[2004] VCAT 581

The decision of the Responsible Authority is set aside. A permit is granted and directed to be issued pursuant to the provisions of Section 85(1)(b) of the Planning and Environment Act 1987 for the land at 60 Hoyles Road, Pakenham Upper.

Construction of a Telecommunications Facility in accordance with the endorsed plans.

1 Before the development starts, amended plans to the satisfaction of the Responsible Authority 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 be drawn to scale with dimensions and three copies must be provided. The plans must be substantially in accordance with the advertised plans (Marked M1589C -P102 and M1589C - P201 and dated 26.06.03) but modified to show:

a) The concrete monopole painted mist green or other colour approved by the responsible Authority.

b) All antennas and dishes shown in mist green or other colour approved by the Responsible Authority.

2 The layout of the site and size of the proposed buildings and works, as shown on the endorsed plans, must not be altered or modified without the consent in writing of the Responsible Authority.

3 Within three months of the completion of the development, the area immediately surrounding the development must be planted with trees and shrubs indigenous to the locality. The trees and shrubs must be of sufficient density to soften the appearance of the buildings associated with the tower and be maintained to the satisfaction of the Responsible Authority.

4 The site must be so ordered and maintained so as to not prejudicially affect the amenity of the locality by reason of appearance.

5 The exterior colour and cladding of any buildings and fences associated with the development must not result in any adverse visual impact on the environment of the area and all external cladding and trim of the building, including the roof, must be of a non-reflective nature.

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

a) The development is not started within two (2) years of the date of this permit.

b) The development is not completed within four (4) 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 David Hughes, Senior Planner of Connell Wagner Pty Ltd

Mr and Mrs Hayward, Ms Farrell, Mr Diggins, Mr Clark, Mrs O'Connor, Mr Wilkinson and Mr and Mrs Parolin

Mr James Noy Senior Planner and Ms Wendy Scroggie, Planner

1 This is an application under Section 77 of the Planning and Environment Act 1987 to review a decision by the Cardinia Shire Council to refuse to grant a permit in Application No T030263 for a telecommunications facility on land at 60 Hoyles Road, Pakenham Upper.

2 The site and neighbourhood have been inspected by the Tribunal on two occasions and submissions, evidence statements, plans, photos and other documents submitted at the hearing have been retained on Tribunal files. I emphasise that the Tribunal is often in the fortunate position of having more material before it than does the Responsible Authority when it first makes its decision. So it is in this case, with photomontages from various vantage points, a statement of anticipated electro-magnetic radiation emissions and material about site selection and co-location being provided to the Tribunal.

3 The site is located at the eastern end of Hoyles Road, near where it truncates at the entrance to No 35 - the residence of Ms Farrell. The site and surrounding land is zoned Rural (Schedule 1). The site and locality is also affected by an Environmental Significance Overlay (Schedule 1 - Northern Hills). Other relevant Planning Scheme provisions include Clauses 11, 18.13, 21.07, 21.09-3, 52.19 and 65. Melbourne 2030 and the Code of Practice for Telecommunications Facilities in Victoria (March 1999) are also relevant.

4 The proposal involves construction of a 35-metre high monopole mobile phone tower and associated panel equipment shelter. The tower and building occupy a leased area measuring 10.5 by 5.6 metres (59 square metres) and will be fenced by a 2.4 metre high chain wire fence. Vehicular access is via a 10 metre long all weather access track off Hoyles Road, which is a gravel-surfaced road.

5 Mr Noy and Mr Hughes each made written and verbal submissions and tended photos. Both of them referred to previous Tribunal decisions about telecommunication facilities, most of which I have read as a result of hearing other similar cases.

6 Mr and Mrs Hayward, Ms Farrell, Mr Diggins, Mr Clark, Mrs O'Connor, Mr Wilkinson and Mr and Mrs Parolin, who all live or own property in the Pakenham Upper area, made verbal submissions and particularly highlighted concerns about visual impact, inadequate screening, impacts on the environment (spring water, wildlife), health impacts from electro-magnetic radiation, the need to co-locate on existing facilities, better sites exist which should be used, precedent for other towers in the area, and adverse impacts on property values.

7 The State Planning Policy Framework at Clause 18.13-2 is very clear

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 for better communications and multi-media facilities in business, domestic, entertainment and community services.

* 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 in Victoria should be used in the consideration of applications for the use and development of telecommunications facilities and sites.

8 The most relevant material within the Local Planning Policy Framework concerns policies dealing with landscape character. I deal with this issue later in my decision.

A Code of Practice for Telecommunications Facilities in Victoria 1999

9 In respect to A Code of Practice for Telecommunications Facilities in Victoria 1999, it provides 4 principles that must be applied, where relevant, to the design, siting, construction and operation of a telecommunications facility. These principles 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.

10 In relation to the first principle, I consider that this proposal raises two key amenity impacts concerning the height and location of the tower and the adverse impact on the landscape character.

11 Both Mr Noy and Mr Hughes referred me to Lucent Technologies v Maribyrnong City Council (Application No 2000/92769) and in particular Mr Noy drew my attention to the section where the Tribunal stated:

The determination of whether 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.

12 I agree that this is a reasonable requirement or test, and am of the opinion that the height and location of the monopole and associated building will not adversely affect the visual amenity of the surrounding locality or the amenity of individual properties. The proposed monopole is to have a height of 35 metres and will be partly visible from vantage points in the surrounding countryside. Although the site for the tower and building is cleared, the general locality is well vegetated with mature native vegetation and pine trees. From a distance the tower will, from most quarters, rise above the tree line and only the top portion (around 5 to 10 metres) will be visible. I viewed the site from Apple Tree Lane outside the Hayward property and accept that the top of the tower will be visible from this location (and from other points along Apple Tree Lane). However the fact that the top of the tower will be visible is not in itself a reason to refuse the application. Closer to the site it is likely that more of the monopole will be visible (particularly from the south east at the Wilkinson property) but from many directions the facility will be viewed through foreground vegetation. From other directions (such as the Diggins property) the tower will not be seen because of the slope of the land and intervening mature vegetation. My inspection of the site and surrounds, together with an assessment of photos and montages showing the likely visual impact of the monopole, satisfies me that the monopole will have minimal impact on the visual amenity of the area.

13 Local policy at Clause 21.09-3 includes as strategies: recognising the value of landscape to the community, requiring the use of building materials and colours which are in context with the surrounding environment and ensuring the sensitive siting of buildings and structures having regard to the protection or prominent ridgelines, significant views and areas of remnant vegetation. Policy does not prohibit buildings and structures or require them to be invisible as evidenced by the many houses, sheds, electricity poles, water tanks and the like that sit within the landscape. Nor does it prohibit change, and although Mr Clark may want to keep things as they are for future generations, our environment is constantly evolving - one of the goals of planning is to manage that change and to balance often conflicting objectives and desired outcomes.

14 I note that Principle 1 in the Code does not require that telecommunications facilities be invisible. The need for clear transmission and receiving paths means that in a rural location such as this, monopoles must be visible for them to be effective - if they were hidden below trees or hills they would provide less coverage. Given this operational requirement, then I am satisfied that the site chosen will minimise the visual impact of the facility and has as far as practical achieved the strategies referred to in local policy at Clause 21.09-3.

15 In relation to the second principle concerning co-location, Mr Hughes outlined the reasons why the Hoyles Road site was chosen. I accept that co-location is not possible and that a separate facility is required in the Pakenham Upper area. A related issue raised by Mr Noy, Mr Diggins, Mr Clark and Mrs O'Connor concerned pursuing alternative sites and whether these had been considered. Mr Clark specifically wanted the status quo to remain and for carriers to discuss possible sites with residents. Clearly, on the evidence presented to me, Optus has considered the issue of co-location and is not satisfied that their objectives in terms of improved mobile phone coverage can be achieved by such a course of action. Plans were given to me showing existing and proposed network coverage in the hills area and Mr Hughes explained why other sites suggested by Council and the respondents would not satisfactorily overcome existing network shortcomings. While the applicant needs to have considered the issue of co-location and alternative sites (Principle 2), it is not my task to assess a range of site options and I am only required to consider the merits of the proposal before me and, in accordance with Clause 11.01 of the Planning Scheme, balance conflicting objectives in favour of net community benefit and sustainable development.

16 In relation to concerns that approval of this proposal would set a precedent for other towers, I note that each proposal is judged on its merits. If this location is such an ideal one for improved network coverage then it is likely that other carriers will also want to locate in this vicinity. Given that the Optus tower will exist, then co-location would be a highly practical option and I imagine that other carriers would struggle to justify why co-location was not possible. I was shown photos of two phone towers in Thewlis Road, close to the Princes Highway, where carriers have not co-located. The Thewlis Road site is on cleared grazing land near to electricity transmission towers and lines. The site is highly visible without any screening vegetation and the site context is completely different to the review site. I cannot explain the reasoning behind the two towers in Thewlis Road, and consider these as an example of why co-location must be pursued once an ideal tower location has been chosen. The worst outcome for Hoyles Road would be approval for two towers simply because carriers could not agree to share the one monopole.

17 In respect to possible adverse health impacts (third principle) I am not persuaded by respondent's concerns in relation to adverse impacts of electromagnetic radiation (EMR). Material presented to me by Mr Hughes (Appendix E in his submission) clearly shows that maximum cumulative electromagnetic energy (EME) from the GSM 900 base station is 0.074 EME at a distance of 211.35 metres from the tower. This is an insignificant 0.074% of the Australian Communications Authority standard. At greater and lesser distances from the tower the EME was of even lower significance. I was referred to previous decisions of the Tribunal where evidence was presented by expert witnesses on the issue of EMR. In particular I refer to the Tribunal's decision in Hyett v Shire of Corangamite and Telstra (Application No 1999/11208 unreported) where it stated that:

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 other authorities. Second, the decisions of the Tribunal must be made on the evidence available to it. ... As to 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.

18 I can only say that I consider that the concerns expressed by residents fall into almost exactly the same category as those of Mr Hyett. Mr Clarke provided me with a copy of a paper by Dr Helen Irvine of the Greater Glasgow Health Board (The Need for a Precautionary Approach with regard to Both Cellphones and their Base Stations) wherein she suggested a precautionary approach should be taken if there is any doubt about impacts on health or the environment from cell phones or base stations. I was unable to establish the veracity of her proposition based on the limited material contained in the paper.

19 In any event, I agree with the sentiments expressed by the Tribunal in the decision quoted above. It is not my task to pioneer new standards and if standards need to be reassessed as suggested by Dr Irvine then there are other authorities with that responsibility. Clearly residents have a strongly held fear about the effects of EMR but I have reached the conclusion that I could not reject the proposal on health grounds because of the very easy compliance with the relevant Australian standard in relation to electromagnetic radiation.

20 In relation to the fourth principle to minimise disturbance and risk relating to siting and construction, there will be some site disturbance in the immediate area of the monopole during its erection and construction of the associated building and fencing. However the area to be disturbed is away from houses and near the end of a dead end road with only two properties having access beyond where the tower will be built (and both these are owned by the landowner from whom Optus is leasing land). Although the road reserve in the vicinity contains some large trees, native undergrowth has been cleared and the area grassed and planted with agapanthus.

21 In addition, I am not persuaded that there will be any adverse impacts on wildlife (such as the wedge tail eagles nesting in the pine trees) or on the watertable as suggested by Ms Farrell, and I have no evidence to suggest otherwise. I am therefore of the opinion that principle 4 will be easily achieved both during construction and on an ongoing basis.

22 Respondents also raised concerns about adverse impacts on property values but I have no evidence as to whether this would occur and nor is it a relevant consideration in relation to the planning merits.

23 At the hearing Mr Hughes suggested that Optus could consider a 'turret' frame on top of the monopole rather than the proposed panel system. A turret would increase the total height by approximately 2.3 metres but would reduce the width of equipment sitting at the top of the pole. I have seen photos and observed both types of headframe. As a general rule I would prefer a turret type arrangement, but in the interests of keeping the top of the facility as low as possible above the tree line, I consider it preferable to retain the circular frame as shown on the plan dated 26.03.03.

24 In making my assessment of the proposal I have weighed up the various competing factors concerning this balance between providing important telecommunications facilities and protecting the landscape from adverse impacts. I have found that the impacts on the locality do not outweigh the broader need for a new telecommunication facility. I find that providing a new monopole and associated facilities is consistent with State and Local Planning Policy Frameworks and I also find that its visual and other impacts on the landscape in this part of Pakenham Upper and on nearby properties is minimal.

25 Having regard to the above, I will set aside Council's decision and Order that a permit issue subject to conditions.