The judicial reception to telephone tower challenges – not having a bar of it

Two recent cases in Western Australia have illustrated the challenges experienced in relation to the erection of telephone towers.  These challenges are experienced equally by the proponent telecommunications companies, the decision-making authorities and aggrieved third-parties.  In both of these cases, despite concerns about the impact on visual amenity, the right to have the proposed telephone tower erected was ultimately upheld.

Supreme Court decision

In the case of Prosser Management Pty Ltd v City of Bunbury [2013] WASC 319 an aggrieved third-party sought to challenge a grant of planning approval with respect to a proposed telephone tower, on the basis that he had been denied natural justice.  The aggrieved third-party alleged that he should have been granted an opportunity to respond to the content of reports prepared by the proponent telecommunications company and by the local government planners.

Master Sanderson of the Supreme Court held that in this case, the content of natural justice had to be determined in the context of the rights afforded by the Planning and Development Act 2005 (WA) and the relevant local planning scheme.  Within these bodies of legislation, the only right afforded to an aggrieved third-party was clause 5.11.2 of the City of Bunbury Town Planning Scheme No 7, which provided that the City of Bunbury may resolve to seek public comment prior to considering an application for planning approval.

The application to challenge the grant of planning approval on the basis of denial of natural justice accordingly failed.

State Administrative Tribunal decision

In the case of Telstra Corporation Limited and City of Mandurah [2013] WASAT 135, planning approval in relation to a proposed telephone tower was originally refused by the City of Mandurah on the basis that it would significantly impact upon visual amenity of the surrounding neighbourhood.  The applicant telecommunications company sought a review of that refusal in the State Administrative Tribunal.

The Tribunal stated that the approach to be taken in assessing the merits of a proposed telephone tower is to analyse the balance of adverse impacts on visual amenity with the increased reliability of the telecommunications services.

The proposed telephone tower in this case was situated on land zoned for a non-residential purpose, but was adjacent to land earmarked for future residential development.  The Tribunal concluded that given the existing surrounds, which included vegetation, a school oval and the rear of a retirement village, the proposed telephone tower would not have had such an adverse visual impact so as to warrant refusal.  The Tribunal therefore decided to grant approval with respect to the telephone tower.

Lavan Legal comment

Erecting a telephone tower will invariably require an intensification of land use and the application of planning law is of fundamental relevance in that regard.  As the telecommunication companies of Australia seek to modernise and expand their infrastructure networks to meet growing consumer needs, it is likely that we will see more of these matters in the Supreme Court and State Administrative Tribunal.