• (b) Car spaces and access lanes must be maintained and kept available for these purposes at all times.
  • (c) All works must be completed in accordance with plans and specifications to the satisfaction of the responsible authority which plans and specifications are to be submitted to and approved by the responsible authority before the use/occupation of the development starts.

1. All telecommunications and power connections (where by means of cable) and associated infrastructure to the land must be underground to the satisfaction of the responsible authority.
2. The telecommunications facility must comply to the satisfaction of the responsible authority with the ARPANSA 'Radiation Protection Standard for Maximum Exposure Levels to Radiofrequency Fields - 3kHz to 300 GHz (2002)', or such other standard as is adopted from time to time by the Australian Communications Authority.
3. If the use of the site as a Telecommunications facility ceases all associated infrastructure must, to the satisfaction of the responsible authority, be removed within three months of the use ceasing.
4. The amenity of the area must not be detrimentally affected by the use or development, through the:
   • (a) transport of materials, goods or commodities to or from the land;
   • (b) appearance of any building, works or materials;
   • (c) emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil and/or
   • (d) presence of vermin;
5. This permit will expire if one of the following circumstances applies:
   • The development and use is not started within two years of the date of this permit.
   • The development is not completed within four 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.

1. The Responsible Authority is directed pursuant to Section 85 (1) (b) (ii) of the Planning and Environment Act 1987 to issue a permit in accordance with Order A above.

Mr David Hughes, town planner of Aurecon, appeared for the applicant company, Optus Mobile Pty Ltd. He presented written and oral submissions.

Ms Lorraine Stupak, consultant town planner of LS Planning Pty Ltd, appeared for the responsible authority. She presented written and oral submissions

Mr Kerry Hutton, principal of Ballarat Christian College, appeared for the College. He presented written and oral submissions.

Mr John Bramley, objector, appeared in person. He made written and oral submissions and also presented a written submission on behalf of Mr Rob Hartigan.

Ms Delwyn Webb, objector, appeared in person and presented written and oral submissions.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the tribunal.

Application under s 77 of the Planning and Environment Act 1987 for review of a decision of the responsible authority to refuse to grant a permit.

Public Use Zone - Service and Utility. Also subject to an Environmental Significant Overlay, Schedule 5 and a Wildfire Significance Overlay under the Ballarat Planning Scheme.

Irregular but almost rectangular area of 8,000m2 surrounded by Farming Zone land but with access off Tinworth Avenue

1. The proposal is not considered to accord with Clause 21.05 Settlement in the Local Planning Policy Framework with regard to achieving the liveability and character provisions.
2. The proposal does not accord with the decision guideline of Clause 52.19 Telecommunication Facility - with regard to the effect of the proposal on adjacent land.
3. The proposal does not accord with the following matters listed under Clause 65 Decision Guidelines:
   • The orderly planning of the area;
   • The effect on the amenity on the area.

1. The proposed development is consistent with the objectives of the Ballarat Planning Scheme as a whole.
2. The proposed development will not unreasonably impact upon the visual amenity of the area.
3. Any limited visual impacts associated with this facility will be far outweighed by the benefits derived.
4. The Appeal site is the most appropriate location within the proposed coverage area having regard to the operational needs of Optus and the site selection process.
5. The Appeal site possesses desirable attributes which support it as an appropriate site to accommodate the proposed development.

1. Optus Mobile Pty Ltd ('the company') has applied for a planning permit to establish a telecommunications facility on the land. Notice was given of the application and a number of objections were received.
2. The planning officers of the responsible authority considered the application and the objections. They provided the responsible authority with a report and recommendation that the application should be granted.
3. However, the Council determined to refuse to grant a permit. This proceeding is an application by the company for a review of that decision. The responsible authority maintains its position of refusal. The objectors' support the responsible authority in that attitude.

1. The facility would be a tall, slender, cylindrical pole some 40 metres high surmounted with 3 metres of the actual telecommunications antenna and two discs for transmitting signals between the proposed new station and other such facilities. Mobile telephones and other electronic equipment in the vicinity would communicate with the antenna on the poles, and via that with the wider telecommunications world.
2. The pole would be coloured "mist green", which is a pale green, so as to render it less obtrusive than it might otherwise be.

1. The following description is drawn from paragraphs [1] to [5] of the written submissions of the responsible authority:

[1] The subject site is located west of Tinworth Avenue on a parcel used by Central Highlands Water (CHW) for a water storage tank. The land has been gazetted as land for a Water Authority in favour of Central Highlands Water and is leased to Central Highlands Water through the Department of Sustainability and Environment. Optus will be provided with a lease on the portion of land it proposed to use for the Telecommunications facility through both Central Highlands Water and Department of Sustainability and Environment.

[2] The subject land is generally rectangular in shape 70 metres wide and 108 metres deep comprising a total area of approximately 8000 square metres. The development will be contained within the existing water storage complex which is fenced off with cyclone fencing. The proposed location of the tower is adjacent to the existing water tank which is just below the top of the hill. The site is surrounded by existing native vegetation.

[3] The site is surrounded by land owned by the Lihir Goldmine. The goldmine's main operation buildings are located 950 metres to the north of the CHW complex.

[4] Land further to the east and south east has been developed for residential purposes, approximately 130 metres from the site location. Much of this land has been used for pine plantations.

[5] A fire swept through the area in January 2010 which resulted in part of the area being cleared and the underbrush burnt away.

1. I am further indebted to the written submissions of the responsible authority for this description of the proposal:

[6] The application seeks approval for the development of a telecommunications tower to assist in its service delivery of the latest mobile technology known as 3G (Third Generation).

[7] The proposal consists of a 40 metre high painted (mist green) concrete monopole with antennas fixed to the top of the pole increasing the overall height to 43.24 metres. A small equipment shelter will be located at the base of the tower.

[8] The amendment of the application has changed the design of the tower from a conspicuous lattice construction to a slimline Monopole with a turret mount...The applicant has agreed to paint the pole mist green to enable it to blend in with the environment and reduce its visual impact on the surrounding area. The site is fully secured with an all weather access track from Tinworth Avenue.

[9] Under the Council's Planning Scheme the use is defined as a Telecommunications Facility being:

Land used to accommodate any part of the infrastructure of a Telecommunications network. It includes any tele-communications line, equipment, apparatus, telecommunications tower, mast, antenna, tunnel, duct, hole, pit, pole, or other structure or thing used, or for use in connection with a Telecommunications network.

[10] Under Section 52.19-2 of the Planning Scheme the proposed structure requires a planning approval as it is not a low-impact facility as described in the Commonwealth Telecommunications (Low-impact) Facilities Determination 1997.

1. The land might be described as the back corner of the Central Highlands Water land. The water storage tank of that authority is located on the crown of a hill. That is hardly surprising. Such sites are favoured for such tanks and water towers, as they provide an elevated position to allow reticulation by gravity. The tank is approximately 10 metres high. The pole would be located on the far side of it from the point of view of the public realm represented by Tinworth Avenue 100 metres and more to the east. The actual site for the pole would be close to the tank, and only a little below the level of the bottom of the tank and the crown of the hill. Of course a good deal of the pole would extend well above the level of the top of the tank even though viewing points to the east will be at a lower level so that the screening affect will be greater than 10 metres would afford on level ground. Tinworth Avenue is at a notably lower level, and so are the dwellings in the residential zone located immediately to its east.
2. The Central Highlands Water site is located in the Public Use Zone - Service and Utility, which is a suitable zoning for the water supply facility, but also for the proposed telecommunications facility.
3. This zone is an island entirely surrounded with Farming Zone land owned by a public authority, but in the vicinity of the review site it is not used for farming purposes. It appears to be more in the nature of bushland with bushland vegetation and trees upon it, including upon the part sloping down to the east from the water authority's tank toward Tinworth Avenue. These trees are considerably taller than the tank and closer to the road and houses. They provide a substantial screen and softening of views of the tank and of the pole if it should be installed. In fact it is, generally speaking, more distant viewpoints from which the tall pole would be visible. The treeline, or skyline formed by the tops of the trees is at a height in the vicinity of 18 to 20 metres.
4. There is a track into the water authority land that provides access for its purposes. This would also be used for the construction of the pole and visits to check or maintain the facility which would occur approximately twice a year. Such visits would be to the pole itself and the small shelter at its foot. This shelter would be on the scale of a small garden shed measuring 2.5 by 3 metres and 2.8 metres high. Both pole and shelter would be located in a 60m2 area (6 by 10 metres) to be leased from the authority. This area is proposed to be fenced off from the rest of the authority site although the authority's site is itself fenced off with a substantial cyclone wire fence.
5. It has to be appreciated that facilities of this sort are necessarily visible. They need to be tall enough (and consequently visible) to serve their purpose of providing telecommunications. It is for this reason that, like water supply tanks, they are commonly located on hills rather than in valleys. Hill sites are more prominent except that a pole providing the same service located in a valley might be even more obvious needing to be 60, 80 or 100 metres tall (depending on circumstances) to serve the same purpose as a 40 or 43 metre one located on a hill.
6. In the case of this proposal there is some screening and softening, but not sufficient to hide the works altogether. That will seldom, if ever, be attainable where these sort of facilities are to be provided.
7. In physical, topographical and locational terms, including the location and proximity of other facilities, this has to be regarded as a favourable site.

1. The main reason why planning permission is required is cl 52.19-2. Clause 52.19 deals with telecommunication facilities. Its relevant provision says that a permit is required to construct a building or to construct or carry out works for a telecommunications facility. There are certain exceptions, but none of them apply in this case. Consequently, planning permission is required. This is the essential point in the present case.
2. The land is also subject to an Environmental Significance Overlay pursuant to which a permit is required to construct a fence. The company has not made a final decision as to whether or not to construct the new internal fence. It would still proceed with its proposal if it could not fence off its proposed lease of 60m2 from the 8,000m2 of the water authority. However, there is no reason why permission for the fence should not be given, and no one suggested that there was any such reason.
3. No planning permission is required under the Wildfire Management Overlay that applies to the land. I note, by the way, that the Country Fire Authority has indicated that it has no objection to the proposed permit.
4. Furthermore, no permit is required under the Public Use Zone provisions found in cl 36.01. Telecommunications facilities is a section 1 use in that zone. That is because it is in section 1 of the table of uses found in cl 36.01-1. Land uses in that section of the table can be carried on without planning permission. Telecommunications facility is in section 1.
5. It is subject to a condition that must be complied with. That condition is that buildings and works must meet the requirements of cl 52.19. That is the telecommunications facility provision previously referred to and pursuant to which permission is required.
6. There is no issue in the present case as to whether this proposal satisfies the notion of telecommunications facility. That is, in fact, a land use defined in cl 74 of the planning scheme in the following terms:

Telecommunications facility Land used to accommodate any part of the infrastructure of a Telecommunications network. It includes any telecommunications line, equipment, apparatus, telecommunications tower, mast, antenna, tunnel, duct, hole, pit, pole, and any other structure or thing used, or for use in or in connection with a Telecommunications network.

1. Telecommunications facility is a subcategory of utility installation as defined in the planning scheme.
2. So far as the zone provisions in cl 36.01 are concerned, planning permission is not required for the construction of buildings or works for a section 1 use.

1. There is strong policy support for the provisions of such facilities. I do not propose to refer to every policy consideration mentioned in the course of the hearing.
2. The purpose of a Public Use Zone is to recognise public land use for public utility and community services and facilities and to provide for associated uses that are consistent with the intent of the public land reservation or purpose.
3. The purpose of the telecommunications facility provisions in cl 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 state wide communications 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 telecommunication facilities with minimal impact on the amenity of the area.

1. I note the use of the word "minimal" in the above quotation. I suspect that this should read minimum or minimise. Minimal normally means trifling and by their very nature these facilities cannot answer that description. What is needed is to recognise the need for the facilities, recognise that they will have some impact upon the area in which they are established, but to minimise that impact. This policy approach is reflected in the other policy provisions to which I was referred.
2. Clause 52.19-6 contains decision guidelines in relation to planning decisions made under cl 52.19. In addition to the general considerations in cl 65 of the planning scheme the responsible authority (and this tribunal on review), 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.
   • The effect of the proposal on adjacent land.
   • If the telecommunications facility is located in an Environmental Significance Overlay[1],...the decision guidelines of those overlays and the schedules to those overlays.
3. The Code of Practice (Code of Practice for Telecommunications Facilities) in Victoria 2004 is also referred to in the State Planning Policy Provisions in cl 18.13. That clause deals with "Telecommunications". Its objective 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.
4. Clause 18.13-2 deals with general implementation and contains the following:

Planning decisions should recognise that telecommunications as 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 telecommunications technology needs to meet the continuous and growing demand for 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 communications, and helping business and industry remain competitive and provide increased employment opportunities.

1. That clause goes on to provide that planning schemes should not prohibit the use of land for such facilities and the decision should reflect a reasonable balance between the provision of an important telecommunications service and the need to protect the environment from adverse impacts arising from telecommunications infrastructure. It concludes with the following paragraph:

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.

1. I was also referred to local planning policy provisions in the Ballarat Municipal Strategic Statement. I do not propose to list all of those, although they have all been taken into consideration. Nothing in them contradicts, but rather affirms the importance of these facilities, but also the need to strike a balance between providing the important facilities on the one hand and protecting and minimising adverse amenity impacts on the other.

1. The code establishes principles for siting, constructing and operation of facilities. The first is that a telecommunications facility should be sited to minimise visual impact.
2. I notice here that the wording is "to minimise visual impact" rather than using what I think has to be regarded as the inappropriate word "minimal". Minimal is probably effectively prohibitive in all or nearly all situations. I think this principle has to be the correct approach.
3. The second principle involves co-location of telecommunications facilities wherever practical. The idea here is to avoid multiplicity of facilities on a multiplicity of sites. Co-siting would put more than one facility on the one site and co-location might involve facilities of more than one service provider on the one pole or other device.
4. The third principle concerns health standards for exposure to radio emissions. There are specified standards in this respect.
5. The fourth principle concerns disturbance and risk relating to siting and construction, the minimising of construction activity and location to comply with State Environment Protection Policies and Best Practice Environmental Management Guidelines.

1. The first ground of refusal of the responsible authority refers to cl 21.05 Settlement relating to liveability and character provisions. That provision has since been repealed, and, as I am advised, replaced with a new cl 21 in the Municipal Strategic Statement of Ballarat. These provisions consider various aspects of character and liveability. Whilst I have considered them I can sum up my conclusion in relation to this ground by saying that the impact of this proposal on the matters considered in relation to form and amenity are not trifling or insignificant, but they are nevertheless very minor and far outweighed by the important policy provisions and purposes to be realised by allowing the proposal, in terms of net community benefit the balance is heavily weighted in favour.

1. The third ground of refusal refers to orderly planning and amenity, considerations referred to in the general criteria in cl 65 of the planning scheme. What I have just said in relation to the first ground applies equally to the amenity aspect of the third ground. So far as the proposal being suggested to be contrary to orderly planning, I think it is fair to say that this ground was not pressed. In any event, I consider it to be unsustainable, I can see no justification for this suggestion. If relevant at all, I think the proposal accords with orderly planning.

The Decision Guidelines of Clause 52.19 in relation to Telecommunications Facilities

1. The second ground of refusal relates to the cl 52.19-6 guidelines in relation to telecommunication facilities.
2. I have considered the affect of the proposal on adjacent land. I do not consider it to be insignificant, but I consider it to be quite minor and quite acceptable.
3. The Environmental Significance Overlay and its schedule 5 relate to koalas and koala habitat. Although a good deal of discussion was presented on this topic by the responsible authority, I do not consider it to represent any reason to refuse this proposal. The impact in connection with koalas and koala habitat is insignificant. It does not appear, from the material presented, that this proposal will change the situation so far as the movement of koalas within the areas they inhabit is concerned. So far as health effects on koalas and other wildlife is concerned, I will deal with that shortly.
4. The main concern under the guidelines is the code. So far as its four principles are concerned, I already dealt with the minimising of visual impact and the balance involved in that consideration.
5. As to co-location, this can be regarded as a sound principle. It is preferable to an unnecessary proliferation of telecommunication facilities. It is economical and efficient and reduces visual impact. It is an advantage from the point of view of host facilities that might accept new facilities on their site or pole and a saving for the guest incoming facilities, as well as being an advantage to the community as a whole.
6. However, co-location is to apply where it is practical. Where it is not practical it cannot apply. I am satisfied on the evidence produced by the company that co-location is impractical in this case. There are other facilities and other poles in the broader general area, but I accept that none of them adequately provide for the need sought to be met with this facility which is to cover the service "hole" or gap in the area. I find this deficiency to exist, notwithstanding that mobile telephones can frequently be used from most locations. According to the evidence produced, the best opportunity presently existing would be a collocation on a pole of Telstra but the height of the accommodation that Telstra can make available would be insufficient for the purpose. I am prepared to suppose that the company would adopt that cheaper and more convenient option if it would really meet the need.
7. As to the fourth principle in the code, I consider that the disturbance by the construction, existence and maintenance of the proposed facility would be very minor and perfectly acceptable.
8. That leaves the consideration of health matters. There is ongoing and often ill-informed speculation about health hazards associated with electromagnetic radiation from such facilities. I am unimpressed with a considerable series of short "grab" quotations presented. They are from a wide variety of sources and times without proper context and qualification, much less any opportunity to test or clarify the propositions being put forward. Some of the propositions do not appear to accord well with others of them.
9. If nothing changes nothing can progress. Nevertheless, human experience demonstrates that some innovations have been false steps, and some have been disastrous. Tobacco and asbestos are but a couple of examples. I am aware that there are conflicting views and expert opinions on the safety of these facilities, although the views and opinions quoted by opponents of this proposal all went one way, which may be suggestive of selective quotation.
10. In this case, expert evidence was not called or tested on either side. I am aware of the strong policy support for telecommunication facilities of this sort and that it is contemplated that they will be provided, if not on this site, then elsewhere. No evidence was produced to show that this is an unfavourable site, indeed there is much in its favour and it is more remote from the frequent comings and goings of people than many others.
11. In these circumstances, I am prepared to proceed on the basis of the Radiation Protection Standard, Maximum Exposure From Radio Frequency Fields - 3khz to 300GHZ, APPANAS, May 2002. I am prepared to accept the following from the submissions on behalf of the company on page 19 where it says:

The facility will operate well within Australian Communications and Media Authority (ACMA) mandated RPANSA Standard for radio frequency emission. A predictive report has been prepared for the site. The predicted highest level of the EME will be at approximately 205 metres from the site. At this point the level will be 0.22% of the Standard. By comparison at 50-100 metres from the site the predicted EME is 0.02% of the Standard. At 100-200 metres from the site the predicted EME is 0.22% of the standard.

1. The report was exhibited to the written submission. These figures are notably conservative with reference to the standard.
2. I am not satisfied that there is a health reason for refusing this proposal, either in relation to health of human beings or animals.

Conclusion in relation to the Council's grounds of refusal

1. I am not satisfied that the grounds of refusal are substantiated. On the contrary, I consider that the report and recommendation of the council's officers is justified.

1. In dealing with the case on behalf of the responsible authority, I have dealt with much of what was put on behalf of the objectors. However, there are some issues that objectors have raised that were not relied upon by the responsible authority. One of these is the question of fire. It is suggested that there would be a danger of attracting fire to the area because a high metal tower could attract lightning.
2. Although this is true, the facility is provided with a proper lightning conductor which would earth the lightning and reduce the danger. If not attracted to the tower and lightning conductor, such lightning may be more likely to strike trees or otherwise start fires.
3. There was a suggestion that there is advice not to stand within 2 metres of a pole that might be struck by lightning. No doubt that is good advice. People will not be in a position to stand in such proximity as the area will be fenced. I do not agree that the proposal should be refused because of the possibility of ignition of trees within that 2 metres. This is a relatively bare patch and could, if necessary, be rendered even more bare of vegetation.

1. This is not a planning consideration. There is no evidence that land values would be reduced. If they were, it would be as a result of reduced amenity. It is amenity rather than its manifestation in land values that is relevant for planning purposes. I have already concluded that the amenity loss is notably minor and well outweighed by planning benefits.

1. I discount entirely the suggestion that there would be a traffic hazard created by the establishment of this tower. The suggestion is that motorists might be distracted in looking at it. Any competent motorist has to cope with much greater distractions than would be constituted by this tower. There is no substance in this point.

1. In my view, the issue in this case is the matters that arise in relation to cl 52.19 containing the particular planning scheme provisions in relation to telecommunications facilities. I have dealt with those matters.
2. I have also dealt with other grounds raised by the responsible authority and objectors. I do not purport to have dealt with every comment or suggestion made along the way in the course of the hearing. However, there are no other matters which would persuade me to refuse this proposal or require any modification of it.

1. Accordingly, I propose to grant this application for review and to direct the issue of a permit subject to conditions.

1. Conditions were discussed in the course of the hearing on the basis of draft conditions provided by the responsible authority. I reserve to myself the prerogative of making such alterations thereto as I consider appropriate in these circumstances.