RESPONSIBLE AUTHORITY: Strathbogie Shire Council

MEDIUM NEUTRAL CITATION: [2002] VCAT 1121

It is ordered that a permit is granted for use and development of land being Lot 2 on PS 099453, Wormangal-Wahring Road Wahring for use and development for a Telecommunications Facility subject to the following conditions:

1. The development must be sited and constructed in accordance with the approved plans.

2. Access to the site, including all vehicular crossovers, must be provided and constructed to the satisfaction of the Responsible Authority.

3. Prior to any earthworks, topsoil should be removed from the site, stockpiled, and re-spread over exposed areas immediately following the completion of works.

4. The amenity of the area must, to the satisfaction of the Responsible Authority, not be detrimentally affected by the use of development, through the:

a) Transport of materials, goods or commodities to or from the land.

b) Appearance of any building, works or materials.

c) Emission of noise, artificial fight, vibration, smell, fumes, smoke, vapour, team, soot, ash, dust, waste water, waste products, grit or oil.

5. Within 6 months of the completion of the development, landscaping must be established in accordance with the approved plans and subsequently maintained to the satisfaction of the Responsible Authority.

6. This permit will expire if one of the following circumstances applies:

a) The development is not started within two years of the date of this permit.

b) The development is not completed within four years of the date of this permit.

The Responsible Authority may extend the periods referred to if a request is made in writing before the permit expires or within three months afterwards.

The Responsible Authority is directed to issue a permit in accordance with this Order, pursuant to Section 85(1)(b)of the Planning and Environment Act 1987.

For the Responsible Authority: Ms S Lea, Senior Planner

For the Applicant For Review/ Ms K Kemp of Counsel, instructed by

Objector: Aitken, Walker and Strachan, Solicitors

For the Respondent/Permit Applicant: Mr J Gobbo QC, instructed by Gadens

1. This is an application under Section 82 of the Planning and Environment Act 1987 ("the Act") brought by the Objector for review of a decision by the Strathbogie Shire Council ("the Responsible Authority") to grant a permit for use and development of land for a mobile telephone tower and associated works.

2. Ms Kemp, for the Applicant for Review/Objector, applied for an adjournment to enable her client to engage a Town Planner as an expert witness. Ms Kemp submitted that her client had been unable to engage a Town Planner in the weeks since receiving the Notice of Hearing, which was dated 1 July 2002, because he had been heavily involved in his farming business, of which he was the sole operator. Ms Kemp submitted that this had been cropping time and her client had been "flat out". Ms Kemp submitted that her client wished to obtain such expert evidence before this matter was heard and requested an adjournment of four weeks.

3. Ms Lea, for the Responsible Authority, said that she was fully prepared and ready for the hearing to proceed, and had travelled some distance for the hearing. She did not support the adjournment requested. Ms Lea said that she understood the commitments of farmers to cropping at this time, but she wished to have the matter resolved today and opposed the adjournment.

4. Mr Gobbo, for the Respondent/Permit Applicant, submitted that a letter had been received a couple of days ago suggesting that an adjournment would be sought, but no reason had been given at that time. Mr Gobbo said that for the first time the reason for the adjournment requested was known, that was to go and find expert evidence. Mr Gobbo went through the relevant dates, from the date of lodgement of the permit application in November 2001 through to the present. Mr Gobbo submitted that the Application for Review was received by the Tribunal on 14 March 2002 by the Solicitors for the Applicant for Review/Objector, and it should have been clear then that it would be necessary to present a case in support of that Application for Review in due course. Mr Gobbo said that he did not know when the Applicant for Review/Objector had engaged Lawyers, but it could not be said that that particular of firm of Solicitors does not know that it is doing. Mr Gobbo said that there was a Mediation on 21 June 2002 when all parties were present or represented, and the Tribunal was entitled to draw an inference that there was a degree of preparation at that time. Hearing notices were dated 1 July 2002 and Mr Gobbo submitted that it was incomprehensible that the Applicant for Review/Objector would not have realised that he was under an obligation to be prepared for the hearing. Mr Gobbo submitted that if he was not prepared this was only a product of his own lack of initiative and industry. Mr Gobbo submitted that the fact that the Applicant for Review/Objector had been busy in the last few weeks was understood, but many parties appearing before the Tribunal were in demanding full time employment and had to make arrangements out of hours as an addition to their normal work load. Mr Gobbo foreshadowed an Application for Costs if an adjournment was granted.

5. Ms Kemp responded to what had been put by Ms Lea and Mr Gobbo. Ms Kempt submitted that her client was a farmer and not aware of legal processes, and her instructing Solicitors had been properly instructed at all times. She submitted that it had taken some time for her client to fully comprehend what had been required, and this would not have been known as early as February when the Notice of Decision was issued. Ms Kemp submitted that at the time of the Mediation it was expected that a hearing would be in mid August and her client had been totally consumed with farm work.

6. I stood the matter down to consider the Application for Adjournment and on return I read the following statement:

"Ms Kemp for Mr Buchanan, the Applicant for Review/Objector, has applied for an adjournment because her client has not had time to engage a Town Planner as an expert witness, and wishes to do so. The Application for Adjournment was opposed by Ms Lea, for the Responsible Authority, and by Mr Gobbo, for the Respondent/Permit Applicant. The Application for Adjournment is disallowed for the following reasons:

1. The permit application was lodged on 21 November 2001,

3. The Responsible Authority issued a Notice of Decision to Grant a Permit which was dated 19 February 2002,

4. The Application for Review was received by the Tribunal on 14 March 2002,

5. The matter went for Mediation on 21 June 2002, but was not settled,

6. Hearing notices were dated 1 July 2002, about 4 weeks ago, say 3½ weeks allowing for mail,

7. I accept the submission of Mr Kemp that Mr Buchanan has been particularly busy,

8. I note however that Mr Buchanan has engaged competent Solicitors, at least prior to the Mediation on 21 June 2002 (I note that the Application for Review which was received by he Tribunal on 14 March 2002 was lodged by Mr Buchanan's Solicitors on his behalf),

9. An adjournment of 4 weeks is sought to engage and obtain a report from a Town Planner,

10. I consider that there has been adequate time to obtain a Town Planner, and at the very least engage a Town Planner since the Mediation, particularly as competent Solicitors have been acting for Mr Buchanan,

11. It would appear that a Town Planner has not been engaged even at this time,

12. Having regard to the circumstances outlined above I do not consider that it would be just and fair to grant the adjournment requested. I have come to this conclusion acknowledging that Mr Buchanan has been busy, but also having regard to the fact that competent Solicitors have been acting for him,

7. Ms Lea, in her written submission for the Responsible Authority, described the proposal as follows:

"It is proposed to construct a telecommunications facility north east of Nagambie. The most prominent feature of the telecommunications facility is the 35 metre high monopole designed to support the antenna configuration. It is proposed to install two omni antennas and one 800mm transmission dish at varying heights on the pole.

The area of the proposed compound is 14 metres by 9.5 metres. A colourbond equipment cabin 3 metres x 2.5 metres x 2.9 metres will be erected at the base of the monopole. All equipment will be enclosed within a compound protected by a security fence and gates. The area around the perimeter of the compound will be landscaped and in turn protected by a new stock fence. Power to the site will be run underground from an existing pole 70 metres away.

The facility will be accessed from the adjacent Wormangal Wahring Rd with a setback of 20 metres from the road frontage.

The facility is sought to address a lack of satisfactory mobile telephone coverage along the Goulburn Valley Highway, improve coverage to the township of Nagambie, and in future capture motorists on the proposed Nagambie By-pass. The proposal is part of the Federally assisted program of upgrading mobile phone coverage to nominated rural highways, and more specifically Vodafone's program to install a cellular telecommunications network."

8. Ms Lea described the subject land and surrounds as follows:

"The subject site is situated on cleared and level rural land on the western side of Wormangal Wahring Road. No vegetation exists within the site area and access to the compound has yet to be constructed.

The subject site occupies only a small portion of the adjacent farm, which includes the owner's dwelling situated several hundred metres to the west. This landholding has an approximate area of approximately 347ha (the actual lot has an approximate area of 98ha) and is used for combination of agricultural activities including grazing and cropping. The land is largely flat though, as typical of the area, does have slight topographic variations throughout. Whilst generally cleared land many mature eucalyptus trees have been retained across the property. The trees are generally around 35 to 45 metres tall and form an important part of the area's character. They are generally scattered across the property, though retained in a more uniform manner along creek beds and road reserves. It is noted, however, that at this point the road reserve is largely grass based with little taller vegetation.

The subject property is indicative of those in the Wahring area - both in terms of size, topography and vegetation cover. The property on the eastern side of Wormangal Wahring Rd is the nearest to the facility site. This land is rated to two parties - AD & NA Buchanan and Buchanan Pastoral Company - and has an approximate area of over 300ha. The land immediately adjacent to the subject site is largely cleared and currently used for cropping purposes. There is little vegetation retained in this immediate area. More significant vegetation cover, however, is evident across the rest of the landholding. A number of structures on this site are visible from Wormangal Wahring Rd, including a silo immediately adjacent to the road reserve near to the facility site. It is understood the dwelling associated with this property is located approximately 2km east of the facility site. It is not visible from the subject site due to slight topographical changes and the existence of significant vegetation.

Other landholdings in the area are generally of a similar size (i.e. in excess of 300ha), though the land to the north-east (south of Kirwans Bridge - Longwood Rd) is generally held in smaller parcels. Several dwellings exist in this area, however, within the immediate vicinity of the subject site is only the dwelling on the property of Buchanan Pastoral Company."

9. The subject land is covered by the Strathbogie Planning Scheme and is in a Rural Zone which is the subject of Clause 35.01. A Telecommunications Facility is a Section 1 - Permit not required use, pursuant to Clause 32.01-1, subject to the condition that buildings and works must meet the requirements of Clause 52.19, Telecommunications Facility. Clause 52.19-2 provides that a permit is required to construct a building or to construct or carry out works for a telecommunications facility, subject to a number of exceptions. The proposal does not meet any of those exceptions. A permit for use is therefore required pursuant to Clause 35.01-1. A permit for buildings and works is required pursuant to Clause 35.01-3, because the buildings and works are associated with a Section 2 use, and pursuant to Clause 52.19-2, because the exceptions are not met.

* Ensuring that telecommunications infrastructure and services are provided in an efficient and cost effective manner to meet community needs;

* To ensure the application of consistent provisions for telecommunications facilities;

* To encourage an effective statewide telecommunications network in a manner consistent with the economic, environmental and social objectives of planning in Victoria;

* To encourage the provision of telecommunications facilities with minimal impact on the amenity of the area.

11. "A Code of Practice for Telecommunications Facilities in Victoria", March 1999, is an incorporated document pursuant to the Schedule to Clause 81. The purpose of the Code of Practice is:

* Set out the circumstances and requirements under which land may be developed for a telecommunications facility without the need for a planning permit; and

* Set out principles for the design, siting, construction and operation of a telecommunications facility which a responsible authority must consider when deciding on an application for a planning permit.

"Where a permit is required the Code outlines four principles relating to design, siting, construction and operation of a telecommunication facility:

1. A telecommunications facility should be sited to minimise visual impact;

2. Telecommunications facilities should be co-located wherever practical;

3. Health standards for exposure to radio emissions will be met; and

4. Disturbance and risk relating to siting and construction should be minimised. Construction activity and site location should comply with State environment protection policies and best practice environmental management guidelines.

13. The Code of Practice reads in part as follows:

PRINCIPLES FOR THE DESIGN, SITING, CONSTRUCTION AND OPERATION OF TELECOMMUNICATIONS FACILITIES

The following four principles must be applied where relevant to the design, siting, construction and operation of any telecommunications facility which is not exempt under Commonwealth legislation.

A Telecommunications facility should be sited to minimise visual impact.

* On, or in the vicinity of a heritage place, a telecommunications facility should be sited and designed with external colours, finishes and scald sympathetic to those of the heritage place. A heritage place is a heritage place listed in the schedule to the Heritage Overlay in the planning scheme.

* A telecommunications facility mounted on a building should be integrated with the design and appearance of the building.

* Equipment associated with the telecommunications facility should be screened or housed to reduce its visibility.

* The relevant officer of the responsible authority should be consulted before any street tree is pruned, lopped, destroyed or removed.

* A telecommunications facility should be located so as to minimise any interruption to a significant view of a heritage place, a landmark, a streetscape, vista. or a panorama, whether viewed from public or private land.

14. Clause 18.3, State Planning Policy for Telecommunications is relevant. Clause 18.13-1, Objective, reads:

"To recognise the importance of telecommunications to all aspects of modern life and the essential and beneficial contribution of modern telecommunications facilities to local communities and the State and national economy."

15. Clause 18.13-2, General Implementation, reads:

"Planning decisions should recognise that telecommunications is an essential utility service and, in particular, should:

* Facilitate the upgrading and maintenance of telecommunications facilities.

* Ensure that modem telecommunications facilities are widely accessible to business, industry and the community.

* Facilitate the orderly growth of telecommunications by recognising that new communications technology, needs to meet the continuous and growing demand for better communications and multi-media facilities in business, domestic, entertainment and community services.

* Reflect the economic contribution of telecommunications through improvements in business and industrial technology, rapid communication, and helping business and industry remain competitive and provide increased employment opportunities.

Planning schemes should not prohibit the use of land for a telecommunications facility in any zone.

Planning decisions should reflect a reasonable balance between the provision of important telecommunications services and the need to protect the environment from adverse impacts arising from telecommunications infrastructure.

Planning decisions should reflect the national implications of a telecommunications network and the need for consistency in infrastructure design and placement. A Code of Practice for Telecommunications Facilities in Victoria should be used in the consideration of applications for the use and development of telecommunications facilities and sites.

16. The purpose of the Rural Zone, as set out at Clause 35.01, is:

* To implement the State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* To provide for the sustainable use of land for Extensive animal husbandry (including dairying and grazing) and Crop raising (including Horticulture and Timber production).

- Protection and creation of an effective rural infrastructure and land resource.

- Improvement of existing agricultural techniques.

- Protection and enhancement of the bio-diversity of the area.

- Value adding to agricultural products at source.

- Promotion of economic development compatible with rural activities.

- Development of new sustainable rural enterprises.

* To ensure that subdivision promotes effective land management practices and infrastructure provision.

* Clause 17.05 State Planning Policy for Agricultural

* Clause 21.05-6 Local Planning Policy for Infrastructure

1. The proposed telecommunications tower ("the tower") is sited in a visually dominant position without the availability of suitable landscape screening contrary to the applicable guidelines.

2. The location of the tower will have a detrimental impact on the visual amenity of the area.

3. The proposed tower will increase health risks by reason of electromagnetic emission.

5. The proposal fails to comply with the principles for design, site, construction and operation of mobile telecommunication towers in accordance with applicable codes of practice.

6. The lower will interrupt significant view sheds available along the Wormangal -Wahring Road.

7. The tower should be relocated to a position where it can be effectively landscaped to be screened in accordance with the applicable codes of practice.

8. The Applicant for permit failed to comply with the notification requirements of Strathbogie Shire Council and thereby failed to satisfy the requirements of Section 52 of the Planning and Environment Act 1987.

19. The relevant dates with the respect to the processing of the permit application are set out in paragraph 6 above. As noted there was one objection. Ms Lea had summarised the Grounds of Objection as follows:

* Insufficient time to fully analyse the proposal, and the application should be put to Council;

* The public notice sign indicating the proposed location was not present on site at 5pm on 13th December 2001;

* The proposed location was not correctly shown on the submitted map;

* The application form was not signed by the land owner;

* The tower may be used as a reference marker by certain individuals as a means of identifying properties for theft;

* The appropriateness of the site given other sites in the area including south of the town.

"A copy of the submission was forwarded to the applicants, who provided the following further details in response:

* The application was lodged in accordance with the requirements of the Planning and Environment Act 1987, and the owner had provided their written consent in separate correspondence. The application for a planning permit was signed accordingly.

* The owner of the land has advised that the notice was erected on the site to correspond with the notice period, for a period of at least 14 days between 4 December and 18 December 2001.

* Given the extended period between the end of the public notice period and the next Council Meeting of 19 February 2002, the objector has had a substantially longer period than the statutory 14 days to consider the information provided.

* In relation to security, the facility will be contained within a security fence. Equipment shelters are designed to minimise vandalism, and will be alarmed so that break-ins are immediately reported electronically at the main control centre. Police can then be informed accordingly.

* In relation to other sites recommended by the objector, one suggested site near Mitchellstown is home to an existing Vodafone facility that provides coverage to the southern section of the Goulburn Valley Highway. This facility does not provide adequate coverage in the vicinity of Nagambie.

* The aim of existing and proposed sites is to provide continuous mobile phone coverage along the length of the Goulburn Valley and Newell Highways.

A copy of the report detailing the existing coverage in the Nagambie area and the predicted coverage from the proposed facility was also provided for the objector's benefit.

In general it is considered that the issues raised by the objector are trivial in nature and do not raise significant planning issues. Council's perspective is that the applicants were able to adequately address the issues raised by the objector.

However, the applicants did not address the issue raised by the objector relating to the tower becoming a landmark for theft to other properties in the locality. There are no facts to back up this statement, and it is therefore very difficult to quantify. Whilst the tower will be visible from nearby localities (i.e. along Wormangal Wahring Rd), this argument could potentially be used to challenge any rural development which doesn't conform with the traditional grazing and cropping uses in the area and therefore is not sufficient reason to refuse the application.

As noted previously, the subject site is located within a mixed use agricultural area, with a generally flat topography and relatively generous scattering of mature vegetation. It is considered that the proposal will largely be indistinguishable within the broader landscape when viewed from most locations distant to the site. The most likely location to view the structure will be from the land directly to the east where there is little existing vegetation to provide a visual screen. It is noted ' in the application, however, that significant landscaping is proposed around the base of the proposal that will provide adequate screening. Existing mature trees will screen the proposal when viewed from other directions.

With further regard to the Code of Practice for Telecommunications Facilities in Victoria, principles 1, 3 and 4 are considered most relevant, with principle 2 relating to the co-location of facilities which is not applicable in this instance.

In relation to principle 1 only two objectives are considered relevant to this proposal:

* Equipment associated with the telecommunications facility should be screened or housed to reduce its visibility; and

* A telecommunications facility should be located so as to minimise any interruption to a significant view of a heritage place, a landmark, a streetscape, vista or a panorama, whether viewed from public or private land.

The plans submitted with the application show the proposed landscaping to be established around the compound will effectively screen the facility from passing traffic on Wormangal Wahring Rd, and from adjoining land. It is considered this measure will largely reduce its visibility and is an appropriate measure.

It is noted that principle 1 refers to locating such facilities so as to minimise any interruption to a significant view. Whilst this point has been largely discussed above, in essence it is considered the applicants have been able to achieve appropriate compliance with this principle."

21. Ms Kemp, for the Applicant for Review/Objector, spoke to a written submission and made an oral submission. Ms Kemp submitted that the central Ground being pursued by the Applicant for Review/Objector was what was considered to be a detrimental effect on visual amenity and a significant detrimental visual impact, and health issues were not being pursued. Ms Kemp submitted that this was a largely flat open area and whilst there were trees in the vicinity there were no trees at the front of the subject land to prevent a view from the road, and her client was a frequent user of the road. She submitted that there would be a clear view from the road to the site and the tower. Ms Kemp submitted that the siting is in a visually dominant position and there would be no likelihood of landscaping screening of the facility, which would interrupt a significant view from the road. Ms Kemp said that the Responsible Authority had submitted that there were trees 35 metres to 45 metres high, but looking at the photographs those trees were not in a position to shield the view of the tower which would be a dominant feature, and which would be only 20 metres from the road. Ms Kemp submitted that there would be a significant intrusion on the landscape.

22. Ms Kemp, in her written submission for the Applicant for Review/Objector, submitted:

"The proposed tower is comprised of a 35 metre high monopole with an 800 mm transmission dish installed on the pole at 34 metres and two 3.30 metre high omni antennas located on the tope of the pole. An equipment cabin at 3 metres by 2.5 metres in size and 2.9 metres high, is proposed at the base of the pole. The proposed tower will be setback approximately 20 metres from the property frontage.

The Applicant submits that the proposed tower will have a substantial, detrimental impact on the 'visual amenity of the area in the following respects:

(a) The tower will be sited in a visually dominant position without the availability of suitable landscape screening; and

(b) The tower will interrupt the significant view available along the Wormangal-Wahring Road.

The proposed tower, standing at 35 metres high, will be by far the highest feature in the surrounding landscape of flat, open fields. The tower is sited only 20 metres from the property frontage with Wormangal-Wahring Road. In this position, the tower will be a significant intrusion into the rural landscape. Given the tower's height and prominence it will become the dominant and overbearing feature in this flat, rural setting.

Vodafone has made no attempt to protect the local road users and neighbouring landowners from this visual impact of the tower. Vodafone has not claimed that there is any imperative for the tower to be situated so close to the road frontage.

In this way, the proposal does not reflect "a reasonable balance" between the provision of infrastructure and the need to protect the environment from adverse impacts, contrary to:

(a) Clause 18.13.2 of the State Planning Policy Framework (SPPF);

(b) The fourth purpose in Clause 52.19 of the Strathbogie Planning Scheme;

(c) The fourth aim of the Code of Practice for Telecommunications Facilities in Victoria 1999 (the Code of Practice); and

23. Ms Kemp cited the decision of the Tribunal in Application for Review No. 2000/92769 Lucent Technologies v Maribyrnong City Council, which was an Application for Review of the Decision of the Responsible Authority to refuse to grant a permit for a mobile telephone tower at 75A Bayview Road, Yarraville. Mr Cimino disallowed the Application for Review and directed that a permit not be granted. Mr Cimino said in his Reasons:

"72. I acknowledge that the provision of telecommunications infrastructure accords with the objectives set out in the P & E Act and the policy at clause 18.13. However, it is also clear that such provision is not to be made at all cost. The objectives of the P & E Act also call for Victorians to have, amongst other things, a pleasant living environment."

24. I acknowledge the comments of Mr Cimino. I consider that they can be distinguished from the subject proposal because Mr Cimino was considering a proposal in a built up area of metropolitan Melbourne.

"The fourth purpose in Clause 52.19 of the Strathbogie Planning Scheme and the fourth aim of the Code of Practice, state:

"To encourage the provision of telecommunications facilities with minimal impact on the amenity of the area."

Further, the first principle of the Code of Practice states that:

"A Telecommunications facility should be sited to minimise visual impact"

In the Applicant's submission, the siting of the proposed tower does not reflect a reasonable balance between the need for infrastructure and protecting the environment from adverse impact, nor does it minimise the visual impact on the area. Sited at a mere 20 metres from the Wormangal-Wahring Road as the tallest feature in the landscape, the proposed tower will have a significant, detrimental visual impact for local road users and neighbouring landowners. This does not reflect a "reasonable balance" with Mr Buchanan's entitlement to a pleasant living environment. Vodafone does not suggest there is any imperative for the tower to be sited at such a prominent position.

The relevant policy for "Telecommunications" is set out at Clause 18.13 of the SPPF and states in part at Clause 18.13-2:

"Planning decisions should reflect a reasonable balance between the provision of important telecommunications services and the need to protect the environment from adverse impacts arising from telecommunications infrastructure."

26. Mr Gobbo made an oral submission for the Respondent/Permit Applicant. Mr Gobbo submitted that there was no issue regarding need and no issue with respect to health or environmental issues. Mr Gobbo said that the issue seemed to be that the proposed location was unreasonable prominent and visually obtrusive. Mr Gobbo submitted that the Respondent/Permit Applicant had provided material to demonstrate need, and need in this general location rather than Nagambie, Mitchelton or somewhere else. Mr Gobbo submitted that it was not for the Tribunal, as part of a consideration in Application for Review, to investigate other sites.

27. Mr Gobbo said that there was no issue about interference with use of agricultural land because the proposal was set back only 20 metres from the road. There would be no interference with the agricultural use of the land. The land owner does not want people accessing the property and opening gates, and the facility requires electricity, and power is available on the road and this contributed to the choice of site. A set back of a further 100 or 500 metres would result in significant additional cost for provision of power and the access track. Mr Gobbo said that the location of the compound has a backdrop of substantial trees to the west. There is the benefit of longer distance view, and if the site was further into the property there would be interference with those views.

28. Mr Gobbo conceded that an alternative location might be preferable for the Applicant for Review/Objector, but might not be preference for others. Mr Gobbo submitted that the proposed location was near a quiet rural road and not a main road, and there was very little traffic along this road, and only local traffic as it was not a through road. He submitted that it as not unreasonable for such a low volume of traffic to have visual exposure to the proposed facility. Mr Gobbo submitted that a mobile phone tower was seen as rural infrastructure and was not unreasonable. He noted that the Goulburn Valley Highway was to be on the east side of the Township of Nagambie, and the proposed tower would serve users of the highway.

29. Mr Gobbo called Mr A Rodda, a Consultant Planner, as an expert witness. It was the evidence of Mr Rodda that:

"The context for the assessment of the subject proposal is also strongly influenced by State planning policy objectives which recognise the importance of telecommunications to "all aspects of modern life" and the essential and beneficial contribution of these facilities to the state and national economy.

Notwithstanding this, a balance is sought to be achieved between the need to provide and deliver telecommunications services but also to protect the community and environment generally from any unreasonable effects of telecommunications infrastructure.

Having regard to the overall context which I have described above, I consider the main planning issues in this review are;

* Whether the proposed telecommunications facility is an appropriate use in the area.

* Whether the proposed telecommunications facility will have an unreasonable effect on the visual quality and character of the area.

* Whether the proposal will have an unreasonable effect on the amenity of the immediate area.

In terms of a land use I consider that locating a mobile telephone base station in the location chosen is entirely reasonable and appropriate. The proposed telecommunications pole and associated equipment, in my opinion, will not have an adverse impact on the rural activities carried out on the land. The leasehold area is only approximately 133 square metres and therefore only a minor portion of the subject land will be removed from rural production.

The Planning Scheme does not contemplate more intensive residential or sensitive uses for the land.

I would expect that the community who live and work in the Nagambie region and visitors to the area will benefit from an improved mobile telephone service. The improvement of telecommunications infrastructure is supported by State and Local planning policy.

I note that the subject land is located outside the Nagambie township, the boundaries of which are nominated on the map forming part of Clause 22.03, and away from Lake Nagambie which is situated to the west/north west of the township. On this basis, and my own observations, the preferred location for the proposal is in a rural location rather than within the township or proximate to Lake Nagambie which has identified environmental qualities or other tourist areas.

The review site is within an expansive area of relatively flat fields used for grazing and cropping. There are long distant views available across the land with a strong presence of mature trees which sit within open pasture in a dispersed manner or are grouped and are along sections of the roads.

Roads are mostly laid out on a large regular north/south and east/west grid. The area is not an obvious tourist destination and nearby roads are predominantly unconstructed, indicating a relatively low level of traffic.

In my opinion the proposed mobile telecommunications facility will be indistinguishable within the broader landscape when viewed from most locations distant from the site. The nearest residential buildings appear to be either sufficiently distant or are oriented and screened by substantial vegetation so that a direct and clear view of the upper most elements of the monopole is unlikely. The lower parts of the pole are likely to be screened by trees.

The lower portions of the monopole will also be principally screened from closer views from the north and south by the presence of clusters of eucalypt trees to the north and south of the structure.

The most likely locations to have a clear view of the structure is on land to the east which is under crop and from sections of Wormangal Wahring Road which do not have screening by roadside vegetation.

I note that it is proposed to introduce new vegetation around the facility that in time could provide additional screening of the equipment cabin, compound fence and lower sections of the monopole.

I consider that within the context of the site, the nature of nearby landuse, the presence and effect of trees of substantial height in the local and wider area and the limited opportunity for direct views to the proposed monopole, the proposal will not have an unreasonable effect on the visual quality and character of the area.

The State code for telecommunications does not contemplate "invisible" infrastructure, but infrastructure which is sensibly and reasonably sited. In my opinion, this proposal provides such an outcome."

30. Mr Gobbo cited a decision of the Tribunal in Sinclair v Loddon SC [1999] of VCAT 241 (1 December 1999) which was an Application for Review of a Decision of the Responsible Authority to grant a permit for a Mobile Phone Tower at Durham Ox. Mr Liston directed that a permit be granted. Mr Liston in his Reasons said:

"This new telecommunication facility is proposed to increase the coverage of the digital mobile telephone network in this part of the State. I accept that this new facility is being provided in response to demands expressed by the local community, and it is apparent that the provision of this type of infrastructure within the region is directly supported by the Responsible Authority's Municipal Strategic Statement.

Telstra has chosen this site for the location of the tower because in many respects the site suits their purposes. Telstra owns the land, and it is the site of an exchange facilitating the interconnection of the radio and inground networks. The Applicants argue that Telstra should consider alternative locations, which does not so directly affect nearby dwellings, in particular their dwelling. Telstra argues that this is a suitable site, and it is the proposal for a telecommunications tower on this site which is before the Tribunal. The decision which must made by the Tribunal in this Application for Review is whether or not the proposed telecommunications facility is appropriate on this land, it is not the role of the Tribunal to pick between alternative proposals.

The topography of the land in this general locality is relatively flat, therefore as a consequence a telecommunications towers, such as this, are often quite prominent. The Durham Ox township comprises relatively small number of scattered dwellings and other buildings set among similarly scattered clumps of trees. The land is approximately 380 metres west of the Loddon Valley Highway, and 150 metres south of the Boort-Pyramid Hill Road. The characteristics of this location and the physical environment of the township are such that When viewed from the nearby roads the visual impact of the tower is reasonable in the context of the local topography.

The laneway adjacent to the land, from the land to the Sinclair dwelling is essentially treeless, and there is a relatively uninterrupted view of the proposed site of the telecommunications tower from the Sinclair dwelling. I am of the view that the visual impact of tall slender structures such as this tower can, at relatively close quarters, be effectively screened by the careful siting of screening trees. In this case it is considered that the most effective measure that could be employed would be to plant trees along both sides of the laneway across the front of the land and through to the frontage of the Sinclair dwelling. The effect would not be immediate, but once established the visual impact of the tower would be moderated, both from the perspective of the Sinclair dwelling, and from the perspective of a user of the laneway. It is my view that both these outcomes are worthwhile objectives.

In conclusion the Tribunal is of the view that the proposed tower will have some adverse effects on the amenity of the Sinclair dwelling, and in particular these adverse effects are related to the visual impacts of the tower. However, these impacts can be ameliorated by measures which can be implemented by the Permit Applicant and required by condition of permit. Therefore on balance it is my view that the need for this facility, and the benefits it provides to the broader region, are not outweighed in this instance by its local amenity impacts."

31. I have considered the submissions and evidence, the relevant planning provisions and planning policy, and the Code of Practice, and I have conducted an inspection. I have come to the conclusion that a permit should be granted, subject to conditions, for reasons that follow.

32. It is proposed that this facility be located near an unsealed local road which clearly carries a low volume of traffic. It will become part of the infrastructure of the local area, serving both local people and users of the Goulburn Valley Highway. This type of facility is becoming part of rural infrastructure in the same way as other facilities, such as silos, windmills and sheds, are an accepted part of rural infrastructure.

33. It is obviously possible to shield the equipment cabin with landscaping, but I accept it will not be possible to screen the tower for its full height. It was common ground that this is a generally flat open area and long views are available. The tower will be seen.

34. I accept the evidence of Mr Rodda, quoted at paragraph 29 above, that the Code of Practice does not contemplate "invisible" infrastructure, but infrastructure which is sensibly and reasonably cited. I also accept his evidence that this proposal provides such an outcome. Principle 1 in the Code of Practice is that a telecommunications facility should be sited to minimise visual impact. I consider that this principle is clearly satisfied. It would not be possible in this relatively flat open country to make the tower less visible than is proposed. The Code, in expanding on Principle 1, also provides that equipment associated with the telecommunications facility should be screened or housed to reduce visibility. This can be satisfied with appropriate landscaping.

35. It is an objective of State Planning Policy for Telecommunications, expressed at Clause 18.13-1, to recognise the importance of telecommunications and the essential and beneficial contribution of such facilities to local communities and the State and national economy. Such an objective obviously supports this type of facility. Clause 18.13-2, General Implementation, goes on to set out a number of matters, including that planning decisions should reflect a reasonable balance between the provision of important telecommunication services and the need to protect the environment from adverse effects arising from telecommunications infrastructure. I consider that the balance has been met with this proposal. I have already made reference to the decision of Mr Cimino in Lucent Technologies v Maribyrnong City Council at paragraph 23.

36. I quoted from the decision of Mr Liston in Sinclair v Loddon SC at paragraph 30. I have not inspected the subject land in that matter, but I consider that the comments of Mr Liston as quoted generally apply in the subject Application for Review.

37. For the above reasons this application is disallowed. It is appropriate for a permit subject to conditions to be granted, and I will so order.