- We will refer to all of these structures on
the site proposed as "the proposed development", except where we
are dealing with its individual components.
- Hutchison wishes to erect the proposed
development to form part of its new service, which we will refer to as the
3G network. The 3G network is a high-speed wire free data network which
presently operates in Australia in and around Perth, Adelaide, Melbourne,
Sydney and Brisbane. Customers of Hutchison can, through the use of mobile
telephone handsets, obtain via the 3G network telephone, text messaging,
video messaging and internet services. The network, put very simply,
comprises a series of transmission hubs and downlink sites placed at
strategic intervals across the area over which the network services are
accessible to customers. The proposed development is a transmission hub.
Transmission hubs receive and transmit radio waves from and to handsets and
each other. The 3G network was launched in Adelaide on 1 July 2003.
- Mr Sahota is an electronics engineer. He is
the principal engineer for a division of Hutchison, and he has been involved
in the design of the 3G network from its inception. Mr Sahota gave evidence
in Hutchison’s case. His evidence was that after the launch of the 3G
network in Adelaide, a number of "trouble spots" were identified.
A trouble spot is an area in which the network is inoperable or unreliable
from the point of view of a customer, because calls cannot be initiated by a
customer in that area, and calls in progress "drop out" upon entry
into that area. The cause of this is insufficient signal strength within the
trouble spot. It was clear from Mr Sahota’s evidence that the purpose of
the tower is to overcome three trouble spots; the first in streets north of
Cross Road in Myrtle Bank, the second in streets east of Waite Road in
Urrbrae and the third in streets south of Claremont Avenue in Netherby.
These three areas were referred to frequently in the evidence as a single
trouble spot. Some witnesses referred only to Urrbrae and Myrtle Bank. If
there is conflict on the point, we prefer Mr Sahota’s evidence and rely on
his description of the purpose of the proposed development. The trouble
spots are illustrated on Attachment B to Mr Sahota’s statement,
Exhibit A1. Mr Sahota gave evidence that Hutchison has recently struck an
agreement with Telstra under which Telstra will use Hutchison’s network
and infrastructure, including the tower.
- Mr Sahota gave evidence that, presently,
Hutchison has an agreement in place with Vodafone which partially addresses
the trouble spots. Under that agreement, when a Hutchison customer initiates
a call within a trouble spot, the Vodafone network carries the call. This
does not prevent a user who has initiated a call outside the trouble spot
losing the call when he or she enters the trouble spot. However, that user
may then redial and connect via the Vodafone network. Video calls and
internet connection are not covered by this agreement.
The Telecommunications Act
and Determination
- An effect of the Telecommunications Code of
Practice 1997 made under Schedule 3 of the Telecommunications Act 1997
(C’wlth) is that the holder of a carrier’s licence under that Act may
install a low impact facility without obtaining development approval if that
carrier complies with specified conditions. The question of what constitutes
a low impact facility must be determined in accordance with the
Telecommunications (Low-Impact Facilities) Determination 1997 ("the
Determination"). There is a schedule to the Determination to which
s.3.1 of the Determination refers, which describes facilities which are low
impact facilities when they are installed in an area of the kind specified
in the schedule. Pursuant to the Telecommunications Act 1997 Schedule
3, Division 3, a carrier, such as Hutchison, has extensive powers to enter
and occupy any land for the purpose of installing a low impact facility.
The Site
- The site for the proposed development forms a
small part of the University of Adelaide Waite Campus ("the Waite
Campus"). The site is east of the made portion of Hartley Grove, which
is a private road which runs east off Waite Road into the land occupied by
the CSIRO. The site is set apart from buildings on the campus, and is fenced
with cyclone wire. The site is presently unused.
The Locality
- The Waite Campus is a large parcel of land
characterised by institutional buildings and open space. To the south and
south-east of the site, for a considerable distance, the land is vegetated
open space. To the north and north-north-east of the site there is open
space leading to the streets of Birksgate. It was demonstrated on the view
that the proposed tower would be visible from Mr and Mrs Stokes’ house,
visible for a distance of 100 – 150m of Birksgate Drive adjacent to the
Waite Campus and for some 50 – 80m around the southernmost bend in
Barr-Smith Drive. Because of the presence of trees and shrubs, combined with
the landform, it is unlikely that the proposed tower will be visible in much
of Urrbrae west of Birksgate. Distant fleeting views will be available from
further away – it was demonstrated that one such view would be available
from a location on Cross Road. The proposed tower will be visible at points
on Waite Road (though not prominently), but not from Claremont Street. We
have relied upon our own observations on the view, when a cherry picker was
in situ at the site of the proposed development and extended to the
approximate height of the proposed tower. We have also relied upon the
observations of Ms Nolan and Mr Smith, both town planners who gave
evidence, and Mr and Mrs Stokes. We have not relied on the statement of Mr
Wohlstadt or the evidence of Mr Keates on this topic. Without the benefit of
seeing the cherry picker on site, both of them formed a view about the
visibility of the proposed tower which was erroneous and misleading.
- For the purpose of this planning assessment,
delineation of the locality of the proposed development is most usefully
arrived at by reference to the visibility of the proposed tower. We find
that the locality extends roughly in an egg shape some 100m to the south of
the site, flaring out to the east to embrace Mr and Mrs Stokes’
property at 83 Birksgate Drive, continuing through Birksgate to incorporate
those areas from which the proposed tower will be partially visible, and
proceeding to the boundary of the Waite campus with Urrbrae before returning
through the Waite Campus. Basically, it is the locality shown on
Mr Smith’s locality plan with extensions to the east, north-east and
northwards along Barr-Smith Drive.
The Development Plan
- The relevant Development Plan for the City of
Mitcham was consolidated on 11 September 2003.
- The site is within the Institutional Zone (see
Map Mit/6). The proposed tower would be viewed from some perspectives west,
north-west and north of the tower against the backdrop of portion of the
Hills Face Zone. From some perspectives in Birksgate, it would be viewed
against either the sky, the view of the city, or the Hills Face Zone.
Birksgate is part of the Residential (East Plains) Zone. The provisions of
both that Zone and the Hills Face Zone have some relevance to the planning
assessment of the tower.
- Each of the parties called a town planner to
give evidence at the hearing. Mr Smith gave evidence in Hutchison’s case,
Mr Wohlstadt in the Council’s case and Ms Nolan in Mr and Mrs Stokes’
case. We have taken into account all of the provisions of the Development
Plan referred to by the planners.
- The Institutional Zone embraces several areas
within the Council area. These are the objectives relevant to the Waite
Institute area:-
"Objective 1 : A
zone accommodating public and private activities primarily of an institutional
and/or open character.
Objective 2: The
Waite Institute area developed for educational and research activities which
have a distinctive open and rural character and in which:
(a) substantial mature
vegetation is retained; and
(b) existing recreation areas
are retained."
- All of the planners who gave evidence held the
view that the Institutional Zone was not inherently inappropriate for the
kind of development applied for. We agree, notwithstanding the fact that the
Development Plan does not expressly contemplate the placement of
telecommunications towers in such a Zone. When the provisions of the various
zones are compared, together with the provisions relating to
telecommunications facilities, the Institutional Zone emerges as one in
which such facilities may be permissible.
- The planning assessment of the proposed
development turns on whether the likely impacts of it are acceptable.
Health
- Mrs Stokes gave evidence of her concern about
the potential for the radio waves received and transmitted by the tower to
have an adverse effect upon people who live near to it. Mrs Stokes has
undertaken considerable research on the internet and by way of discussion
with various people. She freely acknowledged that her research disclosed a
range of scientific opinion in relation to her concerns. The reliability
and, indeed, the authenticity of some of the material available on the
internet is questionable. We did not have the benefit of the evidence of an
expert capable of assessing the available material.
- Several provisions of the Development Plan
relate specifically to telecommunications facilities and are set out below.
Telecommunications facilities to meet the needs of the community are sought
by the Development Plan. There is no direct evidence before us of any health
risks associated with the tower. We can give very little weight to the
evidence put before us. The standards for telecommunications facilities to
safeguard public health are regulated by the Commonwealth Government. The
proper approach for us in a matter such as this where development of the
kind proposed is sought in the Council area, and prescribed standards will
be met, is to assume that no health risks will arise from the development
proposed. This is, however, an assumption. We are not in a position to
decide the matter on the basis of the material before us, nor, on the
evidence of Mrs Stokes, is evidence practically available.
- Mrs Stokes’ evidence also raised the issue
of perceived diminution of amenity. Given our conclusion in relation to
visual amenity, it is not necessary to explore this issue.
Visual Amenity
Approach
- The Development Plan sets out these objectives
and principles for telecommunications facilities in the Council Wide section
of the Mitcham (City) Plan:-
"Objective 28:
Telecommunications facilities provided to meet the needs of the community.
Objective 29:
Telecommunications facilities designed and located to minimise visual impact
on the amenity of the local environment.
Telecommunications facilities
are an essential infrastructure required to meet the rapidly increasing
community demand for communications technologies. To meet this demand there
will be a need for new telecommunications facilities to be constructed.
The Commonwealth
Telecommunications Act 1997 is pre-eminent in relation to telecommunications
facilities. The Telecommunications (Low-impact Facilities) Determination 1997
identifies a range of facilities that are exempt from State planning
legislation. The development of low impact facilities to achieve necessary
coverage is encouraged in all circumstances where possible to minimise visual
impacts on local environments.
Where required, the
construction of new facilities is encouraged in preferred industrial and
commercial and appropriate non-residential zones. Recognising that new
facility development will be unavoidable in more sensitive areas in order to
achieve coverage for users of communications technologies, facility design and
location in such circumstances must ensure visual impacts on the amenity of
local environments are minimised."
Principles 188, 189 and 191
state:
"188
Telecommunications facilities should:
(a) be located and designed to
meet the communication needs of the community;
(b) utilise materials and
finishes that minimise visual impact;
(c) have antennae located as
close as practical to the support structure;
(d) primarily be located in
industrial, commercial, business, office, centre, and rural zones;
(e) incorporate landscaping to
screen the development, in particular equipment shelters and huts; and
(f) be designed and sited to
minimise the visual impact on the character and amenity of the local
environment, in particular visually prominent areas, main focal points or
significant vistas.
189
Where technically feasible, co-location of telecommunications facilities
should primarily occur in industrial, commercial, business, office, centre and
rural zones."
"191
Telecommunications facilities should only be located in residential zones if
sited and designed so as to minimise visual impact by:
(a) utilising screening by
existing buildings and vegetation;
(b) where possible being
incorporated into, and designed to suit the characteristics of an existing
structure that may serve another purpose; and
(c) taking into account
existing size, scale, context and characteristics of existing structures, land
forms and vegetation so as to complement the local environment."
- Objective 29 and Principle 188(f) make it
clear that both the design and location of telecommunications facilities
must minimise the visual impact of such facilities upon the local
environment. The Supreme Court considered the use of the word
"minimise" in the Development Plan in a different context in City
of Burnside & Ors v City Apartments Pty Ltd [2004] SASC 294.
Doyle CJ, with whom Nyland J and Gray J agreed, said at p.9:-
"The provisions in the
Plan that speak of minimising bushfire risk, keeping excavation to a minimum,
or minimising the obtrusiveness of buildings do not call for a different
approach. As Mr Roder demonstrated, such terminology (that is the use of ‘minimise’
and like expressions) is found in many provisions of the Plan. Such language
calls for a planning authority to consider the relevant aspect of the proposed
development (bushfire risk, obtrusiveness, the amount of excavation), the
extent of or the impact of the relevant aspect, and whether the proposal has
been developed in a manner that will contain or reduce the relevant aspect to
an acceptable level, having regard to the relevant Objectives and Principles
of the Plan."
- The impact of the proposed development on the
visual amenity of the locality will be caused by the proposed tower. The
proposed equipment shelter and fence are unobjectionable. We have described
the extent to which the proposed tower will be visible. We must next assess
whether the proposed tower has been designed and sited in a manner that will
contain or reduce its adverse visual impact upon amenity to an acceptable
level. This will involve firstly an assessment of the level of visual
amenity presently enjoyed in the locality and secondly an assessment of the
nature and extent of the impact the proposed tower will have on that level
of visual amenity.
Existing visual amenity
- We have described the locality, which includes
part of the Institutional Zone, the Residential (East Plains) Zone, and the
Hills Face Zone, above. Elements of it are further described in the
Development Plan, and aspirations for various parts of it are expressed.
Council Wide Objective 14 says:-
"Objective 14: The
establishment of safe, attractive and pleasant residential areas comprising
residential development of a scale, form, density and appearance that
maintains or achieves the desired character of specific zones and, where
applicable, policy areas."
- The sole Objective for the Residential (East
Plains) Zone is:-
"Objective 1:
Development comprising detached dwellings on large allotments."
- The text under the Objective is headed
"Desired Character", and states, in part:-
"The area is further
enhanced by its proximity to the open spaces of the Hills Face Zone. The area
is situated at the foot of the eastern escarpment of the Hills Face Zone,
providing an open and natural backdrop. The special qualities of the area
include views to both the city and the hills, an almost rural ambience, and
relatively low traffic movement.
The above factors combine to
create a zone regarded as being of a high standard of amenity, with a
character that is quite unique from the rest of the metropolitan area."
- Pursuant to Principle 4, a
"Telecommunication station" and a "Transmitting station"
are non-complying in the Residential (East Plains) Zone. The omission of a
kind of development from the list of developments which are
"non complying" in a particular zone does not imply that such
a development must be able to be accommodated somewhere within a zone (see City
of Mitcham v Freckman & Ors (1999) 74 SASR 56). The most obvious
consequence of the designation of a kind of development as non-complying is
that an application for such a development must go through a more onerous
system of assessment, involving two planning authorities rather than one.
The reason for subjecting such a development to a more onerous system must
be that the authors of the Development Plan held the view that development
of that kind, on the face of it, would be less likely to be desirable in the
zone than other kinds of development.
- Mr Stokes was involved in the subdivision of
Birksgate in the 1970s. He gave evidence of the measures adopted to ensure
that a high standard of amenity was created and maintained for the suburb.
The undergrounding of services and the careful choice of street lighting
were among those measures. The result was the subject of considerable
evidence, including photographic evidence, and was observable on the view.
That part of the Residential (East Plains) Zone which is included in the
locality of the proposed development is a residential area of high visual
amenity.
- From the provisions in relation to the Hills
Face Zone, the following parts of Objectives 1 and 2 are relevant to an
assessment of visual amenity in the locality:-
"Objective 1: A
zone in which the natural character is preserved and enhanced or in which a
natural character is re-established in order to:
(a) provide a natural backdrop
to the Adelaide plains and a contrast to the urban area;"
"Objective 2: A
zone accommodating low-intensity agricultural activities and public/private
open space and one where structures are located and designed in such a way as
to:
(a) preserve and enhance the
natural character or assist in the re-establishment of a natural character in
the zone;
(b) limit the visual intrusion
of development in the zone, particularly when viewed from roads within the
zone or from the Adelaide plains".
- Principles 8 and 9 support these Objectives
with design requirements. Pursuant to Principle 30, a Transmitting Station
is non-complying in the Hills Face Zone.
- Most of that part of the Hills Face Zone which
is within the locality is open, vegetated land.
- The relevant Objectives for the Institutional
Zone are quoted above. Principle 2 is relevant to the issue of visual
amenity. It provides:-
"Principle 2:
Building development within the zone should be sympathetic to, and clustered
with, existing buildings to preserve the open character of the zone."
- The Waite Campus within the locality is
characterised by large, institutional buildings or clusters of buildings
with open spaces between them and significant landscaping and vegetation.
Portion of the Hills Face Zone forms a backdrop to the Waite Campus. Again,
visual amenity is high.
The Impact of the Proposed
Tower
- The visual impact of the proposed tower upon
the properties in the affected parts of Birksgate Drive and Barr-Smith Drive
will be dramatic and adverse. Views of the Hills Face Zone which will be
affected by the proposed tower are available from a limited number of
vantage points. Those views will also be changed adversely. The proposed
tower, viewed from perspectives in the Residential (East Plains) Zone, and
viewed against the backdrop of the Hills Face Zone, would constitute the
introduction of a type of structure that the provisions of the Development
Plan quoted above speak against, and have largely been successful in
excluding from the locality.
The Need for Telecommunications
Facilities
- Council Wide Objective 28 seeks the provision
of telecommunications facilities to meet community needs. We accept that the
concept of "community need" in this context is more closely allied
to community demand than to any essential requirement. We further accept
that the facilities sought are broad enough to encompass the services
provided by the 3G network, so that the stopgap coverage by the Vodafone
network is not sufficient.
- It is clear from the evidence of Mr Sahota
that the proposed development is by no means the only way, from a technical
point of view, for Hutchison to establish the telecommunications facilities
that it needs to cover the trouble spots in the 3G network. Hutchison has
many options, some of which would not require the erection of a tower, but
would instead involve the establishment of several low impact facilities
under the Determination.
- The proposed tower on the proposed site would
not contain the adverse visual impact upon the locality to an acceptable
level. The proposed development does not comply with Objective 29 and
Principle 188(f). In formulating its strategy for overcoming the trouble
spots in its network, Hutchison has not taken adequate steps to minimize
visual impact on the local environment. The proposed development does not
warrant consent, on this basis.
Claremont House
- Claremont House is a dwelling sited
approximately 70 metres south east of the site on University of Adelaide
land. It was probably built in 1842-1843. The years between then and now
have been eventful, involving several renovations and at least one fire.
What survives today is a basic bluestone two-storey house with a wooden
veranda in an indifferent state of repair. Much of its history is set out in
the booklet entitled "Claremont Glen Osmond" which is Exhibit R5.
It is presently used as a residence.
- The tower will be visible from the front rooms
of the house, its balcony and its front yard. Its presence will have a
considerable, adverse impact upon the visual amenity of Claremont House. Mr
Wohlstadt was particularly concerned about this impact in the context of the
historic character of Claremont House. The house is not presently listed as
a State Heritage place under the Heritage Act 1993 or as a Local
Heritage Item under the Development Act 1993. Mr Manos argued
that we should take into account a draft Plan Amendment Report which, if it
were to come into operation in its present form, would designate Claremont
House as a Local Heritage Item. We reject this submission. The Development
Act clearly states in s.53(2) that the appropriate Development Plan is
the one in force at the date of the application. Plan Amendment Reports are
subject to review and amendment until they come into operation and should
not be considered in a planning assessment.
- The Development Plan relevant to this
development application provides:-
"134 Development
should not impair the character or nature of:
(a) localities, spaces,
buildings or structures;
(b) items or sites of
architectural, historical or scientific interest; and
(c) localities, spaces and
sites of natural beauty."
"139 Additions or
alterations to, or development in the vicinity of any building, structure or
site of heritage significance, should be compatible with the set-back, scale,
height, massing, roof-form, fenestration, features, construction materials,
finishes and colours of such buildings, structures or sites, and with the
desired character of the zone in which they are situated"
- Neither principle confines itself to State
Heritage places or Local Heritage Items. The principles have application to
the assessment of this proposal in relation to Claremont House.
- The proposed development is not consistent
with Principle 134(b). Principle 139 cannot be directly applied because of
the nature of the tower, but it is clearly not the kind of development
encouraged in the vicinity of a building such as Claremont House.
- We bear in mind that Claremont House is a
non-conforming land use within the Institutional Zone. It does not enjoy the
protection of a State or Local Heritage listing. Balancing all of these
considerations, the impact of the proposed development on Claremont House
alone would not be sufficient to bring about the refusal of the application.
It is, however, a factor against the proposed development to be weighed in
the planning assessment.
Summary and Conclusion
- The proposed tower would have a significant
adverse impact upon the visual amenity of that part of the Residential (East
Plains) Zone, the Hills Face Zone and the Institutional Zone within its
locality. The visual amenity of the areas which would be affected is
presently high, and the adverse effect is unacceptable, having regard to the
relevant provisions of the Development Plan.
- The proposed development would also have an
adverse effect upon the amenity of Claremont House, contrary to the
Development Plan.
- We do not have sufficient evidence to make any
findings in respect of whether towers of the kind proposed pose a health
risk. In these circumstances, reliance must be placed on regulation other
than planning regulation. The issue of potential health risks has played no
part in our assessment of the proposed development.
- Issues regarding the proper interpretation of
the Determination, and the potential for the proposed tower to be extended
after being established were argued. In view of our planning assessment of
the proposed development, it is unnecessary to decide those issues.
- The decision of the Council is confirmed. The
appeal is refused.
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