The case dealt with the Yarra Ranges Shire Council’s (hereafter “Council”) refusal to permit the construction of a telecommunications facility and tower in its municipality. This was contrary to the recommendations of its planning officers. The key issue in the case was the visual impact of the facility.

The Council argued that, due to the surrounding topography and vegetation, the proposed facility would be visually intrusive and detrimental to the landscape, both near and far. The Council’s decision rested on Clause 21.07 of its Planning Scheme. This establishes that all planning decisions must aim

[t]o retain and protect the scenic landscapes, rural and green wedge character and special environmental features of the Shire.

In support of their decision, the Council referred to several Victorian Civil and Administrative Tribunal (VCAT) cases.¹⁾

In response, Telstra argued that mere visibility does not equate to a structure being visually obtrusive. Any detrimental impacts would be mitigated by the distance and the surrounding topography and vegetation. Evidence was submitted highlighting the need for the facility due to the lack of telecommunications coverage in the region, and that no other sites were feasible. Telstra also referred to several VCAT decisions in support of their application.²⁾

There were several policies and clauses that were relevant to the case. State Planning Policy, Clause 18.13, requires all planning decisions to recognise that telecommunications, and their facilities, are an essential utility, and that decisions should facilitate their orderly growth. According to Clause 52.19, decisions involving telecommunications facilities must aim to

…encourage an effective statewide telecommunications network.” Yet this must be achieved “…with minimal impact on the amenity of the area.

The Tribunal acknowledged that the facility and tower would be highly visible, in both the immediate and broader context; something which would be accentuated by the lack of surrounding vegetation. It acknowledged, in line with Hutchison 3G Australia Pty Ltd v Casey CC [2002] VCAT 247, that mere visibility of a telecommunications tower does not equate to detrimental visual impact. Moreover, it was also accepted, as in Telstra Corporation Ltd v Mildura RCC [2009] VCAT 1928, that for a telecommunications tower to be effective, it must be physically higher than the surrounding or nearby buildings, vegetation or topographical features. These, however, were not the sole factors to be considered. As observed:

The fact that a facility has to be visible in order to be effective, and that the relevant planning provisions do not require the facility to be concealed from public view, does not mean that the context of the location is not relevant.

Of particular concern was the hilltop location of the review site. According to Clause 21.07 of the Yarra Ranges Planning Scheme, all development should “[a]void prominent ridgelines, hill tops and other visually exposed sites.”

After balancing both parties’ arguments and the conflicting policy considerations, the Tribunal concluded that “…the location and appearance of the proposed tower is not acceptable”, particularly in the context of the review site. In short, “…the facility will be too visually prominent” to be accepted. Hence, the Council’s decision to refuse a permit was upheld.

• The full decision is available on Austlii