Telstra Corporation Ltd v Mildura RCC [2009] VCAT 1928

1. The name of the permit applicant and the applicant for review is changed from Bernard Stewart of Connell Wagner to Telstra Corporation Limited.
2. The decision of the Responsible Authority is set aside. In permit application P08/001 a permit is granted and directed to be issued for the land at 251 Cureton Avenue, Nichols Point. The permit will allow:
   • Development of the land for a telecommunications facility

in accordance with the endorsed plans and subject to the permit conditions set out in the Appendix.

Mr Chris Wren, QC instructed by Gadens Lawyers. He called written and oral evidence from:

• Mr Alan Wyatt, Landscape Architect of ERM Australia;
• Mr Robert Mews, Engineering Technical Specialist, Radio Access Network Group of Telstra Corporation Limited;
• Mr Stuart McGurn, Town Planner of Fulcrum Town Planners Pty Ltd.

Ms Josephine Lloyd-Irvine, Mr James Golsworthy, Ms Nycole Riordan, Ms Kim Hawkes, Ms Sandra Slatter and Mr Atkin.

Development of the land for a telecommunications facility (60 metre high mobile phone tower) and associated control building.

Section 77 Planning and Environment Act 1987.

Development Contributions Plan Overlay - Schedule 2 (DCPO).

Clause 35.07-1 and 35.07-4 (development of land for a telecommunications facility in the FZ).

Clauses 11, 14, 17.05, 18.13, 21.02, 21.04, 22.06, 52.19 and 65.

I undertook an inspection of the review site and the locality on 3 occasions before and after the hearing. I also inspected the four nearest residential properties with representatives for Council, the permit applicant and respondent residents.

The site is located on the northern, river side of Cureton Avenue, opposite the end of Koorlong Avenue which terminates at Cureton Avenue in this location. The land has a long history as an intensive agricultural area but, as with other areas around Mildura, dwellings are now being built on many of the smaller lots. Nichols Point is a small township located to the south with more intensive residential subdivision and development. It also includes a new primary school in Koorlong Avenue.

1. It seems that the construction of mobile phone towers generates an enormous amount of community angst, despite the fact that mobile phones are an integral part of modern life and that the majority of the population enjoy access to mobile phones. Central to the success of mobile phone usage is effective service coverage requiring the location of mobile phone towers at relatively closely spaced intervals and, as explained by Mr Mews, elevated sites or taller towers are preferred for operational reasons.
2. Council refused this application following objection from local residents in Nichols Point. A number of sites in the area have been investigated by Telstra and a previous application for a site near the Nichols Point Primary School was withdrawn prior to consideration by Council. Although other sites were discussed at the hearing and their relative merits discussed from both an operational and visual appearance perspective, as has been remarked upon by the Tribunal many times, 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. In other words, this particular proposal has to stand or fall on its own merits.
3. The key issue in this case is visual impact and all of Council's grounds of refusal related to this issue. Residents were also very concerned about visual impact but also identified health impacts, loss of property values, safety, and constraints on the future growth of Nichols Point. In considering these concerns it is necessary to have regard to the whole suite of Planning Scheme provisions relevant to the provision of telecommunication facilities.
4. Parties made submissions and called evidence about the Farming Zone and local policy provisions. While all of these need to be considered, it is the specific provisions concerning telecommunication facilities which are of greatest importance. The Farming Zone around Mildura comprises many small lots which historically have been farmed for intensive agricultural purposes. However, many of those lots have now been sold off for rural lifestyle purposes, and the proliferation of dwellings on these small lots has become a major planning issue. The recent gazettal of Amendment C58 is aimed at limiting the further loss of agricultural land and the use of small lots for dwellings unrelated to agricultural activities.
5. I accept that local policy strongly discourages the use of land for non agricultural activities and that any loss of agricultural land is undesirable. However such policy has to be weighed up against the very strong policy support for the provision of telecommunication facilities. The uses listed in Clause 22.06 as especially discouraged involve retailing, dwellings and industries unrelated to agriculture. Despite submissions to the contrary, I am not convinced that the loss of a relatively small area of land for a telecommunication tower and control building will seriously undermine policy aimed at retaining agricultural production. Unlike the examples included in Clause 22.06, a telecommunications tower does not generate a level activity that would be at odds with the ongoing use of land for agricultural purposes.
6. I accept submissions that the site sits at the edge of the Murray River valley and that is will be seen from points along the valley corridor. However the site is not affected by the Environmental Significance Overlay (ESO) or any other built form, landscape or environmental overlays and it is not appropriate to try and apply controls and provisions that are not specifically triggered for this site. Any assessment of landscape, environmental or visual impacts must be assessed having regard to the more general controls rather than those contained in the ESO1 - Murray River Corridor.
7. State planning policy at Clause 18.13.2 recognises that telecommunications is an essential utility service and requires that planning decisions 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. A Code of Practice for Telecommunications Facilities in Victoria 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.

1. Parties made reference to the Code but only Mr McGurn dealt with the principles in any detail. Mr Wren also referred to a large number of previous Tribunal decisions dealing with mobile phone towers where these principles were discussed.

1. As noted in paragraph 3 it is the visual impact referred to in the first principle which is the main point in dispute in this application. There is no question this is a very tall tower, that it will be clearly visible and that it will become a marker for Nichols Point. There is also no question that the visual impact of its height is ameliorated because of its lattice type construction. In driving around Mildura and nearby areas I was able to observe a variety of telecommunication structures including solid monopoles, lattice style phone towers and other more substantial telecommunication towers in the heart of Mildura. Of all these structures, the phone tower on the highway in Irymple provides the best example of what the proposed tower at Nichols Point will look like. I accept that it is only around half the height of the one I am considering and that it is in a different, more urban setting, but it has a similar lattice style construction with supporting stays.
2. Mr Wyatt provided a visual assessment of the proposal and provided photomontages of the tower when viewed from the south along Koorlong Avenue. He also provided photos and discussed the visual impact of two other phone towers at Wyuna and Katamatite. I consider these examples of little relevance as they have completely different site contexts because they are located in agricultural areas remote from more closely settled areas. At the hearing I asked Mr Wren to provide some other examples that I could view during my return trip to Melbourne. I inspected some of these, but as with the two examples cited by Mr Wyatt, the site contexts were very different to Nichols Point.
3. Quite by chance I had a hearing in Shepparton about one month after the hearing in Mildura. During my site inspection I observed a very tall lattice and guyed phone tower in Central Avenue, Shepparton East. At my request I have since been provided information that the tower has a height of 61.6 metres to the top of the antennas (60 metres to the top of the mast). Apart from the tower being virtually identical to the one I am considering at Nichols Point, the zoning and site context are also very similar. Not only is the site at Shepparton East within a Farming Zone, but as has occurred around Mildura, the rural land around Shepparton has been subdivided into smaller lots and over the past few decades there has been a proliferation of rural lifestyle dwellings on the small lots. As at Nichols Point the phone tower is about the same distance from an area zoned Low Density Residential. Another similarity is the proximity of a Primary School (Lemnos) and a small general store located to the north. No two sites are the same and two notable differences between Shepparton East and Nichols Point are firstly, an industrial area separating the Farming Zone from the school and store and secondly, the few houses positioned very close to the site.
4. What then is the relevance of the Shepparton East tower given that every application must be considered on its individual merits? First and foremost it has provided an 'as-built' example of an almost identical phone tower in a location with a similar context to Nichols Point. In the flat landscape around Shepparton East the 62 metre tall tower is quite visible from almost all directions. However that visibility varies depending on intervening trees and buildings and although it is an obvious feature in the landscape, it is not something that I found so visually jarring that I found it offensive.
5. All parties and witnesses at the hearing accepted that whether the proposed tower is visually acceptable is very much in the eye of the beholder and that there could be different opinions about what was reasonable or acceptable. My inspection of Nichols Point and the houses around the corner of Koorlong and Cureton Avenues was very valuable in assessing the visual impact of the tower. It confirmed that none of the dwellings have their private or secluded open space areas orientated towards the tower. The houses to the southwest have their yards behind the dwellings while the dwelling to the south east has very little formal outdoor space, other than an open area to the south east side of the house. Intervening vegetation within the various yards will almost entirely obscure the proposed tower and it is only in front yards and at front property boundaries that the tower will become visible.
6. Perhaps surprisingly it is dwellings further away that will obtain clearer views of the tower. In particular the dwellings on smaller lots to the east will gain clear views over the intervening farmland but they are for the most part a considerable distance from the tower. Because of the separation distance the tower becomes just one element in the wider landscape which includes the water tower to the north west and a variety of buildings and poles scattered throughout the area. I am not suggesting that the tower will fade into the background and because of its height it will always remain visually prominent within the wider landscape.
7. Of all the main viewlines, the one I am least concerned about are the views from the south along Koorlong Avenue. Despite residents focussing on the outlook from Nichols Point including the Primary School and the Low Density Residential Zone, these areas are located uphill and quite some distance from the tower. Intervening vegetation, buildings, power poles and other structures all impinge on the views towards the tower. As I noted in the previous paragraph, the tower will not fade into the background and because of its height it will remain visually prominent in views straight along Koorlong Avenue. From individual properties including the new lots within the Low Density Residential Zone the tower will to varying extents be screened by fencing, existing and future planting and other structures. Residents will have the opportunity if they so desire to orientate dwellings and set out gardens to take into account the tower and I am not convinced that its construction will cause any loss of amenity to residents or impact on the future sale and development of lots in this area.
8. Nothing in the policy frameworks prohibits buildings and structures or requires them to be invisible in the Farming Zone and nor does Principle 1 of the Code require that telecommunications facilities be invisible. The need for clear transmission and receiving paths means that mobile phone towers must be visible for them to be effective. As I have noted in previous cases, if they were hidden below buildings or hills they would provide less coverage. Given this operational requirement, I am satisfied that the site chosen has struck an appropriate balance between minimising the visual impact of the facility while providing effective service coverage.

1. The second principle concerns co-location and none of the parties seriously disputed that co-location is not an option in this case. Although residents did suggest alternative locations including placing the facility on top of existing structures such as the water tower and FM antenna north of the river, I accept the evidence of Mr Mews that these would not provide the necessary coverage. In any event this principle refers to co-location of telecommunication facilities not placing the facilities on other non telecommunication structures. On the basis of evidence presented to me, I am convinced that Telstra has considered the issue of co-location and alternative locations and that it has not been satisfied that its objectives in terms of improved mobile phone coverage can be achieved by using alternative locations. Mr Mews provided evidence about the existing and proposed network coverage in the area and explained why this particular site best overcomes existing network shortcomings.

1. As explained at the hearing health issues are not relevant given that the operation of the phone tower must comply with the relevant standard.
2. Mr Wren referred me to previous decisions of the Tribunal where evidence was presented by expert witnesses on the issue of EMR. In particular he made reference to the decision by Deputy President Gibson in Heland[1] where she concluded that the health impact of telecommunication towers is not a relevant planning consideration given the Code's requirements of compliance with ARPANSA standards.
3. Of all the cases referred to by Mr Wren, it is the Tribunal's decision in Hyett[2] which provides a clear statement about how health impacts should be considered in such cases:

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.

1. I consider that the health issues raised by residents on pages 19 to 24 of their submission fall into the same category as those of Mr Hyett and 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 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.

1. The fourth principle seeks to minimise disturbance and risk relating to siting and construction. I accept that there will be some relatively minor site disturbance in the immediate area of the phone tower during its erection and construction of the associated building and fencing. However that is no different to any other construction activity and I consider any short term disturbance to be quite acceptable.

1. In assessing Council's draft permit conditions I have made a number of changes to reflect submissions and discussion about them at the hearing. I have also made some minor changes to replace the word 'shall' with the word 'must' in order to give some consistency in the way conditions are worded. At the hearing there was discussion about providing landscaping around the base of the tower and along the road reserve and whether the planting of trees would provide adequate screening. I have included a condition requiring landscaping to the satisfaction of the Responsible Authority and am content to allow the Council to determine what landscaping is appropriate, including whether planting should take place within the road reserve.

1. Clause 11 of the Planning Scheme requires me to endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development. Based on my assessment I have found that the visual and other impacts on Nichols Point of providing a tower in this location do not outweigh the broader need for a new telecommunication facility. Policy gives very strong support for the provision of communication facilities that meet the relevant Code of Practice.
2. Having regard to the above I will direct that a permit issue subject to the conditions set out in the Appendix.

1. Before the development starts, 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 show:
   • (a) Landscaping and plantings surrounding the equipment shelter and along the western boundary of Lot 1 TP84419Q to the satisfaction of the Responsible Authority. Flora to be planted on the western boundary of Lot 1 TP84419Q must be at least semi mature plants to the satisfaction of the Responsible Authority.
   • (b) Within 6 months of the completion of the works authorised by this permit all landscaping and planting must be established in accordance with approved plans and thereafter maintained to the satisfaction of the Responsible Authority.
2. The development must be sited and constructed in accordance with the endorsed plans and must not be altered or modified in any way (whether or not to comply with any Statute, Statutory Rule, or Local Law) without the written consent of the Responsible Authority. All works must be located clear of any easement and any infrastructure of any public authority.
3. Noise of and incidental to the construction of the works authorized by this permit must not exceed the noise limits determined in accordance with State Environment Protection Policy N-1.
4. The telecommunications facility must comply with Radiation Protection Standard - Maximum Exposure Levels to Radiofrequency Fields - 3kHz to 300 Ghz, Arpansa, May 2002.
5. A rural type access must be provided to access the site from the location delineated upon endorsed plans to the satisfaction of the Responsible Authority.
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 (3) months afterwards.

[1] Heland v Kingston CC (Application No P3620/2004 unreported)

[2] Hyett v Shire of Corangamite and Telstra (Application No 1999/11208 unreported)