1 Before the development starts, three copies of revised plans drawn to scale and dimensions 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 generally be in accordance with the plans submitted to council on 9 December 2004, but modified to show:

(a)

The maximum diameter of the monopole 722mm at the ground and 290mm at the top.

(b)

A complete set of elevation drawings of the equipment cabin.

(c)

The equipment shelter to be constructed of colorbond and painted in a mist green colour.

(d)

The equipment shelter with a corrugated skillion roof pitched in the direction of Champion Road.

(e)

The roofing, eaves, quad gutters and round downpipes of the equipment cabin in galvanised steel.

(f)

A schedule of all materials and finishes, including two colour samples.

(g)

A landscape plan, clearly indicating retention of the existing trees and proposed landscaping species and number of plants. Emphasis must be placed on local, drought tolerant species.

2 The development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

3 Landscaping works as shown on the endorsed plans must be completed within 12 months from the date of the permit to the satisfaction of the responsible authority, and then maintained to the satisfaction of the responsible authority.

4 The facility must comply with the relevant Australian Standards applicable to Electromagnetic Radiation at all times.

5 Within six months of commencement of use, the operator must supply to the responsible authority a report detailing actual levels of radiation at the closest residential dwelling to the monopole, Willy Kids Childcare Centre, Williamstown North Primary School, Bayside College and Williamstown High School, to confirm compliance with the relevant Australian Standards applicable to Electromagnetic Radiation.

6 No existing trees may be removed without the consent of the Responsible Authority.

7 Before the development starts, a tree protection fence as wide as the respective tree canopy, must be erected around the trunks of trees in and touching upon the area marked 'Lease Area' on the Plan No. A02 lodged by GHD, in order to define a 'Tree Protection Zone'. The fence must be constructed of chain mesh or similar to the satisfaction of the responsible authority. The tree protection fence must remain in place until construction is completed. The ground surface of the Tree Protection Zone must be covered by a 100 mm deep layer of mulch before the development starts and be watered regularly to the satisfaction of the responsible authority.

8 No vehicular or pedestrian access, trenching or soil excavation is to occur within the Tree Protection Zone without the written consent of the responsible authority. No storage or dumping of tools, equipment or waste is to occur within the Tree Protection Zone. Any pruning that is required to be done to the canopy of any tree to be retained is to be done by a qualified arborist to Australian Standard - Pruning of Amenity Trees AS4373-1996. Any pruning of the root system of any tree to be retained is to be done by hand by a qualified arborist.

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

•

The buildings and works are not started with one year of the date of this permit.

•

The buildings and works are not completed within two 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.

Mr Scott Stewart, solicitor, Minter Ellison, who called Mr Andrew Rodda, town planner and Mr Con Athanasopoulos, radio frequency engineer to give evidence.

Jillian Hocking and Tennealle O'Shannessy in person.

1 Hutchison 3G reviews council's refusal of a telecommunications tower in a Public Use Zone 4 (Transport) in a copse of trees within 60 metres, 90 metres and 110 metres respectively of residential dwellings.

2 After the application was lodged, the tower was reduced in height by 4.5 metres and it was pointed out that its location in a fenced and publicly restricted rail workshop did not remove public open space.

3 Council refused the tower based upon unreasonable detriment to amenity and proximity to sensitive uses such as the Willy Kids Childcare Centre (120 metres away) and Williamstown North Primary School (200 metres away).

4 The site is part of the 62 odd hectare Newport Rail workshops land, which extends from Williamstown North railway station to Newport railway station.

5 Hutchison 3G claims need for the monopole to fill a black hole when phone lines drop out. This third generation telecommunication facility requires more towers than earlier generations.

6 The proposed monopole comprises:

25m high steel pole and 2.7m high antennas (x 3 antennas)

722mm of steel at the base and 290mm diameter at the top

Mist green colorbond walls and roof shelter for equipment 7.5m² in area and 3m high

New double access gates using existing crossover off Champion Road (Use existing ground access track)

7 The planning scheme strongly promotes telecommunications facilities.

8 A telecommunication facility is a section 1 'no permit required' use in this Public Use Zone 4 (Transport) provided building and works meet the requirements of cl.52.19.

9 A building and works permit is required pursuant to cl.52.19 as it is not a low impact facility. The Telecommunications (Low Impact Facilities) Determination 1997 describes the latter.

10 The purpose of Public Use zones is, inter alia, to recognise public land use for public utility and community services and facilities. This facility would clearly fulfil that purpose.

11 No heritage overlays cover the land although the site abuts the heritage overlayed Williamstown North railway station HO156. While part of the Newport Rail workshops are also in a heritage overlay HO3, they do not abut the subject site. A nearby chimney stack has somehow missed heritage overlay inclusion. Heritage Victoria has jurisdiction over the former Newport Railway workshops, but expresses no problem with this monopole after referral of this application to it.

12 Council's heritage adviser recommended:

•

The proposed location be re-assessed given its close proximity to the railway station and high visibility (open area due to the large intersection/roundabout) and the proposed height (31m). The pole should be positioned closer to the chimney stack on the western side of the site.

•

The pole be a galvanised finish.

•

The proposed brick equipment shelter incorporate a skillion roof with corrugated roofing pitched in the direction of Champion Road.

•

Shrubs and trees be used to conceal the structure from the main views. All brickwork be rendered and painted a neutral colour with a galvanised steel roofing, overhang eaves, timber fascias, quad gutters and round downpipes (also galvanised steel).

13 It is the clear thrust of cl. 18.13 State Planning Policy Framework to recognise the importance of telecommunication to all aspects of modern life and its essential and beneficial contribution to local communities and the state and national economy.

14 Clause 18.13 notes:

•

Planning decisions should recognise that telecommunications is an essential utility[1] service and, in particular, should facilitate the upgrading and maintenance of telecommunications facilities.

•

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.

15 Telecommunication facilities are separately dealt with as a particular planning provision in cl.52.19, which once again strongly promotes them but encourages facilities with minimal impact on the amenity of the area. That means impact is anticipated, but it must be minimised.

16 Clause 52.19-6 requires the decision maker to apply the principles for design, siting, construction and operation of telecommunications facilities set out in the Code of Practice July 2004.

Telecommunications Facilities Code of Practice July 2004

17 Among other things, the code discusses location attributes and co-location.

18 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 scale 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 pubic or private land.

19 One of the features of location is the automatic right to replace a taller facility within 20 metres and to co-locate equipment on a permitted tower.

20 Telecommunications facilities should be co-located wherever practical.

•

Wherever practical, telecommunications lines should be located within an existing underground conduit or duct.

•

Overhead lines and antennae should be attached to existing utility poles, towers or other radio communications equipment to minimise unnecessary clutter.

21 Such infrastructure could include a panel antenna of not more than 2.8 metres long, or radio communications dish of 1.2 metres diameter. New equipment cabins of 7.5m² and 3 metres in height could be constructed without further planning permission.

•

The design location, installation and operation must be in accordance with the principles set out in section 4 of the code.

•

The replacement facility must be for the purpose of co-locating a carrier.

•

The facility being replaced must not be located in a residential zone.

•

The replacement structure must be similar in appearance to the structure being replaced except that a lattice tower can be replaced by a monopole tower.

•

The replacement structure must not be more than 5 metres higher than the structure being replaced.

•

The tower must not have previously been extended under this provision.

•

The replacement structure must be located within 20 metres of the structure being replaced and must not be on land within an Environment Significant Overlay, a Vegetation Protection Overlay, a Significant Landscape Overlay, a Heritage Overlay, or an Erosion Management Overlay.

•

The structure being replaced must be decommissioned and removed within eight weeks of the equipment on the new structure being commissioned. The location of the structure which has been removed must be made good and landscaped as appropriate.

22 A telecommunications facility must be designed and installed so that the maximum human exposure levels to radio frequency emissions comply with Radiation Protection Standard - Maximum Exposure Levels to Radiofrequency Fields - 3kHz to 300 GHz, Arpansa, May 2002.

23 Health concerns about emission of electromagnetic radiation are the strongest concern expressed by objectors and understandably so. Ms Hocking was concerned with the automatic replacement of the proposed tower within 20 metres of the proposed structure which could bring it even closer to Willy Kids child care centre.

24 But there is a mandatory standard that must be met and I am advised by the applicant and have heard uncontested evidence that Radhaz Consulting has calculated emission percentages at 50, 100, 200, 300, 400 and 500 metres and they are infinitesimally small, as well as being well within and subject to ACA[2] and ARPANSA[3].

25 The strong, almost overwhelming planning push in favour of these facilities therefore must be balanced with the need to protect the environment from adverse impacts arising from its infrastructure.

26 Is 60 metres to Willy Kids, 200 metres to Bayside Secondary College and 250 metres to Williamstown Primary School appropriate for a 27.72 metre tower with co-location potential?

27 Is the chosen location visually appropriate?

28 In terms of health impacts, I follow Telstra Ltd v Mornington Peninsula Shire Council unreported P117/2005 (9 May 2005), Telstra Ltd v Mornington Peninsula SC [2005] VCAT 863 (9 May 2005) per Baird SM, Optus Mobile Ltd v Whittlesea City Council [2003] VCAT 968 (16 June 2003) and Hyett R v Corangamite SC & Telstra [1999] VCAT 794 (30 April 1999). In the latter decision Kellam, J and Marsden SM held:

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 other authorities. Second, the decisions of the Tribunal must be made on the evidence available to it. In this case we have the evidence of a highly qualified expert witness whose material must be weighed against a number of unsubstantiated assertions...

29 I give weight to evidence that the proposal would comply with the standards set by the Australian Government in relation to proposed emission levels (Radiation Protection Standard - Maximum Exposure Levels to Radiofrequency Fields - 3kHz to 300 GHz, Arpansa, May 2002). I have heard incontrovertible evidence to this effect. The Code of Practice requires a telecommunications facility to be designed and installed so that the maximum human exposure levels to radio frequency emissions comply with Radiation Protection Standard - Maximum Exposure Levels to Radiofrequency Fields - 3kHz to 300 GHz set by ARPANSA (May 2002). This issue has been the subject of numerous Tribunal determinations[4] wherein the Tribunal has found that a telecommunications facility is obliged to meet the relevant standards that apply and it is not usually a basis to reject an application for reasons relating to potential health impacts if the relevant standards are met.

30 However, given the 60 metres proximity to Willy Kids Childcare centre, I will maintain council's desired permit condition for the results of testing to be given to the Responsible Authority.

31 The parties and the witnesses in the appeal made both written and verbal submissions, a number of plans, photographs and other documents were tendered and remain on the Tribunal's file. I conducted an extensive inspection of the site and its locality.

32 Power Street to the east is a charming collection of single storey Victorian cottages with timber picket fences nestled in treed and landscaped front gardens. Residents in Power Street live in attractive houses but their narrow frontages have only a narrow view shed from their front windows and verandah.

33 Willy Kids centre enjoys a more open vista towards the site, but the slim neutral colour steel monopole will be less obtrusive than the historic red brick chimney.

34 In stark contrast, the Champion Street junction with Kororoit Creek Road and Ferguson Street is a busy and extremely complicated intersection where the mind and the eye is diverted to manoeuvring the roundabout, level crossing and traffic safety.

35 Residents in Champion Road look below the canopy of trees into an industrial site of rolling stock in the Newport Rail workshop, therefore this railway site is a suitable candidate.

36 From all vantage points drawn to my attention at the hearing, the eye is magnetically drawn to the historic Newport Rail yards chimney tower.

37 From Power Street it will be visible but its slim steel monopole will be less obtrusive than the historic red brick chimney. The chimney tower is so dominating that slim steel monopole is acceptable. The monopole's location is not an 'isolated' position.

38 From the Champion/Ferguson/Koroit Creek Road intersection, it will be camouflaged by the existing clutter of street signs, lamp posts, railway signs, traffic signals, overhead railway lines and the like.

39 This is one of those cases where one is forced to ask oneself 'if not here, where?' The balance between the strong planning policy thrust and visual concerns is clearly in favour of its approval in this location among the copse of trees.

40 In summary I have found that Cimino M's decision in Lucent Technologies v Maribyrnong CC & Ors [2001] VCAT 1955 (27 September 2001) which refused a 15 metre high facility 20 metres from a neighbouring dwelling is distinguishable from my site which:

i

is in the middle of industrial Newport railway workshop land;

ii

holds a larger highly prominent chimney stack structure;

iii

is surrounded by the existing intrusive infrastructure of power poles, traffic lights and overhead rail lines;

iv

is not a pristine environment. Other background activities and poles can always be seen in the view shed.

41 I confirm and repeat the well considered words expressed by council's planning officer when he assessed this proposal. It is inevitable that the population will grow, along with reliance on mobile communication products. Existing facilities will be outgrown and new facilities will be required to meet demand. State planning policy strongly supports the development of these facilities and the proposal has been assessed to be well located in terms of provision of service, separation from sensitive uses and minimizing visibility. It is acknowledged that there is significant community concern relating to the health impacts of the facility, however the Australian Standards have been developed to address this. It is therefore considered that the proposal is reasonable and should be supported subject to conditions.

42 Accordingly I allow the review and direct that a permit issue, subject to tighter conditions, especially as to retention of existing canopy trees and increased landscaping.

43 In accordance with the thrust of the Telecommunications Facilities Code of Practice, I see no reason why the few existing canopy trees cannot be preserved with the equipment shelter built within the copse of trees and additional shrubs planted to screen the shelter. It just takes more effort on the part of the applicant, with careful supervision by council.

[3] Australian Radiation Protection and Nuclear Safety Agency

[4] The most recent being P3620/2004 Heland Pty Ltd - Leo Wyman v Kingston CC & Telstra