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Australia – Telstra’s Quest For Quality Of Service In Rural Areas.

18 September, 2013

Telstra Corporation Limited v Indigo SC [2013] VCAT 659 (1 May 2013)


WHAT YOU NEED TO KNOW


The Tribunal recognised that:

 

  • telecommunications providers are in the best position to understand how networks operate across a region and where there is a need for additional infrastructure, and.
  • persons in rural areas have a right to have a quality of service equal to that of regional centres, when available.


On 1 May 2013, the Victorian Civil and Administrative Tribunal (Tribunal) set aside the decision of the Responsible Authority, Indigo Shire Council (Council) to refuse a permit to Telstra Corporation Limited (Telstra) for the development of a telecommunications tower in Victoria. Prior to the hearing, in private negotiations, the Council consented to an amended form of the proposal. The Respondents in this action are represented by Michael Bell, on behalf of other concerned parties. The Tribunal ultimately allowed the permit to be issued, subject to a number of conditions.


The Tribunal considered a number of policies under the Code of Practice for Telecommunications Facilities in Victoria (Code) as well as balancing the public interest of local residents and environmental concerns.


Telstra submitted that the proposed telecommunications tower is needed in the particular rural area as there is patchy coverage due to terrain obstructions and the distance between existing base stations. Telstra noted that if the permit was approved, expected enhancements would include improved depth of coverage, faster wireless speeds, more consistent signals, fewer drop outs, superior emergency notifications and the ability to use the full range of mobile services reliably.


The Respondents submitted evidence that the position was already improved from the erection of a telecommunications tower post the Black Saturday Bushfires and that there was no need for the additional tower. While the Code does not require “need” as a factor, it does recognise the importance of modern communication and the need to provide
infrastructure to allow service to be made available to all sections of the community. That being said, it is relevant that the policy underlying the Code gives encouragement to these types of facilities. The Tribunal found that service providers are the best placed to understand how the network operates across a region, where gaps exist, where service quality is poor, and what complaints are being received from users or prospective users. In doing so, they also considered the public interest, in that, the level of service in both regional and rural locations should not vary significantly and where possible, be commensurate.


The proposal was initially refused by the Council on grounds that Telstra had not satisfactorily ascertained whether there was an available co-location. While the Council now supports the amended proposal (which involved painting the structure a neutral colour and moving the site 50 metres), the Respondents brought this question to the Tribunal. The Tribunal was satisfied that co-location options had been explored and found unsuitable.


The Respondents also made submissions that the presence of the proposed tower would be an unacceptable visual intrusion to the surrounding landscape and natural features of the area (particularly the panoramic view between Baranduda and Murramurrangbong ranges), as well as be highly visible and unreasonably dominant.


The Tribunal assessed the location of the base tower and State policies regarding environmental protection, and, while agreeing that the landscape character and quality are part of the site’s context, the Tribunal rejected argument that the telecommunications tower would obstruct or influence the heritage areas which were a substantial distance away. While visually the telecommunications tower would be obvious (being approximately 37 metres above ground level), the Tribunal did not find it to be unacceptable.


The Tribunal noted that while a viewer with particular sensitivity to the structure may find the presence of the tower unattractive or intrusive, overall it would not be unreasonably dominant. In order to minimise any issues, the Tribunal ordered that the facility be “finished” in a pale eucalypt colour to minimise the visual impact of the structure.


The Tribunal, as urged by the Respondents, also considered the alleged health impact of the telecommunications tower and the associated electromagnetic radiation. The Tribunal noted these concerns and noted as a condition to the permit, that the facility must be designed and installed so that the maximum human exposure levels to radio frequency emissions comply with Australian Standard AS/NZS 2772.1:1999.


The Tribunal ordered that the Council’s decision be set aside, and that Telstra be issued with a permit subject to various conditions. In addition to those noted above, there must be a vegetation screen of 20 metre depth radiating from the perimeter, a landscape plan approved by the Council, and upon cessation of the facility, the structures must be removed from the site and the land rehabilitated to the standard of the land prior to occupancy.

 

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For further information, please contact:

 

Khai Dang, Partner, Ashurst
khai.dang@ashurst.com


Jessica Norgard, Ashurst
 jessica.norgard@ashurst.com

 

Ashurst TMT Practice Profile in Australia

 

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