In permit application no. P03/0617, the decision of the Responsible Authority is affirmed. A permit is not granted and no permit is to be issued.

Mr C Wren of counsel instructed by Mallesons Stephen Jaques Lawyers. Evidence was called from Mr A Rodda, town planner, Mr A Wyatt, landscape architect and Mr T Nallainathan, Optimisation Specialist Mobile Coverage Delivery (Vic/Tas) Telstra Infrastructure Services.

Mr D Robinson for Mrs R Robinson and J Chorley Holdings Pty Ltd.

1 This is an Application under Section 77 of the Planning and Environment Act 1987 brought by Telstra Ltd seeking review of a decision made by the Mornington Peninsula Shire Council ("the Council") to refuse to grant a permit in permit application no. P03/0617. A Notice of Refusal was issued on 27 October 2003. The Application was lodged on 15 December 2003.

2 I record the following matters arising at the commencement of the Hearing:

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Mr Wren stated that his client's preference was for the facility proposed in Application for Review No. P117/2005 to be approved given the Council had approved a further facility in permit application no. P04/2699 (at a former sand quarry/sand supplies). Application for Review No. P117/2005 was listed before the same division of the Tribunal on 29 April 2005 and is separately determined. Mr Wren stated that if Application for Review No. P117/2005 was allowed by the Tribunal then he would seek leave to withdraw Application for Review No. P3331/2003. As is evident from these reasons, I have decided not to grant leave to withdraw the Application.

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I disclosed to the parties that I have a small holding of Telstra shares. I stated that my understanding of the relevant case law was that this was not an interest which should cause me to disqualify myself but I indicated to the parties if they had any objection to the matter proceeding before me then it should be raised. There was no objection and the Hearing proceeded accordingly.

3 The review site is located on the east side of Truemans Road, south of Sandy Road. The site is currently used by a surf riders club[1] and abuts private land to the north, east and south. The land to the south includes a small 5 acre lot and a larger holding that are associated with Mr Robinson's family. A dwelling is located to the south of the 5 acre lot and that has a driveway off Truemans Road. A golf course is under development to the west of the subject land and a site for a 20 metre high slim-line monopole within the course is the subject of Application for Review P117/2005. Lots to the north also include rural residential style development. The extent of existing vegetation varies from lot to lot and the distinctive undulating topography of "The Cups" is a significant feature. Truemans Road leads to Gunamatta beach and the subject land is a short distance from the St Andrews beach settlement. Truemans Road has relatively dense roadside planting in this section.

4 The Applicant seeks approval for the erection of a 28 metre high telecommunications facility comprising a 25 metre high slim-line monopole with a 3 metre headframe and panel antennae. The monopole would taper with a diameter varying from 420mm to 610mm. The compound would measure 10 metres x 6 metres and be positioned toward the south-east corner of the subject land, to the south of an existing shed. The pad for the tower would be positioned approximately 166 metres from Truemans Road, 12 metres from the southern boundary and 20 metres from the eastern boundary. The tower and equipment cabin would be finished in "mist green". The existing driveway into the site would be utilised. Plans tendered through Mr Nallainathan's evidence show the additional coverage that is anticipated by the proposal assuming that the approved tower at a former sand quarry/sand supplies is operational (Permit P04/2699).

5 The subject site is located in a Green Wedge Zone (Schedule 4) pursuant to the provisions of Clause 35.01 of the Mornington Peninsula Planning Scheme ("the Scheme") although the permit application was made at the time the land was within a Rural Zone and the transitional provisions of the Scheme therefore apply.

6 A Telecommunications facility is a section 1 - permit not required use, subject to the condition that buildings and works must meet the requirements of Clause 52.19 Telecommunications Facility. Pursuant to Clause 52.19-2, a permit is required to construct or carry out works for a telecommunications facility. The proposed telecommunications tower does not fall within any of the categories of buildings and works for which no permit is required. Decision guidelines are at Clause 52.19-6 and have been considered by the Tribunal, including A Code of Practice for Telecommunications Facilities in Victoria July 2004 ("the Code") which is an incorporated document at Clause 81 of the Scheme.

7 Two Environmental Significance Overlays (Schedules 15 and 23) apply to the land. The provisions of ESO15 (The Cups) are the most important of the two in terms of the matters in contention between the parties. A permit is required for the proposal as its height is greater than 8 metres. The statement of significance for that Overlay is:

This area is formed from semi consolidated sand dunes and extends to the coastline of Bass Strait, adjoining the Point Nepean National Park. It is a major catchment area for the ground water resources of the Nepean Peninsula. It is also an area of strategic landscape importance, providing a distinctive landscape experience and forming the rural edge to the townships of Rye and St Andrews.

8 The environmental objectives to be achieved in ESO15 include:

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To promote siting and design of buildings and works that is responsive to the semi consolidated sand dune landscape character and vistas of this area, and that maintains the scenic value of roads and recreation routes.

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To protect the landscape values of the area.

9 A Significant Landscape Overlay applies to Truemans Road and that addresses scenic roads. Truemans Road is within a Road 2 Zone, but no permit is triggered by this permit application.

10 The provisions of Clauses 15, 17, 18.13 and 19.03 are also relevant to the assessment. The local policies at Clause 21 and 22.06 (Development on Highways, Main Roads and Tourist Routes) are relevant and have been considered by the Tribunal. Several other local policies apply to all rural land but they are not critical to the matters in debate between the parties.

11 I have decided to direct the issue of a permit in Application No. P117/2005 (separately issued) and I have decided not to grant leave to the Applicant to withdraw the current Application. This is because I have formed a view on Application P3331/03 based on the submissions and evidence presented and I consider it to be in the parties' interests for a determination to be made.

12 At the Hearing, written and oral submissions were presented by the parties. I also visited the site and locality subsequent to the Hearing including properties adjacent to the review site and a property in Sandy Road. Having considered the submissions with regard to the policies, objectives and decision guidelines of the Scheme I have decided to affirm the decision made by the Responsible Authority. The following summarises the reasons for my decision. I do not recite all of the material presented, as the detailed written submissions tendered by the parties are retained on file, although I do refer to some of the main points. Some of the findings are similar or identical to those made in Application for Review No. P117/2005.

13 As noted by Mr Wren, there has been an acknowledgment in previous Tribunal decisions that the provision of infrastructure such as mobile telephone facilities is desirable to meet a wide range of community needs and to service all geographic areas. That does not mean that any site is automatically acceptable for such a facility, but it does mean that weight must be given to a proposal that seeks to provide for infrastructure that accords with Clause 18.13. In Williams v Rural City of Benalla [2004] VCAT 511 at paragraph 30 I said:

...it is important to state that the provisions of the Planning Scheme (at Clause 18.13 that I have set out above) recognise the importance of modern communications services and the need to provide infrastructure to allow services to be made available to all sections of the community and geographic areas. I was referred to a number of Tribunal determinations in support of this proposition, including one involving myself and Member O'Leary (Application for Review No. P51809/2001 Hutchison 3G Australia Pty Ltd v Casey CC and Ors) where we said:

We recognise the need for telecommunications facilities in the business, family and recreational lives of many people. Ongoing demand for improved levels of service, a desire by operators to improve the quality of existing service, and, as is the case here, a desire to expand the range of services available to consumers can be expected. We give weight to the need to find suitable sites for these facilities, being mindful that they can not be screened in their entirety if they are to be functional and efficient. We also acknowledge that the subject site is regarded by the Applicant to be most suitable to achieve its site coverage objectives and that it considers it has already compromised by lowering the structure and varying the technological components compared with a form that it would ideally desire. We also appreciate that there has been considerable exploration of other possibilities as apparent in Mr Vernali's cross-examination.

14 The proposal would provide improved coverage and service although, as I state in my reasons in Application for Review No. P117/2005 the benefits are not as great when compared with the other proposal before me.

15 The key issue for determination is the visual impact of the proposed telecommunications tower in terms of the public and private realms.

16 I refer first to the impact on the scenic road network. Unlike the proposal in Application for Review No. P117/2005, the current proposal is set well back from Truemans Road, by some 166 metres, at a lower point in the topography when contrasted with the alternate site on the west side of Truemans Road which is on a rise/knoll. While the proposed tower on the surf club land could be visible from some vantage points travelling north and south along the nominated scenic road, the form would not be a prominent element given its height (28 metres in total) and position when also mindful of existing roadside vegetation. I do not think that it would be contrary to local policies relating to the scenic road network.

17 The potential impact would be much greater from adjacent private properties. The base structure would be substantially concealed by existing vegetation on the subject land. The greatest impact would be experienced by the vacant lot to the immediate south with the visibility of the proposed tower reducing with distance as well as a result of intervening vegetation and variation in the landform. There was speculation through the Hearing that a dwelling would be allowed on that lot and, should it be, then the tower would be highly visible to a north-facing residence. I do not intend speculating on the likelihood of any application for a dwelling being approved and believe that there would be ways to site a dwelling so that views to the tower would be limited. Nonetheless, being sited close to the south-east corner of the subject land, the tower would be a dominant element to that adjacent property and Mrs Robinson's dwelling whose driveway and open space enjoy an aspect toward the subject land.

18 Part of the issue for adjacent lots to the north and south is that the tower would change the visual environment that allows the distinctive topography of The Cups to be experienced from the private realm. The Overlay does not give any great weight to visual impact from private properties directly, but in a similar way as views are considered to an aspect of residential amenity, the existing landscape experience of The Cups is also part of the amenity and setting of existing residences. I do not find the impact of the proposed tower to be reasonable, primarily given the dominating form it would present to the land and closest dwellings. The existing views are not pristine in so far as built elements can be seen, but those existing elements are substantially low rise in form and nestled into the landscape whereas the proposed tower would be much more obvious to the closest neighbours.

19 As stated, the visual impact would decrease with distance so that existing dwellings in Maxwell and Sandy Roads would have reduced visual impact albeit the tower would not be obscured completely from some more elevated dwellings.

20 Several other matters were raised in written statements of grounds and objections to Council upon which I summarise my conclusions as follows:

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In terms of health impacts, I give weight to evidence that the proposal would comply with the standards set by the Australian government in relation to proposed emission levels (Australian Standard AS/NZS 2772:1999). The Code of Practice requires a telecommunications facility to 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 set by ARPANSA (May 2002). This issue has been the subject of numerous Tribunal determinations[2] wherein the Tribunal has found that a telecommunications facility is obliged to meet the relevant standards that apply and it is not usually a basis to reject an application for reasons relating to potential health impacts if the relevant standards are met.

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There is no evidence to suggest that property values would be impacted or are a relevant consideration in these proceedings.

21 For the above reasons, I conclude that the proposal does not represent an acceptable outcome in terms of the policies and decision guidelines of the Mornington Peninsula Planning Scheme. I will affirm the decision made by the Responsible Authority and direct that no permit issue.

[1] The nature of that occupation was raised as an issue by some parties but it is not a matter that has been necessary to explore in reaching a determination.

[2] The most recent being P3620/2004 Heland Pty Ltd - Leo Wyman v Kingston CC & Telstra.