s Add part (iv) to Condition 2 as follows: "Landscaping on the north and west boundaries of the site with species selected to the satisfaction of the Responsible Authority and fencing as required to protect the landscaping from stock".

s Add the following words at the end of Condition 2: "Before the use allowed by this permit starts, landscaping works as shown on the endorsed plans must be completed to the satisfaction of the Responsible Authority and then maintained to the satisfaction of the Responsible Authority".

Mr C Wren of counsel instructed by Mr J Lynn of Blake Dawson Waldron Lawyers. He called Mr A Rodda, town planner, and Mr G Harman, CDMA Networks Manager of Telstra Mobile Network Services Vic/Tas, to give evidence.

1 These are two Applications under Section 82 of the Planning and Environment Act 1987 brought by Mr D Williams and others seeking review of a decision made by the Rural City of Benalla ("the Council") to determine to grant permits in permit application nos. P0029/03 and P0092/03. The Notices of Decision were respectively issued by the Council on 16 August and 18 September 2003. The conditions in both Notices are identical. The Applications for Review were respectively lodged on 16 September and 1 October 2003.

2 At the commencement of the Hearing, 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 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 Following the Hearing, a site inspection was undertaken by the Tribunal accompanied by representatives of the parties. Several properties were inspected, including the subject site. Mr Wren suggested that the location of the proposed guyed mast facility could be moved to the south if felt necessary by the Tribunal, as shown in an earlier proposal presented to the Council and shown on the plans prepared by John Holland Pty Ltd, Job No. 1601 (sheets 1-9 of 9) Revision P3.

4 It was agreed with the parties that any comments regarding revision P3 would be filed with the Tribunal and served on other parties by close of business on 25 March 2004. The Council undertook to seek the comments of VicRoads.

5 Subsequently, further written responses were received from Mr Williams (22 March 2004), the Council (25 March 2004) and Blake Dawson Waldron (19 March 2004). The Applicants stated that they maintain their objections to the proposals but would "support a re-appraisal of this proposal" subject to three conditions. Those conditions were that the Council examine the proposal and is "satisfied that it meets the area's criteria", that Vic Roads accept the proposal and that "some measure of screening vegetation is provided on the north side of the proposed facility if the project proceeds at that site". The Respondent, Council and VicRoads consented to the relocation of the facility in accordance with Revision P3. These supplementary comments have been taken into account by the Tribunal in reaching a determination.

6 Both permit applications relate to the same land. Lot 1 Hossacks Road is located immediately to the north of the Hume Freeway, south of the Baddaginnie township. The Lot is some 11 hectares in area and comprises a dwelling and several paddocks that are used for grazing. There is a drainage line/creek that runs through the property and another to the east.

7 Hossacks Road is discontinued adjacent to the review site as a result of Freeway works. Mack Road is a gravel or unmade road that is immediately to the south of the review site.

8 The closest dwelling to the review is site some 240-250 metres from the proposed guyed mast facility which is sought to be located in the north-west corner of the site. This dwelling (referred to as the Havlicek residence) is to the north-west of the review site and is positioned toward the Hossacks Road frontage. The property also comprises grazing land. Another dwelling is to the immediate north of the Havlicek residence. It is on a smaller lot and an adjacent property owned by the Hobson family wraps around it. Both have dwellings sited toward their Hossack Road frontage, with the Hobson property also used for grazing. Each of these three properties have some landscaping associated with private open space to the rear of the residences. There is little centrally located landscaping on the remainder of the Hobson and Havlicek grazing land.

9 There is some landscaping on the site toward a creek to the eastern portion of the subject land and along Mack Road and adjacent to the Hume Freeway.

10 Each of the above properties are to the south of the Baddaginnie township, with the closest residentially zoned land (Low Density Residential) being around 600 metres from the review site. There appears to be more extensive vegetation in other parts of the township and nearby areas.

11 Permit application no. P0029/03 sought approval for the erection of a 70 metre guyed mast telecommunications facility, although the Council subsequently considered a proposal for a 40 metre high concrete monopole following discussions with Council officers. The Notice of Decision was issued for the 40 metre monopole, as shown on the plans prepared by John Holland Pty Ltd, Job No. 1601 (sheets 1-9 of 9) Revision P5. The 40 metre concrete monopole would be sited 40 metres from the northern site boundary and abut the western boundary fence. The compound would measure 10 metres x 6 metres and the pad for the tower would be positioned 165 metres from the Mack Road alignment. The tower would be "mist green" with five omni antennae atop (3 up and 2 down).

12 Permit application no. P0092/03 sought approval for the erection of a 70 metre high guyed mast tower as shown on the plans prepared by John Holland Pty Ltd, Job No. 1601 (sheets 1-9 of 9) Revision P6. The 70 metre guyed mast facility is proposed to be sited to the north-west corner of the subject land. The mast is of a lattice weave with four omni antennae atop (2 up and 2 down). The compound would measure 10 metres x 6 metres with the pad for the tower positioned 23 metres from the northern property boundary and 190 metres from the Mack Road alignment. Several guy wires are required from three anchor points. The anchor points include a position 4 metres from the western site boundary and another abutting the northern boundary. The angled guy wires have a length of 46.5 metres from the anchor point to the base of the pole.

13 The guyed mast tower has a narrower diameter than the concrete monopole, as shown in the plans accompanying the permit applications.

14 Both options involve an equipment shelter at the base of the pole, enclosed by a 3 metre high cyclone wire security fence and gate. In both options a gravel access track is to be provided from Mack Road, east of an existing gate, although the position of the track within the site varies.

15 Revision P3, referred to above, was an earlier siting plan for the guyed mast tower. It proposed locating the tower closer to Mack Road on some slightly higher land and requiring a shorter access track (around 50 metres compared with 215 metres in Revision P6). That would move the tower further from existing residences (other than the dwelling on the review site).

16 The subject site is located in a Rural Zone pursuant to the provisions of Clause 35.01 of the Benalla Planning Scheme ("the Scheme"). 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.

17 The purpose of the provisions at Clause 52.19 is:

s To ensure that telecommunications infrastructure and services are provided in an efficient and cost effective manner to meet community needs.

s To ensure the application of consistent provisions for telecommunications facilities.

s 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.

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

18 Pursuant to Clause 52.19-2, a permit is required to construct or carry out works for a telecommunications facility. It was common ground that the proposed telecommunications tower does not fall within any of the categories of buildings and works for which no permit is required.

19 Decision guidelines are at Clause 52.19-6. They require that before deciding on an application, the Responsible Authority (Tribunal on review) must consider:

s 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.

s 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.

20 Consideration is therefore to be given to A Code of Practice for Telecommunications Facilities in Victoria ("the Code of Practice") which is an incorporated document within the Planning Scheme. The aims of the Code are to:

s Ensure that telecommunications infrastructure and services are provided in an efficient and cost effective manner to meet community needs.

s Ensure the application of consistent provisions for telecommunications facilities.

s Encourage an effective statewide telecommunications network in a manner consistent the economic, environmental and social objectives of planning in Victoria as set out in Section 4 of the Planning and Environment Act 1987.

s Encourage the provision of telecommunications facilities with minimal impact on the amenity of the area.

The following four principles must be applied where relevant to the design, siting, construction and operation of any telecommunications facility which is not exempt under Commonwealth legislation.

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.

23 The general decision guidelines at Clause 65 set out a number of matters to be considered including:

s The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

s The purpose of the zone, overlay or other provision.

s Any matter required to be considered in the zone, overlay or other provision.

24 A policy for "Telecommunications" is set out at Clause 18.13 of the State Planning Policy Framework. The objective of Clause 18.13 is:

To recognise the importance of telecommunications to all aspects of modern life and the essential and beneficial contribution of modern telecommunications facilities to local communities and the State and national economy.

25 The general implementation clause for this policy (Clause 18.13-2) states:

Planning decisions should recognise that telecommunications is an essential utility service and, in particular, should:

s Facilitate the upgrading and maintenance of telecommunications facilities.

s Ensure that modern telecommunications facilities are widely accessible to business, industry and the community.

s Facilitate the orderly growth of telecommunications by recognising that new communications technology needs to meet the continuous and growing demand fro better communications and multi-media facilities in business, domestic, entertainment and community services.

s Reflect the economic contribution of telecommunications through improvements in business and industrial technology, rapid communication, and helping business and industry remain competitive and provide increased employment opportunities.

s 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.

s 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 Facilities in Victoria should be used in the consideration of applications for the use and development of telecommunications facilities and sites.

26 The provisions of Clauses 15, 17, 18.01 and 19.03 are also relevant and have been taken into account by the Tribunal. The local policies at Clause 21 and 22.15 (Hume Freeway environs) are relevant and have been considered by the Tribunal.

27 The permit applications were referred to VicRoads which offered no objection to any of the options under consideration, including Revision P3.

28 I have considered the clearly expressed and well prepared submissions and evidence presented by the parties, including oral submissions and images shown at the Hearing. I also inspected the site and locality in the presence of representatives of the parties and have viewed several other telecommunications facilities referred to in submissions, including two near to Murchison East. In addressing the submissions and evidence having regard to the applicable planning policies and objectives of the Benalla Planning Scheme, I find no need to recite all of the points made by the parties as the comprehensive documents are retained on file.

29 There appears to be no issue between the parties that there is a demand and need to provide and improve telecommunications facilities, the primary issue instead focussing on the visual impacts associated with the proposed site for either a 40 concrete monopole or 70 metre guyed mast. There are a number of other matters also raised by the Applicants, to which I return briefly at the conclusion of these reasons.

30 Although not in issue, it is necessary to be mindful that the provisions of the Scheme (at Clause 18.13 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.

31 Similar conclusions can be reached in the current Applications. Mr Harman's evidence demonstrated that the Respondent has specific criteria in relation to the provision of a telecommunications facility in the Baddaginnie area, focussing on service for users of the Hume Freeway corridor and within and around Baddaginnie. It appears that the Respondent has explored many options and that alternative locations put forward by local residents would not satisfy the service needs or gaps that are sought to be filled. I add that it is not my role to explore alternatives - I must consider the proposals presented and determine whether they would result in an acceptable outcome as required by Clause 65.

32 I accept Mr Harman's evidence that the demand for, and expectations of, telecommunications services continue to grow. I also accept his evidence that a 70 metre guyed mast facility would better meet community needs and demands, including expanded services through the 3G network. Again, this is a factor that is influential when considering the proposal's compatibility with rural land use objectives - the proposal would result in some alienation of agricultural land but that is limited and is acceptable in terms of the ability of the facilities to service broad community needs and to be preferably sited away from more sensitive areas where there are a larger number of residents.

33 I note with interest Mr Harman's indication that three or four 40 metre monopoles would probably be needed to service a similar area as that of the proposed 70 metre structure. That is relevant to the number of structures one might expect as the network is established and concerns about a proliferation of such facilities.

34 As a matter of principle, I consider that the physical form of the taller tower is far superior to the 40 metre concrete monopole. Often greater height is regarded as a negative element, and at face value, that may be fair if comparing like structures. However, the design of the guyed mast facility contrasts significantly with a wider and more solid form of a concrete monopole (with more antennae).

35 In this context, I accept Mr Rodda's evidence that the visual impact of the more transparent lattice style taller tower would be less than the broader diameter and solid form of a concrete tower. The "lighter-weight" structure has a much better ability to be masked by or to integrate with the landscape and sky. That can readily be appreciated when viewing different examples of telecommunications infrastructure such as the lattice style mobile telephone tower at the Murchison East Golf Club referred to in Mr Rodda's evidence and another telecommunication structure I observed adjacent to the Goulburn Valley Highway north of the Murchison turnoff.

36 Also as a matter of principle, it must be accepted that mobile telephone towers are not invisible or required to be invisible. In Hutchinson 3G, Member O'Leary and I said:

...minimising an adverse impact on visual amenity does not mean that a telecommunications pole must be sited so that it can not be seen by most or many people. Visibility can not be equated to adverse visual impact. Although works may be visible and result in change, it should not be presumed that change is negative. It is the extent to which a development is compatible with the particular location and how policies seek to guide change, that are most relevant.

37 This position is consistent with other divisions of the Tribunal, as noted in several cases referred to by Mr Wren, for example, Buchanan v Strathbogie Shire Council [2002] VCAT 1121 (19 September 2002).

38 I next turn to consider the visual impact of the proposed towers from neighbouring properties, the Hume Freeway and the locality generally.

39 I first refer to neighbouring properties. It is relevant that residences closest to the review site have less existing planting to mask or soften the presence of a structure when compared with many properties I observed around Baddaginnie. The Hobson and Havlicek properties would be most affected, being closest to the review site, with the greater impact on the Havlicek property given its proximity and more exposed rear yard. The dwellings have outdoor recreational spaces that would variously be exposed to the structure. Both properties have grazing lands from where the structure would be clearly evident with no intervening screen planting.

40 There is no doubt that either form of the tower would be seen from the rear of these dwellings and primarily from their outdoor recreational areas rather from within the dwellings. The separation distance is a minimum of around 240 metres to the nearest dwelling, based on Revision P6.

41 The extent to which the visibility of the structure could be found to be unreasonable when viewed from paddocks and outdoor recreational areas must be tempered by the rural context and zoning of the land. While many properties are clearly used for rural living, the setting is rural where telecommunications and farm-related infrastructure are not unreasonable additions to an ever-changing rural landscape.

42 In my view, either Revision P5 or P6 would be an acceptable outcome subject to landscaping being provided around the periphery of the facility (north and west boundaries) to provide a softening foreground element. I have already stated that P6 would be a far superior outcome given the higher but more sympathetic tower form.

43 A concern was raised about a loss of views to the Strathbogie Ranges but those views are essentially from paddocks and not a factor that I give significant weight. Again a more transparent slender form would be less obvious than a concrete pole. As also already noted, landscaping on the review site could assist to enhance the foreground experience. That landscaping would need to be appropriately fenced to protect it from stock.

44 The option to reposition the guyed mast to the south based on Revision P3 would reduce the visibility of the structure from the Havlicek dwelling and associated outdoor area and that may be positive from the Applicant's perspective. If that had provided the basis for an agreement between the parties, it may have been an outcome that was worth pursuing, however, in my view it would, however, bring the facility closer to the Highway. I consider this to be a disadvantage when considering the perspective of the Highway corridor and taking into account the policy at Clause 22.15.

45 That brings me to the question of the visual impact of the proposed towers on the Hume Freeway. The local policy at Clause 22.15 seeks to retain a visual barrier to the road in so far as it is policy that buildings be setback from the freeway. The proposed facilities (whether 40 or 70 metre) would be positioned at a bend in the freeway and have existing landscaping that would assist to screen the lower portion of the structure and the associated shelter and fencing. I find the outcome whether based on Revision P5 or P6 to be acceptable. For the same reasons I have set out above, the 70 metre form may be taller but it would be less intrusive to freeway users.

46 For other visitors to the locality, I accept Mr Rodda's evidence that the visual impact of the proposed towers, in either form, is acceptable.

47 Several other matters were raised in submissions and the objections originally lodged with the Council. I summarise my conclusions on these matters as follows:

* The proposed site may have some drainage difficulties and become wet and boggy at certain times of the year. I am, however, satisfied that access can be secured to the facility based on Mr Harman's evidence, predominantly by use of a gravel road. I am not persuaded that such a roadway would have unreasonable off-site impacts. The site shown in Revision P3 would involve a slightly raised section of land and a shorter length of access track that may be advantageous elements of this option. However, I am not persuaded to adopt Revision P3 given that P5 and P6 are acceptable in terms of servicing based on the evidence before me.

* In terms of health impacts, I give weight to the evidence that both proposals can comply easily with the standards set by the Australian government in relation to proposed emission levels (AS/NZS2772.1:1999). It is also noteworthy that, based on Mr Harman's evidence, the emissions associated with the 70 metre facility close to its base would be lower than the 40 metre facility. That may be perceived by some as a further benefit associated with the taller structure.

* The positioning of a new structure in the landscape may well impact on some birds, as other infrastructure can if animals somehow are trapped or injured, but there is no evidence before me to reject either proposal for that reason.

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

48 I am not able to conclude that the 40 metre proposal would be unacceptable having regard to the Scheme's policies and applicable decision guidelines as well as the context of the site, but my strong preference would be for the 70 metre guy mast facility given its numerous advantages as I have set out above. Finding both proposals to be acceptable, I am bound to direct permits issue. It is my understanding from the submissions presented at the Hearing that the permit applicant has pursued the 70 metre facility from the start and I would strongly encourage that option to be adopted assuming the permit applicant proceeds to install a telecommunications facility in accordance with either permit.

49 While Revision P3 may have some advantages, and I would not oppose it in principle, I am not persuaded to require Permit P0092/03 to be varied to provide for this relocation given that the tower is acceptable in the location proposed by revision P6.

50 For the above reasons, I will therefore affirm the Responsible Authority's decisions and direct that both permits issue subject to the conditions set out in the Notices of Decision with some minor variations.