VODAFONE HUTCHISON AUSTRALIA PTY LTD and CITY OF BAYSWATER
[2017] WASAT 130
•6 OCTOBER 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: VODAFONE HUTCHISON AUSTRALIA PTY LTD and CITY OF BAYSWATER [2017] WASAT 130
MEMBER: MS M CONNOR (MEMBER)
HEARD: 7 JUNE 2017
DELIVERED : 6 OCTOBER 2017
FILE NO/S: DR 336 of 2016
BETWEEN: VODAFONE HUTCHISON AUSTRALIA PTY LTD
Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Town planning - Development application - Telecommunications facility on land reserved for Public Recreation - Replacement of existing light pole with new monopole of similar size and colour - Commercialisation of reserve - Amenity - Visual impacts - Improved telecommunication coverage - Replacement lighting - Land tenure - Co-location - Conditions
Legislation:
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2 cl 1, cl 3, cl 67, cl 67(c), cl 67(n)
City of Bayswater Local Planning Scheme No 24, cl 3.6.1, cl 6.3, Pt 6
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), s 242(1)(a), s 252(1), s 257B(3)
Town Planning Regulations 1967 (WA) Appendix B (Model Scheme Text), cl 10.2
Result:
Application for review allowed
Decision of respondent set aside and a decision substituted
Summary of Tribunal's decision:
Vodafone Hutchison Australia Pty Ltd applied pursuant to the State Administrative Tribunal Act 2004 (WA) for review of a decision of the City of Bayswater refusing to grant planning approval for a proposed telecommunications facility on Crimea Reserve, Lot 9087 (No 2) McCarthy Street, Morley.
The proposed development involved the replacement of an existing 20 metre light pole in Crimea Reserve with a new monopole of approximately the same height and colour which would carry an antenna headframe to which mobile telephone network antennas would be mounted. The antenna headframe will extend approximately 1.5 metres above the monopole. Replacement floodlights are also proposed to be fitted to the monopole or headframe. An equipment shelter with associated cabling and ancillary equipment was also proposed to be installed at the ground level.
The Tribunal in considering the substantial merits of this particular case, in light of the planning framework, was persuaded that the community benefits derived from the proposed facility outweighed the consequential negative impacts and found that planning approval was warranted subject to the imposition of appropriate conditions. Consequently, the application for review was allowed and planning approval granted subject to eight conditions.
Category: B
Representation:
Counsel:
Applicant: Mr PJ Ward
Respondent: Mr C Slarke
Solicitors:
Applicant: Francis Burt Chambers
Respondent: McLeods
Case(s) referred to in decision(s):
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Puma Energy Australia and City of Cockburn [2016] WASAT 36
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Planning Solutions on behalf of Service Stream Mobile Communications for its client Vodafone Hutchinson Australia Pty Ltd (applicant) made application to the City of Bayswater (respondent, Council or City) in May 2016 for development approval for a telecommunications facility at Crimea Reserve, Lot 9087 (No 2) McCarthy Street, Morley (subject land, Crimea Reserve or Reserve).
Revised plans were submitted to the City on 21 July 2016 in an effort to minimise the visual impact of the proposed facility.
The respondent, at its meeting of 4 October 2016, resolved to refuse to grant planning approval for a 'Proposed Telecommunication Infrastructure to Recreational Facility (Crimea Reserve)' for the following reasons:
1.The proposal does not comply with clauses A (iv) and A (vi) of the City of Bayswater local planning policy relating to Telecommunications Towers and Associated Facilities which stipulate that telecommunication facilities may not be located within 250m of land zoned or developed for residential purposes.
2.The proposal does not comply with the State Planning Policy 5.2 relating to telecommunications infrastructure in that it is not sited to minimise visual impact (i.e. not located where it will not be prominently visible from recreation sites and not sympathetic to the surrounding landscapes).
3.The proposal is considered to have an undue impact on the amenity of the area.
4.The proposal is considered to be inconsistent with the orderly and proper planning of the locality.
The respondent further resolved that it 'does not support a management order and lease for telecommunication purposes over portion of Crimea Reserve (Reserve), and the City advises the applicant and the Department of Lands accordingly'.
The applicant, on 1 November 2016, made application under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act) to have the decision reviewed. The applicant seeks an order that the respondent's decision be set aside and the application for planning approval be granted subject to appropriate conditions.
Subject land
Crimea Reserve is more particularly described as Lot 9087 on Diagram 33781, being the whole of the land in Certificate of Title Volume LR3047 Folio 128 (see Planning Solutions report) and is 9.4 hectares in area. The Reserve is a 'C' class reserve vested in the City for the purpose of 'Public Recreation' and is subject to a Management order which gives care, control and management to the City.
The subject land is bounded by Crimea Street, Driscoll Way, McArthur Street and Frimley Way and is currently utilised for recreational purposes and sporting pursuits. Facilities provided on the Reserve include baseball fields, tennis courts, a skating park, a clubhouse and car parking facilities. The clubhouse is situated centrally within the Reserve with the other facilities generally clustered around it.
Agreed facts
The matter proceeded on the basis of the following agreed facts:
The Parties
1.The Applicant is a Carrier within the meaning of that term in the Telecommunications Act 1997 (Cth). It is in the business of providing mobile telecommunications services to consumers.
2.The Respondent is the relevant responsible authority for the purposes of determining applications for development approval pursuant to the Planning and Development Act 2005 (WA).
3.The Respondent is vested with care, control and management of Crimea Reserve, the site of the proposed development, which is Crown Land designated as a local scheme reserve for local public open space.
The Application
4.On 6 May 2016, Planning Solutions (Aust) Pty Ltd, for and on behalf of the Applicant, submitted an application for development approval to the Respondent (a copy of the initial application is set out at in Table 1 of the s.24 bundle).
5.The proposed development involves replacing an existing 20m light pole in Crimea Reserve with a new monopole of approximately the same height and colour which will carry an antenna headframe, to which mobile telephone network antennas will be mounted.
6.The antenna headframe will extend approximately 1.5m above the monopole. The Applicant proposes to provide replacement lighting on the pole or to the headframe, as required to ensure equivalent replacement lighting coverage. The proposed development also includes associated ground facilities.
7.If the proposed development is approved, it will be used to colocate network infrastructure for both the Applicant and Optus.
8.The Respondent has received correspondence from Telstra which indicates there is an urgent need for a new Telstra facility in the locality. The possible impact of co-location is set out in Telstra's letter which is attached as Attachment 3 to the Witness Statement of Michael Robson. This proposal was not part of the application before the Tribunal. The detail of Telstra's proposal is unknown as is any requirement for development approval.
9.Following receipt of the application, the Respondent sought a meeting with the Applicant, and on 31 May 2016 representatives of the Applicant (Amar Pathak and Amy La Spada) met with Mayor Barry McKenna, Des Abel, and Helen Smith. At that meeting, Mr McKenna suggested that the Applicant should amend its application to seek to minimise visual impact of the proposed development.
10.On 21 July 2016, the Applicant's representatives submitted an amended application to the Respondent to address the points discussed on 31 May 2016. In summary, the changes to the proposed development were that:
(a)the standard triangular headframe was reduced in size to a more compact circular headframe; and
(b)the ground level shelter was removed in favour of a smaller outdoor unit which was proposed to be discreetly co-located with existing buildings.
A copy of the amended application is set out at Tab 2 of the Respondent's materials.
11.On 9 September 2016, the Applicant's representatives provided a response to each objection that was sent to the Respondent. A copy of this email is at Tab 6 of the s.24 bundle.
12.On 4 October 2016, the Respondent refused the Applicant's amended application (a copy of the decision is set out at tab 9 of the Respondent's materials).
13.This appeal seeks approval of the proposed development as shown in the amended application of 21 July 2016.
Radio frequencies and antennas
14.The Applicant asserts that the antennas at the proposed facility will use a number of different radiofrequency technologies including the '2G' GSM900MHz frequency, the'3G' WCDMA900MHz (or U900) and 4 WCDMA2100MHz (or U2100) frequencies and the'4G' network using the LTE1800MHz, LTE700MHz, LTE2300MHz, LTE2600MHz and LTE850MHz frequencies. The purpose and functions of each frequency can be summarised as follows:
(a)The GSM900MHz frequency provides voice and low speed data coverage to the limited number of customers which continue to use mobile handsets that do not have 3G capabilities. In addition, GSM900MHz acts as a fall back for 3G enabled devices which are unable to connect to the 3G network for any reason. This may be due to capacity constraints on the 3G network or as a result of the device connecting to the 2G network from a facility before 'handover' to another facility. A call which initiates on the 2G network (or which switches to the 2G network during the call) cannot be switched back to the 3G network.
(b)The WCDMA900MHz frequency provides a high definition voice and data coverage to 3G customers. WCDMA900MHz has a broad footprint which allows outdoor coverage to be provided to a wide area. It also has good penetration for indoor coverage.
(c)The WCDMA2100MHz frequency also provides high definition voice and data coverage to 3G customers. The WCDMA2100MHz frequency has a smaller footprint and less penetration than WCDMA900MHz but provides an important 'layering' function where the WCDMA900MHz frequency is at capacity.
(d)The LTE1800MHz, LTE700MHz, LTE2300MHz, LTE2600MHz and LTE850MHz frequencies provide voice over LTE and data coverage to 4G customers.
15.The Applicant asserts that mobile devices such as mobile telephones (including 'smart phones') and tablets subscribed to the Vodafone and Optus networks use the radiofrequency channels when making and receiving voice and data communications.
16.The Respondent does not have independent knowledge of the correctness of the assertions referred to in the preceding 2 paragraphs, but does not require the Applicant to call evidence to prove those assertions, and agrees they can be accepted by the Tribunal as facts.
Present and expected mobile telecommunications coverage
17.[A Power Point presentation entitled '640043 Morley North Coverage Analysis' was attached to the facts. The presentation contained aerial photographs with overlay plans illustrating].
(a)present levels of coverage;
(b)the Target Coverage Area (as defined and outlined in the PowerPoint);
(c)each of the alternative sites considered by the Applicant; and
(d)the anticipated impact of those alternative sites and the proposed development on coverage at the locality.
The attachment was prepared by Amar Pathak, a radio frequency engineer employed by the Applicant, and was presented to the Respondent on 30 May 2016. It is accepted by the Respondent for the purposes of this proceeding as accurately representing current and future expected coverage.
18.As shown on the slide labelled 'Existing Coverage levels', there is a gap in mobile telephone coverage in the area surrounding Crimea Reserve. In particular, there is poor indoor signal strength (including outdoors only coverage in some areas) from existing base stations surrounding the proposed development.
19.It is not possible to remedy this gap in coverage by upgrade of any existing base stations.
20.There is no other existing mobile base station site in the vicinity on which new facilities might be co-located to provide coverage to the Target Coverage Area [See Annexure 1].
21.There is no site in the locality that would permit compliance with the buffer zone provisions of the Respondent's telecommunications tower policy and address the coverage issues present in the Target Coverage Area.
22.Each of the potential sites that were considered to address the Target Coverage Area [were] listed in the slide marked 'List of Candidates reviewed'. Each potential site [was] allocated a 'candidate' designation AF, and each potential site's location [was] marked by reference to this designation and with a yellow pin on each of the coverage plots. The proposed site [was] designated Candidate C.
23.Each potential site's impact on coverage [was] also plotted:
(a)for Candidate C in the slide marked 'Candidate C Coverage';
(b)for Candidates A and B in the slide marked 'Candidate A coverage';
(c)for Candidates D and F in the slide marked 'Candidate D Coverage'; and
(d)for Candidate E in the slide marked 'Candidate E Coverage'.
24.Candidates:
(a)A and B; and
(b)D and F,
are geographically very close to each other, which is why there are no separate coverage plots for these sites.
25.The shading on the various coverage plots indicates the results of Mr Pathak's analysis, which is accepted by the Respondent for the purpose of this proceeding as accurate, as follows:
(a)Green good indoors coverage;
(b)Yellow patchy indoors coverage; and
(c)Red outdoors only coverage.
26.Candidate C, the proposed site, with antennas mounted on a 20m pole, results in the best anticipated improvement in coverage (both in terms of maximising 'good indoors coverage' and minimising 'outdoors only coverage') in the Target Coverage Area.
27.On 7 September 2015, the Department of Lands indicated it would be agreeable with excising a portion of Crimea Reserve or varying the management order to permit the Applicant to lease a portion of Crimea Reserve (a copy of the email is attached).
Alternative sites rejected by the Applicant
28.The following alternative sites for the proposed development were considered and rejected by the Applicant prior to lodging the development application:
(a)Crimea Growers Mart (127 Crimea Street, Morley) (Candidate A) and Crimea Shopping Centre (37 Frimley Way, Morley) (Candidate B)
(i)Both of these sites are located either side of a local shopping centre. Each were considered as a potential option to place a low impact roof mounted structure.
(ii)The sites were rejected for the following reasons:
(A)In each instance, the roof mounted lowimpact option was too low to achieve coverage objectives. The low impact structures would result in a site which was a total of 9m in height above ground level, which did not adequately meet the SDB requirements, and which resulted in an inadequate improvement in coverage.
(B)the proposal was not supported by owners of these sites;
(C)residential properties abut the rear of each site and are elevated by a hill, resulting in limited separation between these sites and the residences (less than Crimea Reserve).
(b)Waltham Reserve (Reserve 31846, Lot 9133 Waltham Way, Morley) (Candidate D) and Water Corporation drainage sump – Reserve 29533 (Lot 10607 Waltham Way, Morley) (Candidate F)
(i)Both of these sites are located on the edge of adjoining reserves. Each were considered as a potential option to place a 20m monopole structure.
(ii)The site was rejected for the following reasons:
(A)the monopole facility would need to be located on the perimeter of the relevant reserve and the impact on visual was perceived by the Applicant to be greater at these locations than at Crimea Reserve;
(B)the monopole facilities would provide limited separation from adjacent residential properties (less than at Crimea Reserve);
(iii)Candidate F was also not supported by Water Corporation.
(c)Emberson Reserve (Lot 7 Emberson Road, Morley) (Candidate E)
(i)This site was located on the edge of a reserve and was considered as a potential option to place a 20m Monopole structure.
(ii)The site was rejected for the following reasons:
(A)the monopole facility would need to be on the perimeter of the reserve and the impact on visual amenity was perceived by the Applicant to be greater at this location than at Crimea Reserve;
(B)the monopole facility would provide limited separation from adjacent residential properties (less than at Crimea Reserve); and
(C)a school was located within 150m of the site.
29.The Applicant advises that it has consulted with the baseball club at Crimea Reserve, and the club has no objections to the proposed development on the basis that the Applicant supplies equivalent lighting to Monopole.
30.The Crimea Reserve site:
(a)does not impact any heritage listed places;
(b)maintains the greatest possible separation from residential properties within the Target Coverage Area; and
(c)achieves the best infill coverage of any of the possible candidate sites.
Planning framework
The subject land is zoned Urban in the Metropolitan Region Scheme. Under the City of Bayswater Local Planning Scheme No 24 (LPS 24 or Scheme) the majority of the Reserve is designated as a Local Scheme Reserve Local Public Open Space, however, the portion of the Reserve containing the drainage sump is designated Local Scheme Reserve Drainage.
Part 6 Reserves of LPS 24 provides as follows:
…
6.2LOCAL AUTHORITY SCHEME RESERVES
The land shown as 'Scheme Reserves' on the Scheme Map, hereinafter called 'Local Reserves' are lands reserved under the Scheme for the purposes shown on the Scheme Map.
6.3DEVELOPMENT OF LOCAL RESERVES
Subject to clause 6.4, a person shall not commence or carry out any development on a local reserve, other than the erection of a boundary fence, without first applying for and obtaining Council's planning approval.
6.4MATTERS TO BE CONSIDERED BY COUNCIL
In deciding whether or not to grant its planning approval under cl 6.3 above, Council shall in addition to the matters specified in cl 3.6.1, have regard to the ultimate purpose intended for the reserve and shall in the case of land reserved for the purposes of a public authority confer with that authority.
Clause 3.6.1 of LPS 24 sets out the matters to be considered in determining the application. However, the Tribunal, in Puma Energy Australia and City of Cockburn [2016] WASAT 36, found that, by virtue of s 257B(3) of the PD Act, that cl 67 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Deemed Provisions) has replaced all the equivalent provisions in local planning schemes in Western Australia based on cl 10.2 of the former Model Scheme Text. Clause 3.6.1 of LPS 24 is such a provision.
Clause 67 of the Deemed Provisions 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 matters relating to this application are as follows:
•the aims and provisions of this Scheme and any other local planning scheme operating within the scheme area (subclause (a));
•the requirements of orderly and proper planning (subclause (b));
•any approved State planning policy (subclause (c));
•any local planning policy for the Scheme area (subclause (g));
•in the case of land reserved under this scheme, the objectives for the reserve and the additional and permitted uses identified in this scheme for the reserve (subclause (j));
•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 (subclause (m));
•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 (subclause (n));
•the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals (subclause (x));
•any submissions received on the application (subclause (y)); and
•any other planning consideration the local government considers appropriate (subclause (zb)).
In addition to subclause 67(c) of the Deemed Provisions, the Tribunal pursuant to s 241(1)(a) of the PD Act is required to have due regard to any State planning policy which may affect the subject matter of an application for review. The parties agree that State Planning Policy 5.2 Telecommunications Infrastructure (September 2015) (SPP 5.2) is such a policy.
Clause 3 of the Deemed Provisions empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme Area. The respondent has adopted local planning policy, Telecommunications Towers and Other Associated Facilities Policy (Telecommunications Policy). There is no contest between the parties that the Telecommunications Policy is a relevant consideration in the determination of this matter.
Issues
There is no dispute between the parties that, as stated at cl 3 of SPP 5.2, '[a]dequate 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'. In addition, it is accepted by the respondent that the proposed facility will result in improved telecommunications coverage. The respondent simply submits that the negatives of the proposed development outweigh the benefits for the following four reasons.
Commercialisation of Reserve
The respondent submits that proposed development will result in the use of a public reserve being used for a private purpose in circumstances where the body responsible for care, management and control of the Reserve and the relevant section of the community is opposed to the development. The respondent asserts that the proposed development is a permanent commercial use which is incongruent with the public recreation nature of the Reserve and may require an appropriation of part of the Reserve to allow it to be developed or at the very least a change to the terms upon which the land is held. The respondent considers the use of land for telecommunication infrastructure is a separate and independent use of the Reserve which is inconsistent with the purpose of the reservation.
The applicant drew the attention of the Tribunal to the following two commercial activities operating on the Reserve, those being an approved commercial food van site from which the Council collects fees from operators of the food vans; and the tuck shop and licenced bar operated by the baseball club for the benefit of its members. The applicant submits that the Council's position has been that both commercial activities incidental (tuckshop and licenced bar) and nonincidental (food vans) to the recreational uses can be conducted at this Reserve.
The Tribunal is of the view that the tuckshop and licenced bar are activities incidental to a recreational use associated with the Reserve and are provided for the benefit of the users of the Reserve. In regards to the food vans, the respondent argued that the food vans served a recreational purpose as they encourage more people to the Reserve. The Tribunal considers that notwithstanding the food vans are itinerant, they are nevertheless commercial activities operating on the Reserve.
The Tribunal accepts that the proposed development involves private use of a public reserve for commercial purpose but, in this case, the proposed facility does not impede or compromise the use of the Reserve for the purpose for which it is reserved or the users of the Reserve as it is merely replacing an existing pole which will continue to provide lighting for the recreational activities and improve telecommunication services for users of the Reserve. Even if a portion of the Reserve is excised, this will not in any way compromise the current or future recreational use of the Reserve. The Tribunal is satisfied that the proposed development does not conflict with the purpose of the Reserve.
Amenity
In respect to consideration of cl 67(n) of the Deemed Provisions which relates to the 'the amenity of the locality', the respondent contends that the proposed development will have an adverse effect on visual amenity not just on the neighbours who live close to the Reserve or around its perimeter but also on users of the Reserve.
The term 'amenity' is defined in cl 1 of Sch 2 of the Deemed Provisions as follows:
amenity means all those factors which combine to form the character of an area and include the present and likely future amenity[.]
Mr Ben Doyle, a town planning consultant, was called to give evidence on behalf of the applicant. He identified the relevant locality for the purposes of this application to be the area comprising Crimea Reserve and those dwellings fronting Crimea Street, Driscoll Way, McCarthy Street and Frimley Way, for which the monopole is potentially visible from dwellings. This was not challenged by the respondent. He describes the character of the locality by reference to three factors, being topography, land use and vegetation and considers those factors combined form the character of the area. He describes the character of the locality as follows:
Crimea Park is a pleasant, attractive public open space reserve, which includes a range of facilities for active recreation, and features mature trees planted relatively closely around the perimeter and within the central and southeastern portions of the reserve. The surrounding area is a relatively typical middle ring suburb, comprising a mix of single houses on original lots (700 900 m²) and grouped dwellings on subdivided sites (down to an average of 350m²). Dwellings are generally one and two-storey, with a variety of architectural styles ranging from the 1960s to the present day. The strategic planning for the locality suggests that the existing character is unlikely to change significantly in the foreseeable future, other than through the gradual replacement of the ageing housing stock.
Mr Doyle considers the existing light pole to be an established component of the landscape and visual amenity of the locality and that 'its replacement with a new pole of similar height will not be "prominently visible" to users of the park, to any great extent than the several other existing light poles within the park'. It is his opinion that the existing character of the Reserve includes several vertical structures, and the replacement of one existing vertical element with another vertical element of similar height will have a negligible visual impact. He does not consider the Reserve to be a 'significant viewing location' as he considers that this terminology 'constitutes a higher threshold than simply any place where people may participate in recreation of some form'. In respect to this matter, he does not consider 'the views of the site to have significance beyond the limited extent of dwellings facing onto the park.'
Mr Michael Robson, a planning officer of the City, was called to given evidence on behalf of the respondent. Mr Robson considers the presence and appearance of the monopole will have a negative impact on the visual amenity of Crimea Reserve, although he accepts that the monopole is to be placed in a location on the Reserve which minimises its visibility. His assessment of the visual impact, as contained in his witness statement at paragraphs 20 and 21, is as follows:
Given the proposed position and height of the tower in relation to the existing trees and buildings in the Reserve, it is considered that users of the Reserve will have unrestricted views of the tower in the northern section of the Reserve extending in an approximately 135 degree arc from the tower in a north eastern to western direction. Views from the remainder of the Reserve would either be restricted or the tower would not be visible. Since the tower is proposed to be situated in an open area on the edge of a baseball field, the base of the tower will be visible to users in close proximity. It is considered that views of the tower from the surrounding residential area will be most direct from the dwellings closest to the Reserve and located within the above mentioned 135 degree visibility arc. There are however a number of existing trees located on the edge of the reserve and within the adjacent road reserves of Driscoll Way and MacArthur Street which will reduce the visibility of the tower within this area.
In my opinion the tower is to be placed in a location on the Reserve which minimises its visibility. However it will nevertheless be clearly visible from large sections of the Reserve, and to some dwellings beyond. The tower will in my view have a negative impact on visual amenity but that impact, only of itself, is not sufficient to justify refusing the application.
When questioned by the Tribunal on his opinion that '[t]he tower will have … a negative impact on visual amenity but that impact, only of itself, is not sufficient to justify refusing the application', Mr Robson explained that it is a combination of the visual impact together with the central position of the monopole in the Reserve, the current character of the Reserve which is basically recreational and the feedback received from the community in terms of their objections and concerns with the structure. He described it as an incompatible land use. Further, when asked to comment on Mr Doyle's opinion regarding whether the subject land could be described as a 'significant viewing location' Mr Robson did not express his opinion on this matter but submitted that the residents in close proximity and users of the Reserve would regard it as a significant viewing location.
The community feedback referred to by Mr Robson related to the consultation undertaken by the City with the local community, whereby the City sought comments from residents with a 250 metre radius of the subject land. At the completion of the advertising period a total of 16 written submissions and a petition with 205 signatures opposing the proposal and two submissions in support of the proposal had been received by the City. According to the respondent, 106 of the petitioners' addresses were people who lived within a 250 metre radius of the proposed development.
The primary concern of the written submissions objecting to the proposed development focused on the perceived health impacts of electromagnetic energy emissions from the facility. The visual impact of the monopole on the park was raised as a concern in a number of the submissions which, in the main, emphasised the fact that the facility was to be located in the centre of the Reserve and would detract from the natural beauty of the park. The wording of the petition is very broad and non-specific in that it only identifies that the 'telecommunication tower would have a negative impact on our community and nearby amenities'. No weight can be accorded to the petition as there is no ability to determine what the negative impact is or can be attributed to.
Although none of the submittees were called to give evidence, the concern raised relating to the visual impact of the proposed facility on the Reserve is an issue on which the Tribunal had the benefit of expert evidence.
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. The parties agree, and the Tribunal accepts, that the proposed facility will improve telecommunication coverage in the area and that there is no site in the locality that would permit compliance with the buffer zone provisions of the Telecommunications Policy and address the coverage issue present in the 'Target Coverage Area'. The Tribunal notes that the incorporation of buffer zones in the Telecommunications Policy is not consistent with cl 6.1 of SPP 5.2 which states: '[w]hen preparing … local planning policies, local governments should ensure that: … [b]uffer zones … are not included in … local planning policies'.
The Tribunal accepts Mr Doyle's evidence that the subject land is not for the purposes of SPP 5.2 a 'significant viewing location'. The proposed monopole will be visible to users of the Reserve as outlined by Mr Robson in his evidence and to a lesser extent to some of the residents on McArthur Street and Driscoll Way due to distance to the nearest dwelling being more than 130 metres from the facility and because of the existing vegetation which assists in screening the monopole. The appearance of the monopole will be further mitigated by the 'backdrop' of mature trees to the south of the facility, which will significantly reduce the prominence of the monopole. The applicant has attempted to reduce the visual impact of the facility on the locality by seeking to replace an existing light pole with a new pole of similar height and colour and by modifying the headframe and equipment shelter in order to ensure that the structure is less visually obtrusive within its setting. Further, the monopole is to be placed in a location on the Reserve which minimises its visibility.
The design and location of the proposed development is consistent with the policy measures set out in SPP 5.2 and provides for an effective telecommunication service with the least visual impact on the character of the locality. It is considered that the visual impact of the proposed facility can be further ameliorated by additional planting being provided along the northeastern, northern and northwestern perimeter of the Reserve. As acknowledged by Mr Robson, the visual impact of the proposed facility is not of itself sufficient reason to warrant refusal of the application.
Further, the planning experts agree that the provision of mobile phone services is an aspect of amenity and that the installation of the proposed facility will result in improved telecommunication coverage. There is no contest that the users of the Reserve, the local community and the wider community as identified in the Target Coverage Area will no doubt benefit from the upgraded network as the proposed facility will improve coverage in terms of maximising 'good indoor coverage' and minimising 'outdoor only coverage' in the Target Coverage Area.
Uncertainty
Thirdly, the respondent argued that there are elements of uncertainty in respect to the proposed development in terms of the arrangements necessary for replacing the lighting and given the City's opposition to the proposed development whether the land tenure can be altered to allow the development to proceed.
The Tribunal does not accept that there is an element of uncertainty in respect to the replacement lighting. The applicant intends to provide the equivalent replacement lighting coverage on the pole or to the headframe and there is no evidence before the Tribunal to suggest that this is not possible. The Tribunal does not consider the replacement lighting to be a nonincidental aspect of the development and as such, can be dealt with as a condition to be imposed on the planning approval requiring the replacement lighting and details of the type of lighting and how it is to be fitted to be lodged with the City for approval.
The concern expressed by the respondent as to whether the proposed development can proceed given the City's opposition to the proposed development is not shared by the Tribunal for the following two reasons; firstly, the local government is not the only entity from which consent can be obtained and it is noted that the Department of Lands has indicated it would be agreeable with excising a portion of Crimea Reserve or varying the Management order to permit the applicant to lease a portion of Crimea Reserve; and secondly, the City's opposition does not mean that its opposition will remain indefinitely.
Colocation
Fourthly, the respondent argues that the proposed facility has been designed for use by Optus and Vodafone and is concerned that there is potential for further co-location by another service provider, such as Telstra. The respondent asserts that according to correspondence received from Telstra such action may result in an increase to the height of the facility by approximately 5 metres which would consequently create additional visual impact in the future.
The potential for further co-location is consistent with the respondent's Telecommunications Policy which specifies under 'Development Criteria' that 'the facility is [to be] designed to enable colocation by at least two (2) other telecommunication carriers'. Further, Mr Robson under crossexamination agreed that it would be more desirable for Telstra to co-locate with Optus and Vodafone rather than a new tower being constructed in the locality.
Although the co-location of a third carrier may result in an increase in the height of the monopole, this scenario is undoubtedly preferable in terms of limiting the visual impact on the locality as compared to the erection of a new facility in the area.
There is currently no application from Telstra seeking co-location and Mr Robson in his witness statement suggested that if the increase in height is classified as 'low impact' it would not require further development approval.
Exercise of discretion
The Tribunal is satisfied that the proposed development is consistent with SPP 5.2 and notes that it does not comply with the buffer zones specified in the City's Telecommunications Policy. 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 the Deemed Provisions. The Tribunal in considering the arguments presented by the parties is persuaded that community benefits derived from the proposed facility outweighs the consequential negative impacts and therefore for the above reasons considers that planning approval is warranted subject to the imposition of appropriate conditions.
Conditions
As required by the direction of the Tribunal, the respondent prepared 'without prejudice' draft conditions to be imposed if the Tribunal considers that approval of the application subject to conditions is appropriate. Nine conditions were submitted and are as follows:
1.The development shall be carried out only in accordance with the terms of the application as approved herein, and any approved plan.
2.The facility shall be designed to enable co-location by at least two other telecommunication carriers.
3.A detailed 'Schedule of Colours and Materials' shall be submitted to and approved by the City of Bayswater, prior to the submission of a building permit application.
4.On completion of construction, all excess articles, equipment, rubbish and materials being removed from the site and the site left in an orderly and tidy condition, to the satisfaction of the City of Bayswater.
5.The tower must be fitted with lighting which is adequate to replace the lighting on the existing pole which the tower will replace. A plan showing the proposed type of lighting and how it will be fitted to the tower must be lodged with the City of Bayswater for approval before the development is commenced. The lighting must be maintained by the Applicant throughout the life of the development.
6.The development (including lighting) must be carried out and completed at a time when the lighting is not in use. To that end, the Applicant must submit a construction schedule to the City of Bayswater for approval.
7.The development must not be commenced unless and until the Applicant obtains permission from the City of Bayswater in its capacity as manager of Crimea Reserve and owner of the existing light pole, to remove the light pole.
8.All obsolete telecommunication facilities must be removed and the land reinstated to the satisfaction of the City of Bayswater within three months of the cessation of the use.
9.The applicant shall lodge a landscape plan with the City of Bayswater for approval prior to the commencement of the development. The landscaping plan shall show the proposed species, number and location of trees to be planted along the northeastern, northern and north-western perimeter of the Crimea Reserve, for the purpose of reducing the visual impact of the development on the surrounding residential areas. The applicant shall carry out the planting shown on the approved landscaping plan within 3 months after the commencement of the development, or within a further period approved by the City.
The applicant agrees to proposed conditions 1, 2, 3, 4, 6 and 8. In respect to condition 5, the applicant agrees with the wording of condition 5 except for the last sentence which it seeks to be deleted. The applicant seeks the deletion of condition 7 in its entirety or alternatively the following words included at the end of the condition 'which permission shall not be unreasonably refused'. In regards to condition 9, the applicant does not consider that it was necessary for additional landscaping to be carried and that additional vegetation may impact negatively on the use of the Reserve by the baseball club. If a condition is to be imposed requiring additional landscaping the applicant's position is that a financial contribution covering the cost of the landscaping should be made by the applicant. The sum of $5,000 is suggested as a reasonable amount.
Tribunal's findings in relation to conditions
The test of validity of a condition of planning approval is well known: Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury test). A condition is valid if:
1)it has a planning purpose;
2)it fairly and reasonably relates to the development; and
3)it is not so unreasonable that no reasonable planning authority could have imposed it.
The Tribunal is of the view that proposed conditions 1, 2, 3, 4, 6 and 8 as agreed by the parties satisfy the three limbs of the Newburytest and should be imposed as conditions on the planning approval.
In regards to applicant's submission that the last sentence of proposed condition 5, which requires the lighting to be maintained by the applicant throughout the life of the development, the Tribunal finds that this sentence, together with the remainder of the condition, satisfies the three limbs of the Newburytest and should be imposed. The inclusion of the replacement lighting on the facility is an essential element when considering the impacts on the proposed development on the Reserve, therefore, it is not unreasonable to require the applicant to maintain the lighting through the life of the development.
Proposed condition 7 fails the first limb of the Newbury test as it serves no planning purpose and should not be imposed.
Given the findings above in respect to the need for additional landscaping along the north-eastern, northern and north-western perimeters of the Reserve to ameliorate the impact of the proposed facility the imposition of proposed condition 9 in some form is considered appropriate. The Tribunal is not overly concerned as to whether the applicant undertakes to prepare and implement a landscaping plan approved by the City or makes a financial contribution that will achieve the same. Mr Robson estimated that approximately 10 street trees, at about $500 a tree, would be required to achieve the desired outcome. In this case, the Tribunal considers that it is reasonable to impose a condition that provides for the alternative scenarios.
Conclusion
The application for review should be allowed and the determination of the respondent set aside and a decision substituted that planning approval is granted subject to conditions.
Costs
The Tribunal notes that during the hearing the applicant foreshadowed an application for costs. Should this be the case, the matter will need to be argued at a later date. To enable this to happen, the question of costs is reserved.
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 4 October 2016 refusing to grant planning approval for proposed telecommunications infrastructure at Crimea Reserve, Lot 9087 (No 2) McCarthy Street, Morley is set aside and a decision is substituted that planning approval is granted for a telecommunications facility on Lot 9087 (No 2) McCarthy Street, Morley (Crimea Reserve) as shown on plans dated 21 July 2016, subject to the following conditions:
(i)The development shall be carried out only in accordance with the terms of the application as approved herein, and any approved plan.
(ii)The facility shall be designed to enable colocation by at least two other telecommunication carriers.
(iii)A detailed 'schedule of colours and materials' shall be submitted to and approved by the City of Bayswater, prior to the submission of a building permit application.
(iv)On completion of construction, all excess articles, equipment, rubbish and materials is removed from the site and the site left in an orderly and tidy condition, to the satisfaction of the City of Bayswater.
(v)The monopole must be fitted with lighting which is adequate to replace the lighting on the existing pole which the monopole will replace. A plan showing the proposed type of lighting and how it will be fitted to the monopole must be lodged with the City of Bayswater for approval before the development is commenced. The lighting must be maintained by the applicant throughout the life of the development.
(vi)The development (including lighting) must be carried out and completed at a time when the lighting is not in use. To that end, the applicant must submit a construction schedule to the City of Bayswater for approval.
(vii)All obsolete telecommunication facilities must be removed and the land reinstated to the satisfaction of the City of Bayswater within three months of the cessation of the use.
(viii)The applicant shall:
(a)lodge a landscape plan with the City of Bayswater for approval prior to the commencement of the development. The landscaping plan shall show the proposed species number and location of trees to be planted along the northeastern, northern and north-western perimeter of the Crimea Reserve, for the purpose of reducing the visual impact of the development on the surrounding residential areas. The applicant shall carry out the planting shown on the approved landscaping plan within three months after the commencement of the development, or within a further period approved by the City; or alternatively,
(b)make a financial contribution of the sum of $5,000.00 to the City of Bayswater prior to commencement of development for landscaping to be planted along the north-eastern, northern, and north-western perimeter of Crimea Reserve.
3.The question of costs is reserved. If the applicant wishes to make application for costs under s 87 of the State Administrative Tribunal Act 2004 (WA), the following directions shall be complied with:
(i) any application for costs and supporting submissions shall be filed with the Tribunal and served on the other party by Monday, 23 October 2017;
(ii)the respondent shall file with the Tribunal and provide to the other party its submissions in reply within two weeks of the receipt of the respondent's submissions;
(iii)the applicant shall file with the Tribunal any submissions in reply within one week of the receipt of the respondent's submissions in reply; and
(iv)unless either party specifically requests an oral hearing on costs, the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
I certify that this and the preceding [49] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
Annexure 1
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: VODAFONE HUTCHISON AUSTRALIA PTY LTD and CITY OF BAYSWATER [2017] WASAT 130 (S)
MEMBER: MR P DE VILLIERS (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 18 JANUARY 2018
FILE NO/S: DR 336 of 2016
BETWEEN: VODAFONE HUTCHISON AUSTRALIA PTY LTD
Applicant
AND
CITY OF BAYSWATER
Respondent
Catchwords:
Town planning - Costs application - Refusal of development application - Relevant factors to exercising discretion to award costs - Whether respondent genuinely attempted to make decision on merits - Whether respondent maintained an unsubstantiated and untenable position - Whether respondent acted unreasonably - Parties bear their own costs
Legislation:
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 67(c), cl 67(g), cl 67(n)(iii), cl 67(y),
State Administration Tribunal Act 2004 (WA), s 55, s 60(2), s 87, s 88(1), s 88(2), s 88(3)
Result:
Each party to pay its own costs
Summary of Tribunal's decision:
In May 2016 an application was made to the City of Bayswater seeking development approval for a telecommunications facility at Crimea Reserve, McCarthy Street, Morley. In October 2016 the respondent resolved to refuse to grant planning approval for the proposed development and in November 2016 the applicant made application to the Tribunal seeking to have that decision reviewed.
In October 2017 the Tribunal determined that the application for review should be allowed and the question of costs should be reserved. Following the receipt of submissions from the parties, and as neither party sought an oral hearing, the matter of costs was determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The applicant submitted that it should be entitled to an order for its costs on the basis that the respondent:
a)failed to make a genuine attempt to make a decision on the applicant's proposal on its merits;
b)maintained a position that was unsubstantiated and was proven to be untenable during the course of the hearing, which resulted in the applicant's application being successful; and
c)conducted itself unreasonably in the proceedings by refusing to agree to a mediation conference and by making no attempt at negotiation during the compulsory conference, which necessitated in the parties proceeding to a hearing.
The Tribunal however found that there was no evidentiary basis to find that the respondent did not genuinely attempt to make a decision on its merits. In addition the Tribunal found that the respondent's position could not, on the evidence before it, be regarded as untenable. Finally, while its case may not have been strong, and the Tribunal ultimately found against it, this did not substantiate the applicant's contention that the respondent was maintaining an untenable position which meant that its conduct was unreasonable.
In the context of those findings the Tribunal was not persuaded that there was a basis upon which it should depart from the usual principle in planning review cases that each party should bear its own costs and the applicant's application was therefore dismissed.
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Boulter and Shire of Augusta - Margaret River [2006] WASAT 334
Chew and Director General of the Department of Education and Training [2006] WASAT 248
EzekielHart v Law Society of the Australian Capital Territory (No 2) [2012] ACTSC 135
Halsey v Milton Keynes General NHS Trust [2004] 4 All ER 920
Halsey v Milton Keynes General NHS Trust [2004] EWCA CIV 576
Marshall v Metropolitan Redevelopment Authority [2015] WASC 226
Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20
Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S)
Spartalis and City of Stirling [2017] WASAT 125
Telstra Corporation Limited and City of Wanneroo [2011] WASAT 77
Tran and Town of Vincent [2009] WASAT 123 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Background
In May 2016 Planning Solutions, on behalf of Service Stream Mobile Communications for its client Vodafone Hutchison Australia Pty Ltd (applicant), made application to the City of Bayswater (respondent, Council or City) seeking development approval for a telecommunications facility at Crimea Reserve, Lot 9087 (No 2) McCarthy Street, Morley (subject land, Crimea Reserve or Reserve).
The respondent, at its meeting of 4 October 2016, resolved to refuse to grant planning approval for a 'Proposed Telecommunication Infrastructure to Recreational Facility (Crimea Reserve)' for the following reasons:
(a)The proposal does not comply with clauses A (iv) and A (vi) of the City of Bayswater local planning policy relating to Telecommunications Towers and Associated Facilities which stipulate that telecommunication facilities may not be located within 250m of land zoned or developed for residential purposes.
(b)The proposal does not comply with the State Planning Policy 5.2 relating to telecommunications infrastructure in that it is not sited to minimise visual impact (i.e, not located where it will not be prominently visible from recreation sites and not sympathetic to the surrounding landscapes).
(c)The proposal is considered to have an undue impact on the amenity of the area.
(d)The proposal is considered to be inconsistent with the orderly and proper planning of the locality.
On 1 November 2016 the applicant made an application to the Tribunal seeking to have that decision reviewed.
On the 6 October 2017 the Tribunal determined that the application for review should be allowed and the determination of the respondent set aside and a decision substituted that planning approval is granted subject to conditions.
In making that determination the Tribunal noted that during the hearing the applicant foreshadowed an application for costs and determined that should this be the case, the matter would need to be argued at a later date. To enable this to happen, the question of costs was reserved.
On 23 October 2017 the Tribunal received the applicant's submissions in support of its application for costs. The respondent provided a submission on costs on 3 November 2017 and the applicant's submission in reply was received on 13 November 2017.
As neither party sought an oral hearing on costs the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)
Issue
The SAT Act confers a discretion on the Tribunal to award costs. The relevant provision is set out below:
87.Costs of parties and others
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to
(a)whether the party (in bringing or conducting the proceeding before the decisionmaker in which the decision under review was made) genuinely attempted to enable and assist the decisionmaker to make a decision on its merits;
(b)whether the party (being the decisionmaker) genuinely attempted to make a decision on its merits.
…
88.Costs of proceeding
(1)In this section -
costs of a proceeding means costs of, or incidental to, a proceeding of the Tribunal, other than costs of a party.
(2)The Tribunal may order that all or any of the costs of a proceeding be paid by a party.
(3)If the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal cannot make an order under this section against a party unless -
(a)the party brought or conducted the proceeding frivolously or vexatiously; or
(b)section 87(4) applies to the party; or
(c)circumstances have arisen in which the Tribunal could make an order under section 46, 47 or 48.
Some of the factors relevant in exercising the discretion to award costs pursuant to s 87 of the SAT Act were identified in Spartalis and City of Stirling [2017] WASAT 125 (Spartalis) where the Tribunal referred to Chew and Director General of the Department of Education and Training [2006] WASAT 248 at [85]:
[T]he Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purposes.
In Spartalis the Tribunal also addressed a recent decision of the Court of Appeal at [18] as follows:
More recently the Court of Appeal in Western Australia Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) gave consideration to the operation of s 87(1) of the SAT Act and the exercise of the discretion conferred on the Tribunal by s 87(2) of the SAT Act. The following relevant principles were found to apply when considering a costs application:
1)The discretionary power is to be exercised judicially; that is not arbitrarily, capriciously or so as to frustrate the legislative intent; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [48];
2)Although not expressly stated in s 87(2) of the SAT Act that the power is to be exercised if it is fair and reasonable in all the circumstances to do so, the 'judicial nature' of the exercise of the power and the scheme of the SAT Act supports that legislative intention; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [49];
3)The onus is on the party seeking an order in their favour to persuade the Tribunal that an order should be made; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [51];
4)All parties to proceedings before the Tribunal are taken to be aware of the statutory objectives of the Tribunal set out in s 9 of the SAT Act; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [54];
5)Following on from point four above, the Tribunal needs to consider whether the other party's conduct in the proceeding has interfered with the Tribunal's ability to satisfy its statutory objectives of ensuring that the proceeding is determined fairly and in accordance with the substantial merits of the case, to act speedily and with as little formality and technicality as is practicable and in a way which minimises the costs of the parties; Questdale per Murphy JA (with whom Martin CJ and Corboy J agreed) at [54].
The Spartalis decision went on to set out the principles to be applied by the Tribunal in dealing with cost applications at [19] - [21]:
Therefore although the starting position is that each party bears its own costs, the Tribunal has a clear discretion to award costs in an appropriate matter. The Tribunal in its consideration needs to determine if it is fair and reasonable for a party to be reimbursed for costs incurred, not simply because that party has been ultimately successful, but by considering the other party's conduct particularly whether that conduct has impaired the Tribunal's ability to meet its statutory objectives of dealing with matters speedily and cost effectively.
In addition, s 87(4) of the SAT Act identifies matters to which the Tribunal is to have regard in proceedings arising in its review jurisdiction when exercising its discretion. In particular s 87(4)(b) of the SAT Act, requires the Tribunal to consider whether the original decisionmaker has genuinely attempted to make a decision on its merits. It is also relevant when considering this issue, the stage of the proceeding at which the original decisionmaker makes any such genuine consideration.
If the Tribunal exercises its discretion to award costs, it approaches the task of fixing costs in a broad and relatively robust fashion; Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 (Perth Central) at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125(S) at [49]. In addition, the power to make a costs order includes the power under s 87(3) of the SAT Act to make an order for the payment of an amount to compensate a party for any expenses resulting from the proceeding. The effect of this provision is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss incurred in connection with the conduct of the proceeding: Springmist Pty Ltd and Shire of Augusta Margaret River (2005) 42 SR (WA) 2007; [2005] WASAT 143(S) (Springmist) at [64].
The applicant's submissions
The applicant submits that it is entitled to an order for its costs on the basis that the respondent:
(a)failed to make a genuine attempt to make a decision on the applicant's proposal on its merit;
(b)maintained a position that was unsubstantiated and was proven to be untenable during the course of the hearing, which resulted in the applicant's application being successful; and
(c)conducted itself unreasonably in the proceedings by refusing to agree to a mediation conference and by making no attempt at negotiation during the compulsory conference, which necessitated in the parties proceeding to a hearing.
In regard to the first ground (lack of a genuine attempt to make a decision on the merits) the applicant submitted that the respondent, in seeking to apply a 250 metre buffer knew that there was a community need for the facility and compliance with the buffer zone terms of the Telecommunication Towers and other Associated Activities Policy (Council 'Towers' Policy) was impossible.
This the applicant argued ran counter to a previous Tribunal determination that buffer zone provisions and local planning policies are not binding and developments should be approved with lesser setbacks where there is a demonstrated need (Telstra Corporation Limited and City of Wanneroo [2011] WASAT 77). This the applicant submits was unreasonable conduct on the part of the respondent indicating a lack of a genuine attempt to consider the proposed development on its merits.
In addition the applicant raises issues identified in the respondent's refusal that in its view do not comply with State Planning Policy 5.2 'Telecommunications Policy' in that the respondent argued that the facility 'is not sited to minimise visual impact' and that the proposal had an 'undue impact on the visual amenity of the area'. The applicant submits that the Telecommunications Policy recognises that telecommunications infrastructure may have visual impacts and it is therefore necessary to balance the need for effective telecommunications services with the visual impact on the surrounding area.
In addition the applicant submits that as the respondent ultimately conceded there was no alternative site or design for the facility the only decision properly open to the respondent had it genuinely attempted to make a decision on the merits of the proposal was to conclude that the proposed development complied with the Telecommunications Policy.
In regard to the second ground (maintaining an untenable position) the applicant submits that the respondent's position at the hearing became untenable as a consequence of concessions made in the statement of agreed facts and the course of evidence of Mr Michael Robson.
These included in the applicant's view the following:
•Mr Robson conceded that 19 out of the 20 bases of objection were irrelevant or not substantiated in fact.
•While the respondent maintained the applicant's proposal was a permanent commercial use incongruent with public recreation nature of the reserve the respondent had previously allowed commercial activities, both incidental and nonincidental, to operate on the reserve.
•Mr Robson conceded that the visual impact of the applicant's proposal in and of itself 'is not sufficient to justify refusing the application'.
•The respondent's reliance on a petition received from the community was inappropriate.
•The respondent maintained that there was an element of uncertainty in respect of the replacement lighting notwithstanding the fact the applicant made it clear from the outset that it intended to provide the equivalent replacement lighting.
•The respondent relied on the fact that there is a potential for further colocation to support its refusal despite the fact that colocation is consistent with the respondent's own council policy.
In regard to the third ground (unreasonable conduct prior to the hearing) the applicant submits that the respondent conducted itself unreasonably in the proceedings prior to the hearing. This was based on a contention that the respondent refused to participate in mediation or engage with any attempts to settle during a compulsory conference held on 20 March 2017.
Essentially the applicant submits that the respondent adopted the attitude that it would rather let the Tribunal take responsibility than answer to its ratepayers for the council making the decision to approve the proposal. This, the applicant submits, is an abrogation of the respondent's statutory duties in determining planning and development application and warrants a cost order.
Finally the applicant submitted a schedule of its solicitorclient costs of the preceding which totalled $112,125.13.
The respondent's submissions
In its response to the applicant's submissions the respondent submits in regard to ground one (lack of a genuine attempt to make a decision on the merits) that it has a statutory obligation under cl 67(n)(iii) of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regulations) to have due regard to the amenity of the locality.
In fulfilling this statutory obligation the respondent argues the Council decision needs to be read against the background of the officer's report and recommendation which does not indicate a 'strict' or unreasonable application of Council policy. The report by the Council officer, while conceding that the proposed development complies with many of the more detailed development requirements, concluded at the location in the middle of an established residential area without an adequate buffer zone resulted in an undue impact on the amenity of the area.
The respondent submits that the benefits of the tower do not automatically trump all other factors. The task of balancing the known, but generalised, benefits of improved telecommunications against the visual impact of the facility calls for value judgements about which minds can reasonably differ.
In regard to the second ground (maintaining an untenable position) the respondent submits the following:
•In regard to the 20 bases of objection a fair reading of Mr Robson's witness statement and the report to Council would suggest that the objector's submissions were considered relevant and given weight only to the extent that they reflected concerns about the amenity impact of the proposed tower.
•The commercial use of the reserve was an issue contested at the hearing and the Tribunal's determination does not mean the respondent's position was untenable.
•The fact that Mr Robson felt the negative visual impact of the tower, only of itself, was not sufficient to justify refusal does not mean the respondent's position was untenable.
•The fact that the Tribunal gave no weight to the petition does not mean the respondent's position was untenable.
•The applicant's submissions in regard to issues of uncertainty and future co-location likewise does not establish the respondent's position was untenable.
In regard to ground three (unreasonable conduct prior to the hearing) the respondent submits that it does not accept the applicant's characterisation of what occurred at the compulsory conference but is prevented from responding in any meaningful way by s 55 of the SAT Act.
In regard to the respondent's decision not to agree to mediation the respondent submits that it is not unreasonable to oppose an order for mediation in circumstances where a party does not believe mediation is likely to achieve a resolution of the matter or reduce the issues in dispute.
The applicant's submissions in reply
In regard to the first ground (lack of a genuine attempt to make a decision on the merits) the applicant submits that the respondent's submissions virtually ignore the first (and primary) reason for refusal being the application of the zoning and buffer zone provisions of Council 'Towers' Policy and the asserted noncompliance with the Telecommunications Policy.
The applicant also, relying on the transcript of the final hearing, submits that Mr Robson's evidence amounts to a clear concession that the proposed location and design of the facility caused minimum visual impact. On this basis the applicant argues that the respondent looked selectively at the evidence in order to attempt to justify the refusal decision and that any reasonable Council considering the whole of the evidence and properly applying the Telecommunications Policy could not have reached a decision to refuse approval.
In regard to the second ground (maintaining an untenable position) the applicant submits, relying again on the transcript of the hearing, that the present and expected mobile telecommunications coverage and the lack of alternative suitable sites were known to the respondent at the time it made the decision. The applicant submits that had the respondent given proper consideration to these matters the decision should not have been made in the first place, or should have been reconsidered and overturned before the hearing.
In regard to ground three (unreasonable conduct prior to the hearing) the applicant submits it is now generally accepted that an unreasonable refusal to participate in mediation (and, by extension, a compulsory conference) may lead to an adverse cost order and cites a number of examples of case law in other jurisdictions.
By reference to Halsey v Milton Keynes General NHS Trust [2004] 4 All ER 920 (Halsey) and EzekielHart v Law Society of the Australian Capital Territory (No 2) [2012] ACTSC 135 (Ezekiel) at [26][37] the applicant submits that the respondent's refusal to engage in mediation and its conduct in the compulsory conference in this case was unreasonable.
Tribunal considerations
These proceedings fall within the Tribunal's jurisdiction under s 87 of the SAT Act. Without limiting anything else that may be considered the Tribunal is under s 87(4) to have regard to:
(a)whether the party (in bringing or conducting the proceeding before the decisionmaker in which the decision under review was made) genuinely attempted to enable and assist the decisionmaker to make a decision on its merits;
(b)whether the party (being the decisionmaker) genuinely attempted to make a decision on its merits.
The Tribunal will deal with each of the three issues the subject of submissions by the parties in turn.
Lack of a genuine attempt to make a decision on the merits
The essence of the submissions of the applicant are that that the manner in which the respondent applied both state and local policy and its reliance on a petition from objectors meant that it did not make a genuine attempt to determine the application on its merits.
Orderly and proper planning requires that individual development applications are assessed against the existing statutory and policy planning framework (Marshall v Metropolitan Redevelopment Authority [2015] WASC 226).
Clause 67 of the LPS Regulations sets out matters to which a local government is to have due regard in considering an application for development approval. These include:
…
(c) any approved State planning policy;
…
(g)any local planning policy for the Scheme area;
…
(y)any submissions received on the application;
…
The report provided by council officers to the respondent for its Ordinary Council Meeting of 4 October 2016 (report) makes explicit reference to these factors. Thus the issue is whether, in considering these matters, the respondent failed to make a genuine attempt to address the merits of the application before it.
The report comprises 16 pages with a number of attachments. This report identified the following key issues:
•impact on the amenity of the area;
•non-compliance with the Council 'Towers' Policy;
•submissions and a petition; and
•the City's management order on the property.
The body of the report addresses lease options, provides a response to submissions received, and in the analysis of the proposal addresses in some detail both location and design.
The attachments included a two page addendum of further information addressing the height of the existing tower, examples of existing phone towers on other reserves, buffer zones, search area and discounted candidate report and further submissions by Telstra.
The fact that the report of the Council officer conceded that the proposed development complied with many of the more detailed development requirements of Council 'Towers' Policy suggests that the proposal was assessed in an orderly manner against the relevant provisions of the policy.
The applicant submits the respondent's reliance on a petition received from the community was inappropriate. Given that cl 67(y) of the LPS Regulations applies the question goes to whether the weight given to the petition by the respondent undermined a genuine attempt to assess the merits of the proposal.
The respondent suggests that the objectors' submissions were considered relevant and given weight only to the extent that they reflected concerns about the amenity impact of the proposed tower. This contention was supported by the evidence of Mr Robson in what the applicant argues were concessions made in his evidence at the hearing.
In regard to the Telecommunications Policy the applicant submits that it is necessary to balance the need for effective telecommunications services with the visual impact on the surrounding area and, given the lack of an identified alternative site, the respondent should have supported the proposed development. While the balancing of these aspects is a clear principle of the Telecommunications Policy the exercise of discretion will inevitably involve a judgement. While the applicant challenges the outcome of that judgement, and the Tribunal subsequently found for the applicant on this question, this does not establish that the respondent failed to genuinely assess the proposal on its merits.
The evidence before the Tribunal suggests that, while the applicant clearly contested the outcome, the respondent did attempt to assess the proposed development on its merits for the following reasons:
•The report on which the respondent relied addressed the relevant provisions of the planning framework; City of Bayswater District Town Planning Scheme No. 24, the Telecommunications Policy, Council Policy and the LPS Regulations;
•The report explicitly set out a number of key issues arising from the application;
•The report provided extensive coverage of the issues identified;
•An addendum provided further information following the Councillor Briefing Session held on 27 September 2016 prior to the decision on the 4 October 2016; and
•While in Tran and Town of Vincent [2009] WASAT 123 (S) (Tran) the Tribunal was critical of a decisionmaker for ignoring the advice of its technical officers in this case the Elected Members endorsed the advice of their technical officers.
The fact that the Tribunal reached a different conclusion from the respondent does not, of itself, inevitably lead to a conclusion that the respondent failed to genuinely attempt to make a decision on its merits: Myburgh Concepts Pty Ltd and City of Stirling [2010] WASAT 20 (Myburgh).
The Tribunal therefore finds there is no evidentiary basis to find that the respondent did not genuinely attempt to make a decision on its merits. This finding accords with the principles established in previous Tribunal determinations.
In Myburgh at [50] the Tribunal found:
The fact that the Tribunal reaches a different conclusion from an original decision-maker, does not, inevitably, lead to the conclusion that the original decision-maker failed to genuinely attempt to make a decision on the merits of the application. That is so even though the original decisionmaker may have failed to properly or correctly apply the relevant criteria governing the exercise of its discretion.
In addition in Boulter and Shire of Augusta - Margaret River [2006] WASAT 334 at [21] the Tribunal found:
Even if, as the applicant contends, the reasons for refusal ultimately proved not to be sustainable, that does not mean that the Council did not endeavour to determine the matter on its merits. Failure to genuinely attempt to determine a matter on its merits is quite different from making an error as to the merits. In my view, the applicant's submissions go no further than suggesting that the Council erred in its deliberations.
Maintaining an untenable position
The applicant submits that the respondent's position at the hearing became untenable as a consequence of alleged concessions made in the statement of agreed facts and the course of evidence of Mr Robson.
The Tribunal's rules state that an expert who attends a mediation, a compulsory conference or a conferral of experts directed by the Tribunal or who gives evidence at a hearing has the following obligations to the Tribunal:
(a)an overriding duty to assist the Tribunal impartially on matters relevant to their area of expertise;
(b)a paramount duty to the Tribunal and not to the party who engaged them; and
(c)a responsibility to convey their expert opinion to the Tribunal and not to act as an advocate for the party who engaged them.
The respondent submits that the fact that Mr Robson felt the negative visual impact of the tower, only of itself, was not sufficient to justify refusal does not mean the respondent's position was untenable. While accepting this submission more generally the Tribunal is of the view that any alleged concessions made by Mr Robson in giving evidence suggest he was seeking to assist the Tribunal impartially on matters relevant to his area of expertise. In addition while his evidence may well have weakened the respondent's case he could not be regarded as impairing the Tribunal's ability to meet its statutory objectives.
The fact that Mr Robson's views shifted from the position taken in the report submitted to the Council, while it suggests the respondent demonstrated some flexibility in running its case, cannot substantiate an inference that the respondent's position was untenable particularly in the context of the Tribunal finding that the respondent did genuinely attempt to make a decision on its merits.
For the reasons above the Tribunal finds that the respondent's position cannot be regarded as untenable, and more particularly Mr Robson in giving expert evidence, genuinely attempted to enable and assist the Tribunal to make a decision on its merits
Unreasonable conduct prior to the hearing
The applicant submits that the respondent's refusal to engage in mediation and its conduct at the compulsory conference in this case was unreasonable and relies on Halsey and Ezekiel.
The Tribunal does not accept this submission. The Halsey decision was made in the Milton Keynes County Court. In any event is to be noted that the England and Wales Court of Appeal subsequently upheld the decision of the county court in Halsey by not finding against the respondent for failing to engage in mediation (Halsey v Milton Keynes General NHS Trust [2004] EWCA CIV 576 (11 May 2004)). The Ezekiel decision was made in a jurisdiction where the Supreme Court of the Australian Capital Territory relies on substantively different statutory provisions to those set out in the SAT Act in relation to costs. These cases do not therefore assist the Tribunal in the current matter.
Further, the applicant submits that the respondent adopted the attitude that it would rather let the Tribunal take responsibility than answer to its ratepayers for the council making the decision to approve the proposal and that this is an abrogation of the respondent's statutory duties in determining the development application and warrants a cost order. Had that in fact been the position taken by the respondent the Tribunal would consider such an approach to be an abrogation of the statutory duty of the responsible authority.
There is however no direct evidence before the Tribunal to substantiate the assertion that the respondent abrogated its statutory duty and therefore no basis for the Tribunal to make a finding in that regard.
In the context where the respondent refused to approve the proposed development in accordance with the recommendation of its technical officers it cannot be regarded as unreasonable for it to seek to defend its decision by resisting mediation or in its conduct in any subsequent compulsory conference.
In addition the fact that the respondent participated with the applicant in May 2017 in developing a statement of agreed facts undermines a contention of unreasonable conduct.
Furthermore, the respondent appropriately presented its case in that it engaged Counsel and adduced expert evidence in support of its position.
While its case may not have been strong, and was clearly further undermined in evidence at the hearing, the issues raised in its case were clearly open to it in exercising its statutory responsibilities; and in balancing visual amenity and community benefit the respondent considered the visual amenity impacts outweighed the community benefit.
While the Tribunal found against the respondent this does not substantiate a contention that the respondent was maintaining an untenable position which meant that its conduct was unreasonable.
For these reasons the Tribunal finds the respondent did not conduct itself in an unreasonable manner prior to the hearing.
The Tribunal has sought to consistently apply the provisions of s 87 of the SAT Act and this has generally seen the application of the principle set out in s 87(1) that the Tribunal is a no cost jurisdiction. In Tran the Tribunal noted that successful costs applications in the Tribunal are a 'rare bird' indeed. However, the Tribunal has in a limited number of cases made findings as to costs.
In Tran at [35] [36] the Tribunal found:
In this matter, there is in my view conduct on the part of the Town which can be objectively considered relevantly 'unreasonable' (as that expression emerges from the authorities referred to above) warranting a costs award in the applicants' favour.
Although I do not doubt for one moment that the respondent's actions were undertaken other than in good faith it is important for the process of orderly public sector decisionmaking that original decisionmakers pay careful attention to consistency in that decisionmaking process; that they also pay regard to the advice of their professional officers; and that they avoid the need for the rearguing of cases where there are in fact no material changes to the circumstances where an earlier identical planning approval had been given.
In Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S) (Ransberg) at [40] [41] the Tribunal found:
It was apparent to the Tribunal from the way the Council consistently dealt with the matter and the final reasons given by the respondent on 22 September 2015, that the respondent took the view that it would always oppose a concrete batching plant at the subject site regardless of any professional advice or previous decisions of the Tribunal.
Whilst the respondent may oppose a concrete batching plant at the subject site, the respondent is still obliged to consider the proposal on its merits, to apply the relevant provisions of the planning framework and to be cognisant of its legal obligations as a decisionmaker which includes consistency in decisionmaking in the interests of orderly and proper planning (see Marshall v Metropolitan Redevelopment Authority [2015] WASC 226 at [178] to [183]).
In Spartalis the Tribunal found at [39]:
This Tribunal finds that the respondent did not genuinely attempt to make a decision on its merits at the stage of the proceeding at which such a decision ought to have been made. Although the Tribunal accepts that the respondent acted reasonably during late 2016 and early 2017 in negotiations with the applicant and through their attendance at the mediation, from midFebruary 2017 there were clear delays in the progression of the matter on the respondent's part both in filing documents for the hearing and in failing to reconsider its decision in a timely manner. It is also inexcusable in the Tribunal's view to concede the entirety of the matter only six days before the final hearing when all costs associated with the hearing had by then been incurred. The reason afforded is simply unacceptable. The position must be either one of the respondent only very belatedly genuinely turning its mind to the merits of the outstanding issue, or, as submitted by it, due to the unavailability of its key witness on a particular day (which matter was never raised with the Tribunal) it simply arbitrarily decided to grant approval to save costs of retaining an external expert witness. In either circumstance the conduct is inappropriate and has contributed to costs being incurred by the applicant unnecessarily.
It is clear that the findings in each of these cases can be differentiated from the findings in this matter for the following reasons:
•In Tran the respondent was inconsistent in its decisionmaking process and disregarded the advice of their professional officers;
•In Ransberg the respondent took a position that disregarded both professional advice and previous decisions of the Tribunal; and
•In Spartalis the respondent conceded the entirety of the matter only six days before the final hearing when all costs associated with the hearing had by then been incurred.
None of the exceptional circumstances informing these decisions apply in the current case. In this matter the respondent considered the visual amenity impacts of the proposed development outweighed the community benefit. Visual impact is a relevant issue which the Telecommunications Policy acknowledges. While the Tribunal ultimately found for the applicant the evidence before the Tribunal does not establish that the respondent did not genuinely attempt to assess the proposal on its merits, maintained an untenable position or conducted itself unreasonably in the proceedings.
The Tribunal is not therefore persuaded that there is a basis upon which the Tribunal should depart from the usual principle in planning review cases that each party should bear its own costs. The applicant's application that the respondent pay costs is therefore dismissed.
Orders
1.For the reasons set out above the Tribunal orders that each party is to pay its own costs of the proceedings.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P DE VILLIERS, MEMBER
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