[2002] VCAT 247

The decision of the Responsible Authority is affirmed.

A permit must not be granted and no permit is to issue.

PLANNING & ENVIRONMENT LIST PLANNING & ENVIRONMENT LIST

Ms A Johns, Solicitor with Minter Ellison Lawyers, appeared on behalf of the Applicant for Review. She called Mr A Clarke, Town Planner of Matrix Planning, and Mr A Vernali, Cellular Radio Engineer of Hutchinson 3G Australia Pty Ltd, to give evidence.

Ms A Lane, Solicitor with Maddocks Lawyers appeared on behalf of the Responsible Authority.

Mr R Kowalski, Solicitor with Hunt and Hunt Lawyers, appeared behalf of 74 Respondent Objectors. Mrs M Phillips appeared on her own behalf as a Respondent Objector. Mr R Easton of Easton Consulting appeared on behalf of Patterson Cheney Pty Ltd.

The parties presented written and oral submissions. A number of plans, photographs and other documents were tendered to the Tribunal. A video was shown by Mr Kowalski. All material has been considered by the Tribunal and is retained on file. The witnesses were made available for cross-examination.

The site and locality were inspected by the Tribunal on the morning of the second day of the Hearing in the presence of representatives of the parties.

1. This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Hutchison 3G Australia Pty Ltd ("Hutchinson") for a review of a decision by the Casey City Council to refuse to grant a permit in application no. P555/01. A Notice of Refusal was issued by the Council on 13 November 2001 on the following grounds:

s The proposal is contrary to local Planning Policy, particularly the Municipal Strategic Statement.

s The location and height of the proposed facility is contrary to the objectives of the Fountain Gate - Narre Warren District Centre Structure Plan.

s The proposed facility is inappropriately sited in a 'gateway' location and will be highly visible from surrounding land.

s The proposed facility will have a detrimental impact upon the existing streetscape.

2. The Application for Review was lodged on 28 November 2001 on the following grounds:

s The proposal is not contrary to local planning policy.

s The proposal is not contrary to the Casey Municipal Strategic Statement.

s The proposal is not contrary to the objectives of the Fountain Gate - Narre Warren District Centre Structure Plan.

s The proposal is not sited in a 'gateway' location.

s The proposal will not have a detrimental impact upon the existing streetscape.

s The proposal will not have an adverse impact in terms of visual amenity.

3. The Tribunal was advised just prior to the commencement of the first day of the Hearing that a submission was sought to be made by the Minister for Planning. A copy of a facsimile addressed to the Registrar of the Tribunal, dated 19 March 2002, was provided to all parties. It states, in part:

I believe that the site at the eastern edge of the Narre Warren District Centre and at the junction of the Princes Highway with the Hallam Bypass is significant because of its high visibility and the potential impact of development at this location.

I support the Council's decision and believe that it reflects, as expressed in the State Planning Policy Framework, a reasonable balance between the provision of important telecommunications services and the need to protect the environment from adverse impacts arising from telecommunications infrastructure.

4. The Tribunal has considered the Minister's submission together with all other submissions and evidence presented to it.

5. The subject site is located on a road reserve adjoining the Princes Highway, between Verdun Drive and the Hallam Bypass that is currently under construction. The land is owned by VicRoads and is currently occupied by demountable site offices that are being used in association with the road construction program. There is no vegetation at present and a wide concrete path, south of the subject site but within the road reserve, was under construction on our site inspection.

6. The land to the north of the site is owned by Patterson Cheney Pty Ltd. It is generally triangular in shape, bounded by the Princes Highway road reserve, the new Hallam Bypass and Verdun Drive. Planning permits have been issued for the two lots with frontage to the Princes Highway road reserve, to the east of Verdun Drive, for their use and development as car showrooms. The lot further to the east (described as Lot 2 on the plan of subdivision) is to be occupied by "Hondaworld", for which construction has commenced. We were provided with a copy of the endorsed plans and permit for this development (P148/01 dated 20 November 2001). The second lot (described as Lot 1), abutting the east side of Verdun Drive, is proposed to be developed as a Mercedes Benz showroom. No works have commenced. We were provided with a copy of the application plans and permit (Permit 739/01 dated 29 January 2002). Both sites are lower than the subject site, with the land falling away to the north and east.

7. Properties to the south side of the Princes Highway are generally developed for residential purposes. The topography of the area results in these dwellings being positioned higher than the subject site.

8. The Princes Highway is a major arterial road carrying high traffic volumes. We were advised that works on the Monash Freeway Hallam Bypass Project are due to be completed in 2003. We were provided with a copy of the alignment plan for that part of the works near to the subject site and at the intersection (grade-separated) of Princes Highway and Monash Freeway (Princes Freeway).

9. It is proposed to construct a 35 metre slimline telecommunications monopole. Three 1800mm dual polar antennae are proposed to be flush mounted onto the pole at a height of 34 metres and two 600mm diameter parabolic dishes are to be attached at 31 metres. A prefabricated equipment shelter measuring 3 metres long by 2.5 metres wide and 2.9 metres high is to be erected at the base of the pole, enclosed by a cyclone wire security fence and gate. A 3 metre wide access track is to be provided from the Princes Highway.

10. Landscaping is proposed around the perimeter of the security fence. A draft landscape plan was tendered by Ms Johns at the Hearing and is referred to in Mr Clarke's evidence. Ms Johns suggested that if a permit it to issue, the details should be the subject of a permit condition to allow the landscape treatment on the subject site to be co-ordinated with that within the road reserve and on the Hondaworld site.

11. We also note that Mr Clarke's evidence is based on a 30 metre high tower. We understand from the evidence of Mr Vernali that this can still achieve most of the site coverage objectives sought by Hutchinson.

12. We note that there was some debate at the Hearing as to the correct zoning of the land, that is, whether the land is within a Road 1 Zone under the provisions of Clause 36.04 of the Casey Planning Scheme or a Business 2 Zone. We gave Ms Lane an opportunity to confirm this within 7 days after the completion of the Hearing and the other parties an opportunity to then respond within a further 7 days.

13. Subsequently, Ms Lane advised that the Council "believes" that the land is within a Business 2 Zone under the provision of Clause 34.02 of the Scheme. This was not contested by the other parties. We accept that the subject site is within a Business 2 Zone. A Telecommunications facility is a Section 1 - Permit not required use, subject to the condition that buildings and works must meet the requirements of Clause 52.19, Telecommunications Facility. [The same applies in a Road 1 Zone].

14. The purpose of the provisions at Clause 52.19 is:

s To ensure that telecommunications infrastructure and services are provided in an efficient and cost effective manner to meet community needs.

s To ensure the application of consistent provisions for telecommunications facilities.

s To encourage an effective statewide telecommunications network in a manner consistent with the economic, environmental and social objectives of planning in Victoria as set out in Section 4 of the Planning and Environment Act 1987.

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

15. Pursuant to Clause 52.19-2, a permit is required to construct or carry out works for a telecommunications facility. It was common ground that the proposed telecommunications tower does not fall within any of the categories of buildings and works for which no permit is required.

16. Decision guidelines are at Clause 52.19-6. They require that before deciding on an application, the Responsible Authority (Tribunal on review) must consider:

s 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.

s If the Telecommunications facility is located in an Environmental Significance Overlay, a Vegetation Protection Overlay, a Significant Landscape Overlay, a Heritage Overlay, a Design and Development Overlay or an Erosion Management Overlay, the decision guidelines in those overlays and the schedules to those overlays.

17. Consideration is therefore to be given to A Code of Practice for Telecommunications Facilities in Victoria ("the Code of Practice") which is an incorporated document within the Planning Scheme. The aims of the Code are to:

s Ensure that telecommunications infrastructure and services are provided in an efficient and cost effective manner to meet community needs.

s Ensure the application of consistent provisions for telecommunications facilities.

s Encourage an effective statewide telecommunications network in a manner consistent the economic, environmental and social objectives of planning in Victoria as set out in Section 4 of the Planning and Environment Act 1987.

s Encourage the provision of telecommunications facilities with minimal impact on the amenity of the area.

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.

Principle 1: A Telecommunications facility should be sited to minimise visual impact.

Principle 2: Telecommunications facilities should be co-located wherever practical.

Principle 3: Health standards for exposure to radio emissions will be met.

Principle 4: Disturbance and risk relating to siting and construction should be minimised.

19. The site is affected by two Overlays being a Development Plan Overlay (Schedule 8 Fountain Gate - Narre Warren District Centre Structure Plan) and a Development Contribution Plan Overlay (Schedule 7 Fountain Gate - Narre Warren District Centre Contribution Plan).

20. As the subject site abuts a Road 1 Zone, a permit is required to create a new access to that Zone pursuant to Clause 52.29. Decision guidelines are set out, including consideration of the views of the relevant road authority. The permit application was referred to VicRoads which offered no objection subject to specified conditions.

21. The general decision guidelines at Clause 65 set out a number of matters to be considered including:

s The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

s The purpose of the zone, overlay or other provision.

s Any matter required to be considered in the zone, overlay or other provision.

22. A policy for "Telecommunications" is set out at Clause 18.13 of the State Planning Policy Framework. The objective of Clause 18.13 is:

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.

23. The general implementation clause for this policy (Clause 18.13-2) states that:

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

s Facilitate the upgrading and maintenance of telecommunications facilities.

s Ensure that modern telecommunications facilities are widely accessible to business, industry and the community.

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

s 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.

s 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.

s 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.

24. The provisions of Clauses 15, 17, 18.01 and 19.03 are also relevant and have been taken into account by the Tribunal.

25. There are no strategies or policies which specifically relate to the provision of telecommunications infrastructure within the Local Planning Policy Framework. However, Clause 21 (Municipal Strategic Statement), the Fountain Gate - Narre Warren District Centre Structure Plan and the Good Design Policy at Clause 22.15 are relevant to the consideration of this Application, and have been considered by the Tribunal. We note that the subject site is in the Structure Plan's Precinct 5.

26. We observe that if a permit is to issue for the proposed tower, then opportunities for co-location would be available to other operators without the need to obtain planning permission. We also note Ms John's submission that no permit is required for the equipment shelter as this is classified as a "low impact" facility in accordance with the relevant Commonwealth legislation.

27. We have considered the submissions and evidence presented and have inspected the site and locality. We do not recite all of the material provided by the parties as this is retained on file but instead we briefly summarise the main themes. We then address the key issues raised in submissions having regard to the policies, objectives and decision guidelines of the Casey Planning Scheme. Those issues are:

s the potential for adverse impacts on the Fountain Gate - Narre Warren District Centre and consistency with the Fountain Gate - Narre Warren District Centre Structure Plan;

s the potential for adverse impacts on the Patterson Cheney land and proposed developments to the north of the site;

s the potential for adverse impacts on residential amenity due to the height and location of the tower; and

s the potential for adverse impacts on the health of surrounding residents due to electromagnetic emissions.

28. The key issues raised by the Council related to the visual impact of the proposed tower in terms of the entry to the Fountain Gate Activity Centre and streetscape, and its visibility to surrounding land including public land and residential areas. Ms Lane submitted that the proposal is exactly the type of proposal that the Council seeks to avoid in gateway locations, along main road corridors and in regional centres. She noted that the subject site is not within a gateway as shown in the Framework Plan at Clause 21.03 and abuts the intersection that is said to be a gateway in the Fountain Gate - Narre Warren District Centre Structure Plan. However, Ms Lane referred to the prominent location of the site at the edge of the District Centre and its location on a main road. These are areas where the Council is seeking to build a positive image. She contrasted the scale of the proposal with surrounding development and was critical of the failure to provide a landscape plan. Ms Lane submitted that inadequate consideration had been given to co-location options and that views from residential properties would be significantly impaired.

29. The Council did not contest the proposal on health-related grounds.

30. The submissions made by Mr Kowalski focussed on similar matters in so far as he contended that the scale of the tower would contrast with the low rise form of surrounding development and that inadequate attention had been given to co-location options.

31. Mr Kowalski expressed concern about the adverse impact on amenity that would be experienced by local businesses, nearby residents, the Bon Dosco Primary School and Berwick Park Child Care Centre. He submitted that the visual impact of the proposed facility would not be minimal.

32. Mr Kowalski submitted that the health risks associated with the proposed tower are uncertain and therefore it should not be placed too close to those members of the community, such as children, who may be most sensitive to any adverse affects. Mrs Phillips elaborated on her concerns relating to children and the Berwick Park Child Care Centre.

33. Mr Easton explained the nature of works proposed on the Patterson Cheney land, including the $12 million Hondaworld building. He submitted that both approved showrooms have been designed to maximise exposure to traffic using the main road network and to establish an impressive gateway. Mr Easton submitted that the proposed facility, immediately in front of the main display room to Hondaworld, would seriously detract from these objectives and it would be more appropriate to site the tower behind buildings, further to the east, or on roof tops to minimise its visual impact.

34. Through the evidence of Mr Vernali, Ms Johns explained the purpose of the tower in expanding services through the introduction of new technology and services (3G network). The site coverage aims were explained, with a key principle being for contiguous coverage to provide an appropriate level of service in accordance with customer expectations. Ms Johns submitted that the subject site is the best option to achieve the Applicant's objectives and has been proposed after a thorough examination of alternatives including co-location, industrial areas and parks.

35. Ms Johns submitted that a main road location is less sensitive than within a residential area. Ms Johns relied on the evidence of Mr Clarke to support her submission that the visual impact of the proposed tower would not be unreasonable. Mr Clarke's statement of evidence included photographs taken from various vantage points with an image of the proposed tower shown. Mr Clarke's conclusions were that when viewed from main roads, the tower will be read in the context of other high elements in the streetscape. He did not consider the subject site to be prominent or highly visible or the main road location to be sensitive to those within it or those passing through. Ms Johns noted that the site was not within a gateway as shown on the maps within the Planning Scheme or Structure Plan (which identifies the actual intersection of the Princes Highway and Princes Freeway). Mr Clarke's evidence was that the visual impact to residential properties would not be dominating given that a road and other infrastructure are evident in views from residences on the south side of the Princes Highway. He noted the presence of some trees and potential for further trees and landscaping but did not seek to rely on landscaping in supporting the proposal. Views to the tower from residences to the north would be impeded by the new configuration of the freeway. We note that Mr Clarke was not asked to review other matters relating to the planning merits of the proposal or the planning policies in the Scheme.

36. In relation to health concerns, Ms Johns submitted that emissions from the proposed tower can and will comply with the relevant Australian Standard. In this regard she relied on investigations carried out by EMC Technologies Pty Ltd. She also submitted that this issue has been considered by various divisions of this Tribunal (and in other states) and they have found that all that is required is that a telecommunications facility comply with the relevant Australian Standard.

37. We must consider whether the subject site is acceptable for the proposed facility; we are not required to find whether other sites may offer a preferable alternative.

38. We recognise the need for telecommunications facilities in the business, family and recreational lives of many people. Ongoing demand for improved levels of service, a desire by operators to improve the quality of existing service, and, as is the case here, a desire to expand the range of services available to consumers can be expected. We give weight to the need to find suitable sites for these facilities, being mindful that they can not be screened in their entirety if they are to be functional and efficient. We also acknowledge that the subject site is regarded by the Applicant to be most suitable to achieve its site coverage objectives and that it considers it has already compromised by lowering the structure and varying the technological components compared with a form that it would ideally desire. We also appreciate that there has been considerable exploration of other possibilities as apparent in Mr Vernali's cross-examination.

39. However, we are unable to reach a conclusion that those considerations outweigh our concerns about the inappropriate siting and unreasonable visual impact of the proposed tower in terms of Clause 19.03, Clause 21, Clause 22.15 and Clause 43.02 (DDO8 and the incorporated document, the Fountain Gate - Narre Warren District Centre Structure Plan).

40. We preface our findings by commenting that minimising an adverse impact on visual amenity does not mean that a telecommunications pole must be sited so that it can not be seen by most or many people. Visibility can not be equated to adverse visual impact. Although works may be visible and result in change, it should not be presumed that change is negative. It is the extent to which a development is compatible with the particular location and how policies seek to guide change, that are most relevant.

41. We also record that there was considerable discussion and confusion through the course of the Hearing as to where the tower is actually proposed to be located. A lease plan was tendered by Ms Johns during the second day of the Hearing, although this appears to vary from the location identified by Mr Clarke on our inspection. The uncertain nature of documentation in this regard is a problem. Nonetheless, we consider that sufficient information is available for us to make a determination while being mindful of the limitations in the material before us. A related matter is the weight we give to the images appended to Mr Clarke's statement of evidence, which he acknowledged in cross-examination have some inaccuracies. While that influences the weight we should give his evidence, we agree with Mr Clarke that an opinion about some of the issues in this case will not necessarily significantly vary if the tower is a few metres further to the west of the location we were shown on our site inspection.

42. We now turn to the details of our findings and reasons.

43. The road reserve within which the subject site is located abuts the Princes Highway. The Highway is being upgraded in association with the construction of the Hallam Bypass. We were provided with alignment drawings for the road works. We were shown a plan including some landscaping works by Mr Kowalski, but the status of that document was not confirmed. The area could fairly be said to be undergoing a major transformation given the road works and as a result of the commencement of the construction of the Hondaworld building.

44. We consider the siting of the tower within the road reserve, without any details of the associated works within the reserve as part of the current road improvement program and most notably landscape design, as arguably premature. Moreover, we are surprised that VicRoads has not opposed the provision of a separate access way to a private commercial facility directly off the main road. This is quite inconsistent with our experience of the attitude VicRoads routinely adopts of seeking to avoid additional private access points to such roads. However, we understand the authority's comments on the proposal in the current matter that indicate it has no objection and proceed on that basis.

45. Putting those matters aside, and more importantly in terms of our decision, we are mindful of the high standards of visual amenity sought by planning authorities in relation to the planning and development of major roads including freeways and highways. This is set out in the Planning Scheme as Clause 18.01 which includes the following provisions:

New uses or development of land near an existing or proposed transport route should be planned or regulated to avoid detriment to, and where possible enhance, the service, safety and amenity desirable for that transport route in the short and long terms.

The design of transport routes and nearby areas should be planned and regulated to achieve visual standards appropriate to the importance of the route with particular reference to landscaping, the control of outdoor advertising and, where appropriate, the provision of buffer zones and resting places. [Tribunal emphasis]

46. These directions are reinforced through each of Clause 21.12, DDO8 (the Fountain Gate - Narre Warren District Centre Structure Plan) and Clause 22.15. [We record that the latter local policy was not referred to by any party]. The policies in each of these Clauses and the Structure Plan seek "the good design of public spaces", including along main road corridors and privately owned land which is visible from public areas such as roads and footpaths. They encourage a cohesiveness in the ongoing development of the District Centre and an uncluttered sense of entry to the Centre. Indeed, we find that the Casey Scheme is particularly strong in its emphasis on these matters when contrasted with some other Planning Schemes. "Clean" and "neat" are words that could be fairly used to described what has been achieved to date throughout the District Centre and along the Princes Highway.

47. We agree with Mr Clarke that a main road location is less sensitive in various ways when contrasted with a residential area. However, we find through the policies we have referred to, that main road corridors play a specific and important role in urban design terms. The subject site may not be a specifically marked gateway in the Structure Plan and Scheme in a narrow sense, however, we have no doubt that the commercial area immediately to the north of the subject site is part of the District Centre (as reflected in its zoning and its inclusion within DDO8) and that the interchange that is under construction is regarded as a terminus to the Centre. On one view the subject site forms part of the gateway in terms of the current works but, in any event, it clearly has a role at the eastern periphery of the District Centre.

48. In the context of policies relating to main roads and the gateways to the District Centre, we can not conclude that a 30 or 35 metre monopole on the subject site is consistent with the character that is desired to be created. The tower and its enclosure are proposed within a few metres of the edge of the road verge. The tower would have a physical dominance to road users and pedestrians on the northern side of the Highway. Its height above all other infrastructure would ensure that it stands out in a manner that in our view does not sit comfortably and the buildings around its base accentuate its presence. Those views are framed, or will be framed, by low rise buildings of single storey and some two storey forms in a well landscaped foreground generally free of buildings. To westbound travellers it would have lesser impact, but nonetheless be apparent. It would have a strong prominence terminating a vista from the new off-ramp from the Hallam Bypass to Princes Freeway, westbound.

49. We can not reach a conclusion that the proposal provides an entry treatment sought by policy and we also consider that it would undermine the design objectives that have been articulated in the Scheme. The presence and form of some street lighting is not such to enable us to reach a finding that the tower would simply be another infrastructure component that sits comfortably with street furniture and any signs that may be erected. Rather, we conclude that the long term impact of the tower in the proposed location is not to create a positive entry statement and, moreover, that its scale is unreasonably dominating.

50. As the Tribunal has said in other recent cases, a purpose of new format Planning Schemes is to provide a strategic framework within which discretion can be exercised. Local policies are intended to guide the exercise of that discretion where permits are required for changes of use or building and works. It is apparent that the Casey City Council has sought to articulate its objectives for the District Centre. The Tribunal is not "bound" by the local policy in so far as the policy is not mandatory, but it is also not open to the Tribunal to review or change that policy. The policy must be given significant weight as a means by which the Council's strategic objectives, as described in the Municipal Strategic Statement, can be achieved.

51. We recognise that there may be other legitimate ways that the objectives of the Scheme can be realised and the local policy can not be examined in isolation of the Scheme's overall strategic direction. It has, also been recognised in Tribunal decisions that policy must not dictate the outcome of any planning application in the same manner as a "control" in the Scheme. A balance needs to be struck between allowing policy to dictate an outcome, and the giving no effect to policy and scheme objectives. One way to achieve a "balance" is to look to whether there is good reason to depart from the policy direction. The policy direction provided by the Scheme is quite clear and we find no basis or justification from the submissions and evidence presented to depart from that direction.

52. That finding, in our view, is alone sufficient to reject the Application. However, next we turn to the immediately adjacent property to the north, owned by Patterson Cheney, and the impact of the proposal on that development. The company has approval for Hondaworld and a Mercedes Benz showroom. The construction of the Hondaworld premises, costing some $12 million, has commenced. Like much of the recent development in this activity centre, it appears to have been carefully designed to meet the Council's strategic objectives for the Centre. The showroom includes a curved structure that is directly behind the site for the proposed tower. The tower is within around 20 metres of the showroom's expansive glazed frontage that logically seeks to maximise its presentation to the passing traffic on the Princes Highway. The associated maintenance facilities at ground level of the proposed facility and security fencing will, together with the pole, block views to the showroom when viewed from the south and along the pedestrian path. At best, we find the relationship awkward to both eastbound and westbound traffic and pedestrians. From some angles, views to the showroom would be obstructed. We consider this to be unreasonable imposition and we reject Mr Clarke's evidence that it is not an insensitive juxtaposition.

53. There is no certainty at this stage that the adjacent Mercedes Benz showroom will proceed to construction, although it has planning approval. The impact on this second premises would be less than that experienced by Hondaworld.

54. Closest residential properties are located around 80 metres from the proposed site, on the south side of Princes Highway. There will be a visual impact to those properties. While views to the tower would be apparent from some houses, we do not find these as offensive as may have been suggested to us in submissions by Mr Kowalski given the intervening road, street lights and plantings. Nonetheless, the relationship to the dwellings immediately opposite the site is not necessarily comfortable. Again we do not consider that the proposed facility has been sited to minimise its visual impact.

55. There would be less visual impact to residences some 170 metres to the north and to the child care centre at a greater distance to the north-west. We can appreciate community concern in relation to the siting of telecommunications facilities in sight of these sensitive uses, but would not have been persuaded to reject the Application given the visibility of the tower from them. In reality, residences to the north would have little if any view of the facility although it would be exposed to the child care centre.

56. Health concerns were raised by local residents. We accept that the proposal can comply with the relevant Australian Standard and concur with the findings of Member Cimino who addressed similar submissions in Application for Review No. 2000/97269 Lucent Technologies v Maribyrnong City Council and Ors:

Whilst I acknowledge that the material submitted by Mr O'Brien suggests that there is some degree of scientific uncertainty about the impact of EM emissions, I have not been persuaded that, in the circumstances of this case, the proposal should be rejected on grounds relating the adverse health impacts. There are a number of reasons for this.

First, it is clear that other divisions of this Tribunal and other courts have found the application of the Australian Standard as the test to be considered. On this issue I refer to the Tribunal's decision in Hyett's case when it stated:

Whilst the Tribunal accepts that Mr Hyett's beliefs are sincerely held, two preliminary observations must be made. First, the Tribunal is obliged to apply the relevant regulatory standards as it finds them, not to pioneer standards of its own. The creation of new standards is a matter for the authorities. Second, the decisions of the Tribunal must be made on the evidence available to it.

Second, the scientific evidence available, namely the report on EM emissions prepared by EMC Technologies, comes to the clear conclusion that the proposal complies with the relevant standard.

Third, Mr O'Brien or Mr Laffey did not challenge the conclusions set out in the EMC report.

Fourth, the conclusions reached in the EMC report are that the proposal does not simply meet the required standard, but rather the EM emissions are well within the required standard...

Fifth, in relation to the Mr O'Brien's submission that the "precautionary principle" should be applied, I note and share the following view expressed by the South Australian Environment Court referred to in Optus Ltd v Norwood CC and Frost which is noted at 22 AATR (1998) at 245-6:

We accept that the residents are concerned about the debate over the effect of RFR emissions from mobile phones base stations, which has taken place in the community. However, the evidence of Mr Cornelius who has extensive knowledge and experience with respect to RFR emissions and their effects, and our understanding of the Australian and New Zealand Standard referred to above, has lead us to agree with Mr Cornelius that this debate has been largely uninformed. We acknowledge the desirability of adopting a precautionary approach to the assessment of risk to humans of new land uses, but we are satisfied that the Australian and New Zealand Standard referred to above embraces the precautionary approach and that RFR levels likely to be emitted by the proposed telecommunications base station are well within that standard. We do not accept that it is reasonable for the residents to perceive that the amenity of the locality would be affected by the proposed development.

In summary, I have reached the conclusion that it would not be appropriate to reject the proposal on health grounds given that the proposal complies so easily with the relevant Australian Standard which has been put in place by government authorities. If there are queries about the appropriateness of the standard, then this should be the subject of government review.

57. A number of written submissions, and Mrs Phillips' oral submission, raised the matter of devaluation of properties. As the Tribunal frequently states, the matters which will determine the final outcome of this Application for Review must be based on planning considerations. There is no specific evidence in support of decreased property values and the Tribunal can not rule in favour of these objections.

58. We conclude by stating that the submission by the Minister for Planning supports the grounds on which the Council determined to refuse the permit application. We observe the curiosity of the circumstances before us. The subject site is public land which we are advised is in the ownership and control of VicRoads. VicRoads has no objection to the proposal (and indeed would be landlord in the event of a permit issuing) whereas through the Minister for Planning, it is submitted that the subject site is significant because of its high visibility and that the proposed tower is not appropriate. We have set out our findings in relation to this proposal above and we hope that, in future, improved co-ordination between various arms of State Government may result in a situation whereby sites and localities that are regarded as of particular visual significance and prominence as part of major public road improvement projects are the subject of a consistent and considered approach to their planning and development.

For the above reasons, we will order that the decision of the Responsible Authority be affirmed and direct that no permit issue.

PLANNING & ENVIRONMENT LIST PLANNING & ENVIRONMENT LIST