usual planning approval process.

24 For the reasons set out above, the Tribunal considers that the revised proposal cannot be considered as a low-impact facility within the meaning of the Determination, and as such the proposed development requires planning approval under the relevant planning legislation before development is commenced.

Whether the revised proposal is a "mobile telephone tower" within the meaning of cl 6.15 of the TPS 6?

25 The parties submitted that the revised proposal is not a "mobile telephone tower" within the meaning of cl 6.15(a) of the Scheme, but the installation of antennas on the roof top of the existing building, which the parties submit falls within the definition of "telecommunications infrastructure" as contained in Schedule 1 of the Scheme.

26 The phrase "mobile telephone tower" is not defined in the Scheme, however, according to the respondent, the intention of the clause was to cover monopole structures which, due to their height and construction, may have become a dominant feature in the landscape and have the potential to detrimentally impact on residential amenity. For the purpose of this application, the Tribunal accepts the submissions made by the parties and therefore, does not consider the revised proposal to be a "mobile telephone tower". Given this position, cl 6.15(a) of the Scheme is not relevant and the answer to Issue 2 is No.

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27 However, cl 6.15(c) of the Scheme is applicable. This clause requires that telecommunications infrastructure which is not a low-impact facility for the purpose of the Telecommunications Act 1997 (Cth) is to be installed on or within other existing telecommunications infrastructure that is currently used, or intended to be used, for the connection to a telecommunications network unless the Council is satisfied that such an installation would result in inadequate radio frequency coverage having regard to the carrier's existing network.

28 The applicant contended that the Narrows Bridge presents coverage issues for all telecommunication carriers, due to the high traffic volumes and the surrounding large bodies of water, which can have a detrimental effect on signal transmission. The applicant submitted that it is not possible to locate the proposed facility "on or within" the existing Telstra structure on the same building, as that facility is of lower height and attaching the panel antennas to the existing facility would result in inadequate radio frequency coverage. The respondent did not offer any evidence to the contrary.

29 Although the revised proposal does not result in the proposed facility being located "on or within" the existing telecommunication facility, the Tribunal is satisfied that the co-location objective of cl 6.15(c) is met by the installation of the proposed facility on a site which currently accommodates telecommunication infrastructure.

If the answer to 1 is no, and the answer to 2 is yes:

(a) may the revised proposal be considered under cl 7.8 of the Scheme - discretion to permit variations from Scheme provisions; and


(b) is the revised proposal otherwise consistent with the objectives of the Scheme as listed at cl 1.6 of the Scheme considered in light of the matters set out in cl 7.5 of the Scheme?

30 In relation to (a), the respondent submitted that as the answer to Issue 2 is no, then cl 7.8 of the Scheme was not relevant to this particular matter. The Tribunal concurs with this view.

31 In respect to part (b) of Issue 3, the parties submitted that the revised proposal was consistent with the matters set out in cl 7.5 of the Scheme and with the general objectives of the Scheme.

32 In support of their stance, the parties submitted the following:

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"(a) while the Revised Proposal is not technically a 'low-impact facility', in substance, and in its affect on amenity, it may be treated as if it were a 'low-impact facility';

(b) in the residential locality, near the Freeway and in a heavily developed residential area, the revised proposal does not adversely affect the residential amenity;

(c) there is already a mobile telephone facility (a Telstra facility) on this same building that the facility to be constructed under the revised proposal is to be located;

(d) the Revised Proposal will have no adverse impact on heritage values (such as the nearby Old Mill) given the small scale of the revised proposal."

33 The Tribunal in determining this application is required under cl 3.3(5) of TPS 6 to have regard to the Scheme objectives listed in cl 1.6 and to any objectives for the precinct as stated within the relevant Precinct Plan and to such relevant matters referred to in cl 7.5. The Tribunal notes that there is no relevant Precinct Plan for this area.

34 One of the matters listed in cl 7.5 is "any relevant submissions received on the application…". It is the Tribunal's understanding that community consultation was undertaken on the original application and 22 submissions objecting to the proposal were received by the respondent. Further consultation has not been undertaken on the revised proposal. The Tribunal does not consider this to be an impediment to determining the revised proposal as the impacts of the revised proposal are less than those of the original application. and as such, the issues would remain the same.

35 The reduction of the height of the proposed facility significantly reduces the visual impact of the proposal on the amenity of the locality, and were it not for the fact that that the subject land is contained within an area listed Department of Indigenous Affairs Register of Aboriginal Sites, the physical characteristics and siting of the facility would have satisfied the criteria for "low-impact facility" classification under the Determination. The proposed facility has been designed and sited so as to minimise any adverse impacts on the amenity of the surrounding area, which accords with the guiding principles set out in SPP No 2.5 and with Council Policy P394. On the evidence and submissions of the parties, the Tribunal is satisfied that the revised proposal meets the relevant general

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objectives of the Scheme, is consistent with orderly and proper planning and will not adversely impact on the amenity of the locality.

36 For the above reasons, the following orders are made:

1. The application for review is allowed.

2. Planning approval is granted for the installation of a telecommunications facility on Lot 5 (No 6) Melville Parade, South Perth as detailed on Drawing Nos. 88004A-G3 Rev B, 88004A G1 Rev A, 88004A-G2 Rev B, subject to the following condition:


a) The panel antennas, the shroud, the mounting pole and all other items that form part of the Revised Proposal are to be either:

(i) colour matched to the colour of the building on which the Revised Proposal is to be located; or

(ii) painted in a colour agreed in writing between the applicant and the respondent.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS M CONNOR, MEMBER