Wagner v. Brisbane City Council & Ors

[2007] QPEC 92

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Wagner v Brisbane City Council & Ors [2007] QPEC 092

PARTIES:

SIMON WAGNER

Appellant

V

BRISBANE CITY COUNCIL

Respondent

And

TELSTRA CORPORATION LIMITED

Co-respondent

And

CHIEF EXECUTIVE OF THE DEPARTMENT OF THE ENVIRONMENTAL PROTECTION AGENCY

Co-respondent by election

FILE NO/S:

BD 947/2007

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, at Brisbane

DELIVERED ON:

1 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2007

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

PLANNING – PLANNING AND ENVIRONMENT – VISUAL AMENITY – TELECOMMUNICATION  TOWER – visual impact of tower – whether unacceptable

Cases considered:
La Trobe CC & Ors v Telstra Corporation [2000] VCAT 2488
Telstra Corporation v Caloundra City Council [2005] QPELR 412

Telstra Corporation v Pine Rivers Shire Council [2001] QPELR 350

COUNSEL:

Appellant in person
W D Cochrane for respondent
J D Houston for co-respondent

SOLICITORS:

Appellant self-represented
Brisbane City Legal Practice for respondent
Mallesons Stephen Jaques for co-respondent

[1]      Mr Wagner is a resident of Norman Park who, in this appeal, challenges Council’s decision to approve Telstra’s application for a development permit to construct a telecommunications tower at 77 Adina Street, Norman Park.  The proposed location is within the car park at Norman Park Railway Station.  Mr Wagner lives opposite the car park at 74 Adina Street, about 80-100 metres from the site.

[2]      His initial Notice of Appeal identified 19 grounds of appeal.  However, by the time of hearing the issues in the case the grounds had, sensibly and to his credit, contracted to two: firstly, whether or not the tower and an associated electric hut were safe and suitable in a flood-prone area; and, secondly, the visual impacts of the structure.  The EPA had no active interest in the matter and did not attend the hearing.

[3]      Affidavits from Telstra employees Mr Mogridge and Mr Colwell were persuasive that the proposed structure will be above the Q100 flood-line, and complied with conditions Council imposed with its approval.  While Mr Wagner spoke with the obvious knowledge of an observant local resident about problems with a nearby waterway, and flooding, it was also apparent from the evidence of Telstra’s witnesses that insofar as it is possible to protect local residents from electrical shock created by the possible mixture of floodwater and electrical current, the structure proposed by Telstra was safe. 

[4]      Mr Colwell’s affidavit also dealt with some alternative sites suggested by Mr Wagner.  His evidence showed, again persuasively, that they were either inappropriate or, at best, no more suitable than that proposed here.

[5]      The question of visual amenity arises under a code in the Brisbane planning scheme, including now familiar performance criteria and acceptable solutions to them.  Although the issue was not raised by the appellant in a town-planning sense, Telstra sensibly accepted that it is nevertheless alive and adduced evidence from a well-known expert in the field, Mr Chenoweth. 

[6]      The tower is quite high and taller than other nearby structures and things.  Nevertheless Mr Chenoweth concluded and, after reading his report and hearing his evidence (and seeing a large number of photographs of the area, and a short film prepared by Mr Wagner), I accept that the proposed development has been thoughtfully sited to minimise potential detrimental visual impacts.  In the context of the car park and railway station where it would stand, in the company of light poles and parked vehicles and against background trees, it will not be visually offensive, intrusive or dominant.

[7]      These towers can arouse local passions.  There is, however, nothing in the current Brisbane planning scheme that creates apparent impediments for this one (in the town planning sense, or in terms of conflict with the provisions of the scheme) of the sort identified, for example, by Brabazon QC, DCJ in Telstra Corporation v Caloundra City Council [2005] QPELR 412 where the scheme placed strict height limits on the towers, and required that they be ‘visually integrated’ into their surroundings.

[8]      Rather, this is a case of the kind considered by the Victorian Civil and Administrative Tribunal in La Trobe CC & Ors v Telstra Corporation [2000] VCAT 2488[1] in which the following remarks, apposite here, fell from the presiding member:

[28]        The fact that the structure will be partly visible is not in itself sufficient for me to view the view that its visual impact has not been minimised or that it will have an unacceptable impact.  The fact of the structure’s visibility must be balanced against the policy provisions of the planning scheme which support the provision of this form of infrastructure and the wider community benefit to be derived from the development of a comprehensive telecommunication network.  While there will be circumstances in which these facilities will be dominant and their visual impact unacceptable … the current proposal does not in my view fall into that category.

[1]And see, to similar effect, the judgment of Newton DCJ in Telstra Corporation v Pine Rivers Shire Council [2001] QPELR 350

[9]      This tower will be visible to some residents, including Mr Wagner and his family.  It is not contended, however, that its construction conflicts with the relevant provisions of the planning scheme.  The evidence establishes that so far as possible its impacts including, in particular, its effects on visual amenity and what is sometimes called the ‘viewscape’ or ‘viewshed’ of local residents, have been addressed in an appropriate way; are not serious; and, are not sufficient to warrant overturning Council’s decision.

1. For these reasons, the appeal is dismissed.