27 I was advised that Council has prepared a draft telecommunications policy which is intended to complement Clause 52.19. It sets out performance criteria for site selection, infrastructure design and site operation of high impact facilities.

28 The policy is however still at an embryonic stage, having not been formally exhibited as a planning scheme amendment. I therefore give this draft policy very limited weight.

29 The parties at the hearing of the application for review relied on both written and oral submissions. A number of photographs, plans and other documents were tendered to the Tribunal and are retained on file. I also conducted two inspections of the site and its locality. During my second inspection, I went into Mr Liu's house and his backyard to obtain an appreciation of views from this property.

30 I set out my findings in relation to the key issues in this Application, having regard to these submissions, the material and evidence presented at the hearing, my inspection of the site and surrounds and the policies, objectives and decision guidelines of the Scheme.

31 The concerns raised by the Council essentially revolve around the visual impact of the facility, particularly in the context of the site's elevated position and semi-rural character to the east.

32 Mr Liu, whose property abuts the review site to the north, expressed similar concerns, highlighting the potential visibility of the facility from his property - particularly from his backyard. He also argued that the proposal would pose an unacceptable health risk to his family and other neighbours living nearby.

33 Both parties opposing the application also argued that this proposal would run counter to the Council's policy framework which seeks to foster a positive image of Casey when decisions about land use and development proposals are made. Mr Liu expressed concerns about the potential loss of property values as a consequence of the proposal.

34 I will deal with each of these matters against the backdrop of relevant policies and the four principles set out in the Code of Practice which are:

Principle 1: A telecommunications facility should be sited to minimise visual impact.

Principle 2: Telecommunications facilities should be co-located wherever practical.

Principal 3: Health standards for exposure to radio emissions will be met.

Principle 4: Disturbance and risk relating to siting and construction should be minimised.

35 In relation to the fourth principle, none of the parties raised concerns about the ability of this proposal to conform with this aspect of the Code, although relevant permit conditions are to be included for completeness.

36 In considering the issue of visual impacts, Mr Wren referred me to a number of relevant cases. In Lucent Technologies v Maribyrnong CC [2001] VCAT 1955 Member Cimino said:

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.

37 This test has since been quoted with approval by other divisions of the Tribunal (Peasley v Frankston CC [2002] 642; Optus Pty Ltd v Cardinia Shire Council [2004] VCAT 581). I also agree that this is a reasonable test to be applied in this case.

38 In terms of the surrounding area, I find that the tower would be not be unreasonably intrusive although I prefer the slim-line headframe design (shown in the August plans) which would have a lesser silhouette against the skyline and which I consider would be capable of assimilating more readily with its surrounds. Although the August plans would result in a slightly higher structure, the degree of difference, (1.8m) is I think fairly negligible. I have taken into account the visual impacts of this additional height when I undertook my site inspection. I find however, that the benefits of the slimline headframe design would outweigh this increased height. My Order will therefore reflect the design illustrated in the August plans.

39 It is true that the tower would be visible from various vantage points including locations on the opposite side of Heatherton Road, in Springbank Rise at its southern end, Rockleigh Park Road to the east and on both approaches to the site along Heatherton Road. However, I am satisfied that these views are sufficiently distant and softened by the row of eucalypts amongst which the tower is to be sited. Only the top portion of the tower would be visible above this tree-line. Intervening mature vegetation (mature eucalypts when viewed from the north in Springbank Rise) and conifers along the west boundary adjacent to Rockleigh Park Road also provide some screening in the foreground. In the case of the conifers, I observe that these are still relatively young and will, in time, provide even further screening than is presently the case.

40 Close up views of the associated equipment shed would be limited from Heatherton Road close to the driveway. I am not concerned by this aspect of the proposal which because of its dimensions and boundary setbacks can be adequately screened with appropriate landscaping.

41 The landform along Heatherton Road is such that views on approach to the site are larger limited to longer range views. I note that these longer range views when travelling east will be seen against the backdrop of high voltage powerlines and pylons to the east and north-east. While I agree with Mr Gorman that the existence of these large structures does not give rise to an "anything goes" approach, they do nonetheless have a strong presence that cannot be ignored. I am satisfied that the proposed tower will, like these larger elements in the landscape, become part and parcel of the infrastructure within the local area. To the casual observer, I do not think that the tower will stand out in such a way as to draw unnecessary attention to itself and I am not persuaded that the semi-rural character of the area further east (approximately 700m away) somehow heightens the sensitivity of the proposal. In making this finding I again observe the substantial distances involved and the facility's treed surrounds. In any event, I consider that the appearance of this structure would not be so unusual or offensive even in less urbanised environments, particularly at the edge of the urban-rural fringe where the landscape character is transitionary.

42 In forming my view I am mindful that 'visibility' of the proposed tower is not a reason for refusal - a principle established by many other divisions of the Tribunal and which formed the basis of submissions by Mr Wren. I agree with and adopt this principle which is amply described in a number of cases referred to me by Mr Wren including Hutchinson 3G Australia & Ors v Casey CC [2002] VCAT 247; Cable and Wireless Optus Pty Ltd v Mornington Peninsula SC [2001] VCAT 1055 and the Lucent Technologies case.

43 In terms of the visual impacts of the proposal from individual residential properties, I am on the whole, satisfied that the nearest properties would not be unreasonably affected by the proposal. To the south, east and west, the distance of the proposed facility together with tree planting and buildings associated with the nursery serve to provide a reasonable screen.

44 In the case of Mr Liu's property, I accept that some views (albeit at a distance in excess of 100m) will be possible of the top part of the tower from the back yard. Some views will also be possible from a sitting room and bedrooms at first floor level.

45 While I appreciate the genuine concerns held by Mr Liu and his family as to the appearance of the proposed facility from these locations, I am again mindful of the role of intervening landscaping on the review site which will soften the appearance of the proposed structure and limit views to the top portion of the tower. At the distance proposed together with this planting, I am not persuaded that these views would be so unreasonable as to warrant refusal of the application.

46 In saying this, I observed during my inspection that Mr Liu's main indoor living areas are at ground level and do not have an outlook to the proposed facility. Windows associated with these living areas face north away from the review site or into two central courtyard spaces. I am also cognisant of the fact that housing in the estate north of the review site including Mr Liu's property is still very new. There were a number of vacant lots and in some cases dwellings were still under construction (including Mr Liu's property although very close to completion at the time of my inspection). Landscaping within private land is very limited, and where it does exist, comprises immature plant material. This is also the situation with Mr Liu's property. Thus, the landscape insofar as this particular residential estate is concerned, still has quite an open aspect allowing views to be readily obtained onto surrounding land. This 'raw' landscape can be contrasted with the more established nature of planting and sense of enclosure this creates thus minimising longer range views, in other residential areas such as Kanaru Court to the west.

47 I consider the present landscape situation to be short-term which will, over time change with the establishment of landscaping in private gardens. In doing so, I am confident that the facility will become even less obvious from those vantage points on Mr Liu's property.

48 Notwithstanding, I acknowledge the permit applicant's agreement to plant trees along the northern boundary of the site and to maintain (and replace in the future if necessary), the eucalypts adjacent to the proposed tower with suitable species. I will give effect to these landscaping measures through appropriate permit conditions.

49 In summary, I find that the proposal will achieve consistency with state and local policies that seek to strike a reasonable balance between the provision of important telecommunications services on the one hand, and the need to protect the environment from adverse impacts of such infrastructure, on the other.

50 The second principle under the Code of Practice encourages co-location wherever practical. Of relevance to this proposal, is the following statement from the Code:

•

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

51 Mr Maher gave evidence in relation to the possible use of existing infrastructure in the surrounding area as an alternative to the proposed stand-alone facility. Six alternative sites were examined for their suitability. These included co-location with other telecommunications facilities by other carriers located on transmission pylons in three separate locations. Other alternatives sites (not presently used for telecommunications purposes) included transmission pylons to the north-west and north-east of Springbank Rise, a Melbourne Water water tank to the north-west near the intersection of Hallam North Road and Churchill Park Drive and a church at the corner of Hallam North Road and Heatherton Road.

52 It was Mr Maher's evidence that none of the alternative sites would provide suitable coverage within the Narre Warren North area particularly for reliable indoor usage. The topographical conditions, particularly the steep undulations of the Eumemmering Creek valley cause some areas to fall within 'radio shadows' such that a number of these alternative sites would not provide effective coverage. In other instances, the alternative locations explored would be too close to existing Telstra sites and cause interference with them or simply too low in terms of topography.

53 I have not been provided with any evidence to persuade me that these alternatives are viable and am satisfied that appropriate investigations identifying suitable alternative sites has been undertaken in keeping with the spirit of the Code of Practice.

54 Mr Liu expressed great concerns regarding the possible health effects of electromagnetic radiation emissions.

55 The Code of Practice provides the following statement in relation to radio emissions:

•

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

56 There have been numerous Tribunal decisions where arguments advanced against the grant of a permit on the basis of health effects have been consistently rejected. Mr Wren referred me to a number of relevant cases including Hyatt R v Corangamite SC & Telstra [1999] VCAT 794; Heland Pty Ltd - Leo Wyman v Kingston CC P3620/2004; Optus v Kingston CC 2000/095134 Connell Wagner Pty Ltd v Port Phillip City Council [1998] VCAT 606; Telstra Corporation Limited v Ahlers & Ors. and Latrobe City Council 2000/69286 and the Lucent Technologies case.

57 In the Hyatt case, the Tribunal made the observation on page 7 that:

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 had the evidence of a highly qualified expert witness (Mr Rowley) whose material must be weighed against a number of unsubstantiated assertions advanced by Mr. Hyett.

58 I adopt and agree with the findings made by Kellam J and Mr Marsden in the Hyatt case.

59 Drawing on modelling techniques, Mr Maher gave evidence to the effect that emissions from the proposed facility would amount to 1.4% of the allowable standard.

60 I am satisfied with Mr Maher's evidence that the proposal would meet the relevant standards. In doing so, it would fall well within the relevant allowable limits with an extremely high safety margin.

61 While I understand Mr Liu's genuinely held concerns about this aspect of the proposal, it is not open for me to determine whether the relevant standard is acceptable in terms of possible human health risks. Rather, I have been presented with unrefuted evidence that the proposal is capable of meeting the ARPANSA standard many times over and moreover, the applicant is obliged to achieve compliance with the standard.

62 In saying this I must also acknowledge, like other divisions of the Tribunal, that it is not my role to question the suitability of the ARPANSA standard. This is ultimately a question for the relevant government authorities responsible for regulating emissions. As I have said, I am satisfied that this proposal has been designed and sited so that it can comply with the standard. To give effect to the applicant's obligation of meeting the relevant standards, I will include a relevant permit condition.

63 For the reasons I have set out, the decision of the Responsible Authority is set aside.

64 I will direct the grant of a permit with the conditions I have described.

[1] For brevity, "notice" in this context includes Forms A and B in Schedule 3 of the Practice Note and a statement in writing describing the changes from the previous plans.