McClelland v Golden Plains SC [2013] VCAT 59 (22 January 2013)

Last Updated: 5 February 2013

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

PLANNING AND ENVIRONMENT LIST VCAT REFERENCE NO. P1268/2012 PERMIT APPLICATION NO. P11-334

CATCHWORDS





APPLICANT Wendy McClelland RESPONSIBLE AUTHORITY Golden Plains Shire Council RESPONDENT NBN Co Ltd, Quimby Masters SUBJECT LAND CA A4D Parish of Dereel



Colac - Ballarat Road



DEREEL VIC 3352 WHERE HELD 55 King Street, Melbourne BEFORE Helen Gibson, Deputy President HEARING TYPE Practice Day Hearing DATE OF HEARING 11 January 2013 DATE OF ORDER 22 January 2013 CITATION McClelland v Golden Plains SC [2013] VCAT 59

ORDER

This application is listed for hearing in Ballarat on Wednesday 24 April 2013 at 10.00am for 3 hours. At the hearing, the applicants/objectors may only rely upon relevant planning matters and not those grounds ruled to be not relevant.























Helen Gibson



Deputy President



















APPEARANCES:



For Wendy McClelland Ms W McClelland, by telephone For Golden Plains Shire Council Ms Amy Boyd, town planner For NBN Co Ltd For Quimby Masters Mr Jeff Lynn, solicitor, Ashurst Australia No appearance

REASONS

This proceedings is an application under section 82 of the Planning and Environment Act 1987 against a decision by the responsible authority to grant a permit for a Telecommunication Tower (NBN Wireless). The towers will be part of the National Broadband Network (NBN), which is being implemented by the Federal Government. The purposes of the Practice Day Hearing were : To consider the future conduct of the proceeding. This may include a consideration of dates, duration; mediation and/or venue.

To consider the validity of certain statements of grounds. A number of the statements of grounds raised by the objector seek to raise and rely upon the following issues: Potential health risks from electro-magnetic radiation and the like;

Lack of consultation with the community;

Alternative locations for the towers;

Opposition to details of the NBN programme and a preference for alternative technologies;

Loss of property values;

Contrary to the Charter of Human Rights. These are not planning grounds that may be relied upon at the hearing. There have been a number of previous Tribunal decisions concerning telecommunications facilities, which have reached this conclusion with respect to similar statements of grounds. The leading case is Hyett v Shire of Corangamite[1]. This case considered a mobile telephone base station and was determined by a Tribunal comprising the President, Justice Kellam and Member Marsden.

Health risk

With respect to health hazards of electro-magnetic radiation from mobile phone tower installations, the Tribunal held that whilst the objectors beliefs were sincerely held, the Tribunal is obliged to apply the relevant regulatory standards as it finds them, not to pioneer standards of its own. The creation of new standards is a matter for other authorities.[2] This principle has been followed in numerous other decisions wherein the Tribunal has found that a telecommunications facility is obliged to meet the relevant standards that apply but it is not a basis to reject an application for reasons relating to potential health impacts if the relevant standards are met.[3] In the present case, the towers will be required to meet relevant Australian Standards with respect to electro-magnetic radiation. I therefore rule that potential health risks are not relevant planning grounds that may be relied upon by the objector at the hearing.

Alternative Sites

Arguments about whether there is a preferable alternative site are not relevant to the matters that the Tribunal must decide. As the Tribunal said in Hyett:

The basic question which falls for decision is whether this particular site is suitable for the proposed facility. The Tribunal is not required to determine whether other sites may offer a preferable alternative. Indeed such an inquiry would call for a much greater level of additional information which is simply not before the Tribunal.[4]

I therefore rule that arguments about whether there are better alternative sites are not relevant.

Lack of Consultation

Arguments that there has been inadequate consultation with communities about the proposed telecommunications towers are not relevant either. A hearing before the Tribunal is a hearing de novo. The Tribunal stands in the shoes of the responsible authority and the matter is decided afresh. How the responsible authority may have handled the processing of the permit applications and the communications by the permit applicant with the community will not be matters that the Tribunal will take into consideration.

Opposition to NBN and preference for alternative technologies

Arguments that oppose aspects of the NBN and consider that existing or alternative technologies are preferable are not relevant. Implementation of the NBN is a decision of the Federal Government over which the Tribunal has no control. The Tribunal’s sole consideration is whether it is appropriate, in planning terms, to locate the proposed telecommunications tower on the specific piece of land to which the application applies.

Loss of property values

It has long been held that loss of property values is not a relevant planning consideration.

What are relevant planning considerations?

There are a range of other grounds raised, which are relevant planning considerations. They include : Visual impact

Noise

Amenity

Access

Compliance with State and Local planning policy The objector should focus on these type of issues at the hearing. At the Practice Day Hearing I distributed to those parties present copies of three cases[5], which reflect my rulings about matters which are and are not relevant. They might be useful for parties to consider when preparing for the hearing. A copy will be sent to any parties who appeared by telephone, rather than in person.

Hearing

The hearing will be at Ballarat when a number of similar cases concerning telecommunications towers associated with the NBN will be heard by the same Tribunal member. Parties will make their presentations in the order of responsible authority, objector, and permit applicant, followed by a brief right-of-reply and without prejudice discussion of conditions. Ms McClelland has requested ten (10) hours for the presentation for her hearing. This is unreasonable especially as much of the material she has submitted to the Tribunal and indicates that she will be relying upon is irrelevant. The Tribunal’s role is not to enquire into the subject of sickness from high radiation exposure or to consider the basis of Ms McClelland’s disabilities. As outlined above, this proceeding is a planning matter and the Tribunal will be confined in its determination to planning-related issues. The Tribunal must allow a party a reasonable opportunity to make submissions to the Tribunal - section 102(1)(c) of the Victorian Civil and Administrative Tribunal Act 1998. What this provision confers on each party is an entitlement to a reasonable opportunity to make submissions. It does not confer an absolute right to make submissions. Nor does it confer an entitlement to an endless opportunity to do so. I therefore propose to list this matter for a half day, which should be adequate to hear this proceeding having regard to the issues involved.















Helen Gibson



Deputy President



























[1] [1999] VCAT 794



[2] [1999] VCAT 794 at page 7



[3] For example, see Telstra Ltd v Mornington Peninsula Shire Council [2005] VCAT 863; Hutchison 3G Australia Pty Ltd v Hobsons Bay City Council [2005] VCAT 1470; Optus Mobile Ltd v Whittlesea City Council [2003] VCAT 968; Telstra Corporation Ltd v Casey City Council [2005] VCAT 2348.



[4] Hyett v Corangamite Shire Council [1999] VCAT 794 at page 5



[5] Hyett v Corangamite Shire Council [1999] VCAT 794; Telstra Corporation Ltd v Casey City Council [2005] VCAT 2348; and Hutchison 3G Australia Pty Ltd v Hobsons Bay City Council [2005] VCAT 1470.