Mr M Bartley, Solicitor of Coltmans Price Brent, appeared on behalf of the Responsible Authority.

Mr C Wren of Counsel instructed by Freehill Hollingdale & Page, Solicitors, appeared on behalf of the Respondent/Permit Applicant.

Mr R Hyett, the Applicant for Review, appeared on his own behalf.

The subject land is situated on the south side of Currells Road, Port Campbell approximately 850m east of the Port Campbell Road and some 2 kilometres south-east of that township. The site comprises gently undulating rural land principally used for grazing. A number of derelict car bodies at the frontage of the site do little to enhance its appearance. Some 250m to the east is a dwelling owned and occupied by the Hyett family. Approximately 350m to the west is a dwelling occupied by the O'Shea family.

In material provided on behalf of the Respondent, the proposal was described as follows:-

"The proposal involves the establishment of a new mobile telephone base station facility at the north-east corner of the subject land.

The facility includes a 35 metres high steel "slimline" monopole with five "omni" type antennas (three pointing upwards and two pointing downwards) attached to a headframe at the top of the pole and a "paso" link dish attached near the top of the pole. The resultant overall height is approximately 37.6 metres.

The facility also includes a "mini" brick hut at the bottom, which will house other equipment, as well as a toilet on the south side. The brick hut has a height of approximately 3.2 metres and an area of approximately 8m2.

The brick hut is set back approximately 6 metres from the front boundary and approximately 5 metres from the western side boundary. The monopole is to be located between the brick hut and the western side boundary and a concrete pad is to be provided in the area underneath the tower. A cable gantry is provided between the side of the brick hut and the monopole.

The entire infrastructure associated with the facility is to be located within a secure fenced compound area measuring 6 metres x 10 metres (60m2); being the Telstra leasehold area.

The compound area is set back 4.5 metres from the front boundary of the property, and abuts the western side boundary.

The establishment of the facility will require a number of wrecked cars to be removed or relocated. No tree needs to be removed.

The plans of the proposed facility also show that a small gravel area is to be established on the east side of the leasehold area."

The Responsible Authority required Notice to be given. In response three objections were lodged, one of which contained six signatures. In his written submission Mr Bartley summarised the grounds of objection as follows:-

[diamond] "Detrimental effect upon visual amenity of the area.

[diamond] No public consultation undertaken by Telstra prior to the application being lodged.

[diamond] Telstra's application indicates the site is "industrial" and this is misleading.

[diamond] A number of houses and residents are in the immediate proximity.

[diamond] The land will be zoned Environmental Rural under the proposed new Planning Scheme and the proposal is inconsistent with this zone.

[diamond] There is potential for excavation on the road reserve which is inappropriate given the environmental significance of the reserve.

[diamond] The tower is to be of prime benefit to the township and alternative sites closer to the town should be sought."

A number of submissions supporting the proposal were also forwarded to the Responsible Authority. This "supporters group" included representatives of the Country Fire Authority, the State Emergency Service, the Timboon Healthcare Service and the local chapter of the United Dairy Farmers of Victoria. The grounds of support were based on claims that:-

* communication in the region would be improved, particularly in the areas of fire protection, emergency rescue and Healthcare;

* an improvement in service delivery to tourists would result;

* the day to day activities of local workers, farmers and residents would be enhanced.

On 17 December 1998, a public meeting took place at which both supporters and opponents participated in a discussion concerning the application. On

19 January 1999 the Responsible Authority determined to issue a Notice of Decision to Grant a Permit subject to five conditions. The objector, Mr Rodney Hyett, now seeks a review of the Responsible Authority's decision.

On the hearing each of the parties tabled and read written statements. Mr Wren called evidence from Mr John Timothy Rowley, Telstra's Manager of Electromagnetic Energy Safety Research who has wide experience in researching the effects, (including biological effects) of radio communication systems. Mr Rowley has recently submitted a doctoral thesis to RMIT University on the topic of "Computational Electromagnetic Investigation of the Performance of Mobile Phone Handset Antennas".

It is unnecessary for the purposes of this determination to provide a summary of all the material submitted at the hearing, much of which ranged across matters of marginal relevance to the issues which the Tribunal is called upon to decide. Rather the Tribunal intends to deal with this matter by addressing each of the six grounds upon which Mr Hyett relied:-

1. Proper and responsible planning process has not been followed by the Responsible Authority.

The short answer to this assertion is that the handling of the application by the Responsible Authority is largely irrelevant to these proceedings. A hearing before the Tribunal is a hearing de novo. Simply put, in an application for review , the Tribunal stands in the shoes of the Responsible Authority and the matter is decided afresh.

2. Errors were made in the assessment of the proposed site's suitability for a mobile telephone base station.

The basic question which falls for decision is whether this particular site is suitable for the proposed facility. The Tribunal is not required to determine whether other sites may offer a preferable alternative. Indeed such an inquiry would call for a much greater level of additional information which is simply not before the Tribunal.

Part of this review ground is based on the claim that there will be a loss of visual amenity to the McInerney family who own land on the opposite side of Currells Road. However there is considerable doubt as to the exact nature of the McInerney plans, and that family has not sought to be heard in these proceedings.

Mr Hyett asserted that views of the tower would be available from public vantage points and this effect could be reduced by siting the facility elsewhere. Again this is an "alternative site" argument and is irrelevant. However the Tribunal notes that public views of the facility will be available only across very considerable distances.

3. The proposed site is to be zoned Environmental Rural Zone under the new Corangamite Planning Scheme.

This is a statement of fact rather than a legitimate ground of objection. However as with the present zoning, the construction of a facility of this kind remains a matter for the exercise of a discretion under the provisions of the new format Planning Scheme.

4. The proposed site may contravene Clause 55 of the Telecommunications Act 1997 - Schedule 3.

This is not a relevant consideration. However insofar as it was asserted that undesirable environmental effects may follow the installation, the Tribunal notes that Mr Hyett's claim was based on a submission to an inquiry rather than a finding of that inquiry.

There is simply no tenable basis to support this ground of review.

5. The merits of the proposal have never been debated publicly by the Shire or community.

This is a matter which is irrelevant to the Tribunal's consideration. There is no statutory obligation which requires such a debate to take place.

6. Site selection is inconsistent with the evolving recognition of the health hazards of electromagnetic radiation from mobile phone tower installations.

In his written statement of evidence Mr Rowley commented:-

"In consideration of the projected usage of mobile phones in the Port Campbell area it is proposed to install two GSM transceivers at the site, each with a maximum carrier power of 28.2 W (watts). An estimate of the maximum signal strength at ground level adjacent to the site using standard engineering practices has been made using information about the transceiver power, system losses, antenna patterns and pole height. The maximum GSM signal at ground level from the proposed base station is estimated to be 0.4 µW/cm2 (microwatts per square centimetre). This is 500 times below (0.2%) the general public exposure limit at 900 MHz in the Interim AS2772.1. In consideration of the very conservative nature of the Australian Standard and the safety factors built into the standard, a radio signal level of 0.4 µW/cm2 is more than 55,000 times below the threshold level at which biological effects have been established."

Mr Hyett argued the relevance of the current standard. He contended that the standard did not take account of the non-thermal effects of radio frequency radiation on the body "at levels that are thousands of times lower than the standard's upper limit, levels that are lower than those at which base stations operate". These effects, Mr Hyett contended, led to sleep disruption, chronic fatigue syndrome, leukaemia and cancer.

Mr Hyett went on to quote from a number of reports and papers which, he submitted, supported the contention that reliance on the current standard (AS2772.1) was "entirely questionable".

In relation to the future use of the facility Mr Hyett contended that it would act "as a magnet" for other carriers and for facilities such as television broadcasting.

"The jury is still out with regard to the biological effects of non-thermal RFR, as experienced within 300 metres of mobile phone towers. Until such time that research is conclusive, then `prudent avoidance' is a responsible position to adopt. Many municipalities around Australia are already setting precedents by adopting new safety standards, as they are legitimately entitled to, by virtue of the devolutionary process that planning controls over these towers has followed."

While 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 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 advanced by Mr Hyett.

In assessing all the submissions and evidence, the Tribunal accepts the material provided by Mr Rowley. The safety margins and tolerances involved are of such a magnitude that we believe it is inconceivable that the proposed facility will pose any form of health risk.

As to the other side effects which Mr Hyett fears, there is simply no reliable evidence which would entitle the Tribunal to find that there will be any risk to public health occasioned by this proposal.

Turning to Mr Hyett's concerns regarding increased usage of the facility, two points need to be made. First, the assessment provided by Mr Rowley, which we accept, reflects the maximum GSM signal at ground level. Thus even if other carriers use the facility, that output will not increase. Second, the permit authorises the use of the tower for the purposes of a mobile phone network in accordance with endorsed plans. Thus the tower cannot be used for other purposes without a fresh permit, nor can the structure be modified without either an amendment to the existing permit or the obtaining of a fresh permit.

Before parting with this matter, and for the sake of completeness, a number of peripheral matters should be briefly addressed.

First we note that Mr Wren tabled a written statement of evidence from Mr Kelderman, a Town Planning Consultant, which dealt with the question of visual impact. Mr Kelderman was present to give evidence but, as Mr Hyett did not pursue that aspect of the matter, Mr Kelderman was not called upon to give oral evidence. His written statement of evidence has been retained on the file.

Second, we note that Mr Bartley relied on a number of cases, both from Victoria, other Australian states and New Zealand which have likewise rejected claims that facilities of the kind under question pose a health risk to the public at large. Indeed we were not referred to any case where a contrary view has been accepted.

We share the following view expressed by the South Australian Environment Court in Optus Ltd v Norwood CC & Frost which is noted at (1998) 22 AATR 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."

Third, we note that, in presenting his submission, Mr Bartley contended that the facility would fulfil a public need and this was a factor which weighed in favour of the proposal.

Section 60(5) of the Planning and Environment Act entitles us to take account of any significant social and economic consideration which may result from a proposal, if the circumstances appear to so require. There are many previous Tribunal cases which deal with this question and these are conveniently summarised in Australian Retirement Communities Pty Ltd & Eltham SC v Cuthbertson (1987) 1 AATR 305. However, in view of our findings on the merits of the application, we do not believe it is necessary to address this aspect of the matter.

Finally we note that Clause 7-8 to the State Section of the Planning Scheme contains a development control for telecommunication facilities, the purpose of which is stated to be:-

[diamond] "To ensure that telecommunication infrastructure and services are provided in an efficient and cost effective manner to meet community needs.

[diamond] 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.

[diamond] To ensure the application of consistent provisions for telecommunications facilities, subject to the consideration of local amenity."

In our view the proposal fulfils that purpose and will not have any adverse effect on local amenity.

Save for some minor amendments to strengthen the intent of condition 4 of the Notice of Decision, we propose to order that a permit issue for the construction of a mobile telephone base station comprising a 35 metre pole, equipment room and associated works in accordance with the plans which accompanied the application. The permit shall be subject to the same conditions as those contained in Notice of Decision No. 1998/134 dated 21 January 1999 save and except that condition 4 shall be deleted and replaced as follows:-

"4. Within three (3) months of the commissioning of the facility Telstra must undertake testing as to electro-magnetic radiation emanating from the tower hereby permitted. The results must be provided to the Responsible Authority and to the immediate adjoining land owners. In the event that the radiation levels in publicly accessible areas exceeds the relevant Australian Standard the use must immediately cease and shall not recommence until such time as the levels meet the relevant Australian Standard."

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