The order of the Tribunal is that the decision of the Responsible Authority is set aside.

A permit is granted for a Telecommunications Pole and Associated Equipment Shelter at 259 Eramosa Road, Moorooduc generally in accordance with the endorsed plans and subject to the following conditions:

1. Before the development starts, plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. (The plans must be drawn to scale with dimensions and three copies must be provided.) The plans must show:

(a) deletion of the new vehicular crossover with access to the facility being provided via the existing crossing and access drive;

(b) a landscape plan and schedule to provide for vegetation screening to be established around eastern boundary of the property and the perimeter of the facility to the satisfaction of the Responsible Authority. The plan shall include details of the quantity, botanical name, approximate height at maturity and location of planting. Planting shall consist of trees and shrubs with no less than 80% of all species being generally indigenous to the locality.

2. Vehicles under the control of the operator of the use or the operator's staff must not be parked on Eramosa Road West.

3. The approved buildings and works shall be completely removed from the land upon the facility becoming redundant.

4. The pole and the equipment building are to be in muted colours to the satisfaction of the Responsible Authority.

5. This permit will expire if the development is not started and completed within two years of the date of this permit. The Responsible Authority may extend this period if a request is made in writing before the permit expires or within the following three months.

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

Mr Anthony Matthews, Development Planner, for the Responsible Authority.

Mr John Bardini, Planner of Correll Wagner Pty Ltd for the Applicant. Mr Bardini called Mr Roger Teh, an Optus Engineer, as a witness.

1. The proposal would adversely affect the visual amenity of the locality including the outlook from adjacent rural residential properties and main roads.

2. The proposal fails to achieve a reasonable balance between the provision of telecommunication facilities and the need to protect the environment from adverse impacts arising from telecommunication infrastructure as required in the State Planning Policy relating to Telecommunication (Clause 18.03).

3. The proposal will undermine the implementation of Council's policies relating to Development on Highways, Main Roads and Tourist Routes (Clause 22.06); and Planning for Rural Areas (Clause 21.09).

4. The proposal is inconsistent with "A code of practice for telecommunications facilities in Victoria" as it does not satisfy a key principle of minimising visual impacts.

1. The proposal will not adversely affect the visual amenity of the locality including the outlook from adjacent rural residential properties and main roads.

2. The proposal will achieve a reasonable balance between the provision of telecommunication facilities and the need to protect the environment from adverse impacts arising from telecommunication infrastructure as required in the State Planning Policy relating to Telecommunication (Clause 18.03).

3. The proposal will not undermine the implementation of Council's policies relating to: Development on Highways, Main Road and Tourist Routes (Clause 22.06); and Planning for Rural Areas (Clause 21.09).

4. The proposal is consistent with "A code of practice for telecommunications facilities in Victoria", as it will satisfy a key principle of minimising visual impacts.

1. This is an application to review a refusal of the Mornington Peninsula Shire Council to grant a permit for the installation and use of a telecommunications facility being a mono pole and associated equipment shed at 259 Eramosa Road, West Moorooduc by Cable & Wireless Optus Pty Ltd.

2. Mr Bardini made application to submit revised plans in lieu of those accompanying the application. There were no objections to this and it was accepted under Schedule 1 Clause 52 of the Victorian Civil and Administrative Tribunal Act.

3. This is briefly described in Mr Bardini's written submission. It states that:

"The original application was for the construction of a 35 metre high concrete mono-pole and associated equipment shelter. The mono-pole contained 3 panel antennae measuring 2.3m long and 300mm wide and 110 mm deep mounted on a circular headframe. These extended approximately 1 metre above the height of the mono-pole, taking the overall height of the facility to 36.15 metres. A 300mm microwave antenna was mounted to the mono-pole at a height of 30 metres. Both the mono-pole and the antennae were grey in colour.

On 9 April, amended plans were circulated to all parties to the appeal. These plans show the circular headframe replaced with flush mounted antennae. The size of the antennae have not changed but they reduce the overall height of the facility by 1 metre.

The equipment shelter is pre-fabricated sandwich panel, `merino'-coloured (beige) equipment shelter measuring 3.0 metres by 2.5 metres wide and 2.8 metres high.

Both the mono-pole and equipment shelter will be located in a 8m x 6m lease area. It will be offset 10.5 metres from the front boundary and 121.3 metres from the west boundary. A 2.7 metre high chain wire security fence will surround the lease area.

A new access point is proposed from Eramosa Road. This involves the construction of a crossover with a culvert drain and a gravel access track leading up to the lease area. One tree is required to be removed to provide the access track. This will be replaced by one semi-mature native tree and any other landscape treatment as required by the Responsible Authority."

4. Mr Matthews' description of these have been adopted and it reads as follows:

"The subject land is rectangular in shape with an area of 4.2 hectares. It has primary frontage of 276.55 metres to Eramosa Road West and a secondary frontage of 146.25 metres to Derril Road. The land is situated in the south-east corner of the intersection of these two roads, approximately 300 metres east of the intersection of Eramosa Road West and Moorooduc Highway.

Both road frontages are well vegetated with a mixture of indigenous and limited non-indigenous vegetation. The eastern half of the land is fenced from the balance of the land, is flat and contains no existing buildings. There is a stand of mature indigenous vegetation along this fence line.

The western half of the land contains the dwelling that is sited towards the rear of the land. There is a large shed between the dwelling and the internal central fence line and other associated outbuildings. There are a number of mature trees between the dwelling and the road, including a line of trees on both sides of the access drive.

East: 257 Eramosa Road West: 6.28 hectare rural allotment containing an existing single storey brick dwelling sited approximately adjacent to the dwelling on the subject land. There is a stand of indigenous vegetation along the boundary common with the subject land that would not exceed 4-5 metres in height and is sparse in some areas.

South: 100 Derril Road: 4.33 hectare rural allotment containing a single storey dwelling and associated outbuildings. The dwelling is located to the south-west of the dwelling on the subject land. There is limited scattered vegetation around the dwelling.

North: 280-290 Derril Road: This land comprises two titles (in common ownership). Lot 2 (further to the east) has a total area of 15.06 hectares bisected by a 10.18 metre wide drainage reserve. There appears to be two dwellings and associated reserve. Lot 1 (abutting Moorooduc Highway) has an area of 3.92 hectares and also contains a dwelling. The frontages of both these properties are lined by a dense row of mature cypress.

West: 1121 Derril Road: 42.72 hectare rural landholding containing an existing dwelling not visible from Eramosa Road West.

There is a dwelling and the Moorooduc "Coolstores" complex located on the corner of Eramosa Road West and the Moorooduc Highway."

5. The land is zoned Rural 3. At the present time the planning scheme map shows that it abuts a Road Zone Category 1 which VicRoads has advised is incorrect. The land is also covered by an Environmental Significance Overlay Schedule 1: Moorooduc Plain and Balcombe Valley. The planning scheme under Clause 52.19 Telecommunications Facility states that such does not require a permit under provisions of the Environmental Significance Overlay provided it complies with that clause, however, a permit is required for the proposal because it does not satisfy the definition of a Low Impact Facility described in the Telecommunications (Low Impact) Facilities Determination 1997.

6. While the responsible authority's description of the relevant planning provisions is rather lengthy my belief is that it is worth quoting rather than my trying to disseminate it. Accordingly Mr Matthews advised me that:

"The State Planning Policy Framework and the Local Planning Policy Framework - including the Municipal Strategic Statement (M.S.S.), local policies, zone and overlay provisions and decision guidelines have been considered where relevant.

"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."

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

This policy also requires the use of "A Code of Practice for Telecommunication Facilities in Victoria" in the consideration of planning applications. Section 2.11 of the Code requires carriers to ensure that the design, planning and installation of facilities are in accordance with "best practice". This is required to "... minimise the potential degradation of the environment and the visual amenity associated with the facilities" (section 2.11(3)).

Assessment of the proposal against the Code involves four principles:

* Principle 2: Telecommunications facilities should be co-located

* Principle 3: Health standards for exposure to radio emissions will be met; and

* Principle 4: Minimisation of disturbance and risk related to construction.

Under Clause 52.19 - Key factors to be considered under this Clause include:

"The principles for the design, siting, construction and operation of a Telecommunications facility set out in "A Code of Practice for Telecommunications Facilities in Victoria".

"If the Telecommunications facility is located in an Environmental Significance Overlay... the decision guidelines in those overlays and the schedules to those overlays".

Local Planning Policy Framework and the Municipal Strategic Statement

One of the key strategies contained in Clause 21.09-1 is to conserve and enhance areas and sites of environmental significance paying special regard to a number of issues including the "capacity of those areas and sites to withstand change and development without detriment".

"... sustainable development is seen as that which supports the inherent values of the Peninsula and provides opportunities for access, understanding and employment rather than introducing elements that are disruptive, intrusive or out of character".

Some of the key strategies contained in this policy include:

"Ensure that the roads of the Peninsula are protected from inappropriate development and are maintained as a major landscape and recreational resource."

"Require that the location, design and construction of buildings and works are compatible with the special character and heritage of each area."

"Protecting arterial roads, scenic roads and access routes from inappropriate commercial and visual intrusion".

Development on Highways, Main Roads and Tourist Routes (Clause 22.06)

"To protect highways, main roads and access routes in rural areas from inappropriate commercial and visual intrusion".

"To maintain the rural character of land adjoining main roads and tourist routes and the visual amenity of the outlook from these roads".

Decision guidelines contained in this zone that are relevant to the assessment of this proposal include:

"The location of any building or works with respect to the natural environment, major roads, vistas... and the measures to be undertaken to minimise any adverse impacts."

"The location and design of existing and proposed infrastructure services including gas, water, drainage, telecommunications and sewerage facilities".

Clause 35.01-3 provides that a permit is required for a building that is within 100 metres of a Road Zone Category 1.

Environmental Significance Overlay - Schedule 1: Moorooduc Plain and Balcombe Valley (Clause 42.01)

"This area forms the major catchment of Balcombe Creek. It is also an area of strategic landscape importance, defining part of the rural edge to the townships of Mt Eliza, Mornington and Baxter and including the contrasting landforms of the Balcombe Valley and Mt Eliza escarpment".

"To promote the siting and design of buildings and works which is responsive to the open rural landscape character and vistas of the Moorooduc Plain and the contrasting visual character of the Balcombe Valley and Mt Eliza escarpment, and that maintains the scenic value of roads and recreation routes".

One of the buildings and works requirements contained in this overlay/schedule requires the height of buildings or structures to be limited to a maximum of 8 metres above natural ground level. Consideration can be given to vary this requirement."

7. The applicant had a number of discussions with officers of the responsible authority prior to making application for the facility on this site. It had actually looked at a number of other sites including one opposite owned by Mr Fear but for technical reasons decided to run with this subject site. An application for permit was made and the responsible authority required a notice of application to be given which resulted in four objections being received, three from the one property to the east. Following the objections the responsible authority called a planning application conference and a further two meetings on-site but none of these resolved any of the issues. However, at the final meeting Optus erected a temporary structure approximately 5 metres lower than the top of the proposed permanent structure which was inspected by those present.

8. The application was supposed to be referred to VicRoads under Road Zone Category 1 but was not, however, VicRoads received notice of refusal and wrote back to the Council indicating that the road had been incorrectly classified but it did not have any objection to the proposal.

9. Written submissions and witness evidence statements were received as well as aerial photos and other information. With the exception of aerial photos all other documents are retained in the Tribunal file. At this stage it should be acknowledged that none of the parties gave any substantial arguments on health grounds. The responsible authority generally agreed that because of a number of prior tribunal decisions and the technical evidence led by Connell Wagner and others that health matters were not an issue, particularly because of the distance from the existing residence.

10. The major issue here then is visual impact. It seems to me that the responsible authority and the respondents would have no problem with the tower on Mr Fear's land. Mr Fear indicated that he had no objections to the tower being on his land as it would move it further away from the other objectors and that his land was large enough to contain it. It was also suggested that perhaps the tower should be moved further south towards the house and outbuildings on the subject site. This of course would bring neighbours further south into the equation as presently they are not objectors.

11. The responsible authority's major consideration is that Eramosa Road West is a major tourist route between the Mornington Peninsula freeway and Somerville. It contended that the tower would be visible to people travelling in vehicles along Eramosa Road and this would be detrimental to them because of its visual impact. Mr Gray held similar views in that the tower would have a great impact on him and his family when viewed from the property.

12. Mr Bardini's contention was that the tower would in reality not be readily visible from either direction on Eramosa Road because of the 30 metre high cypress trees lining the sides of the road. The photos he tabled clearly depict this. He also maintained that the screen planting along the boundary of the Gray property with the subject site would generally also assist in reducing its impact on the Gray property. While there are some gaps in the vegetation, this nevertheless is a fact.

13. Mr Bardini showed a map of the location of existing and proposed towers along the Moorooduc Highway (or the Mornington Peninsula freeway as it is called) indicating that most of them had received approval even the ones in a similar situation to this one. I am not concerned about these as there is a balance to be made in all these matters, particularly with the telecommunication facilities being approximately 35 metres high and that is, that the visual impact of them will be balanced against the need. Mr Teh convinced me that there was clearly a need for a tower in this situation and while it may operate on the Fear property that is not before me. I was also convinced by Mr Bardini that the tower will not have a great visual impact.

14. It is not the intention of the planning scheme to screen towers so that they are completely invisible but rather to break down the impact on both the travelling public and residents around it. This is not a high density residential area but rather a rural residential one where the minimum lot size is around 4 hectares (or 10 acres). I don't think that it can be said that a tower such as this will have the same impact on a rural area as on a residential one. In my opinion the tower is satisfactorily sited and can be screened appropriately.

15. The matter of tower location and further uses of the tower was raised as a problem by the responsible authority. It submitted that the applicant should enter into an agreement with the responsible authority that it will not place any further equipment on the facility without the knowledge and approval of the responsible authority. While a s. 173 agreement was discussed I was advised that it would be over-ridden by the Federal legislation and therefore I suggested a common agreement between the applicant and the responsible authority not tied to the planning scheme.

16. On the question of an agreement Mr Bardini offered his client's clarification of the situation in writing following the hearing. He states in part:

"Our client has since reviewed this option and although willing to accept such a condition has some concerns in relation to whether it will have force and effect given the legal status of the Telecommunications (Low Impact Facilities) Determination 1997.

In addition there may be complications arising from the fact that any permit issued runs with the land and whilst Optus is willing to accept a condition requiring an agreement between parties, it does not represent the landowner. Accordingly Optus is not in a position to commit the landowner to such an agreement. More importantly as the tower belongs to Optus, it would be inappropriate for the underlying landowner to be required to enter into such an agreement."

17. I have given consideration to this and having weighed all the issues have come to the conclusion that Mr Bardini's advice given both at the hearing and reiterated above is the best way to proceed.

18. In reality the biggest impact, if any, of this facility is the tower itself not its equipment.