RESPONSIBLE AUTHORITY: Maribyrnong City Council

K Bannwart, D Kennedy & K Lim, C Horomidis, I & J Rojkovski,

S Fowler and A Bone, D Mouratidis, R Illich & T Watt, B Riggs,

Medium Neutral Citation [2001] VCAT 1955

With respect to permit application TP00/0379, the Responsible Authority's decision to refuse the grant of a permit is affirmed. A permit must not be granted.

Mr D O'Brien, Barrister, instructed by Maurice Blackburn Cashman, Lawyers, appeared for the Responsible Authority.

Mr C Laffey, Planning Consultant, appeared on behalf of all of the respondent objectors.

Ms A Johns, solicitor with Minter Ellison lawyers, appeared on behalf of the applicant.

1. This is an application under Section 77 of the Planning and Environment Act 1987 against the Responsible Authority's decision to refuse the grant of a permit with respect permit application no. TP 00/0379. The permit application seeks permission for the construction of a telecommunications facility that is to form part of the One- Tel network on land at 75A Bayview Road, Yarraville.

2. Permit application TP 00/0379 was lodged with the Responsible Authority on the 22 August 2000. The Responsible Authority required notice of the application to be given and in response, it received 15 objections and a petition against the proposal. Mr O'Brien summarised the grounds of objection as follows:

* Health and safety concerns, perceptions of health risks/radiation risks.

* Anxiety/stress/well being/emotional/psychological effects.

* Facility in a residential area/residential zone.

3. On the 30 October 2000, the Responsible Authority issued its notice of "Refusal to Grant a Permit" with respect to the permit application. The grounds of refusal are:

1. The height of the proposed monopole is excessive in comparison to the surrounding buildings.

2. The design and appearance of the telecommunication facility is inappropriate for a residential area.

3. The proposed telecommunication facility will adversely affect the visual amenity of the area.

4. The perceived health risks from the telecommunications facility are unacceptable for a residential area.

5. The proposed telecommunications facility will have a negative visual impact when viewed from the nearby heritage areas.

6. The proposed telecommunications facility is located within a site which is listed within a proposed heritage area.

4. The application for review was filed on the 21 November 2001. The grounds of the application are:

1. The height of the monopole is not excessive in comparison to the surrounding buildings. The facility's height is proposed to reach a maximum height of 14.82 metres, 3.82 metres higher above the top of the church spire.

2. The design and appearance of the facility is not inappropriate as it is considered that its appearance in the form of a cross is consistent with religious activity undertaken at the subject property.

3. The proposed facility is sited and designed with external colours and finishes that are sympathetic to those of the existing building and surrounding area.

4. The emission levels from the proposed facility comply with the Australian Communication Authority's Radio Communications (Electromagnetic Radiation Human Exposure) Amendment Standard 2000 (No.1)

5. At the hearing, Mr O'Brien, Mr Laffey and Ms Johns tabled and spoke to written submissions to which they added further oral argument. They also tabled various other material relevant to the consideration of the proposal including plans, maps, diagrams, policies and photographs of the land and surrounding area.

6. A number of witnesses were called to give evidence.

7. Mr O'Brien called Ms B De Corte, a Conservation Architect and Architectural Historian employed by the Responsible Authority as its Heritage Adviser.

8. Mr Laffey called Mr H van Wilgenburg, an architect, to give evidence on urban design and neighbourhood character issues. Mr Laffey also called a number of local residents, Mrs E Laffey, Ms S Fowler and Mr M Kitanovski to give evidence.

9. Ms Johns called Mr A Clarke, a town planner, to give evidence on the visual impact of the proposed telecommunications facility and Mr D Ogilvie, a radio frequency engineer with Lucent Technologies, to give evidence on the operation and selection of base station sites.

10. The evidence in chief of witnesses called to give expert evidence was set out in written reports. All witnesses were available for cross-examination.

11. After the hearing I inspected the subject land and surrounding area in the presence of representatives of the Responsible Authority and applicant. My inspection including viewing the subject land from the backyards of Mr Kitanovski's and Mrs Laffey' s respective properties as well as the surrounding area.

12. The submissions, evidence and other material presented at the hearing have been considered and is retained on the Tribunal's file.

13. The subject land is located on the south-east corner of Bayview Road and Montague Street, Yarraville. The land is rectangular in shape with frontages of about 25 metres and 38 metres to Bayview Road and Montague Street respectively.

14. The subject land is occupied by the Yarraville Uniting Church. The buildings on the land comprise the original church which was constructed around 1930, a somewhat recent extension to the south of the original church, and other single storey buildings to the rear. The original church building is located toward the north-west corner of the subject land. It is relatively modest structure in terms of its overall height and size, with the most prominent feature of the building being the spire which extends to a height of about 11 metres. The extension to the south is in the form of a circular building with a conical roof. Although designed to be read as a subsequent addition to the original church, the overall height and scale of the extension is in keeping with that of the main church building. A small single storey link connects the extension with the original church building. Single storey buildings used for a child care facility exist to the rear of the main church building.

15. The subject land is located within an established residential area, with surrounding properties essentially occupied by dwellings. The majority of dwellings in the locality are single storey and relatively modest in size.

16. A laneway extending from the east side of Bayview Road separates the subject land from the property immediately to the south. A single storey dwelling occupied by Mr Kitanovski and his family exists immediately to the south of the laneway.

17. Dwellings exist on the opposite sides of Bayview Road and Montague Street.

18. Bayview Road is a reasonably wide and relatively quiet local street which allows for two way traffic movement, kerbside parking on both sides and nature strip areas which support an avenue of street trees. The street trees combine to create an attractive leafy residential streetscape. Montague Street also allows for two way movement and kerbside parking, however, there is no street tree planting. As with most older inner to middle suburban areas, power poles supporting electricity and telephone lines as well as street lighting exist in both these streets.

19. The permit application seeks permission for the construction of a telecommunications facility on the land. The details of the proposed facility are shown on the plans accompanying the application.

20. The facility takes the form of a telecommunications tower comprised of a 13.18 metre high galvanised steel pole which supports a cluster of 1.64 metre antennas in a cross shape formation. The overall height of the tower with antennas is 14.82 metres. The tower is to be positioned to the rear of the small link between the original church and the circular extension.

21. Ms Johns said that, if the cluster of antennas in a cross shape formation is considered unacceptable, an alternative configuration would be for the antennas to be mounted in an upright formation to give the appearance of a free standing pole rather than a pole supporting a cross.

22. The plans submitted with the permit application also show the provision of an equipment hut adjacent to the southern boundary next to the laneway. The plans show that the equipment hut is to have an area of 7.5 square metres, and an overall height of 2.65 metres.

23. The plans also show that three additional antennas are to be mounted within the church spire, however, it was common ground that no permission is required for this equipment.

24. During the course of the hearing, a dispute arose as to whether the permission is required for the equipment hut shown on the plans submitted with the application. Mr O'Brien and Mr Laffey argued that the equipment hut could only be considered a "low impact facility", as defined in the "Telecommunications (Low Impact Facilities) Determination (Amendment No 1 of 1999) if the base area does not exceed 5 square metres and height does not exceed 2.5 metres. The plans showed the equipment hut with a base area of about 7.5 square metres and a height of 2.7 metres.

25. Ms Johns said that the applicant is only seeking to install an "equipment hut" which clearly falls within the scope of a "low impact facility" pursuant to the above mentioned determination. On the 5 April 2001, Ms Johns submitted an amended plan which shows the equipment hut having a base area of 5 square metres and a height of 2.5 metres applied. Ms Johns the applied to amend the permit application by substituting this amended plan for the original application plans and by changing the wording of the permission being sought to read "construction of a telecommunications tower". Mr O'Brien and Mr Laffey offered no objection to the amendment. I allowed the amendment to the permit application plans pursuant to clause 64 of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998.

26. Pursuant to the Maribyrnong Planning Scheme the subject land is located within the "Residential 1" zone, the provisions for which are found at clause 32.01. The purpose of the zone is:

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

To provide for residential development at a range of densities with a variety of dwellings to meet the housing needs of all households.

In appropriate locations, to allow educational, religious, community and a limited range of other non-residential uses to serve local community needs

27. "Telecommunications facility" is a use found within section 1 of the table of uses at clause 32.01-1 for which no permit is required. However, this is subject to a condition which states that:

"Buildings and works must meet the requirements set out at clause 52.19"

28. The provisions at clause 52.19 relate to telecommunications facilities. The purpose of the provisions at clause 52.19 are:

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

To ensure the application of consistent provisions for telecommunications facilities.

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

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

29. Pursuant to clause 52.19-2, a permit is required to construct or carry out works for a Telecommunications facility. The clause goes on to set out various buildings and works for which no permit is required. 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. The relevant decision guidelines are set out at clause 52.19-6. These are as follows:

Before deciding on an application, in addition to the decision guidelines at clause 65, the Responsible Authority must consider, as appropriate:

* 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 a 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 of those overlays and the schedules to those overlays.

30. The decision guidelines at clause 65 require consideration to be given to, inter alia, the matters set out in s.60 of the P & E Act, the planning scheme's State and Local Policy Frameworks (SPPF and LPPF), the purpose of the zone, the orderly planning of the area and the effect on the amenity of the area.

31. Section 4 (1) of the P & E Act provides that the objectives for planning in Victoria include (inter alia):

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

(e) to protect public utilities and other assets and enable the orderly provision and co-ordination to public utilities and other facilities for the benefit of the community.

32. The relevant policy for "Telecommunications" is set out at clause 18.13 of the SPPF. 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.

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

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

* Facilitate the upgrading and maintenance of telecommunications facilities.

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

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

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

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

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

35. There are no strategies or policies which specifically relate to the provision of telecommunications infrastructure within the LPPF. However, it is relevant to note that the objectives for residential land use at clause 21.04-1 include to provide for a high standard of urban design in new developments and to encourage improved residential amenity in all residential areas.

36. The planning scheme's policies and decision guidelines require consideration to be given to "A Code of Practice for Telecommunications Facilities in Victoria" (the Code) which is an incorporated document within the scheme. The purpose of the Code includes to:

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

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

* Ensure the application of consistent provisions for telecommunications facilities.

* 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.

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

38. The Code sets out four principles for the design, siting, construction and operation of telecommunications facilities. These are:

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.

Construction activity and site location should comply with State environment protection policies and best practice environmental management guidelines.

39. Mr O'Brien and Ms Johns also referred to the "Australian Communications Industry Forum - Draft Code - Deployment of Radiocommunications Infrastructure - September 2000." In relation to this draft code, Ms Johns submitted that the document is not relevant given that it is in draft form. It seems that this code in its draft form has no binding application on telecommunications carriers and it is not referred to in the planning scheme. As such, I have not given it any substantive weight in making my decision.

40. After reviewing the matters raised in the submissions and evidence presented, the provisions of the planning scheme and the attributes of the land and its neighbourhood context, it seems to me that the key matters which require my consideration are whether the proposed telecommunications tower is appropriate having regard to:

(i) the potential for adverse impacts on the health of surrounding residents due to electromagnetic emissions;

(ii) the potential for adverse impacts on residential amenity due to the height and location of the tower, and

(iii) the impact on the heritage significance of the buildings on the subject land and nearby heritage areas.

41. Before setting out my views on these three matters, it is appropriate that, in the first instance, that I set out my views in relation to Mr O'Brien's submission that in circumstances where an applicant fails to demonstrate that the proposed facility cannot be established on alternative sites, that this should be a matter which weighs against the proposal. On this point Mr O'Brien asserted that the applicant has not properly demonstrated that the proposed facility cannot be either located on another site outside the Residential zone or, alternatively, by way of a co-location with another existing facility in accordance with Principle 2 in the Code. Mr O'Brien then referred to a number of other properties in relatively close proximity to the subject land located outside the residential area which, in his submission, should have been considered for the proposed facility. These alternative sites included a McDonald's restaurant, a 7-11 convenience store and a pharmacy all of which are located at one of the corners of Williamstown/Somerville Road intersection. A micro cell facility already exists on the pharmacy site and it was submitted that this site offered an opportunity for co-location.

42. The issue of whether the existence of an alternative site is relevant to the consideration of the merits of a specific proposal has been considered by other divisions of this Tribunal on numerous occasions. For example, in Hyett v Shire of Corangamite and Telstra (Application no. 1999/11208 unreported), the Tribunal (comprised of the President Justice Kellam and Member Marsden) stated that:

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 enquiry would call for a much greater level of additional information which is simply not before the Tribunal.

43. A similar view was taken by the Tribunal in L & M Sinclair v Loddon Shire Council and Telstra (Application no. 1999/64730 unreported) when Member Liston stated:

The decision which must be made by the Tribunal is whether or not the proposed telecommunications facility is appropriate on this land, it is not the role of the Tribunal to pick between alternative proposals.

44. There are other decisions which generally support the above views, however in general terms it is sufficient for me to say that I agree with the views set out in the above passages. Whether an alternative proposal brings about a similar or better outcome to that which is before me is not relevant. Fundamentally the decision which I am required to make must be based on whether the proposal before me is acceptable having regard to the relevant considerations set out in the P & E Act and the planning scheme.

45. I now turn to the three key matters which I identified at the beginning of this section of these reasons.

46. The first of these relates to whether the proposal is unacceptable having regard to the electromagnetic (EM) emissions. It would be fair to say that this issue was the subject of substantial submissions presented by the three advocates who appeared. By and large, the submissions presented on behalf of the Responsible Authority and the objectors were that although the EM emissions comply with the relevant standard, there is still sufficient scientific uncertainty about the impacts of such emissions that it is inappropriate to locate the proposed telecommunications tower on land which has such a strong interface with sensitive uses, namely a child care facility, a church and residential properties.

47. In support of these submissions, I was presented with various newspaper articles which reported on overseas studies linking emissions from electricity pylons with childhood cancer, a copy of a recent British report by the "Independent Expert Group on Mobile Phones" commonly referred to as the Stewart report, and the testimony of Mrs Laffey and Ms Fowler, who are local residents concerned about the health risks associated with EM emissions.

48. After reviewing the newspaper articles submitted and the views expressed in the Stewart report, it is not surprising that lay people in the community, such as Mrs Laffey and Ms Fowler, would have strong apprehensions about either living near or having their children attending facilities near telecommunication towers because of EM emissions. For example, in relation to the location of base stations, the Stewart report states:

In assessing the potential impact of a planned base station on health, the current approach in the UK is to determine whether it might cause exposures in excess of NPRB guidelines (NPRB, 1993a, b; 1999). If this can be ruled out satisfactorily, risks to health are not considered further.

We believe this approach is not optimal since it does not allow adequately for the uncertainties in scientific knowledge. Although it seems highly unlikely that the low levels of RF radiation from base stations would have significant, direct adverse effects on health, the possibility of harm from exposures insufficient to cause important heating of tissues cannot yet be ruled out with confidence. Furthermore, the anxieties that some people feel when this uncertainty is ignored can in themselves affect their well being.

49. It is on the basis of the uncertainties in scientific knowledge that Mr O'Brien and Mr Laffey submitted that a "precautionary approach " be taken with respect to the siting of such a facility, and that having regard to the context of the land, the proposal is not consistent with such an approach.

50. Ms Johns submitted that objections to the proposal based on concerns about human exposure to radio frequency emissions are misconceived. In support of this proposition, Ms Johns firstly relied on the investigations carried out by EMC Technologies Pty Ltd where they reach the conclusion that the emissions from the proposed facility comply with the relevant Australian Standard. Ms Johns also said that this same issue has been considered by various divisions of this Tribunal, the Planning and Environment Court (Qld) and the Land and Environment Court (NSW) and they have all found that all that is required is that a telecommunications facility comply with the relevant Australian Standard.

51. 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.

52. 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.

53. 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.

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

55. 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. The EMC report concludes that EM emissions will be 147 lower than the required standard when measured at ground level, 108 times lower at 2 metres above ground level and 61 times lower at 5 metres.

56. 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."

57. 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.

58. The next issue to be considered is whether the proposed telecommunications tower will have unreasonable adverse impacts on the amenity of the area.

59. In relation to this issue, Mr Laffey submitted that the proposed tower will cause severe detriment to the amenity of the neighbourhood. Mr Laffey said that the subject land is located within a residential setting which is predominantly developed for single storey dwellings. He went on to say that although there are a number of relatively two storey dwellings in the area, the development pattern in the area is one comprised of predominantly low rise buildings. Mr Laffey argued that the height of the proposed tower is not only inconsistent with the scale and character of dwellings generally found in the neighbourhood, but also that it is incompatible with the scale and height of the church which he described as being of "modest proportions and not overbearing."

60. Whilst acknowledging the importance of providing telecommunications infrastructure, Mr Laffey said that the proposal does not, because of its visual impact on the surrounding area, reflect "a reasonable balance" between the provisions of infrastructure and the need to protect the environment form adverse impacts as is required by the policy at clause 18.13.

61. In support of these submissions, Mr Laffey relied on the evidence of Mr van Wilgenburg, a local architect. Mr van Wilgenburg's evidence was that the scale and design of the proposed tower is inappropriate for three reasons. First, he expressed the view that the proposed tower is out of proportion with development in the surrounding residential area. Second, he said that church buildings are an integral part of a residential area, and although the church has an 11 metre spire, the spire is designed to be in keeping with the proportions of the church building and it forms the highest landmark in the area. He expressed the view that the proposed tower will be "overbearing" in relation to the surrounding residential area and that it will contradict the "unique" proportions of the existing church within its residential setting. Third, he said that the tower will have a "dramatic" impact on the amenity of backyards of nearby residential properties.

62. Ms Johns submitted that the conditions and height elements already existing in the area "strongly point" to the area being able to support another tall element. She asserted that whilst the proposed tower will be seen, the Code requires that such facilities should be sited to ensure minimal visual impact, as opposed to no impact. Ms Johns submitted that, although visible from various vantage points, the proposed tower will not be dominant or overbearing in its context.

63. Ms Johns relied on the evidence of Mr Clarke to support her submissions. Mr Clarke's report included photographs taken from various vantage points in the area, which showed both the existing and proposed situation. Putting aside heritage considerations, Mr Clarke conclusions were that when viewed from the public domain, namely Agnes Street and Bayview Road, the tower will be read in the context of other height elements in the streetscape and that existing buildings on the church land will reduce the visual impact of the tower when viewed from neighbouring backyards.

64. During the course of the hearing, the parties referred to and tabled various cases where the Tribunal was required to turn its mind to whether the visual impact of the tower proposed in each respective case was reasonable in the circumstances. These were United Energy Limited v Bayside CC, Ness and ors (2000/52185 unreported), United Energy Limited v Stonnington CC Van Buuren and Ors (2000/062893 7 VPR 205), Cable and Wireless Optus Ltd v Knox CC Cooper and Ors (1999/84116 unreported) and Cable and Wireless Optus Ltd v Knox CC Bannan and Ors (1999/884052 unreported).

65. As a matter of first principle, I accept that a "telecommunications facility" is an "as of right" use within the Residential 1 zone. I also accept that there will be circumstances when because of the neighbourhood context, the attributes of a particular site and its juxtaposition with surrounding properties that there will be circumstances where a tower can be constructed because its impacts will represent a "reasonable balance" between the need to provide infrastructure and maintaining residential amenity. It is evident that the Tribunal in the two Cable and Wireless cases cited above (Members Mulcahy and Withers) formed that view. However, it is also relevant that in coming to its decision in both these cases, the Tribunal found that the proposed telecommunications facility would not have unreasonable detrimental impacts on amenity.

66. The determination of whether the visual impact of the proposal is one which is "reasonable", requires the consideration of the visual impact on the surrounding area and the amenity of individual properties.

67. In relation to the impact on the surrounding area, my inspection of the subject land and surrounding area confirmed that the land lies within an area where buildings are generally single storey, modest in size and there are few double storey buildings. Although the church is somewhat larger than dwellings in the area, it is none the less a relatively small church building of modest size and proportions. I think that it is quite proper to describe the character of the area within which the subject land lies as one of modest, low scale development. Furthermore it was apparent to me that, by and large, there is a substantial degree of consistency or sameness in the overall height and scale of buildings in this area. Although the area is one where electricity, telephone and street lighting is provided via power poles, they are not significantly higher than the buildings and street tree planting which exists in the area.

68. In my view, the overall height of the proposed tower proposed tower will be at odds with the character of this particular neighbourhood. I do not agree with Mr Clarke's view that the tower will have an acceptable visual impact having regard to other height elements in the area. Rather I agree with Mr van Wilgenburg's view that the tower's height is simply incompatible with the scale of development in this area. I consider that it will represent a somewhat abrupt departure from the scale and height of development in the area and I find this unacceptable given that it will be able to be seen, and in my view perceived, as an overly dominant and intrusive element that will have unreasonable adverse impacts on the appearance and residential amenity of the area within which the land lies.

69. I have also considered the impact of the proposed tower on the amenity of surrounding residential properties. In this regard it seems to me that the main impact of the proposed facility will be on the amenity of the Kitanovski property. The proposed tower is to be positioned about 20 metres from the Kitanovski's backyard. After viewing the subject land from the Kitanovski's backyard, I find myself in disagreement with Mr Clarke's view that the visual impact of the tower will be reduced or eliminated by landscaping. Rather it seems quite apparent to me that the proposed facility, because of its height and proximity, will be overly dominant visual element that will have an unreasonable impact on the amenity of Kitanovski property.

70. My conclusions on this point are that I do not consider that the proposed facility has been sited to minimise its visual impact. Rather, when one considers the context of the land and height of development found in this area, I find that this is not a location where it can be said that such a facility has been sited to minimise visual impact as required by principle 1 of the Code of Best Practice. The land is located within the heart of an established residential area surrounded by residential properties generally occupied by modest dwellings. I find that the proposed tower will have a substantial and unreasonable impact on the amenity of the area. Its impact cannot be regarded as minimal. I consider that the visual impact is such that it warrants rejection of this proposal.

71. In forming my view I have given consideration to Ms Johns' suggested alternative design, that is, to develop the facility as an upright "monopole" without the cluster of antennas forming a cross, and possibly to relocate the facility to the front of the site. Whilst I am of the view that the "monopole" design alternative would be more appropriate, I do not consider that it will make such difference to render the visual impact of the proposal acceptable. I also consider that the relocation of the facility to the front of the subject land, may reduce its impact on the backyard of the Kitanovski property, I consider that this benefit will be diluted by the additional impact on the streetscape.

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

73. In balancing these two competing objectives, I must say that I was not persuaded by the evidence presented by Mr Ogilvie that there is a fundamental need to provide the proposed facility on the subject land for network coverage purposes or that the coverage maps are accurate in terms of what they portray.

74. First, whilst the network coverage map produced in Mr Ogilvie's report suggests that there is poor coverage in the area where the proposed facility is to be located, during the course of Mr O'Brien's cross examination, Mr Ogilvie acknowledged that the map did not include the coverage provided by the existing One-Tel micro cell facility located on the roof of the pharmacy on the corner of Williamstown and Somerville Roads. Whilst I acknowledge Mr Ogilvie's advice that the proposed facility will replace the micro cell facility over the pharmacy, none the less the coverage map produced in his evidence does not, in my view, paint the true picture of the situation.

75. The second aspect of Mr Ogilvie's evidence which I found to be less than persuasive was in relation to the need to position the proposed facility on this particular site. The evidence presented was that new facilities need to be located within a defined search ring in order to ensure that network coverage is enhanced by, amongst other things, placing base stations an appropriate distance from each other. However, during the course of his cross examination, Mr O'Brien questioned Mr Ogilvie on the accuracy of the network coverage maps having regard to where existing base stations are shown. It appears that whilst the location of at least some base stations are marked reasonably accurately on the coverage maps, the same cannot be said about the position of the proposed tower. Indeed when one examines the coverage maps, these indicate that the proposed tower is to be located some distance to the west of Williamstown Road, whereas the subject land is to some distance to the east. The difference appears to be in the order of several hundred metres.

76. Whilst noting these deficiencies in the evidence, they have not, in themselves been fatal. Essentially I consider that the visual impact is too great and the impact on residential amenity does not strike a "reasonable balance" set out in planning policy. A more sensitive solution needs to be found to improve network coverage in this particular residential area.

77. For completeness I will also set out my views in relation to heritage issues. On this issue, I note that the subject land is not located within a heritage area nor is the building an individually listed building under the planning scheme's heritage overlay provisions. The nearest heritage areas are a row of dwellings fronting the north side of Montague Street and the rear of properties fronting the west side of Hamilton Street. From Ms De Corte's evidence, I understand however, that the Responsible Authority is considering amending the scheme to list the church building as a "contributory building" under the heritage overlay and also to significantly extend the heritage overlay area so that includes, amongst other things, the subject land and surrounding properties.

78. On this point, I was not persuaded by either the Ms De Corte's evidence or the submissions presented on behalf of the Responsible Authority that the proposed facility will have an adverse impact on significance of the nearby heritage areas. Indeed, I note that Ms De Corte criticisms of the proposal were based on the "impact on the historic streetscape of the proposed extended streetscape" and incompatibility with the scale of the church. Essentially the point to note here is that Ms De Corte, in her role as Heritage Adviser to the Responsible Authority, did not express any concern about the impact on the significance of the existing heritage areas. Rather her concerns were based around the church and the proposed "extended" conservation precinct. As to the relevance of the Responsible Authority's proposal to list the church as a contributory building and to extend the size of the heritage area, I find it difficult to place any great weight on this at the present time. It seems that various conservation studies and reviews have been commissioned which have produced differing recommendations. In such circumstances, given the current state of play with respect to the planning scheme's heritage controls, I do not consider that the proposal would fail on heritage grounds per se.

79. I find that the proposed telecommunications tower will have unreasonable impacts on the amenity of the area. I do not consider that the proposal accords with the relevant planning scheme policy which requires a reasonable balance to be struck between the provision of infrastructure and the protection of the environment. I also consider that the proposal fails to meet the fourth objective set out at clause 52.19 and the fourth aims of the Code of Practice, namely to "e_ncourage the provision of telecommunications facilities with minimal impact on the amenity of the area"_ as well as Principle 1 in the Code which requires such facilities "to be sited to minimise visual impact".

80. I will affirm the Responsible Authority's decision to refuse the grant of a permit.