IS THERE JUSTIFICATION FOR THE NEED FOR THIS PROPOSAL?

1. The Council submits that the application is deficient and does not provide sufficient information or justification for the construction of two new telecommunications facilities within close proximity. Among other things they argue there is no information on whether the facility is to improve coverage for 4G or 5G mobile telecommunications or for phone or data coverage, the extent of coverage improvement, how the height of the pole was determined, or why the proposal is for a triangular head frame rather than a slimline head frame.
2. The Council submits that without a greater level of detailed information justifying the locational benefits of the siting, signal type, service, and nature of the tower's construction, a full assessment of whether the landscape impacts are acceptable cannot be undertaken.

1. The provisions of the Green Wedge Zone - Schedule 2 ('GWZ2') at clause 35.04 and the Environmental significance Overlay - Schedule 7 ('ESO7') do not require consideration of the need for a telecommunications facility.
2. The purpose of the Telecommunications Facility provisions at clause 52.19 is:

To ensure that telecommunications infrastructure is provided in an efficient and cost-effective manner to meet community needs.

To facilitate an effective state-wide telecommunications network consistent with proper and orderly planning.

To support the provision of telecommunications facilities with minimal impact on the amenity of the area.

[Emphasis added]

1. The application requirements at clause 52.19-4 do not require information about the need for a telecommunications facility. Nor do the decision guidelines at clause 52.19-5 require consideration of the need for a telecommunications facility.
2. The State 'Telecommunications' planning policy at clause 19.03-4S has the objective 'To facilitate the orderly development, extension and maintenance of telecommunications infrastructure'. The supporting strategies include, among others:

Ensure that modern telecommunications facilities are widely accessible and that the telecommunications needs of business, domestic, entertainment and community services are met.

Encourage the continued deployment of telecommunications facilities that are easily accessible by:

• Increasing and improving access for all sectors of the community to the telecommunications network.
• Supporting access to transport and other public corridors for the deployment of telecommunications networks in order to encourage infrastructure investment and reduce investor risk.

1. Having regard to the provisions at clauses 52.19 and policy at clause 19.03-4, the matters of telecommunications and community needs are relevant. However, here are no application requirements or decision guidelines in the GWZ2, ESO7 or under clause 52.19 relating to demonstrating a need for a telecommunications facility.
2. In this context, I interpret the provisions at clause 52.19 as seeking to facilitate telecommunications to meet the general 'community need' for these facilities.
3. If it were necessary to demonstrate or justify a specific need for a telecommunications facility in a specific location, one would expect the Scheme provisions to require such information to be provided.
4. In relation to the matter of need, I note the following comments in the VCAT decision Tuhan v Moira SC:[4]

Many Tribunal decisions have considered the relevance of need. Their primary finding is that a demonstrated need for a facility or use may be a relevant factor in a planning decision but lack of a need will rarely, if ever, be a ground for refusing to grant a permit. This is consistent with long standing principles, as set out in [Shell Company of Australia Ltd and Others v City of Frankston and Another [P82/1527 8APA 126]]:

When the word "need" is used in a town planning sense, it must mean community need. It is not necessary to show an element of urgent community necessity for a facility. Rather need connotes the idea that the well being of a community or some part of it can be better and more conveniently served by the provision of a particular facility. ......

Need is a relevant consideration, but not an essential requirement......If an applicant can show a need for a proposed use, then this factor may outweigh other considerations adverse to the use. However, a lack of need will rarely, if ever, be a ground for refusing to grant a permit.

1. I also note another VCAT decision in Waveconn Operations Pty Ltd v Melton CC[5], in which the Tribunal found that 'meeting a community's needs, as specified in the first purpose under clause 52.19, can include meeting their future needs'.[6]
2. In this context, it is not necessary for the applicant to demonstrate a specific need for this telecommunications facility in this location, or to justify the specific details of the proposal, such as the height of the monopole, to justify the proposal.
3. To the extent that it is relevant to consider the 'community need' for this telecommunications facility, I am satisfied that there is a community need within this area. The applicant's 'Proposed coverage from new facility, and 1.3km radius rings around existing sites in area' map[7] ('proposed coverage map') demonstrates that there is a gap in the telecommunications coverage of the existing facilities located at Somers, Balnarring, and HMAS Cerberus.[8] The proposed coverage map also demonstrates that the proposal will fill this gap.
4. I acknowledge that the proposed coverage map does not show the coverage of the proposed telecommunications facility nearby in Balnarring that is the subject of application P1232/2024. However, I must consider this application based on the existing circumstances. Even if a permit is granted for that other telecommunications facility, there is no certainty as to whether that facility will be constructed.
5. Based on the existing circumstances, I am satisfied that there is a community need for a telecommunications facility in the location of the site. This is relevant to my consideration of the 'net community benefit' when considering the visual impact of the proposal within the landscape context.

WILL THE VISUAL IMPACT OF THE PROPOSAL WITHIN THE LANDSCAPE CONTEXT BE ACCEPTABLE?

1. The Council acknowledges that 'it is an inevitable consequence of providing mobile communications that towers are required to be high and located reasonably prominently to provide efficient network coverage'.[9] However, the Council is concerned that the siting of the facility has given insufficient consideration to the exposure of the compound to pedestrians using the shared path along the southern side of Sandy Point Road.
2. The Council submits that the proposal will be 'highly conspicuous and visible on approach from the east from Somers and will be an imposing, discordant intrusion in an otherwise open rural landscape'.[10] They argue that the compound and monopole will be 'almost industrial in its presentation with its austere, utilitarian appearance...without any landscape screening'.[11]
3. The Council also submits that while the monopole may not be present in long distance view lines, without effective screening either side of the facility it will be ever present in the viewshed of pedestrians across the front of the site. They also say that the monopole will be easily seen from under the canopy of the large pine trees to the west of the proposal.
4. The Council submits that the proposal is an inappropriate design response in the rural landscape context.

1. The purpose of the GWZ2 at clause 35.04 seeks, among other things:

To recognise, protect and conserve green wedge land for its agricultural, environmental, historic, landscape, recreational and tourism opportunities, and mineral and stone resources.

...

To protect, conserve and enhance the cultural heritage significance and the character of open rural and scenic non-urban landscapes.

1. The decision guidelines of the GWZ2 at clause 35.04-6 require consideration of, among other things:
   • The need to minimise adverse impacts on the character and appearance of the area or features of architectural, scientific or cultural heritage significance, or of natural scenic beauty. ...
   • The need to minimise any adverse impacts of siting, design, height, bulk, and colours and materials to be used, on landscape features, major roads and vistas.
   • The location and design of existing and proposed infrastructure services which minimises the visual impact on the landscape.
   • The need to minimise adverse impacts on the character and appearance of the area or features of archaeological, historic or scientific significance or of natural scenic beauty or importance.
2. The 'Statement of environmental significance' for the ESO7 Schedule to clause 42.01, at clause 1.0 of the schedule, is that:

This area forms part of the catchment of Merricks Creek and waterways that discharge to Hanns Inlet. It is also an area of strategic landscape importance, forming part of the coastal hinterland of Westernport Bay and the rural edge to the coastal villages of Somers, Balnarring, Balnarring Beach and Merricks Beach.

[Emphasis added]

1. The associated environmental objectives to be achieved, at clause 2.0 of the schedule, include:

To promote siting and design of buildings and works that is responsive to the open rural and coastal landscape character and vistas of this area, and that maintains the scenic value of roads and recreation routes.

To protect the landscape values of the area.

1. The Municipal Planning Statement Vision at clause 02.02-2 includes
   • Value, protect and improve the Peninsula's unique characteristics and its special role that is distinct from and complementary to metropolitan Melbourne.

• Protect the Peninsula's landscapes, coastlines, seascapes and rural area, including the scenic values of the green wedge.

1. The Municipal Planning Statement for 'Environmental and landscape values' at clause 02.03-2 seeks, among other things:
   • Maintain the rural character of land adjoining main roads and tourist routes, ensuring the ongoing visual amenity and recreational value of the outlook from these roads.

• Maintain the integrity of strategic landscapes between and around the Peninsula's townships.

1. The strategies for 'Settlement - Mornington Peninsula' at clause 11.01-1L-01 include:

Maintain the existing inter-urban break between settlements and its environmental and landscape values.

1. The objective of the 'Distinctive areas and landscapes' policy at clause 11.03-5S is:

To recognise the importance of distinctive areas and landscapes to the people of Victoria and protect and enhance the valued attributes of identified or declared distinctive areas and landscapes.

Recognise the unique features and special characteristics of these areas and landscapes.

...

Recognise the important role these areas play in the state as tourist destinations.

Protect the identified key values and activities of these areas.

...

Avoid use and development that could undermine the long-term natural or non-urban use of land in these areas.

1. The strategies at clause 11.03-5S also require consideration of the Mornington Peninsula Localised Planning Statement.[12] The Council's submissions include that this statement underpins the Vision as set out in clause 02.02 of the Scheme.
2. The Telecommunications policy strategies at clause 19.03-4S include:

Ensure a balance between the provision of telecommunications facilities and the need to protect the environment from adverse impacts arising from telecommunications infrastructure.

1. Telecommunications facilities by their nature include a high tower structure, and therefore are going to be visible. However, the relevant test is not whether the proposal is going to be visible within the landscape context. Rather, the relevant test is whether the visual impact of the proposal within the landscape context is acceptable.
2. Having regard to the relevant provisions of the Scheme, the relevant landscape context in the circumstances of this site is:
   • the open rural and scenic non-urban landscape in the GWZ2; and
   • the rural edge to the coastal villages of Somers and Balnarring, in the ESO7.
3. I am satisfied that Sandy Point Road has a scenic value; this is particularly due to the roadside vegetation. I acknowledge that it is used as a recreation route given the shared pedestrian and cycle path that extends within its road reserve. Although I have not been referred to anything in the Scheme that identifies Sandy Point Road as a 'tourist route', I also acknowledge that tourists travelling between Somers and Balnarring will obviously use this road. In this context, there is an expectation that open rural landscape character will be protected.
4. The Telecommunications strategies at clause 19.03-4S indicate that a balance is to be achieved between the provision of telecommunications facilities and the protection of the environment. The need for a balance is reinforced by the provisions for integrated decision making at clause 71.02-3. This requires responsible authorities to 'endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations'.
5. I am satisfied the proposal does achieve a balance between facilitating the orderly development of telecommunications infrastructure, and the protection of the open rural and scenic non-urban landscape of the GWZ2 and the rural edge to the coastal villages of Somers and Balnarring. I say this for the following reasons.
6. Other than the monopole and headframe, I am satisfied that the proposal is a modest scale that will not be out of place in the rural landscape context. While the equipment cabin and cabinet, and compound fencing will be visible to varying degrees from Sandy Point Road, they will not be out of scale with the smaller farm sheds and structures that are visible in the surrounding rural landscape. Furthermore, there is sufficient space around the compound for landscaping to be planted to filter or screen views of the compound, and the structures within it, from Sandy Point Road. A permit condition can require landscaping to filter or screen views of the compound from Sandy Point Road, and in particular the pedestrian footpath.
7. While the monopole and headframe will be visible, the extent to which it will be visible will vary depending on the location of the viewing point. I am satisfied that when approaching the site from the west along Sandy Point Road, the vegetation along the roadside will either screen or filter views of the monopole and headframe. This vegetation includes a windrow of tall, mature pine trees that extend along the road reserve in front of the western half of the site.
8. I agree with the Council that the vegetation along the eastern half of the site is sparse, and comprises shrubs and smaller trees. It is obvious that the monopole and headframe will be visible when approaching the site from the east along Sandy Point Road in this context. Despite this, I am not persuaded that this will result in the proposal having an unacceptable visual impact within the landscape context. I am satisfied the monopole and headframe will be viewed relatively fleetingly from vehicles travelling along the road. It will also be visible at an angle to the primary view line directly along the road, and within the context of the heavily treed roadside vegetation along both sides of the road ahead. In this context, it will not be a focal point for west bound vehicles.
9. While the roadside vegetation along the eastern half of the site is sparse, I am satisfied that it will filter or screen views of the monopole and headframe to some extent at different points. This will contribute to minimising their visual impact from Sandy Point Road.
10. This is a location where the landscape is observed as one is travelling between two points either within a vehicle or by walking or cycling along the shared path. As such, and in the context of the roadside vegetation filtering views to the monopole and headframe, the views will be sporadic and relatively fleeting. This is not a location with specific vistas, viewing points, or lookouts where people stop to admire a specific view for a longer period of time.
11. Even if from some viewpoints the monopole and headframe appear dominant, those views will be fleeting as people travel along Sandy Point Road. I am satisfied that sporadic and fleeting views of the monopole and headframe will not diminish the overall sense and experience of the open rural landscape character as one travels along Sandy Point Road.
12. I must also balance the visual impact of the monopole and headframe against the benefit of the proposal providing telecommunications infrastructure, which the Scheme also seeks to facilitate. In this regard I find that the visual impact of fleeting and sporadic views of the proposal will be balanced against the benefit to the community of filling a gap in or future need for the telecommunications coverage in this location. In the context that there are no specific vistas, views, viewing points, or lookouts in which the monopole and headframe will be visible, I am satisfied that the balance is weighted in favour of providing telecommunications facilities, to achieve a net community benefit.
13. For these reasons, I find that the visual impact of the proposal within the landscape context will be acceptable.

1. In addition to the key issues, the Council has raised concerns about some specific details of the proposal. I do not consider these to be determinative as to whether a permit should be granted. However, I make the following comments on some of these matters.

1. The plans show vehicle access gates in the fencing that is to surround the compound. The applicant's submissions confirm that no new vehicle access from Sandy Point Road is proposed. At the hearing, the applicant confirmed that the vehicle access to the telecommunications facility will either rely on existing access from within the land, or temporary access that they would seek any separate permissions for.

1. The Council is concerned about the routing of power and fibre cabling through an existing copse of native vegetation in the road reserve. The applicant says that the intention is to 'under bore' to install the services, but that this would be open to re-routing the services to avoid the vegetation. I am satisfied that this can be addressed by a permit condition.

1. The Council submits the proposal should use slimline panel antennas, rather than the proposed larger triangular headframe, to reduce the visibility of the proposal within the landscape.
2. The applicant has explained that alternatives to provide a circular 'collar mount' around the monopole means there cannot be as many antennas around the pole, and would require the height of the monopole to be increased by about 5 metres.
3. This application is based on a triangular headframe, not a slimline panel antenna. While the appearance of a collar mount headframe may be more visually appealing, I do not know what specific changes would be required to the height of the monopole or the number of antennas that could be accommodated on that type of headframe. I also do not know what implications such changes may have for the likely coverage of the telecommunications facility.
4. The decision guidelines at clause 65 require me to consider whether the proposal will produce 'acceptable' outcomes. I must assess the application that is before me, not whether an alternative design would be preferable.
5. In this context, and in having found that the visual impact of the proposal within the landscape context will be acceptable, I will not require the headframe to be changed.

1. The Council has referred to the policies at clause 14.01-1R that seek the protection of agricultural land. The area of the telecommunications facility compound is very minor. I am therefore satisfied the proposal will make no meaningful difference to the continued use of the land for its existing agricultural purposes.

1. The conditions contained in this Order reflect those proposed by the Responsible Authority, the submissions of the parties, and my further consideration.
2. At the conclusion of the hearing, I provided the opportunity for the parties to provide further information regarding the draft conditions 13 and 14 relating to compliance with an ARPANSA standard and Environment Protection Authority noise levels. The Council has confirmed that it no longer seeks for these conditions to be included on the permit.

1. For the reasons given above, the decision of the responsible authority is set aside. A permit is granted subject to conditions.

To construct a building and carry out works associated with a use in Section 2 of clause 35.04-1, in the GWZ2.

To construct a building and carry out works for a building within 20 metres from a road, in the GWZ2.

To construct a building and construct or carry out works, in the ESO7.

To construct a building and construct and carry out works for a telecommunications facility.

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. The plans must be generally in accordance with the plans submitted with the application, being plans prepared by Stilmark, version 4, revision D-1 and dated 18 November 2022, but modified to show:

(a) Screening planting around the perimeter of the compound. The screening planting must:

1. comprise shrubs with a minimum mature height of 3 metres and minimum width at maturity sufficient to provide continuous screen planting (other than across any vehicle or pedestrian access points within the perimeter fencing of the compound);
2. be species indigenous to the local Ecological Vegetation Class (EVC), to the satisfaction of the Responsible Authority.

(b) Planting of a minimum of four (4) substantial canopy trees adjacent to the compound. The trees must:

1. have a minimum mature height of approximately 15 metres;
2. be species indigenous to the local Ecological Vegetation Class (EVC), to the satisfaction of the Responsible Authority.

(c) The power and fibre connections within the road reserve realigned or relocated to avoid the area of vegetation adjacent to the shared pathway along the southern side of Sandy Point Road, utilising the open cleared section of road reserve in front of the proposed telecommunications facility, or alternatively for the installation of the power and fibre connections to be via underground lateral boring at a depth to avoid impacts to vegetation within the road reserve.

1. The approved development as shown on the endorsed plans must not be altered without the prior written consent of the responsible authority (unless otherwise specified by a condition of this permit, consent is not required for any buildings or works which do not require a planning permit under the Mornington Peninsula Planning Scheme).

1. The exterior colour and finishes of the development must be of a non-reflective nature to the satisfaction of the responsible authority.

1. Prior to the commencement of any building or works appropriate tree protection fencing must be erected in accordance with Australian Standard AS4970-2025 (Protection of trees on development sites). The tree protection fencing must remain in place until the completion of any works hereby approved.
2. All excavation, trenching and fill works within 'Tree Protection Zones' of existing tree/s must be carried out in accordance with the recommendations in the Australian Standard AS4970-2025 (Protection of trees on Development Sites), to the satisfaction of the responsible authority.

1. Within three (3) months of completion of the construction of the telecommunications tower the landscaping works shown on the endorsed plans must be carried out and completed to the satisfaction of the responsible authority.
2. The landscaping works shown on the endorsed plans must be maintained to the satisfaction of the responsible authority for the life of the development. Any dead, diseased or damaged plants must be replaced as soon as practicable.

1. External lighting must be designed, baffled and located to the satisfaction of the responsible authority to prevent any adverse effect on adjoining land.

1. If the telecommunications facility hereby approved becomes redundant, all above ground infrastructure associated with the telecommunication facility must be removed and the area reinstated to the satisfaction of the responsible authority. All works to comply with this condition must be completed within three (3) months of the facility ceasing to operate and must be at the expense of the permit holder.

1. The development must be carried out so that the amenity of the area is not detrimentally affected, through the:

(a) Transport of materials, goods or commodities to or from the land.

(b) Inappropriate storage of any works or construction materials.

(c) Hours of construction activity and/or repair and maintenance activities.

(d) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste and storm water runoff, waste products, grit or oil.

1. This permit will expire if the development is not completed within three years of the date of this permit.

The responsible authority may extend the periods referred to if a request is made in writing by the owner or occupier either before the permit expires or in accordance with section 69 of the Planning and Environment Act 1987 (Vic).

[1] Source: Applicant's Appendix A, 13. The location of the proposed telecommunications tower is identified by the red dot. The yellow boxes identify existing telecommunications facilities.

[2] Source: Applicant's Appendix A, 5. The location of the proposed telecommunications tower is identified by the red dot.

[3] The submissions of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[4] [2016] VCAT 235, [21].

[5] [2024] VCAT 567.

[8] These are identified by the yellow boxes in Figure 1 in this decision.

[9] Council's written submission, [91].

[11] Council's written submission, [116].