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Telstra Corporation Ltd v City of Charles Sturt [2006] SAERDC 1 (6 January 2006)

Last Updated: 10 January 2006

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

TELSTRA CORPORATION LTD v CITY OF CHARLES STURT

Judgment of Commissioner Mosel

6 January 2006

LOCAL GOVERNMENT - TOWN PLANNING

Development application for a telecommunications facility - Industry Zone - adjacent the Residential Historic (Conservation) Zone - consent refused by the Council - no issue between the parties on the question of the need for the proposed development - planning issues centre on whether the carrier had taken all reasonable steps to secure a location which minimises visual impact and whether the proposed development is acceptable, in visual terms, in the desired location - the difficulties and complexities of site selection considered - the development as initially proposed considered to be unsuitable because of its visual impact - preliminary view formed to the effect that an alternative (and lower) proposal strikes appropriate balance - procedural fairness - further evidence and submissions - appeal upheld - provisional development plan consent granted in respect of amended proposal - conditions applied.
Development Act 1993; Development Regulations 1993; Commonwealth Telecommunications Act 1997; Telecommunications (Low-impact Facilities) Determination 1997, referred to.
Dowl Pty Ltd v Corporation of the City of Kensington and Norwood [1996] EDLR 141; Russell Ads Pty Ltd v City of Charles Sturt OE251 [1997] SAERDC 251; Hutchison 3G Pty Ltd v City of Mitcham & Ors [2005] SASC 249; City of Burnside & Ors v City Apartments Pty Ltd [2004] SASC 291; TE & JE Crannage & Margaret Rutter v City of Holdfast Bay [2001] SAERDC 51, considered.

TELSTRA CORPORATION LTD v CITY OF CHARLES STURT
[2006] SAERDC 1

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1 This appeal relates to land situated at 18 Mais Street, Brompton ("the land"). It arises from a decision of the City of Charles ("the Council") to refuse Provisional Development Plan Consent to an application submitted by an agent for Telstra Corporation Ltd ("Telstra") to establish on the land a telecommunications facility. This facility (which for convenience I will call "the proposed development") comprises the following:
• a new 30 metre high slimline monopole;
• a new "tuft" antenna arrangement installed at the top of the pole;
• a new equipment shelter (3.28mL x 2.28mW x 3.0mH) to be installed at the base of the pole, behind the existing Colourbond fence;
• a new overhead cable tray between the pole and the equipment shelter;
• a new GPS antenna installed on the cable tray;
• new security fencing around the proposed facility (enclosing an area and facilities herein after called the "base station"); and
• underground fibre optic and electricity cabling to existing services.
2 The application was submitted to the Council in August 2004. It was processed as a Category 3 development. Many representations, in the nature of objections, were received. The decision to refuse consent was conveyed to Telstra on 27 April 2005.
3 Mr Henry and Mr Byrt appeared for Telstra and the Council respectively. Called to give evidence in the proceedings were the following:

Mr D Hutchison (Planner: statement of evidence in Exhibit A6)
Mr A Wyatt (Landscape Architent: statement of evidence in Exhibit A5)

Mr A Edwards (Electronics Engineer: statement of evidence in Exhibits A3 and A7)
Mr M Baade (Planner and advisor to Telstra: statement of evidence in Exhibits A4 and A8)
Ms A Radford (Landscape Architect Conservation: statement of evidence in Exhibit A13)
Mr M Sorell (Electronics Engineer: statement of evidence in Exhibits R4 and R5)
Ms J Nolan (Planner: statement of evidence in Exhibit R7)
Ms E Vines (Architect Heritage: statement of evidence in Exhibit R6)
Ms M Ingley-Smith (Financial Officer)
Ms R King (Resident: Unit1/23 Fifth Street, Brompton)
Mr G Tagliaferri (Resident: 55 Green Street, Brompton)

The Development Proposed

4 The essential features of the proposed development are depicted on the attached plan. The plan is derived from Exhibit A1. Mr Henry submitted that, for reasons of better signal reception, the development proposed in Exhibit A1 was preferred by Telstra. However, at the outset, Mr Henry indicated that if the visual impact of the proposed development becomes a concern to the Court, Telstra would be prepared to amend the proposed development in accordance with Exhibit A12. The effect of such an amendment would be confined to lowering the overall height of the monopole (including the tuft antenna) from 33.4 metres to 28.22 metres.

The Land

5 The land is situated on the north western side of Mais Street. It has an area of about 1500 square metres, a frontage of about 34.3 metres and a depth of about 43.9 metres. Mais Street connects to Torrens Road about 100 metres from the land in a north easterly direction.
6 On the land is an industrial building (about 550 square metres in area) situated in its south western corner. The unbuilt upon portion is used for storage, car parking and manoeuvring. A two metre high galvanised iron fence is situated on the Mais Street boundary. According to the statement of Ms Nolan, the building is used for the assembly and packaging of cardboard boxes.

The Planning Context

Locality

7 The land is situated in the Industry Zone ("the Zone") and the Interface Policy Area 57 ("the Policy Area"). It is depicted on Maps ChSt/17 and 39 of the Development Plan for the City of Charles Sturt dated 19 March 2004 ("the Plan").
8 The Zone does not cover a large area. It is more in the nature of an "island" surrounded by the Residential Zone (north and south), Local Commercial Zone (north east) and Residential Historic (Conservation) Zone ("RHC Zone") to the southwest. Although not regular in shape, the Zone is about 200 metres long (north-south) and about 100 metres wide (east-west).
9 At its closest point, the monopole component of the proposed development is about 28 metres from the RHC Zone (to its south west).
10 Ms Nolan and Mr Hutchison both defined a locality for the purposes of these proceedings. To all intents and purposes they cover the same area, which area embraces the whole of the Zone and parts of the other zones mentioned above. In my view, it is an appropriate locality. It was arrived at by Mr Hutchison after considering the visibility of the proposed monopole from various points in the vicinity of the land. The following extracts from Ms Nolan’s statement are a convenient way of providing an overview of the aspects of the locality that have a bearing on the assessment of the proposed development:

... development within the Industry zone along Mais Street comprises industrial activities including new warehouse type units opposite the land (under construction and near completion) with buildings generally single and two storey in nature and, in the main, relatively aged and ‘older style’ in construction (including besser-block) and site presentation.
... Beyond the Industry zone, to the near west of the subject land and abutting it to the north are located residential allotments supporting a range of dwelling forms. To the west, and fronting Fifth Street, are a row of two storey attached row dwellings of 1970/80 construction. To the north, are located single storey dwellings (including turn of the century single storey row dwellings and detached dwellings of both modern and older design). A cluster of trees (on an adjoining property) backdrop portion of the subject land. A number of Contributory Places (and a State Heritage Place) are located on Coglin Street.
... The locality surrounding the development site varies markedly in character, use, amenity and appeal in accordance with the zoning pattern which, in the main, overlays existing long standing uses. The immediate locality of Mais Street proper is firmly industrial in nature, with an absence of landscaping and built form of older style materials in need of upkeep and repair (the notable exception being the modern development under construction opposite). The amenity of the Mais Street area is relatively low...

11 Ms Nolan also makes the following observations:

... The broader locality exhibits a residential character of differing levels of amenity drawn from the form and nature of varying housing styles (including an extensive number of listed heritage places) and streetscapes...
... The locality as a whole appears as one in transition from its original older style ‘working class’ origins reflected in a mix of dwellings including those of poorer visual appeal and adhoc building work to traditional stone cottages and newer dwellings still of modest design and presentation...
... The locality features few singularly dominant elements ...

12 On my reading of Mr Hutchison’s statement of evidence, he appears not to be at odds with the views of Ms Nolan expressed above.
13 From my observations of the locality, the existing overhead electricity infrastructure within the public thoroughfares is visually prominent and has an adverse influence on the amenity of the locality.
14 Also for consideration in the locality are the following factors:
• The dwellings nearest the proposed development have their principal frontages oriented away from the land. Many of those dwellings are designated in as Contributory Places in Principle 4 for the Policy Area 7 of the RHC Zone.
• A Child Care facility is situated in Wattle Street about 180 metres south east of the land.
• The State Heritage Place at 146 Coglin Street, according to Ms Radford, derives its heritage value from the history of its use as a philanthropic project and not from its architecture or building form.

The assessment of the proposed development was greatly assisted by the projecting arm of a cherry picker being elevated to the height of the proposed monopole depicted in Exhibit A1. The projecting arm also assisted visualising the height of the monopoles depicted in Exhibits A2 and A12.

Industry Zone

15 The Zone is not a consolidated geographic area. There are several areas within the area of the Council – some large, some small – that are the subject of the provisions for the Zone.
16 There are no provisions within the Zone that make specific mention of the proposed development which, correctly characterised, is a "telecommunications facility". The introductory statement to the Zone provisions says, inter alia:

The Zone protects residential areas by requiring planning approval for all activities in the zone with particular emphasis on performance in those areas close to housing and other sensitive areas

17 For the purpose of the assessment of the proposed development the following Objectives are relevant:

Objective 1: A wide range of industrial, business, commercial, warehouse and storage activities together with transport distribution services, including industries and activities dependent on a rail and a port side location, which collectively foster employment within the region and which have appropriate regard for the amenity, safety and environmental quality of the area.
Objective 2: A secure environment where industry, business and commercial activities can be located and developed in an orderly and proper manner and which will not adversely affect the amenity of urban and non urban areas.
...
Objective 4: Areas for differing industrial, business, home industry and commercial activities appropriate to their location and various industry needs.
...
Objective 6: A high standard of development which promotes good neighbourly design, with high visual and environmental amenity to improve the character and image of the locality and the region.
Objective 7: The provision of a high standard of landscaping as a means of improving the amenity of the area and contributing towards the reduction of impacts from solar radiation, glare, wind and building bulk.
Objective 8: Activities suitably accommodated so that they are located and developed to establish and maintain a high amenity at residential and other sensitive zone interfaces.
...
Objective 10: The provision of a buffer separation distance for industrial, business and commercial activities so that they will not adversely affect the amenity of surrounding areas.

18 Principles 8(a)(b) and (c) and 17 are also relevant. They are expressed in the following terms:

8 Development abutting or immediately opposite a boundary of the Industry Zone with another Zone should:

(a) be designed and sited to enhance the amenity of the adjacent zone;

(b) provide a buffer in the form of landscaping, attractive fencing, built form or other similar means between any car parking, service area, outdoor storage area or any other unattractive area and the adjacent zone;
(c) provide an acoustic buffer between any excessive noise generating part of the development and the adjacent zone to satisfy noise Principle 49;
...
17 Development should establish a high standard of design and external appearance, with consideration given to building scale, bulk, articulation, siting and materials, in order to enhance the character and amenity of the locality, in accordance with the relevant Policy Area.

19 The foregoing provisions for the Zone are the most relevant in these proceedings. However, there are several others that were identified by Mr Hutchison, Ms Nolan and Ms Vines. I have considered them all.

Interface Policy Area 57

20 The boundaries of the Policy Area and the whole of the Zone within the locality coincide. The following passages from the Desired Future Character are for consideration:

The area should accommodate a wide range of industrial and service activities which protect the amenity and safety of adjoining residential areas. The area should accommodate activities that d not create any appreciable nuisance, that have minimal off-site impacts, such as noise, air, water an waste emissions, traffic generation and movement and which do not have a detrimental impact on the amenity of properties in residential or similar environmentally sensitive zones. Appropriate activities include service, light manufacturing, warehousing and distribution and commercial premises...
This area should develop as a high quality industrial and warehousing area with good quality built form and landscaping. Development should achieve a high standard of appearance and design and, where sought, should incorporate extensive landscaping to enhance visual amenity ... Larger scale structures are appropriate within the centre of areas. The area should be enhanced through the incorporation of landscaping, particularly along residential interfaces.

21 There are several principles for the Policy Area which go to the nub of one, if not the key, planning issue in these proceedings – the visual impact of the proposed development. They are expressed in Principles 12, 13,14 and 15(a):

12 Development located adjacent to residential or similar environmentally sensitive zones should incorporate design features which minimise off site impacts.
13 Development on adjacent land to a residential or similarly environmentally sensitive zone should not exceed 8 metres height except in the following locations: (the land is not adjacent to any of the exceptions)
...
14 Development should not exceed 12 metres in height unless setback suitable distances from site boundaries in landscaped grounds.
15 Development in the following locations should reflect the scale of current activities and should not exceed 8 metres in height:
(a) Brompton (north of Hawker Street); and
...

Provisions for Telecommunications Facilities

22 Council Wide Objectives 103 and 104 and Principles 315 to 319 inclusive are provisions common to all development plans for council areas within the metropolitan Adelaide. These Objectives and the text that follow them are expressed in the following terms:

Objective 103: Telecommunications facilities provided to meet the needs of the community.
Objective 104: Telecommunications facilities located and designed 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.

23 Principles 315, 316 and 319 are the most relevant and are expressed thus:

315 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.
316 Where technically feasible, co-location of telecommunications facilities should primarily occur in industrial, commercial, business, office, centre and rural zones.
...
319 Telecommunications facilities should not detrimentally affect the character or amenity of Historic Conservation Zones or Policy Areas, Local Heritage Places, State Heritage Places, or State Heritage Areas.

Provisions for Historic Conservation

24 The land is adjacent to and immediately abuts allotments within the RHC Zone. It is a well established principle that where the land the subject of development is at the interface of two zones, a planning authority and this Court is to have regard to the policies in each zone, see for example Dowl Pty Ltd v Corporation of the City of Kensington and Norwood [1996] EDLR 141. However, as I read that decision and the decision in Russell Ads Pty Ltd v City of Charles Sturt No. OE251 [1997] SAERDC 251 the provisions for the zone in which the subject development is to take place, unless they speak to the contrary, should be given more weight than those applicable in the adjoining zone.
25 That said, the weight to be attached to the policies in the RHC Zones might be enhanced in light of the provisions of Principle 8 above.
26 The provisions for the RHC Zone that are relevant in this assessment are expressed in Objectives 1 and 2 and Principles 4, 5, 6 and 7. In particular Principles 4 and 5 are expressed thus:

4 Development should be compatible with the existing character of the locality, as identified in the existing character statement for each Policy Area, in terms of setbacks, bulk and scale, roof form and pitch, architectural style, materials and finishes, landscaping, fences and walls, and any other issue deemed to be relevant to the preservation of the character of the area.
5 Development should conserve and enhance the existing historic character of the locality by exhibiting setbacks, bulk and scale, roof form and pitch, architectural style, materials, finishes and landscaping which complements historic buildings, without attempting to reproduce or mimic their detailing.

27 The relevant part of the Existing Character Statement is expressed in the following terms:

The existing significant buildings are primarily small, single-storey, detached and attached, single and double fronted workers’ cottages dating from the 1850’s-1900 period. They are characterised by red brick and bluestone walls, gable and hipped corrugated iron roofs and small setbacks from the street. The predominant urban character remains that of the Victorian era, with an intimate and small-scale character which has considerable charm and interest.

Approach to the Assessment

28 The way in which a telecommunications facility is to be assessed was touched upon by the Full Court of the Supreme Court in the matter of Hutchison 3G Pty Ltd v City of Mitcham & Ors [2005] SASC 249. When addressing the question of whether it is appropriate to consider the availability of alternative sites, particular findings in the decision in the matter of City of Burnside & Ors v City Apartments Pty Ltd [2004] SASC 294 were cited. Besanko J (with whom Anderson J and Layton J agreed) said of that decision the following:

The Chief Justice said that the ERD Court was not required to exclude the possibility of an alternative site for the proposed development that would better conform to the provisions of the Plan.
With respect, I do not disagree with what the Chief Justice said in City of Burnside v City Apartments Pty Ltd (supra). However, as his Honour noted, it is doubtful whether it is possible to state a principle of universal application, and I think that by reason of the relevant provisions of the Development Plan a different approach is called for in this case. It seems to me that the assumption behind those provisions is that telecommunications facilities involving a tower are likely to be unsightly and low-impact facilities are likely to be less intrusive. However, the effect on visual amenity is not the only matter relevant to the planning assessment. The Plan recognises that in certain circumstances there will be a need for a telecommunications facility. The need might be for a facility in the general area or it might be for a particular facility in a particular location. The question of need is relevant to the planning assessment and is to be weighed against the effect on visual amenity. I think it is inherent in the question of need (which was an important part of the appellant’s case) that other options or alternatives be considered. Provisions in the Development Plan which refer to where the facility is "located" (Objective 29) or "sited" (Principle 188(f)), which encourage low-impact facilities and which recognise that, on occasions, new facilities in more sensitive areas will be "unavoidable" reinforce the conclusion that an examination of the need and the available alternatives and options was not only permitted but in fact was required.

29 In these proceedings Objective 104 and Principle 315(f) are identical to Objective 29 and Principle 188(f) above.
30 Thus the visual impact of the proposed development on the visual amenity of the locality, the need for the facility as well as the availability and suitability of alternative sites or other options for service delivery are all factors to be considered.
31 It is the latter issue that the Court finds itself in a difficult role. Any finding as to the availability of more suitable sites or, for example, "multiple-site" solutions which might combine a monopole and a low-impact facility or a series of low impact facilities needs to be supported by evidence. It is one thing for the respondent to base its case in proceedings relating to a specified facility on a proposition that there are plentiful and better opportunities for "low impact" or multiple-site solutions within the target area; it is quite another for candidate sites to be suitable in technical and planning terms and be, in reality, available to the appellant carrier.
32 The Court is often confronted with suggestions by a party about the existence of a better site or sites for a telecommunications facility without having the benefit of detailed proposals for those sites. It must be remembered that the target area is often large. In these proceedings the area is oval shaped about 1.7 km long and 1 km wide. It would not be difficult to postulate a large, virtually infinite, number of potential sites and delivery combinations that might serve the purpose of better and wider telecommunications coverage. Whether a potential site is suitable in planning terms is a complex issue. To the extent that an appropriate coverage specification is necessary for Objective 103 to be fulfilled, a carrier, a planning authority and this Court cannot cast aside the technical performance aspects of a telecommunications facility. It would be an exercise in futility, for example, to nominate a site or sites on the grounds of a better amenity outcome in circumstances where the technical, coverage and telecommunications development (demand) objectives of the proposed development and the network generally were not able to be satisfactorily achieved.
33 There are also practical considerations. In most instances, access to a potential site, must be agreed by the owner. That is not always forthcoming as the evidence would show when, in this case, the appellant approached the respondent to place a facility to serve the identified need on the Sam Johnson Sports ground. This site is a large and well landscaped public reserve (under the ownership of the respondent) within the northern sector of the target area. A similar outcome occurred when the appellant approached Transport SA in respect of land (set aside for road purposes) situated on Torrens Road. Furthermore, in the event that other sites are available, their suitability, from the perspective of the appellant carrier, will depend on many factors including the availability of a suitable position and area for the base station and the length of cable run between the antenna and base station; which factor determines, in part, the quality of the service. A base station is required whether or not the facility is of a "low-impact" type.
34 A consideration of the planning merits of alternative sites adds to the complexity. Whether one among several alternative sites is superior in planning terms (in particular, visual impact) is an issue that is difficult to determine in the absence of specific proposals for a specific site or series of sites as is the case here. In such circumstances, whether the appellant is found to have discharged its obligation to propose one among many sites that "minimise" visual impact (Council Wide Objective 104) is a matter that is determined on a very limited evidentiary basis. Further, while I accept Mr Byrt’s submissions that a "low-impact" solution might be construed by virtue of the term itself, as a preferred alternative, it does not necessarily follow that coverage of the target area by way of multiple low-impact facilities in lieu of a single site is to be preferred in planning terms.

Assessment

35 There is no dispute between the parties about the extent to which the proposed development satisfies Council Wide Objective 103. Mr Edwards who appeared in the case for the appellant provided, in some detail, the reasons why the proposed development is necessary. In short, it is to improve the quality of the existing service and to meet the anticipated demand in the target area. Dr Sorrell, who appeared in the case for the Council, confirmed Mr Edwards opinion in that respect. The differences between them reside in the method by which the telecommunication needs should be met when all other things are considered.
36 According to the evidence of Mr Edwards nine candidate sites within the target area were examined in the lead up to the application for the proposed development. Within those options, different delivery methods and support structures were contemplated. In Mr Edwards view all, except the subject proposal, had elements that made them unsuitable. Insofar as the alternatives represented a single-site solution, the evidence leaves it open for me to find that the reasons for their exclusion from consideration as preferred sites in planning terms were, on the face of it, justified.
37 Dr Sorrell suggested several other single site options. However, the upshot of his evidence is that either it is likely that the single-site solutions suggested by him have one or another technical deficiency and/or on the evidence of other experts some sites are likely to possess the same visual amenity issues now confronted by the proposed development.
38 Dr Sorrell in my view was fair and reasonable in his views. In his supplementary statement he canvassed the possibility of a multi-low impact solution. He acknowledged the key limitation of the availability of an appropriate radio spectrum. Also, he said as follows;

Nevertheless, if a multi-site low-impact solution were the only option in this area, it would be possible (assuming permission of the appropriate owners) to implement low-impact facilities at or near Mais St, the Excelsior Hotel, site "S" on Hawker St, a site on Torrens Road in the Mixed Use zone near the South Road corner, co-location with the 3GIS at South Road and the Bombay Bicycle Club or with Optus at the Austrian Association, and so on. I expect that a two-site solution could be found, although I acknowledge significant technical limitations such that not all of Telstra’s short-term or long-term requirements would be met by this solution. A three-site solution might better address Telstra’s technical requirements but would impose additional costs, making such a solution less commercially viable.

39 Having considered all of the circumstances, there is insufficient evidence before me to conclude that the appellant has not undertaken all reasonable steps to secure a site in which the broad planning objectives would be better achieved than in the subject locality once the technical requirements of the proposed development are reasonably met. To the extent that Objective 104 speaks to a process of establishing a telecommunications facility in a manner which minimises visual impact when assessed against alternative locations, there is no evidence upon which I can rely that suggests that the spirit of the objective has not been satisfied.
40 The proposed development is located within the Industry Zone. On the face of it, the proposed development finds support in this Zone by virtue of Principle 315. However, by the terms of the text following Objective 104 it is not necessarily the case that all industrial areas are suitable. The spatial and land use arrangements within the locality and the juxtaposition of the Zone and adjoining RHC Zone demonstrate the sense in taking that view of the provisions.
41 The principal planning issue is the extent of detriment to the visual amenity of the locality that might occur as a consequence of the development having particular regard to the provisions of the Zone which appear to promote high design and aesthetic standards for development and the provisions for the adjoining zone which, generalised, seek compatibility between new development and its historic character.
42 On this issue Ms Nolan opined that the monopole will, if constructed, be a dominant visual element in the skyline. She said that the principal reason for reaching this conclusion is the low rise environment in which the proposed development will be situated. From her evidence I glean that Ms Nolan conceded that were the Zone larger with more abundant opportunities for locating the proposed development the picture might be different. However, she opined that the Zone and Policy Area are spatially constrained and cannot provide sufficient separation from the residential area or be screened by taller buildings.
43 For much the same reasons Ms Vines concluded that the monopole, in particular, was of a height, scale and form that brought it into conflict with the historic conservation provisions mentioned earlier. Ms Vines also had particular regard to the provisions for telecommunications facilities, and the height provisions that advocate the protection, conservation and enhancement of the historic qualities of the residential component of the locality.
44 Mr Hutchison’s conclusion were somewhat different. He acknowledged that the monopole would be visible from many properties. However, he said that visibility alone is not sufficient to bring the proposed development into conflict with the relevant provisions for the Zone, Policy Area or RHC Zone. He opined that the Development Plan does not provide for a "no visual impact" outcome. In his view a "reasonable balance" had been obtained between minimising visual impact and providing essential infrastructure.
45 Ms Radford confined her evidence to the relationship between the proposed development and the State Heritage Place at 146 Coglin Street. She opined that the distance from the State Heritage Place and the monopole exceeded a "rule-of-thumb" measurement that is often applied to such circumstances. Ms Radford concluded that the monopole and, it would seem, the proposed development in its entirety would have a low impact on the subject State Heritage Place.
46 Mr Wyatt provided a landscape architect’s approach to the assessment. He observed that most residents will view the monopole across an industrial landscape. He conceded that there would be a change to the residents view of the locality. However, he opined as follows "... in terms of visual impact it [the monopole] would be a minor consideration for most residents and viewers when viewing from the existing landscape".
47 In my view, Ms Nolan and Ms Vines overstated the extent and effect of the visibility of the monopole. The photographs in Exhibit A9 and my observation on the view suggests to me that to describe the visibility of the monopole as being "unimpeded views from virtually all angles and aspects taken from the residential area" (Nolan) and the visual impact as being "overbearing" and "intrusive" (Vines) largely misconceives the likely impact of the monopole.
48 Those properties in the RHC Zone with direct views towards the monopole have, in the intervening space, buildings and structures of various heights and electricity infrastructure. It appears to me that the most prominent and unimpeded views of it will be experienced from within the Zone.
49 Those properties in the RHC Zone of most concern have their principal frontage orientated away from the land. Granted their rear yards and some rooms within the dwellings face the land. The visual exposure from that position on the effected properties should not be discounted in any assessment of visual impact.
50 Having considered all that has been put before me I cannot conclude that the proposed development will have no adverse visual impact. Quite clearly it will and, in some instances, the impact will be beyond that which could be expected from development in all of the circumstances. The question is whether the development as proposed strikes the appropriate balance between all of the factors under consideration.
51 The provisions for the Policy Area and the Zone appear to me to quite purposefully direct attention to the protection of the amenity of the adjoining zone. In this case, the historic character of the adjoining area brings to the assessment different and more complex issues of character and amenity to deal with. That said, by virtue of Principles 14 and 15 for the Policy Area and Principle 22 for the Industry Zone, buildings of some considerable mass are contemplated on land within the Zone.
52 The provisions for the Zone and Policy Area also bring into question the adequacy of the design of the base facilities. I refer to the provisions which are encapsulated by the Desired Future Character Statement and in particular the following:

Development should achieve a high standard of appearance and design and, where sought, should incorporate extensive landscaping to enhance visual amenity

Ms Vines quite correctly drew the Court’s attention to the deficiencies in this respect.

53 Weighing up all the factors in the most difficult of circumstances I have concluded that at the proposed monopole height of 33.4 metres and with no provisions having been made in the proposed development for landscaping along the relevant parts of the northern and eastern boundaries and near the base station facilities the scales are tipped against the appellant’s case. In its present form (Exhibit A1) the proposed development is in conflict with the Objectives for the Zone and Policy Area and with those provisions for telecommunications facilities that seek to "minimise" visual impact.
54 However, that is not the end of the matter. Mr Henry submitted that, although the Appellant’s preference is for the proposed development being in the form depicted in Exhibit A1, a development of the type depicted in Exhibit A12 would satisfy its technical requirements. The effect of Exhibit A12 is to lower the monopole by about 5.2 metres (to a height of 28.22 metres). In my view, such an amendment would, together with attention being given to the base station facilities as previously mentioned, achieve the appropriate balance between the Plan’s support for the establishment of an essential service, and the design objectives for the Zone in which the proposed development is situated. By virtue of Exhibit A9 and the reasonably accurate estimates of visibility of the monopole that can be made from the arm of the cherry picker, a substantial improvement would be made to the extent of its visual impact on adjoining and nearby residences were it lowered to the height depicted in Exhibit A12.

Memorandum and Subsequent Proceedings

55 By memorandum dated 29 November 2005 I advised the parties of my conclusions in respect of the development proposed in the form depicted in Exhibit A1. Also I advised that the amendments depicted in Exhibit A12 were not so significant as would render the proposed development an entirely different project. Some of the amendments were canvassed during the course of the hearing with some but not all expert witnesses. Procedural fairness required me to hear further evidence, if so required, before finally deciding the merits of the proposal in Exhibit A12. Therefore, I gave the parties an opportunity to discuss the amendments in their entirety and granted leave to recall their expert witnesses to consider the changes should the parties believe they can be of further assistance. Lest my memorandum was not clear, I said upon the resumption of the hearing that my conclusions in respect of the amended proposal in Exhibit A12 were preliminary. Thus, by implication, a final decision was to take into consideration further evidence.
56 When the matter resumed on Tuesday 20 December 2005, Mr Henry tendered Exhibit A14 which depicted, essentially, the proposal in Exhibit A12 but varied to include modifications to the base station surrounds and landscaping. After hearing the parties I agreed to Mr Byrt’s request to undertake a further view of the locality with a cherry picker in place with its arm at the amended height of the monopole (28.22 metres). The view took place. My final conclusions were not impeded by the fact that the arm of the cherry picker could not reach the height intended.
57 Mr Byrt also sought, in effect, to re-open the hearing with evidence from an employee of the Council. The purpose of the evidence, Mr Byrt said, was to demonstrate that enquiries by the Council (made subsequent to the publication of the memorandum) had established that permission to use two alternative, but rejected, sites for a telecommunications facility would not be withheld by their owners. I denied Mr Byrt’s request. The Council had ample opportunity to produce evidence to the Court on the questions of whether the sites concerned (the Bombay Bicycle Club and the Austrian Club) would be preferred to the land in respect of the visual impact of a telecommunications facility. In my view the rejection of those sites by Telstra without making the necessary enquiries was a reasonable course for it to take. The evidence of Mr Baade and Mr Edwards (Exhibits A4 and A3 respectively) indicates that height restrictions, distance from the service area and other incompatibilities were the main reasons for not seeking to co-locate with existing facilities on those sites. In any event, both of those sites are within the Residential Historic (Conservation) Zone (depicted on Map ChSt/17). By the terms of the text following Objective 104 a zone of this nature is not included in the zones regarded as "preferred".
58 The additional evidence sought to be addressed by Mr Byrt could not challenge these facts nor alter my conclusions that Telstra had undertaken all reasonable steps to identify a site which met one aspect of Objective 104 after taking into account all relevant circumstances.
59 Mr Byrt also submitted that the final decision on this matter should be withheld pending a decision of the High Court involving a telecommunications facility sought by a different carrier in another Council within metropolitan Adelaide. To be brief, according to Mr Byrt those proceedings raised the prospect of a blanket exemption from State law being applied to telecommunications facilities.
60 I will not defer the final decision. There is simply no basis to do so. Mr Byrt’s submissions are founded on interchanges between the Court and counsel on constitutional questions. This Court should not respond in the way sought by Mr Byrt on the grounds advanced by him. In my view, the appellant is entitled to a decision based on the prevailing law. If, in the end, the decision of the High Court provides blanket immunity from this State’s planning scheme so be it.
61 Now to the matter of the further expert evidence adduced from Ms Nolan and Ms Vines. Their views were expressed in respect of a further amendment (Exhibit A14), which amendment was tendered in response to my memorandum. In short, their additional statements (Exhibits R10 and R11 respectively) indicated that their views on the planning effect of the facility at its amended height have not changed in substance.
62 Mr Byrt submitted that, given the views put by Ms Nolan and Ms Vines to the effect that the character of the proposal as amended in Exhibit A14 has not changed as a consequence of the amendment and, since they were the only experts offered in respect of the final amendment the Court is bound by their opinion. Furthermore, Mr Byrt argued that since (in the views of his experts) there "is no material change" to the proposal my rejection of the proposed development in Exhibit A1 must also apply to that depicted in Exhibit A14.
63 The Court is not bound by the evidence of Ms Nolan or Ms Vines. Certainly, their evidence must be taken into account. I have done so and concluded that they simply confirmed their earlier but broadly expressed views with which I disagree. Both Ms Nolan and Ms Vines took a particularly narrow view of circumstances to be considered when making a planning judgment in respect of Objectives 103 and 104 and the relevant principles thereafter. They confirmed also my view that the amended proposal does not amount to a materially different proposal. That conclusion does not bind me to the conclusion I reached in respect of the development proposed in Exhibit A1. A finding as to whether the amendment might be materially different from that upon which a planning authority’s decision was given is undertaken with s 39(4) of the Development Act 1993 in mind: see TE & JE Crannage & Margaret Rutter v City of Holdfast Bay [2001] SAERDC 51. Such a finding does not limit the Court in assessing the merits of an amendment when considering that amendment along side of a proposal earlier rejected.

Decision

64 Having considered all that has been put before me I confirm that the proposal depicted in Exhibit A12, which proposal also provides for the necessary landscaping being planted along the rear boundary and adjacent the base station is in adequate compliance with the provisions of the Plan.
65 The second view of the land and locality was assisted by a cherry picker being again placed in the proposed position of the monopole with its arm raised to a height from which the intended height in Exhibit A14 could be estimated. The amended height in my view reduces the extent of visibility to an acceptable level when assessed in all of the circumstances. The most prominent views from properties within the RHC Zone are gained from some considerable distance (in the order of 100 metres). In the main, those views are through or over a commercial/industrial landscape, which aspects of existing development are a significant determinant on the visual amenity of the locality.
66 These proceedings have established the basis for the Court to reverse the decision of the Council and grant Provisional Development Plan Consent for the development proposed in Exhibit A14. The question of community need is undisputed. I have concluded that everything that could be reasonably done in determining the most appropriate site within the target areas has been undertaken. The land upon which the proposed development is to be established is recognised by the Plan as being within a preferred zone. The height of the proposed monopole is, by virtue of Exhibit A12 and Mr Henry’s submissions, the minimum height necessary to fulfill the technical coverage requirements to meet the identified need. The Plan contemplates circumstances where a proposed development such as this is located adjacent sensitive land uses. It is necessary, where unavoidable visual impact is likely to occur, for measures to be taken to minimise those impacts. The proposed development depicted in Exhibit A14 has achieved the necessary balance between need and visual impact referred to in Hutchison 3G.
67 The appeal is upheld and Provisional Development Plan Consent is granted. An order to that effect will be forthcoming. Conditions 4, 5 and 6 in the order of consent have been adapted from the recommendations contained in the report prepared for the Council’s consideration which report is on p 64 of Exhibit R1.

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1	This appeal relates to land situated at 18 Mais Street, Brompton ("the land"). It arises from a decision of the City of Charles ("the Council") to refuse Provisional Development Plan Consent to an application submitted by an agent for Telstra Corporation Ltd ("Telstra") to establish on the land a telecommunications facility. This facility (which for convenience I will call "the proposed development") comprises the following:
•	a new 30 metre high slimline monopole;
•	a new "tuft" antenna arrangement installed at the top of the pole;
•	a new equipment shelter (3.28mL x 2.28mW x 3.0mH) to be installed at the base of the pole, behind the existing Colourbond fence;
•	a new overhead cable tray between the pole and the equipment shelter;
•	a new GPS antenna installed on the cable tray;
•	new security fencing around the proposed facility (enclosing an area and facilities herein after called the "base station"); and
•	underground fibre optic and electricity cabling to existing services.
2	The application was submitted to the Council in August 2004. It was processed as a Category 3 development. Many representations, in the nature of objections, were received. The decision to refuse consent was conveyed to Telstra on 27 April 2005.
3	Mr Henry and Mr Byrt appeared for Telstra and the Council respectively. Called to give evidence in the proceedings were the following:

5	The land is situated on the north western side of Mais Street. It has an area of about 1500 square metres, a frontage of about 34.3 metres and a depth of about 43.9 metres. Mais Street connects to Torrens Road about 100 metres from the land in a north easterly direction.
6	On the land is an industrial building (about 550 square metres in area) situated in its south western corner. The unbuilt upon portion is used for storage, car parking and manoeuvring. A two metre high galvanised iron fence is situated on the Mais Street boundary. According to the statement of Ms Nolan, the building is used for the assembly and packaging of cardboard boxes.

7	The land is situated in the Industry Zone ("the Zone") and the Interface Policy Area 57 ("the Policy Area"). It is depicted on Maps ChSt/17 and 39 of the Development Plan for the City of Charles Sturt dated 19 March 2004 ("the Plan").
8	The Zone does not cover a large area. It is more in the nature of an "island" surrounded by the Residential Zone (north and south), Local Commercial Zone (north east) and Residential Historic (Conservation) Zone ("RHC Zone") to the southwest. Although not regular in shape, the Zone is about 200 metres long (north-south) and about 100 metres wide (east-west).
9	At its closest point, the monopole component of the proposed development is about 28 metres from the RHC Zone (to its south west).
10	Ms Nolan and Mr Hutchison both defined a locality for the purposes of these proceedings. To all intents and purposes they cover the same area, which area embraces the whole of the Zone and parts of the other zones mentioned above. In my view, it is an appropriate locality. It was arrived at by Mr Hutchison after considering the visibility of the proposed monopole from various points in the vicinity of the land. The following extracts from Ms Nolan’s statement are a convenient way of providing an overview of the aspects of the locality that have a bearing on the assessment of the proposed development:

12	On my reading of Mr Hutchison’s statement of evidence, he appears not to be at odds with the views of Ms Nolan expressed above.
13	From my observations of the locality, the existing overhead electricity infrastructure within the public thoroughfares is visually prominent and has an adverse influence on the amenity of the locality.
14	Also for consideration in the locality are the following factors:
•	The dwellings nearest the proposed development have their principal frontages oriented away from the land. Many of those dwellings are designated in as Contributory Places in Principle 4 for the Policy Area 7 of the RHC Zone.
•	A Child Care facility is situated in Wattle Street about 180 metres south east of the land.
•	The State Heritage Place at 146 Coglin Street, according to Ms Radford, derives its heritage value from the history of its use as a philanthropic project and not from its architecture or building form.

15	The Zone is not a consolidated geographic area. There are several areas within the area of the Council – some large, some small – that are the subject of the provisions for the Zone.
16	There are no provisions within the Zone that make specific mention of the proposed development which, correctly characterised, is a "telecommunications facility". The introductory statement to the Zone provisions says, inter alia:

24	The land is adjacent to and immediately abuts allotments within the RHC Zone. It is a well established principle that where the land the subject of development is at the interface of two zones, a planning authority and this Court is to have regard to the policies in each zone, see for example Dowl Pty Ltd v Corporation of the City of Kensington and Norwood [1996] EDLR 141. However, as I read that decision and the decision in Russell Ads Pty Ltd v City of Charles Sturt No. OE251 [1997] SAERDC 251 the provisions for the zone in which the subject development is to take place, unless they speak to the contrary, should be given more weight than those applicable in the adjoining zone.
25	That said, the weight to be attached to the policies in the RHC Zones might be enhanced in light of the provisions of Principle 8 above.
26	The provisions for the RHC Zone that are relevant in this assessment are expressed in Objectives 1 and 2 and Principles 4, 5, 6 and 7. In particular Principles 4 and 5 are expressed thus:

29	In these proceedings Objective 104 and Principle 315(f) are identical to Objective 29 and Principle 188(f) above.
30	Thus the visual impact of the proposed development on the visual amenity of the locality, the need for the facility as well as the availability and suitability of alternative sites or other options for service delivery are all factors to be considered.
31	It is the latter issue that the Court finds itself in a difficult role. Any finding as to the availability of more suitable sites or, for example, "multiple-site" solutions which might combine a monopole and a low-impact facility or a series of low impact facilities needs to be supported by evidence. It is one thing for the respondent to base its case in proceedings relating to a specified facility on a proposition that there are plentiful and better opportunities for "low impact" or multiple-site solutions within the target area; it is quite another for candidate sites to be suitable in technical and planning terms and be, in reality, available to the appellant carrier.
32	The Court is often confronted with suggestions by a party about the existence of a better site or sites for a telecommunications facility without having the benefit of detailed proposals for those sites. It must be remembered that the target area is often large. In these proceedings the area is oval shaped about 1.7 km long and 1 km wide. It would not be difficult to postulate a large, virtually infinite, number of potential sites and delivery combinations that might serve the purpose of better and wider telecommunications coverage. Whether a potential site is suitable in planning terms is a complex issue. To the extent that an appropriate coverage specification is necessary for Objective 103 to be fulfilled, a carrier, a planning authority and this Court cannot cast aside the technical performance aspects of a telecommunications facility. It would be an exercise in futility, for example, to nominate a site or sites on the grounds of a better amenity outcome in circumstances where the technical, coverage and telecommunications development (demand) objectives of the proposed development and the network generally were not able to be satisfactorily achieved.
33	There are also practical considerations. In most instances, access to a potential site, must be agreed by the owner. That is not always forthcoming as the evidence would show when, in this case, the appellant approached the respondent to place a facility to serve the identified need on the Sam Johnson Sports ground. This site is a large and well landscaped public reserve (under the ownership of the respondent) within the northern sector of the target area. A similar outcome occurred when the appellant approached Transport SA in respect of land (set aside for road purposes) situated on Torrens Road. Furthermore, in the event that other sites are available, their suitability, from the perspective of the appellant carrier, will depend on many factors including the availability of a suitable position and area for the base station and the length of cable run between the antenna and base station; which factor determines, in part, the quality of the service. A base station is required whether or not the facility is of a "low-impact" type.
34	A consideration of the planning merits of alternative sites adds to the complexity. Whether one among several alternative sites is superior in planning terms (in particular, visual impact) is an issue that is difficult to determine in the absence of specific proposals for a specific site or series of sites as is the case here. In such circumstances, whether the appellant is found to have discharged its obligation to propose one among many sites that "minimise" visual impact (Council Wide Objective 104) is a matter that is determined on a very limited evidentiary basis. Further, while I accept Mr Byrt’s submissions that a "low-impact" solution might be construed by virtue of the term itself, as a preferred alternative, it does not necessarily follow that coverage of the target area by way of multiple low-impact facilities in lieu of a single site is to be preferred in planning terms.

35	There is no dispute between the parties about the extent to which the proposed development satisfies Council Wide Objective 103. Mr Edwards who appeared in the case for the appellant provided, in some detail, the reasons why the proposed development is necessary. In short, it is to improve the quality of the existing service and to meet the anticipated demand in the target area. Dr Sorrell, who appeared in the case for the Council, confirmed Mr Edwards opinion in that respect. The differences between them reside in the method by which the telecommunication needs should be met when all other things are considered.
36	According to the evidence of Mr Edwards nine candidate sites within the target area were examined in the lead up to the application for the proposed development. Within those options, different delivery methods and support structures were contemplated. In Mr Edwards view all, except the subject proposal, had elements that made them unsuitable. Insofar as the alternatives represented a single-site solution, the evidence leaves it open for me to find that the reasons for their exclusion from consideration as preferred sites in planning terms were, on the face of it, justified.
37	Dr Sorrell suggested several other single site options. However, the upshot of his evidence is that either it is likely that the single-site solutions suggested by him have one or another technical deficiency and/or on the evidence of other experts some sites are likely to possess the same visual amenity issues now confronted by the proposed development.
38	Dr Sorrell in my view was fair and reasonable in his views. In his supplementary statement he canvassed the possibility of a multi-low impact solution. He acknowledged the key limitation of the availability of an appropriate radio spectrum. Also, he said as follows;

39	Having considered all of the circumstances, there is insufficient evidence before me to conclude that the appellant has not undertaken all reasonable steps to secure a site in which the broad planning objectives would be better achieved than in the subject locality once the technical requirements of the proposed development are reasonably met. To the extent that Objective 104 speaks to a process of establishing a telecommunications facility in a manner which minimises visual impact when assessed against alternative locations, there is no evidence upon which I can rely that suggests that the spirit of the objective has not been satisfied.
40	The proposed development is located within the Industry Zone. On the face of it, the proposed development finds support in this Zone by virtue of Principle 315. However, by the terms of the text following Objective 104 it is not necessarily the case that all industrial areas are suitable. The spatial and land use arrangements within the locality and the juxtaposition of the Zone and adjoining RHC Zone demonstrate the sense in taking that view of the provisions.
41	The principal planning issue is the extent of detriment to the visual amenity of the locality that might occur as a consequence of the development having particular regard to the provisions of the Zone which appear to promote high design and aesthetic standards for development and the provisions for the adjoining zone which, generalised, seek compatibility between new development and its historic character.
42	On this issue Ms Nolan opined that the monopole will, if constructed, be a dominant visual element in the skyline. She said that the principal reason for reaching this conclusion is the low rise environment in which the proposed development will be situated. From her evidence I glean that Ms Nolan conceded that were the Zone larger with more abundant opportunities for locating the proposed development the picture might be different. However, she opined that the Zone and Policy Area are spatially constrained and cannot provide sufficient separation from the residential area or be screened by taller buildings.
43	For much the same reasons Ms Vines concluded that the monopole, in particular, was of a height, scale and form that brought it into conflict with the historic conservation provisions mentioned earlier. Ms Vines also had particular regard to the provisions for telecommunications facilities, and the height provisions that advocate the protection, conservation and enhancement of the historic qualities of the residential component of the locality.
44	Mr Hutchison’s conclusion were somewhat different. He acknowledged that the monopole would be visible from many properties. However, he said that visibility alone is not sufficient to bring the proposed development into conflict with the relevant provisions for the Zone, Policy Area or RHC Zone. He opined that the Development Plan does not provide for a "no visual impact" outcome. In his view a "reasonable balance" had been obtained between minimising visual impact and providing essential infrastructure.
45	Ms Radford confined her evidence to the relationship between the proposed development and the State Heritage Place at 146 Coglin Street. She opined that the distance from the State Heritage Place and the monopole exceeded a "rule-of-thumb" measurement that is often applied to such circumstances. Ms Radford concluded that the monopole and, it would seem, the proposed development in its entirety would have a low impact on the subject State Heritage Place.
46	Mr Wyatt provided a landscape architect’s approach to the assessment. He observed that most residents will view the monopole across an industrial landscape. He conceded that there would be a change to the residents view of the locality. However, he opined as follows "... in terms of visual impact it [the monopole] would be a minor consideration for most residents and viewers when viewing from the existing landscape".
47	In my view, Ms Nolan and Ms Vines overstated the extent and effect of the visibility of the monopole. The photographs in Exhibit A9 and my observation on the view suggests to me that to describe the visibility of the monopole as being "unimpeded views from virtually all angles and aspects taken from the residential area" (Nolan) and the visual impact as being "overbearing" and "intrusive" (Vines) largely misconceives the likely impact of the monopole.
48	Those properties in the RHC Zone with direct views towards the monopole have, in the intervening space, buildings and structures of various heights and electricity infrastructure. It appears to me that the most prominent and unimpeded views of it will be experienced from within the Zone.
49	Those properties in the RHC Zone of most concern have their principal frontage orientated away from the land. Granted their rear yards and some rooms within the dwellings face the land. The visual exposure from that position on the effected properties should not be discounted in any assessment of visual impact.
50	Having considered all that has been put before me I cannot conclude that the proposed development will have no adverse visual impact. Quite clearly it will and, in some instances, the impact will be beyond that which could be expected from development in all of the circumstances. The question is whether the development as proposed strikes the appropriate balance between all of the factors under consideration.
51	The provisions for the Policy Area and the Zone appear to me to quite purposefully direct attention to the protection of the amenity of the adjoining zone. In this case, the historic character of the adjoining area brings to the assessment different and more complex issues of character and amenity to deal with. That said, by virtue of Principles 14 and 15 for the Policy Area and Principle 22 for the Industry Zone, buildings of some considerable mass are contemplated on land within the Zone.
52	The provisions for the Zone and Policy Area also bring into question the adequacy of the design of the base facilities. I refer to the provisions which are encapsulated by the Desired Future Character Statement and in particular the following:

55	By memorandum dated 29 November 2005 I advised the parties of my conclusions in respect of the development proposed in the form depicted in Exhibit A1. Also I advised that the amendments depicted in Exhibit A12 were not so significant as would render the proposed development an entirely different project. Some of the amendments were canvassed during the course of the hearing with some but not all expert witnesses. Procedural fairness required me to hear further evidence, if so required, before finally deciding the merits of the proposal in Exhibit A12. Therefore, I gave the parties an opportunity to discuss the amendments in their entirety and granted leave to recall their expert witnesses to consider the changes should the parties believe they can be of further assistance. Lest my memorandum was not clear, I said upon the resumption of the hearing that my conclusions in respect of the amended proposal in Exhibit A12 were preliminary. Thus, by implication, a final decision was to take into consideration further evidence.
56	When the matter resumed on Tuesday 20 December 2005, Mr Henry tendered Exhibit A14 which depicted, essentially, the proposal in Exhibit A12 but varied to include modifications to the base station surrounds and landscaping. After hearing the parties I agreed to Mr Byrt’s request to undertake a further view of the locality with a cherry picker in place with its arm at the amended height of the monopole (28.22 metres). The view took place. My final conclusions were not impeded by the fact that the arm of the cherry picker could not reach the height intended.
57	Mr Byrt also sought, in effect, to re-open the hearing with evidence from an employee of the Council. The purpose of the evidence, Mr Byrt said, was to demonstrate that enquiries by the Council (made subsequent to the publication of the memorandum) had established that permission to use two alternative, but rejected, sites for a telecommunications facility would not be withheld by their owners. I denied Mr Byrt’s request. The Council had ample opportunity to produce evidence to the Court on the questions of whether the sites concerned (the Bombay Bicycle Club and the Austrian Club) would be preferred to the land in respect of the visual impact of a telecommunications facility. In my view the rejection of those sites by Telstra without making the necessary enquiries was a reasonable course for it to take. The evidence of Mr Baade and Mr Edwards (Exhibits A4 and A3 respectively) indicates that height restrictions, distance from the service area and other incompatibilities were the main reasons for not seeking to co-locate with existing facilities on those sites. In any event, both of those sites are within the Residential Historic (Conservation) Zone (depicted on Map ChSt/17). By the terms of the text following Objective 104 a zone of this nature is not included in the zones regarded as "preferred".
58	The additional evidence sought to be addressed by Mr Byrt could not challenge these facts nor alter my conclusions that Telstra had undertaken all reasonable steps to identify a site which met one aspect of Objective 104 after taking into account all relevant circumstances.
59	Mr Byrt also submitted that the final decision on this matter should be withheld pending a decision of the High Court involving a telecommunications facility sought by a different carrier in another Council within metropolitan Adelaide. To be brief, according to Mr Byrt those proceedings raised the prospect of a blanket exemption from State law being applied to telecommunications facilities.
60	I will not defer the final decision. There is simply no basis to do so. Mr Byrt’s submissions are founded on interchanges between the Court and counsel on constitutional questions. This Court should not respond in the way sought by Mr Byrt on the grounds advanced by him. In my view, the appellant is entitled to a decision based on the prevailing law. If, in the end, the decision of the High Court provides blanket immunity from this State’s planning scheme so be it.
61	Now to the matter of the further expert evidence adduced from Ms Nolan and Ms Vines. Their views were expressed in respect of a further amendment (Exhibit A14), which amendment was tendered in response to my memorandum. In short, their additional statements (Exhibits R10 and R11 respectively) indicated that their views on the planning effect of the facility at its amended height have not changed in substance.
62	Mr Byrt submitted that, given the views put by Ms Nolan and Ms Vines to the effect that the character of the proposal as amended in Exhibit A14 has not changed as a consequence of the amendment and, since they were the only experts offered in respect of the final amendment the Court is bound by their opinion. Furthermore, Mr Byrt argued that since (in the views of his experts) there "is no material change" to the proposal my rejection of the proposed development in Exhibit A1 must also apply to that depicted in Exhibit A14.
63	The Court is not bound by the evidence of Ms Nolan or Ms Vines. Certainly, their evidence must be taken into account. I have done so and concluded that they simply confirmed their earlier but broadly expressed views with which I disagree. Both Ms Nolan and Ms Vines took a particularly narrow view of circumstances to be considered when making a planning judgment in respect of Objectives 103 and 104 and the relevant principles thereafter. They confirmed also my view that the amended proposal does not amount to a materially different proposal. That conclusion does not bind me to the conclusion I reached in respect of the development proposed in Exhibit A1. A finding as to whether the amendment might be materially different from that upon which a planning authority’s decision was given is undertaken with s 39(4) of the Development Act 1993 in mind: see TE & JE Crannage & Margaret Rutter v City of Holdfast Bay [2001] SAERDC 51. Such a finding does not limit the Court in assessing the merits of an amendment when considering that amendment along side of a proposal earlier rejected.

64	Having considered all that has been put before me I confirm that the proposal depicted in Exhibit A12, which proposal also provides for the necessary landscaping being planted along the rear boundary and adjacent the base station is in adequate compliance with the provisions of the Plan.
65	The second view of the land and locality was assisted by a cherry picker being again placed in the proposed position of the monopole with its arm raised to a height from which the intended height in Exhibit A14 could be estimated. The amended height in my view reduces the extent of visibility to an acceptable level when assessed in all of the circumstances. The most prominent views from properties within the RHC Zone are gained from some considerable distance (in the order of 100 metres). In the main, those views are through or over a commercial/industrial landscape, which aspects of existing development are a significant determinant on the visual amenity of the locality.
66	These proceedings have established the basis for the Court to reverse the decision of the Council and grant Provisional Development Plan Consent for the development proposed in Exhibit A14. The question of community need is undisputed. I have concluded that everything that could be reasonably done in determining the most appropriate site within the target areas has been undertaken. The land upon which the proposed development is to be established is recognised by the Plan as being within a preferred zone. The height of the proposed monopole is, by virtue of Exhibit A12 and Mr Henry’s submissions, the minimum height necessary to fulfill the technical coverage requirements to meet the identified need. The Plan contemplates circumstances where a proposed development such as this is located adjacent sensitive land uses. It is necessary, where unavoidable visual impact is likely to occur, for measures to be taken to minimise those impacts. The proposed development depicted in Exhibit A14 has achieved the necessary balance between need and visual impact referred to in Hutchison 3G.
67	The appeal is upheld and Provisional Development Plan Consent is granted. An order to that effect will be forthcoming. Conditions 4, 5 and 6 in the order of consent have been adapted from the recommendations contained in the report prepared for the Council’s consideration which report is on p 64 of Exhibit R1.