Vodafone Hutchinson Australia Pty Ltd and City of Cockburn - [2018] WASAT 4

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: VODAFONE HUTCHINSON AUSTRALIA PTY LTD and CITY OF COCKBURN [2018] WASAT 4

MEMBER: MR J JORDAN (MEMBER)

HEARD: 24 OCTOBER 2017

DELIVERED : 19 JANUARY 2018

FILE NO/S: DR 225 of 2017

BETWEEN: VODAFONE HUTCHINSON AUSTRALIA PTY LTD
Applicant
AND
CITY OF COCKBURN
Respondent

Catchwords:

Town planning Development application Proposed telecommunications infrastructure Monopole and panel antennas Rural residential type development in locality Height, colour and materials of proposed development Application of State planning policy for telecommunications facilities Aims of local planning scheme Local character Impact on visual amenity of locality and of the residents Views of the infrastructure from different vantage points above vegetation Improved telecommunication coverage Balance visual impact with community benefit Conditions

Legislation:

City of Cockburn Local Planning Scheme No. 3, cl 1.6.1, cl, 3.2.1(1), cl 3.4.2, cl 3.4.2(a)(ii)
Metropolitan Region Scheme
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 67, cl 67(c)
Planning and Development Act 2005 (WA), s 241(1)(a), s 252(1)
Telecommunications Act 1997 (Cth)

Result:

Application for review allowed
Decision of respondent set aside and a decision substituted

Summary of Tribunal's decision:

Proposed was the erection of a 35 metre high monopole with three panel antennas up to 36.8 metres high at the rear of a 2 hectare lot behind the house and sheds in a locality used for rural residential purposes at Banjup. The City of Cockburn refused the application because it considered the development would not satisfy the aims of its local planning scheme. The City considered the adverse visual impact on the locality and on the residents would outweigh any community benefit from improvements in service from the proposed telecommunications infrastructure.
The Tribunal considered the character of the area as expressed in topography, vegetation and improvements. The impact of the facility on the visual amenity of the locality was weighed against the State planning policy objectives of providing telecommunications facilities. The Tribunal concluded that overall the community benefits derived from the proposed facility was balanced with any consequential impact there might be on the visual amenity of the locality and found that planning approval was warranted subject to the imposition of appropriate conditions. Consequently, the application for review was allowed and conditional planning approval granted.

Category: B

Representation:

Counsel:

Applicant: Mr J Gajic (Acting as Agent)
Respondent: Mr A Lefort (Acting as Agent)

Solicitors:

Applicant: Aurecon Australasia Pty Ltd
Respondent: City Of Cockburn

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter was as an application pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) by Aurecon Australasia Pty Ltd on behalf of its client, Vodafone Hutchinson Australia Pty Ltd (applicant) for review of the refusal by the City of Cockburn (respondent) to grant planning approval for the development of telecommunications infrastructure at 25 Harper Road, Banjup (the site).

Site and the locality

The site has an area of 2.0748 hectares with frontage to Harper Road at the southern end. The northern, rear boundary abuts a Water Corporation easement about 10 metres wide that contains an above ground water main and remnant vegetation. Towards the front of the site is an existing house, behind which are various sheds. The applicant would lease an area of 12.5 metres by 8.4 metres 15 metres from the rear boundary of the site within which to erect the monopole.
Approximately 300 metres to the west of the site is Tapper Road, which runs northsouth. West of Tapper Road is the fully developed suburban area of Atwell. East of Tapper Road is an area of lots of about 2 hectares, including the site, with most lots containing a dwelling and used for rural residential purposes.
The Tribunal visited the site and also was shown views toward the site from neighbouring streets, the Water Corporation easement and a dwelling to the north-east, accompanied by representatives of the parties and the witnesses prior to the commencement of the final hearing.

The proposal

The applicant called as a witness Mr Vivek Bhujbal, an engineer it employs as a radio frequency planner. Mr Bhujbal's evidence set out how telecommunications infrastructure, particularly base stations, are deployed to provide adequate coverage, capacity and quality in both transmitting and receiving voice and data on mobile devices such as mobile telephones (including 'smart phones') and tablets for a given locality.
Mr Bhujbal explained how the service deteriorated with the greater the distance from the base stations, with the demand made on the signal by customers and because of topography and structures interrupting the signal.
The applicant's base stations nearest the site are at Cockburn Central and at Auburn Grove. It was found by testing and complaints that there is a gap in the applicant's network at Atwell and Banjup with what it considers to be inadequate coverage, capacity and quality of service. Mr Bhujbal's evidence included illustration of how there was found to be some outdoor coverage, but little or no service indoors, which is below the service the applicant said its clients expected and what it wanted to provide.
The applicant's experts chose the site from a number of potential locations for a new base station with potential to provide the required level of service. To achieve the required level of service the antennas on the monopole had to be at the proposed height to overcome vegetation and topography and to fill the service gap.
The respondent did not have independent technical knowledge to dispute Mr Bhujbal's evidence. The respondent accepted that the proposed facility would result in improved telecommunications coverage but, simply put, the respondent submitted that the negatives of the proposed development outweighed the benefits and the applicant should seek an alternative location for a base station to serve its customers.
The proposed telecommunications infrastructure was described as a 'base station facility'. It would comprise a 35 metre high monopole with a spoke headframe with three panel antennas to a height of 36.8 metres plus '15 remote radio units, six combiners and three break out boxes'. Electronic equipment would be installed in cabinets at the base of the monopole, power supply would be underground and vehicle access would be off Harper Road, predominantly along the fire break.
The applicant said the pole would be suitable for consideration of colocation of telecommunications infrastructure of others, but gave no other information on this point and there was no evidence indicating any other carrier had expressed an interest. There was a passing reference in the application to emergency services possibly making use of the monopole for communications equipment but, again, there was no evidence this was being considered by any agency.

Planning framework

There was no dispute that the applicant is in the business of providing mobile telecommunications services to consumers and so is a Carrier within the meaning of that term in the Telecommunications Act 1997 (Cth). The proposed development does not fall within those facilities listed under that Act as exempt from the requirement to obtain planning approval.
The subject land is zoned 'Rural Water Protection' in the Metropolitan Region Scheme. Under the City of Cockburn Local Planning Scheme No 3 (LPS 3) the site is zoned 'Resource'.
The proposed use is defined in LPS 3 as:
Telecommunications infrastructure: means land used to accommodate any part of the infrastructure of a telecommunications network and includes any line, equipment, apparatus, tower, antenna, tunnel, duct, hole, pit or other structure used, or for use in or in connection with, a telecommunications network.
The proposed use is not listed in the Zoning Table of LPS 3. Clause 3.4.2 states that if it is proposed to carry out any use that is not specifically mentioned in the:
(a)Zoning Table - Table 1 and cannot reasonably be determined as falling within the type, class or genus of activity of any other use category in the table the local government may
(i)determine that the use is consistent with the objectives of the particular zone and is therefore permitted;
(ii)determine that the use may be consistent with the objectives of the zone and thereafter follow the advertising procedures of clause 64(3) of the deemed provisions in considering an application for planning approval; or
(iii)determine that the use is not consistent with the objectives of the particular zone and is therefore not permitted.
The 'deemed provisions' referred to in cl 3.4.2(a)(ii) of LPS 3 are in Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Planning Regulations 2015). The application was processed consistent with cl 3.4.2 (a)(ii) which is consistent with an 'A' use under LPS 3, which means that the use is not permitted unless the local government has exercised its discretion and has granted planning approval after the required advertising.
Under cl 3.2.1(l) of LPS 3, the objective of the Resource zone is:
To provide for the protection of the Perth Metropolitan underground water resource in accordance with the requirements of Statement of Planning Policy No. 6 published by the Western Australian Planning Commission on 12 June 1998.
Statement of Planning Policy No 6 has been replaced by State Planning Policy 2.3 Jandakot Groundwater Protection January 2017 (SPP 2.3). There was no dispute that the proposed development would be consistent with the objectives of SPP 2.3.
At cl 1.6.1 the aims of LPS 3 are to:
(a)ensure that development and the use of land within the district complies with accepted standards and practices for public amenity and convenience;
(b)ensure that the future development and use of land within the district occurs in an orderly and proper way so that the quality of life enjoyed by its inhabitants is not jeopardised by poor planning, unacceptable development and the incompatible use of land.
Clause 67 of the Planning Regulations 2015 Sch 2 provides that in considering an application for development approval, the local government is to have due regard to a range of specified matters to the extent that, in the opinion of the local government, those matters are relevant to the development the subject of the application. The pertinent sub clauses relating to this application are as follows:
(a)the aims and provisions of this Scheme …;
(b)the requirements of orderly and proper planning … ;
(c)any approved State planning policy;
…
(m)the compatibility of the development with its setting including the relationship with the development to development on adjoining land or on other land in the locality including, not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;
(n)the amenity of the locality including the following
(i)environmental impacts of the development;
(ii)the character of the locality;
(iii) social impacts of the development;
…
(y)any submissions received on the application[.]
The term 'amenity' is defined in cl 1 of Sch 2 of the Planning Regulations 2015 as follows:
amenity means all those factors which combine to form the character of an area and include the present and likely future amenity[.]
Relevant to this matter is State Planning Policy 5.2 Telecommunications Infrastructure (September 2015) (SPP 5.2). Clause 3.6 of SPP 5.2 requires that regard be had to the policy when considering applications for telecommunications infrastructure. In addition to clauses referred to in the discussion below, SPP 5.2 also sets out objectives at cl 4, including:
a)facilitate the provision of telecommunications infrastructure in an efficient and environmentally responsible manner to meet community needs;
b)manage the environmental, cultural heritage, visual and social impacts of telecommunications infrastructure;
c)ensure that telecommunications infrastructure is included in relevant planning processes as essential infrastructure for business, personal and emergency reasons; and,
d)promote a consistent approach in the preparation, assessment and determination of planning decisions for telecommunications infrastructure.
Clause 5 of SPP 5.2 states:
5.1 Visual impacts
For telecommunications infrastructure to be effective, structures are generally located prominently, at high points in the landscape or on top of buildings, where they are more likely to be visible to the public.
The planning authority may exercise discretion in addressing the visual impacts of telecommunications infrastructure. Visual impacts of an infrastructure development proposal should be assessed by applying the following set of policy measures to guide the location, siting and design of the structure.
5.1.1 The benefit of improved telecommunications services should be balanced with the visual impact on the surrounding area.
i)Assessment of the visual impact of development proposals for telecommunications infrastructure should be made on a case by case basis;
ii)Telecommunications infrastructure should be sited and designed to minimise visual impact and whenever possible:
a)be located where it will not be prominently visible from significant viewing locations such as scenic routes, lookouts and recreation sites;
b)be located to avoid detracting from a significant view of a heritage item or place, a landmark, a streetscape, vista or a panorama, whether viewed from public or private land;
c)not be located on sites where environmental, cultural heritage, social and visual landscape values maybe compromised and
d)display design features, including scale, materials, external colours and finishes that are sympathetic to the surrounding landscape[.]

Issues

The respondent listed what it considered to be the issues and it can be seen that there is some overlap. Comments and findings in respect one issue will be relevant other issues. The issues were listed as:
1.Whether the proposed telecommunications infrastructure … is consistent with the aims of … LPS 3;
2.Whether the proposed telecommunications infrastructure is compatible with the surrounding area;
3.Whether the benefits of the proposed telecommunications infrastructure are balanced with the visual impact on the surrounding area;
4.Whether the proposed telecommunications infrastructure will detract from the streetscape and rural character of the area; and
5.Whether the proposed telecommunications infrastructure will detract from the visual amenity enjoyed by adjoining and nearby residents.
The applicant considered that the issues would be better expressed as whether the proposed impact of the telecommunications infrastructure would so great on the visual amenity enjoyed by residents, on the streetscape, on the surrounding area and on the rural character as to outweigh the community benefit the proposed technology would bring.
The Tribunal notes that cl 5.1.1 of SPP 5.2 actually states '… benefit of improved telecommunications services should be balanced with the visual impact on the surrounding area'.

Discussion

Both parties referred to Banjup as a rural locality. The Tribunal considers that description insufficient. The character of the locality is influenced by topography, which is effectively flat, land use and vegetation.
Mr Andrew Lefort, a town planner with the City of Cockburn, who appeared as a witness for the respondent, considered the locality to be characterised by rural standard bitumen roads with no kerbing, rural style fencing and generous setbacks, typically about 20 metres, to dwellings. He referred to vegetation in the front of many lots and considered the character of the street to be dominated by trees, 'with some open areas'. The power poles in the streets in the locality were referred to as the tallest structures. This character was contrasted with the standard suburban development in Atwell, some 250 metres to the west.
The Tribunal considers the locality might be described better as rural residential. It was noted that Banjup in the vicinity of the site predominantly comprises lots of about 2 hectares, each with a house. The 'Resource' zoning does not allow commercial agriculture in order to protect groundwater. The keeping of animals, such as horses, is not uncommon.
The aerial photographs provided by the parties and the viewing of the locality revealed significant difference in character between individual lots. Both expert witnesses commented on the extent of clearing of vegetation from lots in Banjup to the north and west of the site. Generally, lots to the east and south have retained or planted a significant proportion of native vegetation. There is a common skyline of trees, but depending upon the viewing location, certain lots rely mostly on the presence of trees on neighbouring lots or on lots at some distance to provide this outlook.
The lots to the west of the site and the three lots on Tapper Road north of the Water Corporation easement appear to have been cleared of most vegetation and the two lots immediately to the north of the site abutting the Water Corporation easement have some trees planted on part of the southern boundary. The view of the locality undertaken by the Tribunal and the evidence of the witnesses revealed the locality not to be an entirely rural environment of vegetated lots. In part, it is a locality where it is common for lots to have parkland or extensive clearing, introduced vegetation such as lawns, palms and some fruit trees and the usual manmade structures such as power poles, sheds and houses that accompany modern living.
The applicant provided photo montages that included the proposed monopole and antennas viewed from various locations around the site. The respondent provided photographs taken from various locations around the site that showed a crane situated where the monopole would be erected. The crane was extended with a basket hanging at the height of the proposed antennas, said to be verified by a licenced surveyor.
Mr Joel Gajic, a planner from Aurecon Australasia Pty Ltd called by the applicant, applied from SPP 5.2 a selective assessment of the visual impact of the proposed telecommunications infrastructure. Mr Gajic included in his evidence, illustrations said to be from a quantitative view shed analysis. He pointed out the base of the structure was not visible from the street or neighbouring properties because it was at the rear of the site and was shielded by vegetation. Mr Gajic accepted that the structure would be visible from some street locations, but this depended upon whether vegetation was adjacent to or cleared from front property boundaries. He considered the scale, materials and finishes to be as sympathetic to the character of the locality as was practicable and would be the least visually obtrusive against the lighter backdrop of the sky. In his opinion, the proposed development (in summary):
a)will not be prominently visible from significant viewing locations such as scenic routes, lookouts and recreation sites;
b)will not detract from any significant view;
c)is not located where environmental, cultural heritage, social and visual landscape values may be compromised; and
d)is able to be designed in a way that materials, external colours and finishes can be sympathetic to the surrounding landscape.

Mr Gajic emphasised the proposed development would not be prominently visible from places of importance to the community as a whole and said the development therefore will not have a detrimental impact on the landscape character, and therefore visual amenity, of the locality.
Mr Lefort said that the application failed to meet the LPS 3 aim of ensuring that the quality of life enjoyed by inhabitants was not jeopardised by unacceptable development. He disagreed with the applicant's submission that there would be very little impact on the local landscape character and on the visual amenity of the locality generally and of the residents.
With the assistance of the photographs, Mr Lefort said that because of its height the proposed development would be visible from various locations on public roads in the vicinity, but agreed that because of vegetation from near to certain of these points, views would be glimpses of the monopole. He referred also to views there would be of the monopole from several of the residences around the site. He was of the opinion that, because of the flat landscape and minimal density and height of existing buildings, the development was poor planning and incompatible with the locality. Mr Lefort said that the monopole would detract from the visual amenity and landscape character of the area.
Mr Lefort referred to the objections and concerns set out in the submissions from residents of the locality who objected to the proposed development. The Tribunal would comment that the neighbours' opinions must be understood, and taken into account, as their personal, subjective opinions and beliefs as people living in the locality.
The respondent submitted that, as it is likely most customers for the network would come from the suburban area of Atwell, examination of that location should be undertaken for potential sites for the monopole and antennas. The applicant made a comment that in its experience it was more difficult to find acceptable sites in a residential locality. The Tribunal has before it for determination an application for the telecommunications infrastructure on the site. It might be that there are other sites, including in Atwell, that might be investigated, but that in itself is not a basis for dismissing the current application as a matter of course. The merit of the application must be considered.

Conclusion

Clause 67(c) of Sch 2 of the Planning Regulations 2015 requires consideration of any approved State planning policy and, importantly, s 241(1)(a) of the PD Act requires the Tribunal to have due regard to any State planning policy. SPP 5.2 is a State planning policy.
There can be no doubt that part of the proposed monopole and antennas will potentially be visible from a number of public locations within the locality and from some dwellings. The fact that part of the proposed development will be visible does not, of itself, mean that the proposed development will have a negative impact on the visual amenity of the locality. As can be seen from SPP 5.2, factors such as the prominence of the development within the landscape, the extent to which visual aspects of value to the community as a whole might be compromised, and the degree to which the development is sympathetic to the surrounding landscape are relevant to an assessment.
Vegetation in the locality results in the equipment cabinets and approximately lower 10 metres of the pole not being visible. From the visit to the locality and the photographs it was apparent that the trees in the locality affect the views of the remainder of the pole and antennas. From some viewing points the pole and antennas would be prominent because of the distance between the viewing point and the remaining trees. From other positions the pole and the antennas would not be visible or only partly visible because of the proximity and height of the vegetation to the viewer. The views of the pole would change if the viewer is moving and remain the same if the viewer is stationary.
The proposed monopole would be unlike any other structure in the locality. SPP 5.2 at cl 5.1 acknowledges that to be effective structures are generally in a prominent location. In this locality there are no tall buildings or elevated topography on which to erect the antennas and the antennas must be higher than surrounding trees. As pointed out by the applicant, however, SPP 5.2 cl 5.1.1(ii) requires that the monopole be sited and designed to minimise visual impact, not that the pole be invisible from all locations. Visibility of itself, does not necessarily equate to adverse visual impact. SPP 5.2 recognises that telecommunications infrastructure may have visual impacts and therefore it is necessary to balance the need for effective telecommunications services with the visual impact on the surrounding area.
SPP 5.2 at cl 3 states:
Adequate and reliable telecommunications are essential for all aspects of contemporary community life, from supporting the State's economy to creating and maintaining connected and cohesive social networks[.]
The respondent commented that the proposed infrastructure was not for the community at large, but existing customers and potential customers of the applicant. The Tribunal would comment that mobile phone and data services are an aspect of amenity and that the installation of the proposed facility will result in improved telecommunication coverage in the target coverage area. The Tribunal understands that the benefit of the proposed telecommunications facilities will be greater for some than for others. Likewise, from some viewpoints there will be a greater impact on visual amenity than from others.
In order to come to the correct and preferable decision, the task of the Tribunal is to balance the need for effective telecommunication services against the community interest in protecting the visual character of local areas and in doing so must take into consideration the relevant matters identified in cl 67 of Sch 2 of the Planning Regulations 2015 and LPS 3 and in SPP 5.2. The Tribunal in considering the arguments presented by the parties is satisfied that the proposed development is consistent with SPP 5.2, appropriately addresses the aims of LPS 3 and would provide a community benefit of an effective telecommunication service that overall balances with the visual impact on the locality.
The Tribunal has determined that application for review is to be allowed, that the determination of the respondent set aside and a decision issued that planning approval is granted subject to conditions.

Conditions

As required by the direction of the Tribunal, the respondent prepared a schedule of 'without prejudice' draft conditions to be imposed should the Tribunal consider approval subject to conditions to be appropriate. Three conditions were submitted. There was no dispute about the first two conditions, which, respectively, related to the application drawings and the maximum height of the structure.
There was discussion about condition 3 which required nonreflective colours and materials 'complimentary to the surrounding environment'. The applicant submitted that experience had revealed that a standard galvanised finish for the pole would weather to a dull nonreflective finish and this was less obvious than a coloured finish, especially against the varying colours of the sky throughout the year. The equipment is factory off-white. The Tribunal has no reason to disagree with the applicant, however, it considers that the respondent should have an opportunity to have a say on the final colour. The respondent's suggested condition was considered too open ended so the Tribunal considers a condition as follows to be more appropriate:
A detailed 'Schedule of Colours and Materials' shall be submitted to and approved by the City of Cockburn, prior to the commencement of construction.
The Tribunal has also considered whether any other conditions might reasonably be imposed. The following two conditions were not discussed with the parties, but the Tribunal considers they have a planning purpose, fairly and reasonably relate to the development and are not so unreasonable that no reasonable planning authority could have imposed them.
Mr Gajic, at paragraph 51 of his witness statement said '[t]he proposed facility is structurally able to accommodate other carriers, thus offering co-location opportunities to mitigate visual clutter'. This is a planning purpose directly related to the proposed development. The report to the respondent's Council meeting on 8 July 2017, noted this opportunity should other carriers seek to install antennas in this locality. The Tribunal considers an appropriate condition should be imposed to recognise this, as follows:
The telecommunications infrastructure shall be designed to enable colocation by other telecommunication carriers.
The applicant's witnesses stressed the significant advances in telecommunications technology in increasingly shorter time spans. The proposed development is directly dependent upon the community benefit that will result. Should the proposed telecommunications infrastructure become obsolete and no longer required, and that benefit no longer exists, the Tribunal considers that the monopole and associated structures should be removed. A condition as follows is therefore considered appropriate:
All telecommunication facilities constructed as a result of this development approval that cease to be used for the approved purpose must be removed from the site and the land reinstated to the satisfaction of the City of Cockburn within three months of the cessation of the use.

Orders

For the above reasons, the Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision of the respondent made on 8 June 2017 refusing to grant planning approval for proposed telecommunications infrastructure at Lot 3 (No 25) Harper Road, Banjup is set aside and planning approval is granted for the telecommunications infrastructure, set out in the Huawei plans 640129 G1 Rev A, 640129 G2 Rev A and 640129 G3 Rev A, each dated 15 November 2016, subject to the following conditions:
(i)The maximum height of the approved telecommunications infrastructure shall be 36.8 metres above natural ground level;
(ii)The telecommunications infrastructure shall be designed to enable colocation by other telecommunication carriers;
(iii)A detailed 'Schedule of Colours and Materials' shall be submitted to and approved by the City of Cockburn, prior to the commencement of construction; and
(iv)All telecommunication facilities including the monopole constructed as a result of this development approval that cease to be used for the approved purpose must be removed from the site and the land reinstated to the satisfaction of the City of Cockburn within three months of the cessation of the use.

I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER