CA2L, Sec 10, Parish of Franklin, Mt Franklin Road - near to summit of Mt Franklin and adjacent to existing fire tower

Thursday 31 March, Friday 1 April, Monday and Tuesday 18 and 19 April 2005

[2005] VCAT 1099

The decision of the Responsible Authority is affirmed. It is directed that no permit issue in respect of Planning Permit Application No. 2004/7908 to construct and carry out works for a telecommunications base station including a mobile phone tower on land near to the summit of Mt Franklin.

Mr Chris Wren of Counsel, instructed by Blake Dawson Waldron, Lawyers. He called the following persons to give evidence:

• Mr John Patrick, Landscape Architect;

• Mr Frank Hanson, Landscape Architect and Urban Designer with EDAW Gillespies (Aust);

• Mr Brendan Marshall, Archaeologist with TerraCulture, Heritage Consultants;

• Mr Thepan Nallainathan, Electrical and Computer Systems Engineer with Telstra, specialising in mobile phone optimisation;

• Mr Stuart McGurn, Consultant Town Planner with Fulcrum.

Mr Gary Testro, Lawyer. He called evidence from Ms Amanda Jean, Conservation Architect and Heritage Consultant for the Shire.

Ms Dallas Kinnear, with Dr Russell Wilkinson, represented the Daylesford Action Group Inc. The following respondent objectors appeared in person:

Mr Christian Wilde, Mr Ken Mansell. Mr Mansell also appeared on behalf of Mr Peter O'Mara, Ms Allana Moore and Ms Sandeepa Gould.

The following persons who had not been original objectors, appeared in person and were joined as parties, as persons whose interests could be affected by the grant of a permit:

Ms Karen Heap CEO and Mr Edward Lovett, Chairperson of the Ballarat and District Aboriginal Co-operative.

1 This application for review is about the siting of a 37.8m high slimline monopole, mobile phone tower near to the summit of Mt Franklin.

2 Mt Franklin is a place recognised and protected under the Hepburn Planning Scheme for its natural, cultural and scientific values; its volcanic origins and geologically rare, breached crater and its cultural significance for the Aboriginal community as well as for the community as a whole.

3 Among other things, this Tribunal has been asked to decide whether the phone tower is likely to impact on the natural, cultural and scientific values of Mt Franklin and if so, whether this can be justified having regard to the social and economic importance placed on the provision of an efficient and effective telecommunications network for Victoria.

4 Our ultimate conclusions are that the tower will adversely affect the cultural value of Mount Franklin by detracting from a culturally significant view and that the community's need for additional mobile coverage via a facility located and designed in the manner proposed, is not sufficient to outweigh or otherwise justify this impact.

5 In December 2003 a permit application was lodged with Hepburn Shire Council to construct a telecommunications facility comprising a 35m high monopole and associated equipment shed, compound and access track near to the summit of Mt Franklin. The monopole would host three, 2.8m high, panel antenna, each weighing 32kg, and taking the overall height to 37.8m. The equipment shed would have dimensions of 3.28m x 2.28m and a height of 3m.

6 The facility would be located opposite an existing 14m high fire tower located on the higher, eastern side of the Mount Franklin access track and some 100m before the track terminates at a turntable lookout. In recent times an Optus mobile phone facility, comprising panel antennae and a dish, has been co-located on the fire tower, where advantage can be taken of a gap, in the nature of a fire break, cut into Mount Franklin's encircling pine forest. In relative height terms - due to the difference in ground levels - the antenna at the top of the proposed monopole would be 12.8m higher than the top of the fire tower.

7 Although not shown on the plans before us, we noted during our inspection and on the photographs tendered in evidence, that two, whip type radio antenna, rise above the fire tower by, we would estimate, some 6m. In relative terms therefore the antennae rise to around 31m compared to 37.8m to the top of the proposed monopole. As we note later on, it was only the radio antennae, and to some extent the Optus dish that were visible above Mount Franklin's encircling pine trees when we conducted our view of the mountain from the nearby Midland Highway, close to its intersection with the road to Franklinford and some 1300m from the fire tower and now monopole site.

8 At the commencement of the hearing Mr Wren tabled amended plans showing the inclusion of a 1.2m diameter microwave dish, at a height of 29.4m on the side of the proposed monopole. Although not shown on the plans accompanying the application, he noted that the photomontages used in Mr Hanson's visual impact analysis had incorporated this element.

9 Towards the end of the hearing Mr Wren relayed instructions that both the plans and Mr Hanson's photomontages were inaccurate. In his submission they represented a slimline monopole with a diameter of 1.079m whereas it was his client's intention to use a tapering pole with a diameter of 610mm at the base reducing to 420mm at the tip (not including the three panel antennae above). Also by the end of the hearing Mr Wren had instructions to advise that the height of the pole could be reduced by up to 2m.

10 Following the giving of notice of the permit application six objections were received. As noted by Mr Testro, the objections referred primarily to electromagnetic energy emissions although concerns were also expressed in relation to the facility's visual impact and its impact on a place of cultural, including Aboriginal cultural, significance.

11 Mr Testro's written submission detailed the responses received from various authorities both within and external to the Council and to whom the application was referred for comment. The Council's Heritage Adviser was particularly concerned about possible impacts on the mountain's heritage, landscape, geological and archaeological significance. The Department of Sustainability and Environment, the effective landlord of this Crown land, Parks Victoria, which manages the site and Heritage Victoria, raised no objections. The Department of Victorian Communities, which oversees Aboriginal Affairs Victoria, the agency responsible for administering the relevant State and Commonwealth legislation pertaining to the protection of places of aboriginal cultural value, suggested that contact be made with relevant Aboriginal groups. These were the Ballarat and District Aboriginal Co-operative, which is the relevant local Aboriginal community under Section 21(a) of the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984, and the Dja Dja Wrung Native Title Group - based in the Bendigo and Castlemaine area - which has a pending native title claim encompassing Mt Franklin. Neither group made a formal comment prior to the Responsible Authority considering the application in July 2004.

12 Notwithstanding its Planning Officer's report recommending the grant of a permit the Responsible Authority, after hearing from members of the public in attendance at the council meeting, determined to refuse a permit on the following grounds:

1. The proposal is inconsistent with the provisions of the State Planning Policy Framework and the Hepburn Planning Scheme, in particular Heritage.

2. The proposal is inconsistent with the provisions of the Local Planning Policy Framework of the Hepburn Planning Scheme, in particular Environment and Heritage (Landscapes, Cultural Heritage).

3. The proposal is detrimental to the amenity of the area.

4. The proposal is inconsistent with the Code of Practice for Telecommunications Facilities in Victoria.

5. That the traditional owners of the land and the Ballarat & District Aboriginal Co-operative have not given their formal consent.

13 The proceeding before us is an application under Section 77 of the Planning and Environment Act 1987 (the Act) to review this refusal.

14 The review occupied four hearing days, including one at Daylesford. While at Daylesford we conducted an inspection of Mt Franklin and its surrounds.

15 At the commencement of the hearing Mr Nelson an Ms Hadden made application to be joined as parties to the proceeding. Mr Nelson is a member of the Dja Dja Wrung community and the Tribunal accepted that he had interests that could be affected by the grant of a permit. Ms Hadden, a local politician and a resident of the Shire since 1977, claimed to have followed the progress of the application and attended various meetings associated with the application, despite never having lodged a formal objection. As there was no objection to Ms Hadden being joined as a party, on the basis of her status as a resident and ratepayer, and as she agreed to make her representations on that basis, we ordered that she be so joined.

16 Except for Mr Nelson who presented an oral submission, the parties to this application, or their representatives and the persons called to give evidence tabled and spoke to written submissions or reports. These, together with the various plans, photographs and other documents tendered in the course of the hearing have been attached to the Tribunal's file.

17 In the course of the hearing and in order to better inform ourselves about the Ballarat and District Aboriginal Co-operative's views in relation to the proposal, we directed that the Chief Executive Officer and Chairperson of that Co-operative be summoned to be in attendance when the hearing commenced in Daylesford. In particular we sought clarification about their signing of a document prepared by Telstra Corporation and on Telstra letterhead purporting to represent the consent of the Co-operative under Section 21(u) of the Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Heritage Protection Act). Ms Karen Heap the CEO and Mr Edward Lovett, Chairperson, were in attendance and were made available for cross-examination. As became apparent from their evidence, it had not been their intention or understanding that by signing the Telstra drafted letter they would be formally consenting to the works under the relevant provisions of the Heritage Protection Act.

18 The sole reason for a permit being required in this case arises from Clause 52.19 of the Hepburn Planning Scheme. This clause refers to telecommunications facilities and has the following purpose:

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.

19 The Clause provides that a permit is required to construct or carry out works for a telecommunications facility other than for specifically listed exempt facilities - which includes telecommunication facilities described in and complying with the requirements of the Code of Practice for Telecommunications Facilities in Victoria, an incorporated document in the scheme. A new base station and associated tower to support antennae are not exempted and accordingly their construction requires a permit.

20 The whole of Mt Franklin - or more specifically the part still held as Crown land - is within a Public Conservation and Resource Zone under the Hepburn Planning Scheme. It is also covered by an Environmental Significance Overlay (ESO1), a Wildfire Management Overlay (WFMO) and a Heritage Overlay (HO642) - although oddly and this was generally agreed by the parties to be a mistake, the mountain's central crater has somehow been omitted from the heritage overlay map. Relevantly also the whole of Mount Franklin is a place listed in the Victorian Aboriginal Sites Register, being Site No 12.9-20, although interestingly and again this was generally agreed to be a mistake, the Schedule to the overlay makes no such reference. As it turns out neither omission has much relevance to our decision.

21 Although the requirement for a permit is not triggered by the provisions of the Public Conservation and Resource Zone (PCRZ) provisions -telecommunications facilities being an as of right use in all zones of the Victoria Planning Provisions - we nevertheless think it useful to refer to the purpose of the zone and to note how this compares with what might have been an alternate choice for the mountain, namely a Public Park and Recreation Zone (PPRZ). The PCRZ places far greater emphasis on the historic, scientific, landscape, habitat or cultural values of land included within its compass. We see some relevance in this. We acknowledge however that the HO serves a similar purpose and that the decision guidelines of the HO are specifically invoked in our consideration of this application, whereas the PCRZ provisions are not.

22 Clause 65 of the Scheme sets out decision guidelines that must be considered, as appropriate, before deciding on any application for permit under the Scheme. This clause commences with the following relevant statement:

Because a permit can be granted does not imply that a permit should or will be granted. The responsible authority must decide whether the proposal will produce acceptable outcomes in terms of the decision guidelines of this clause.

23 The decision guidelines relevant or appropriate to the consideration of this particular application include the heritage and telecommunications policies at Clauses 15 and 18 of the State Planning Policy framework, the various references throughout the Municipal Strategic Statement, at Clause 21, to the importance of the municipality's natural environment and cultural heritage, including for tourism, and the need to ensure the provision of appropriate infrastructure. Of greatest relevance however are the decision guidelines of the telecommunications provisions at clause 52.19-6 of the scheme. These are set out in full below:

Before deciding on an application, in addition to the decision guidelines of 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.

•

The effect of the proposal on adjacent land.

•

If the Telecommunications facility is located in an 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 in those overlays and the schedules to those overlays.

24 While clearly important in their own right, the provisions and decision guidelines of ESO1 are directed primarily towards maintaining water quality. This is an overlay that covers large areas of the Shire and has little relevance to the issues in contention in this proceeding. Accordingly we see little reason to refer to them further. Likewise the WFMO has little relevance, it is neither invoked as a permit trigger nor referred to in the telecommunications decision guidelines.

25 By contrast the decision guidelines of HO642, which are set out at Clause 43.01-3 of the scheme, have special relevance to the issues to be decided in this proceeding. The relevant purposes of this control are:

To conserve and enhance heritage places of natural or cultural significance.

To ensure that development does not adversely affect the significance of heritage places.

26 The decision guidelines at Clause 43.01 state, among other things:

Before deciding on an application, in addition to the decision guidelines in clause 65, the responsible authority must consider, as appropriate:

•

...

•

The significance of the heritage place and whether the proposal will adversely affect the natural or cultural significance of the place.

•

Any applicable heritage study and any applicable conservation policy.

•

Whether the location, bulk, form or appearance of the proposed building will adversely affect the significance of the heritage place.

•

Whether the location bulk form and appearance of the proposed building is in keeping with the character and appearance of adjacent buildings and the heritage place.

•

...

•

Whether the proposed works will adversely affect the significance, character or appearance of the heritage place.

27 The heritage place to be conserved and enhanced by HO642 is described in the Schedule as Aboriginal Protectorate Station and Mount Franklin Aboriginal Reserve, Mount Franklin Reserve, Mount Franklin.

28 The most useful document for discerning the cultural significance of the Protectorate Station and Aboriginal Reserve is Exhibit H17, An Historical and Archaeological Investigation of the Lodden Aboriginal Protectorate Station and Mount Franklin Aboriginal Reserve. This 1995 report was prepared by David Rhodes for the Victorian Archaeological Survey - now Aboriginal Affairs Victoria. The following brief description is taken from the introduction:

The Aboriginal Protectorate was the first British colonial organisation established to deal with issues relating to aboriginal people in Australia. It operated in the Port Phillip District of NSW for a brief period between1839-1849. Four main Aboriginal stations were established by the Protectorate, including the Lodden Protectorate Station at Franklinford.

The Lodden Protectorate Station functioned as an Aboriginal station for an 8 1/2 year period between1841-1849. It was later used as an aboriginal school between1850-1862. A second, temporary Aboriginal Reserve of 640 acres was also established at Mount Franklin in 1852, the Mount Franklin Station, near to the former Protectorate Station. This reserve was occupied by aboriginal farmers and the former Assistant Protector of Aborigines for the Lodden District, E.S. Parker. In 1862 the remaining Aboriginal people living on the reserve and at Franklinford were moved to the Aboriginal station at Coranderrk. (Emphasis added)

29 As later noted in the Rhode's report two Aboriginal farmers from Dja Dja Wrung clan, Yerrebullah (also named Dickie, Wurn Balug clan) and Beernbannin (also named Tommy Falmer, Gal Gal Balug clan) farmed 21 acres of land near Mt Franklin. The report confirms that this farmland and Parker's second station were located within the Aboriginal Reserve, below Mount Franklin and near to where the Midland Highway joins the road to Franklinford. According to Rhodes, the Aboriginal farmers' land has been retained as a Water Reserve since about 1865. Our site inspection and Mr Hanson's visual impact analysis confirmed that the former farms and Parker's second station are located where the proposed phone tower would be most visible to persons travelling between Franklinford and Daylesford, past Mount Franklin or Lalgambook - Emu's Nest - as the mountain was known by the Dja Dja Wrung community. In 1841 the mountain was renamed after Sir John Franklin during his term as Lieutenant Governor of Van Dieman's Land.

30 The Dja Dja Wrung story about Mt Franklin, relayed to us by Mr Nelson but also referred to in other documents - including a 1999 report by Graham Butler and Associates relating to selected historic forest themes - is that Lalgambook was involved in a violent feud with Mt Tarrangower (at Maldon) situated some 20 miles to the north. Lalgambook spewed volcanic rocks at the northern mountain, but these were deposited some 15 miles short.

31 At page 11 of the Rhode's report the following observations are made:

Mt Franklin and the surrounding area appears to have been of considerable religious significance to Aboriginal people. Both ethnographic and archaeological evidence indicates that frequent large ceremonial gatherings took place within and around the study area.

The basalt ridge connecting Mt Franklin with the Larrnabarramul Swamp was once a resource rich wetland before contact and may have been a route of movement between different campsites in the area. The Larrnabarramul Swamp appears to have been an important Aboriginal camp site before and after the founding of the protectorate station. Rex Morgan (pers. com.) has suggested that the swamp may have been a major camping site for clans en-route to Melbourne for ceremonial gatherings.

32 The Larrnabarramul Swamp is about midway between the Aboriginal farmers' site and Franklinford, on the northern side of the road to Franklinford from the Midland Highway.

33 At page 72, Rhodes suggests that the farms run by the Aboriginal farmers Yerrebullah and Beernbanin represent possibly the first independent European style farming venture in Victoria by Aboriginal people. Later, Rhodes provides the following assessment of the representativeness and significance of the Protectorate station and later Aboriginal Reserve within which Mount Franklin is located:

Aside from their association with people who played a role in the early history of the district, the Loddon Protectorate Station and the 1852-64 Aboriginal reserve influenced contemporary and later 19th Century white settlement and land use in the local district. These sites were also places where considerable interaction between invading white settlers and Aboriginal people took place until circa 1864 and as such they can be regarded as being of considerable historical significance to the local area.

The Loddon Protectorate Station site must also be regarded as being historically significant at a Statewide level, reflecting the themes of contact and disposition of Aboriginal land and as one of the places where the foundations of European attempts to institutionalise Aboriginal people in Australia were laid down. The pattern of bureaucratic enforcement of cultural change and Aboriginal resistance to these attempts to destroy their culture which began on this and other early Aboriginal stations is one which has continued to the end of this century.

34 The above analysis of the natural and cultural significance of Mount Franklin refers only to its significance in the context of the Aboriginal Protectorate and later Aboriginal Reserve. The HO642 schedule also refers to is its significance as The Mount Franklin Reserve. This brings into consideration its recreational and scientific or geological importance and the efforts of the local community to maintain the mountain within a Crown Land recreation reserve. A number of the references put to us described the mountain's significance from these perspectives. Although it would be fair to say that our ultimate decision is based primarily upon the Aboriginal Protectorate and Reservation connections, we accept that these other reasons for significance add to the Mountain's cultural value and reinforce the need for caution in respect of actions that could impact upon those values. For completeness the Statement of Significance in Wendy Jacobs' Hepburn Shire Heritage Study Rural Areas of Daylesford and Glenlyon, (Exhibit RA5) is set out below:

Mount Franklin Recreation Reserve is significant for its contribution to the history of recreation in the area. It has been a popular tourist destination since at least 1867 when an area of some 8 acres incorporating the crater of the old volcano was gazetted as a Recreation Reserve. Mount Franklin is also important as a regional landmark and as a notable geological feature being a classic example of a breached volcanic crater. The area is also significant for its importance to the Jajowurrong (sic) aborigines who used it as a ceremonial site. Many aboriginal artefacts and other relics have been found nearby.

35 Suffice to say the mountain's volcanic origins are what have provided its visual prominence, its special sense of enclosure within the crater and its lookout qualities. Taken together these provide a basis for the special value attributed to the mountain by both the indigenous population and later settlers and visitors. It is worth noting in passing that, as the mountain's encircling pine forest has grown taller and taller (it was planted in 1969 as a solution to erosion, following loss of its indigenous vegetation due to a bush fire), the lookout qualities are being impacted upon. Our inspection confirmed that the outlook from the turntable, towards what would otherwise be spectacular views, has and is being eroded by the growth of the trees. We would not be surprised if some level of pruning or culling would be contemplated, given the association between the mountain's lookout qualities and its heritage significance.

36 Before returning the decision guidelines of the Telecommunications Code of Practice it is necessary to make some observations about the permit applicant's Archaeological evidence. Put briefly we found the evidence provided by Mr Marshall to be less than satisfactory. Although in the preamble to his statement he advises that his firm was commissioned to undertake a cultural heritage assessment of the proposed facility, this proved not to be the case. As conceded by him under cross-examination and indeed as implied at page 3, his report focuses on scientific values. Under cross-examination he confirmed that a cultural heritage assessment requires more than a survey for artefacts at the site of the proposed works and should desirably include input from an historian and an anthropologist. For completeness we note his conclusion at page 19 that, as no archaeological sites were found during the field survey, there is no requirement to discuss scientific significance.

37 A difficulty with Mr Marshall's evidence was that it provided little assistance for determining the possible implications of the tower on Mount Franklin's cultural significance as a whole and it is as a whole i.e. the entire mountain and not simply as a site containing artefacts that Mt Franklin is included in a heritage overlay and as an Aboriginal Affairs Victoria listed historic place. We think that the TerraCulture report's failure to analyse cultural significance, as opposed to scientific significance, may well have caused the confusion within the local aboriginal communities, to whom the application was referred.

Telecommunications design and siting principles

38 We now return to principles for the design, siting and construction of telecommunications facilities which are to be considered, together with the decision guidelines of the heritage overlay, before deciding this application. Each principle is followed by statements about the application of the principle. The principles are:

•

A telecommunications facility should be sited to minimise visual impact.

•

Telecommunications facilities should be co-located wherever practical.

•

Health standards for exposure to radio emissions will be met.

•

Disturbance and risk relating to siting and construction should be minimised.

•

Construction activity and site locations should comply with State Environment Protection Policies and Best Practice Environmental Guidelines.

39 Although concerns about construction, particularly in relation to the access track, were raised in the course of the hearing these have not been significant to our decision and we need refer to them no further.

40 In similar vein, Principle No 3 relating to health standards is not an issue that we consider to be material to our decision. This is not to say that the respondent objectors regarded the issue of health standards as immaterial. However, as we stated in the course of the hearing, it is not the role of his Tribunal to enquire into whether Australian Standard AS/NZS 2772.1: 1999 is an appropriate standard to be met for such facilities. The relevant application of principle requires that such facilities must be designed and installed so that the maximum human exposure levels to radio frequency emissions comply with the Standard. There was no evidence to suggest otherwise and indeed, to the contrary, the facility has been designed to fall well below the human exposure levels set out in the standard.

41 In relation to Principle No. 1 about facilities being sited to minimise visual impact, the Application of Principle refers to such facilities being sited and designed with external colours, finishes and scale sympathetic to the heritage place, as well as the following:

•

A telecommunications facility should be located so as to minimise any interruption to a significant view of a heritage place, a landmark, a streetscape, vista or a panorama, whether viewed from public or private land.

42 Our analysis of the Rhodes report, which we regard as the best evidence on the subject of cultural significance, taken with our inspection of the mountain and our assessment of the material provided by Mr Hanson, persuade us that the view to Mount Franklin from where the proposed facility will be most visible - i.e. near to the intersection of the Midland Highway with the road to Franklinford - is a significant view of this heritage place.

43 Interestingly we had not read the recommendations of the Rhodes report when, during the course of Mr McGurn's evidence, the Presiding member referred to the possibility of locating interpretive material about the Reserve and Protectorate Station, near to where persons can obtain this significant view. As it turns out this is precisely one of Mr Rhodes' recommendations:

iii The visitor trail could be implemented by placing an historic marker giving a general history of the station at the intersection of the Powell extension road (Daylesford Newstead and Leslies Road) and the Midland Highway. This will be one of the main tourist access routes into Franklinford and would complement the tourist visitation to Mt Franklin. The historic marker could contain a small map, showing the locations of other relevant sites at Franklinford.

iv Signs could be erected at sites where buildings or features associated with the Protectorate Station and Aboriginal reserve were indicated on the historic marker mentioned in iii above. The signs contain a brief historical summary of the site and possibly reproduce a relevant historical plan of the area. Alternatively, the signs could be complemented by tourist brochures.

v Signs should be erected at the following locations:

. Near the fenceline of the paddock in which the huts belonging to the Aboriginal farmers are located. This sign should also indicate the site of Edward Parker's Mt Franklin station, which can also be viewed from this point.

. At the Larne Barramul Swamp, with a short summary of the Aboriginal associations of the area. The sign should also request that visitors refrain from entering the swamp.

. At the site of the central building complex of the protected station and Aboriginal school. The sign could possibly reproduce the 1848 map of the protected station and 1859 map of the township of Franklinford showing the Aboriginal school:

44 Not only does the evidence point to this location being one providing a significant view of this heritage place, it is our conclusion also that the facility would be unacceptably on show in the context of that view. In reaching this conclusion we took account of the extent to which the existing radio whip antennae and Optus dish are already visible. Our inspection confirmed Mr Wilde's contention that the resolution and mode of presentation chosen by Mr Hanson fails to mimic what is apparent with the human eye. Despite not showing up on Mr Hanson's photographs, our inspection demonstrated that the antennae are already visible and indeed that they are about as visible as the image of the proposed phone tower in Mr Hanson's montages. This cannot be the case as the monopole would be thicker than the radio antennae - even if reduced in diameter due to the alleged error revealed by Mr Wren at the conclusion of the hearing. While we accept that the existing facilities can be described as being sited to minimise visual impact, we are not persuaded that the proposal before us can be similarly described.

45 The decision guidelines also refer to the importance or value of co-location as a means, among other things, of reducing the visual impact of these facilities.

46 We were not persuaded by the evidence of Mr Nalainathan that sufficient effort had been made in relation to an Optus co-location outcome. Although he professed no relevant structural engineering expertise we think it unlikely that the fire tower would be incapable of supporting three more, 32kg antennae plus a microwave dish. And even if this was to be the case we were not persuaded by his evidence or the submissions put forward on behalf of Telstra that the additional breadth and depth of mobile coverage which this facility could provide is so needed by the local community or travellers on the Midland Highway as to warrant the additional visual impact on what we have found to be a significant view of this heritage place. As acknowledged also by Mr Nallainathan - and confirmed at his suggestion by a search of the Optus internet site - the existing Optus facility can, in any case, provide coverage for emergency 000 calls.

47 The objectives of Planning in Victoria are set out at Section 4(1) of the Act and are repeated on the first page of every Victorian planning scheme. Among other things they refer to conserving and enhancing places of scientific, aesthetic and historic interest or otherwise of special cultural value. They also refer to protecting public utilities and other assets and enabling the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community.

48 Later, in the introductory paragraph to Clause 11 the State Government's expectation in relation to State Planning Policy is expressed:

That planning and responsible authorities will 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.

49 In the case before us this can be interpreted to mean that we should seek to ensure at first instance that the outcome is one that achieves an integration of the policies relevant to the issues to be decided - in other words that cultural significance, including significant views of Mount Franklin are preserved at the same time as the community obtains the benefit of an improved mobile phone network coverage. However, if it becomes apparent that these objectives in whole or in part are in conflict or are mutually exclusive, the decision maker must lean towards an outcome that favours sustainability and provides the greatest net benefit to the community.

50 It is our ultimate conclusion that this is a case where the net benefit for the community lies less in providing additional depth and breadth of mobile phone coverage than in protecting the cultural significance of Mount Franklin and not prejudicing or detracting from opportunities for future interpretation measures that may improve the community's understanding of a significant period in Australia history and it's implications for Australia's indigenous peoples.