TELSTRA CORP LTD v TOWN OF GAWLER [2009] SAERDC 2 (20 January 2009)

Last Updated: 22 January 2009

ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT OF SOUTH AUSTRALIA

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TELSTRA CORP LTD v TOWN OF GAWLER

[2009] SAERDC 2

Judgment of Commissioner Green

20 January 2009

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL

Development Act 1993 - applicant appeal - consent refused by the Council - telecommunications facility - Town Centre Zone/Light Historic (Conservation) Policy Area 9 - existing telephone exchange onsite - relevant locality and visual impact carefully considered; need for the development and suitability/availability of other sites and affect on Local Heritage Places, State Heritage Places and State Heritage Areas also considered - all provisions relevant to telecommunication facilities in Development Plan considered - community need accepted; zoning, location and siting on subject land acceptable; heritage places not materially affected nor heritage values affected in any significant or meaningful way; some negative visual amenity impact on the locality would occur but it is minimised to an acceptable extent and is otherwise difficult to avoid or eliminate entirely; the several realistic alternatives are of no greater merit on the basis of meeting both the technical needs of the appellant whilst also minimising visual amenity impacts or negative affects on heritage places or values - sufficient Development Plan compliance - general agreement on conditions, except for details of screen fence and Council request for shortfall of one or two spaces made up by parking contribution or other arrangements - determined to be relatively minor and not reasonable to require the same - appeal upheld - Development Plan Consent granted with other generally agreed conditions.

Development Act 1993; Development Regulations 1993; Heritage Places Act 1993, referred to.

DAC v 3GIS Pty Ltd [2007] SASC 216; [2007] 154 LGERA 72; 3GIS v Development Assessment Commission & Anor [2006] SAERDC 89; Telstra Corp Ltd v City of Holdfast Bay [2008] SAERDC 47, considered.

TELSTRA CORP LTD v TOWN OF GAWLER
[2009] SAERDC 2

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. This matter comprises an applicant appeal against the decision of the Town of Gawler (the Council) to refuse to grant Development Plan Consent for Development Application No. 490/484/06, made under the Development Act 1993 to develop and erect a telecommunications facility (TF hereafter) at Gawler.
2. The Development Assessment Panel of the Council refused the application following an officer’s recommendation, citing numerous Development Plan clauses but providing no explanation or reasoning as to the refusal.
3. A summary of some of the relevant details in this matter is as follows:

Registration date of application:	26 July 2006
Subject land address:	22 High Street (Lot 201 with right-of-way over Lot 200 – CT Vol.5687 Fol.7), Gawler
Existing use:	Telephone exchange
Proposal:	Erect a telecommunications facility comprising a monopole tower with antennae, some 27.24 metres in height
Relevant authority:	Town of Gawler
Relevant/appropriate Development Plan:	Gawler (CT) consolidated version 24 November 2005
Relevant Zone/Area:	Town Centre Zone (TCeZ hereafter)/Light Historic (Conservation) Policy Area 9 – MAPS Ga/5, 12 and 16)
Date of decision:	21 January 2008 (some 18 months after lodgment)
Appeal registered:	12 March 2008
Conference concluded:	2 April 2008

4. The Court viewed the subject land, the locality and much of the town centre of Gawler on the morning of 16 June 2008 in the presence of the parties. In addition, the appellant had organised a crane with boom erected in the approximate location of the proposed monopole and to approximately the same height as the top of the monopole for the purpose of envisaging the visibility of the proposal (refer to photos in Exhibit A9).
5. Witnesses providing evidence to assist the Court comprised for the appellant, Mr A Wyatt, an experienced qualified and registered landscape architect (refer Exhibit A1); Mr A Edwards, a person experienced with telecommunications engineering (refer Exhibits A3 and A15); Mr M Baade, an experienced consultant town planner who provided a background statement (refer Exhibit A2) and other material (Exhibits A9, A10 and A14); Mr B Harry, an experienced and qualified architect specialising in heritage consultancy advisory work (refer Exhibits A4 and A16); and Mr J Smith, an experienced consultant town planner (refer Exhibits A5 and A17). Providing evidence in the respondent Council’s case were Mr M Wohlstadt, an experienced town planner in the employ of the Council (refer Exhibit R2); Mr D Alexander, an experienced architect also specialising in heritage consultancy advisory services (refer Exhibits R3 and R4); and Mr S Frinsdorf, a person with real estate qualifications and experience employed by the Council with respect to its property assets and issues (refer Exhibit R5).

The Subject Land

6. The subject land has a frontage to High Street of 34.64 metres and a depth of some 31 metres. The northern portion is occupied by an historic telephone exchange building. Part of the building is two storeys in height but steps down to single storey on the southern side. Both the single and two storey portions of the building abut the High Street frontage of the land and a further part of the exchange on its southern side, a single storey building, is setback from the High Street frontage a distance of 6 metres. Abutting the northern boundary of the land is a 3 metre wide access way connecting between High Street and Murray Street. Abutting the southern boundary is a similar space that allows access along the southern boundary to the southern and part of the western side of the exchange building.
7. The remaining area comprises a service space occupied by underground tanks, air-conditioning plant and transformer. Unbuilt upon space has dimensions of approximately 6 by 8 metres.
8. The High Street frontage is fenced with a 1.8 metre high chain wire mesh fence with gates providing access to the sewer easement abutting the northern boundary and to the service access way abutting the southern boundary. The southern and northern boundaries are fenced with galvanised iron, corrugated iron sheeting to a height of about 1.7 metres.
9. On the frontage of the land to Murray Street are the historic and State Heritage Listed Places – the Gawler Post Office and the former first Gawler Telegraph Station (now museum).
10. Photographs of the subject land and in some cases montages of the proposed pole and its location are contained within Exhibits A1, A4 (pp 5 and 6), A9, A19; and Exhibit R3 (pp4 and 5).

The Development Proposal

11. The proposal is outlined in plans prepared by TIA Consulting Pty Ltd and designated as CMTS Installation – Gawler Centre comprising drawings at pp 2-4 of Exhibit R1.
12. The plans depict a tapering steel monopole topped with a flat panel “tuft 10” antennae with the overall height of the pole and antenna some 27.24 metres.
13. The facility is to be located about 1 metre from the eastern wall of the southern most single storey building and 3 metres from the southern wall of the single storey portion of the northern most building and it will have a setback of some 5.5 metres (scaled) from High Street.
14. A cable gantry is to link between the southern portion of the exchange building and the monopole cabling connecting the antenna, the operating equipment is to be housed within the monopole and the associated equipment for the base station is to be located within the telephone exchange building.
15. The proposal is reasonably described as a transmitting station in the form of a mobile phone telecommunications facility.
16. The proposal is neither a complying nor a non-complying development in the TCeZ (Principles 8 and 9) and is for consideration and assessment on its merits, (s 35(5) of the Act).

The Locality

17. It is the usual approach, based on case law and the Development Plan guidelines to define the relevant “locality” for the purposes of assessment of a particular development proposal. In the relevant provisions of the relevant Development Plan, Council Wide Objective 24 and the second and third paragraphs of text thereafter, and CW Principles 155(f) (and 158(c)) reference is made to the term “the local environment”, in relation to visual impacts, character and amenity and in CW Principle 157, to the character of “the area”, whilst other provisions use the usual term of “the locality”.
18. In this matter I consider that the two references may reasonably be considered as one and the same, although the locality may from some perspectives extend more broadly to potentially coincide with the intended target area to be served by the facility under line-of-sight parameters.
19. The locality is to be determined in this matter primarily on the basis of visual and character impact factors. The delineation of the locality was assisted by the mobile crane demonstration and photographs of it. I have considered the designation and the extent of the locality by both town planners, and view point locations of Mr Wyatt. I find that the slightly more extensive definition by Mr Smith compared to that of Mr Wohlstadt is to be preferred, although it is a subjective judgment call as to the degree of visibility and therefore definition of the locality boundary. The more confined locality of Mr Wohlstadt certainly would experience greater visibility and potential visual impact from the proposal than certain more distant locations included by Mr Smith. The locality plan of Mr Smith attached to Exhibits A5 and A17, modified, incorporates by numbering, all of the alternative sites considered as well as the subject land and a number of other key land marks and zone boundaries. It is most useful.
20. In terms of layout of the town centre, Murray Street runs parallel to the South Para River for a distance of some 400 to 500 metres and rising from a level consistent with the top of the river bank to the top of an elevated spur extending across the northern end of the street from east to west. To the east of High Street (an historic “service” street parallel to and east of Murray Street), are elevated areas that extend around the side of the town centre, rising 10 metres or so above the level of Murray Street at its southern end.
21. There is an absence of vegetation on the subject land and adjacent to it on other properties or road reserves.
22. The most significant areas of vegetation are located adjacent to the banks of the South Para River on the western perimeter of the locality and as well, within the elevated residential areas to the east in the vicinity of Duffield and High Streets.
23. Mr Smith noted that the topography and vegetation together present impediments to the provision of adequate levels of telecommunications service, whilst also affording benefits of moderating the visual impact of the proposed installation.
24. As with many matters of this type and with respect to visibility, only a relatively small part of the locality would obtain a full view of the proposed monopole and antenna and this will occur particularly on High Street and within 50 metres of the subject land on the southern and eastern sides of the site.
25. There are numerous positions where the proposed TF will be in partial view, being seen projecting above the top of nearby buildings to varying degrees or glimpsed between buildings and vegetation. Over much wider parts of the locality there will be partial views of the top of the TF only and in addition there will be parts of the locality where the proposed TF may not be visible at all including located in close proximity to buildings on the eastern side of Murray Street, the eastern side of Julian Terrace and Whitelaw Terrace and the western side of High Street, north of Calton Road.
26. Mr Smith opines that the proposed TF would be viewed in a context where vegetation, stobie poles, street signs (and lights) and other vertical elements such as the clock tower and roof vents, fall within the field of view.
27. In some locations west of Murray and High Street, vegetation and the more elevated areas on the eastern side of the locality would form a backdrop to the field of view.
28. With respect to buildings in the locality they are predominantly single and two storey, including buildings on the subject land to the north and on adjacent land to the west, and recently to the east new buildings under completion are all of at least two storeys in height.
29. Many buildings are constructed to the street frontage and many have canopies or verandahs extending over adjacent footpaths.
30. Land uses in the locality comprise mostly retail and commercial activity but other supportive town centre functions including hotels, motor vehicle sale yards, churches, civic and community buildings and a cinema are also evident. To the east of High Street and east of the subject land is the site of the former Phoenix Foundry, remaining portions of which are State Heritage listed. That site is currently undergoing redevelopment for a Target Shopping Centre and associated shops and car park areas. Other than this development and the Council offices on the north eastern corner of Calton Road/High Street, the remainder of the land to the east comprises residential use/buildings and at relatively low density.
31. With respect to traffic movement and people concentration, Murray Street is the main focal street of Gawler and the most dominant traffic route in the locality. It facilitates access to many town centre facilities including the main shopping facilities at the northern end. Key connector roads to Murray Street are Horrocks Place (Lyndoch Road), Main North Road, and Bridge Street South, the southern entrance from Adelaide.
32. High Street is parallel to and about 50 metres east of Murray Street and functions primarily as a service or circulation road providing rear access or pedestrian connections through to many of those premises having a frontage to the eastern side of Murray Street. It connects to Horrocks Place at its northern end and assists facilitating circulation around the town centre and access into the residential areas to the east. To the west of Murray Street and north of Bridge Street South parts of Julian Terrace, Whitelaw Terrace and Reid Street also provide service access to the retail areas and particularly at the northern end of Gawler, and assist in circulation around the town centre thereby minimising, to a degree, congestion on Murray Street.
33. I agree with Mr Smith that the amenity of the locality is highly variable. In close proximity to the site when viewed from High Street, the service function and “plain” appearance of High Street is significant with the level of amenity in the public realm only low to moderate. At the northern end of High Street, north of Calton Road and at the southern end of High Street near Ayers Street, I agree with Mr Smith that the service nature and plain appearance of High Street is offset to a degree by the presence of residential use and an increase in vegetation, both street trees and gardens.
34. In contrast, the amenity levels on the western side of the locality and to a lesser extent within parts of the residential area on the sloping land to the east, where vegetation has a more significant impact, the level of visual amenity is raised quite markedly.
35. Along Murray Street, its commercial and town centre nature is characterised by buildings set close to street frontages, many with awnings and advertisements. The amenity of this part of the locality is, from the public realm, affected by the presence of busy on-street car parking and the significant amount of vehicle movement along Murray Street together with mixed built form qualities and an absence of street trees. The heritage flavour is a positive feature.
36. In summary, the locality is of mixed character and with mixed public realm and private amenity levels.

Relevant Development Plan Provisions

37. I have had regard to those provisions referred to by the experts and counsel, and I find the following to be the relevant provisions for assessment of the proposal and particularly the key issues:

METROPOLITAN ADELAIDE (MA hereafter)
Objectives: 1, 11-13, 16, 31, 35 and 44; and
Principles of Development Control: 16, 18 and 23.

COUNCIL WIDE (CW hereafter)
Objectives: 1, 4, 5, 12, 23 and 24; and
Principles of Development Control: 1, 2, 3(c), 23, 25, 31, 50, 86, 90-92, 95, 102, 105-108, 124, 138, 139, 155-157 and 159.
LIGHT HISTORIC (CONSERVATION) POLICY AREA: (LH(C)PA hereafter)
Objectives: 2, 4, 6 and 13;
Statement of Heritage Value; and
Principles of Development Control: 6-8.

GAWLER EAST HISTORIC (CONSERVATION) POLICY AREA:
Objectives: 1, 3 and 4.

TOWN CENTRE ZONE (TCeZ hereafter)
Objectives: 1-3;
Feature, Character and Desired Use of Land; and
Principles of Development Control: 1, 2, 3(b), 4 and 9.

Processing

38. I note that the Council determined the proposed development to be a Category 1 development and hence it would appear that no public notification was undertaken nor representations received. In addition, I note that it would appear that there was no requirement for referrals to any public agencies or departments as required by the Development Regulations and Schedule 8.

Approach

39. Section 33(1)(a) of the Act requires the relevant authority (the Council) and on appeal this Court, to assess a development application against the provisions of the appropriate/relevant Development Plan and s 35(2) specifies that where a development is assessed as being seriously at variance with the Development Plan, it must not be granted consent. The whole of the Development Plan must be assessed, including on appeal. The relevant guidelines in the Plan provide the firm basis for decision-making together with a consideration of any other relevant matters.
40. In terms of s 35(5) and the relevant provisions of the Development Plan, the proposal is for consideration on its merits against the Development Plan guidelines and involves weighing up the pros and cons and considering whether it is sufficiently conducive to the overall intent, purpose and desired character and amenity of the TCeZ and LH(C)PA9 and tested in the specific site and locality context. The Development Plan is also to be utilised as a flexible, advisory planning policy document, not as a mandatory legal statute and as a practical guide for practical application, superimposed upon an existing state of development on the site and in the relevant locality. Ultimately, a planning judgment is to be made on a fact and degree basis as to whether the specific proposal sufficiently meets the Development Plan and having regard to all relevant matters, warrants consent.
41. I have had regard to case law dealing with telecommunications facilities appeals and particularly DAC v 3GIS Pty Ltd [2007] SASC 216; [2007] 154 LGERA 72 and 3GIS v Development Assessment Commission & Anor [2006] SAERDC 89. I also note that with respect to telecommunications facilities, Council Wide provisions were inserted in all Council Development Plans with such guidelines being of a similar if not identical nature and that mostly these are newer provisions than the more specific zone provisions. In some respects the more recent, though broader, Council Wide policy directions for telecommunications facilities requires greater weighting where they overlap or are in contradiction to or are to be considered against silent or contradictory local zone provisions.

Planning Assessment

42. Like most freestanding TFs the proposed monopole with telecommunications antenna is, at 27 metres, a tall structure in a suburban and country township context such as at Gawler. Such structures are not buildings in the conventional sense though they constitute “building” under the Development Act and Regulations. In a general sense and unless specific to the contrary, Development Plan guidelines are generally devised to control and guide traditional buildings (their form, bulk, scale, materials etc), including those provisions for the TCeZ and the LH(C)PA. However, they are considered to be of limited relevance to the design and appearance of telecommunications antenna and monopoles, and for example other functional infrastructure such as electricity poles and lighting poles. Occasionally they are described to relate to these large structures such as through the State-wide policy framework set out in the Telecommunications Facilities State-wide Policy Framework, Ministerial Plan Amendment Report (30 August 2001). Nevertheless, there remain useful approaches and guides within the Zones and policy areas of the Development Plan, designed to minimise the degree of visual and character impact. In conjunction with the specific telecommunications guidelines, these deal with location and siting, colours, materials and screening, and at times the integration with other buildings or structures and these matters are assessed hereafter.
43. In this matter, the town centre and TCeZ location of the proposed TF is entirely appropriate particularly to meet the community demand/need for modern telecommunication services envisaged by Telstra (Mr Edwards’ evidence Exhibit A3 paras 18-31, 36-40), for the central area of Gawler. The Council through its witnesses seemed to accept those propositions and the need.
44. Council Wide Principle 155 supports such a location with additional design/locational caveats. It provides:

...
155 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.

45. In the case of Gawler and its town centre, obvious topographical and vegetation characteristics as well as bulky built form, provide added constraints as to suitable locations to maximise coverage to service the so-called target area (Mr Edwards in Exhibit A3 and Attachment A). So too does the heritage overlay (the zones, policy areas, State Heritage Areas, individual State Heritage, Local Heritage and Contributory Place listings), a factor that I consider to be of particular importance to the Gawler town centre and its ongoing further development and character into the future.

Location/Zoning/Alternatives

46. As referred to above, the town centre zoning is appropriate in-principle for the location of a TF. However, it needs to be cognisant of and an acceptable fit with the heritage overlays and the visual and appearance guides, tested in the locality context.
47. On the evidence of Mr Edwards (Exhibit A3, clause 40 and Attachment A), Telstra has investigated some 11 potential locations for a new facility in the central area of Gawler, including some on top of taller existing building elements. He gave extensive evidence as to the subject land proposal, being the preferred site for the appellant, not the least reason of which appeared to be its co-location benefits with the telephone exchange building, thereby avoiding additional external infrastructure and sheds, and with acceptable tenure, access and suitable coverage. He concluded “that there is no other available solution (from a technical or operational perspective) that is as good as or better than that proposed ... and which has the same or less impact on the community and the environment.”
48. After hearing most of the appellant’s case and the preliminary views of two of the three Council witnesses, it became apparent that at least two alternatives had not been explored sufficiently to allow them to be discarded as potentially superior alternative sites, from a heritage, environmental/visual and community perspective. The appellant took up the opportunity offered to explore such alternatives further, including with the Council as landowner of at least one of the sites, and the hearing was adjourned to enable such further analysis and consideration.
49. Further evidence was then adduced by the appellant with a number of supplementary statements, and the respondent provided its case on all alternatives and the updated evidence on the alternatives.
50. I have carefully considered the further evidence and the possible sites investigated further, together with those the subject of prior investigations and analysis.
51. I note the views of Messrs Edwards, Smith and Harry with respect to the subject land location and its superior comparison against the other alternatives. On balance, I agree with those opinions compared to those of Messrs Wohlstadt and Alexander. Even if the Finniss Street Council car park site (in the same zone but adjoining a State Heritage Area) had come to fruition in terms of commercial arrangements between the appellant and the Council, I am not satisfied that it is clearly superior, either with respect to visibility-visual impacts, nor with respect to compatibility with heritage places or character.
52. Of the 11 other alternative sites considered and put forward (refer the locality plan of Mr Smith and the sites numbered 1-12), most are in the same TCeZ and LH(C)PA9, two (one near the toilet block and one near the roundabout numbers 2 and 6), are in the Special Use Zone by the South Para River and one is just within the adjoining Residential No. 2 Gawler Zone and Gawler East Historic (Conservation) Policy Area – that is No. 8 in the Martindale Nursing Home grounds on higher land to the east.
53. Whilst each location is likely to have varied direct visibility from parts of Murray Street and varied relativities to heritage places and areas, in general, I consider they will cause similar impacts as would the proposal on the subject land.
54. Whilst a town centre zoning, is in-principle, one of the appropriate zones/areas for TFs (particularly in a land use sense), as mentioned above, it is nevertheless appropriate to consider the specific zone and policy area guidelines in relation to the development.
55. The historic value and character of much of the TCeZ is highlighted in Objective 1, the Future Character Statement and Principle 1. Built form scale in the order of two levels up to 8.0 metres in height consistent with townscape building scales is envisaged and buildings of greater than three storeys in height are listed as non-complying. However, if given heavy weight or narrow interpretation, that would be almost totally counter-productive to achieving adequate telecommunication services coverage in the Gawler town centre context. According to Mr Edwards, a height in the order of 27 metres is required to provide an effective, proper service. Given differing levels, topography and heights of certain building elements (such as church or other building spiers, clock- towers, turrets, and certain fortress wall parapets), as well as electricity and lighting poles (refer Exhibits A9, A19 including Image No. 2613), I find that there is a perception of a degree of variation in built form and the height of structures. Heritage and visual amenity considerations are further discussed hereunder.

Affect on Heritage Places/Areas/Value

56. The evidence of Mr Harry and Mr Alexander has been carefully considered. I consider that of the former to be more balanced and objective. Key conclusions of Mr Harry were as follows:

... that the proposed development will have no detrimental impact on the heritage values pertaining to the adjacent State Heritage places or their historical or physical integrity, and though it will be partly visible beyond them will have no meaningful impact on their setting. Given the mixed built forms (now and proposed) in High Street, and the distance of the proposed tower from Murray Street, I also believe it will have a neutral visual impact on the character of the locality.
I conclude therefore that the development will not in any way be detrimental to the heritage values, physical fabric or historic setting of the adjacent State Heritage Places or other Local Heritage or Contributory Places in the vicinity, will not detract in any meaningful way from the historic character of the locality, and therefore generally fulfils the intent of the Gawler (CT) Development Plan.

57. In regard to a comparison between the subject land location and a location in the north west corner of the Council’s Finniss Street multi-level car park, he concluded:

... that a tower sited within the lower topographical areas of the township will be less visible from a distance than a tower sited on the higher areas (such as Church Hill or the eastern escarpment), and that a tapering monopole will be visibly less prominent than a bulkier ornamental structure. (Exhibit A16, page 4)

58. On the other hand, Mr Alexander concluded (Exhibit R3 at p 21):

... the proposal is seriously at variance with the heritage provisions of the Gawler Development Plan. The provisions anticipate the retention of historic views and vistas, the reinforcement and the enhancement of streetscapes and sites within the historic policy areas.

... there has been no attempt to ameliorate or integrate the proposed development within the historic context, whereas the Development Plan provisions anticipate and seek complementary development.
The proposed development, particularly in this highly visible community location, does not respond to the Development Plan’s call for consideration of sculpture or public art.
The impact of the proposed development on the surrounding and proximate State and Local Heritage Places and Contributory Places is considerable, by virtue of the size, shape, height, design and colour of the proposed development.
The proposed development is contrary to the Development Plan’s desired future for the Town Centre, particularly in neglected locations such as High Street. Approval of the proposal would discourage improvement and perpetuate the back of house appearance at a time when commercial activity is resulting in the significant improvement of a blighted State Heritage Place opposite.

59. Continuing with his view of the Council car park location alternative (Exhibit R4 at p 10):

... the alternative location warrants further design investigation because of its association with modern development, its separation from State Heritage Places and the minimal density of Local Heritage Places and Contributory Places. The alternative location provides a better opportunity for the retention of historic views and vistas.

The proposed alternative development, in my view, demonstrates a design intention to integrate the proposed development within the adjacent context and to provide a complementary development.
The proposed alternative development provides an opportunity for consideration of sculpture or public art.
The impact of the proposed development on the surrounding and proximate State and Local Heritage Places and Contributory Places is reduced by virtue of its separation from adjacent heritage places and its size, shape, height, design and colour.
The alternative location and design approach represents a better, design driven outcome than the original proposed location at 201 High Street Gawler.

60. I consider that Mr Alexander was somewhat misguided in terms of emphasis in the Development Plan concerning consideration of sculpture and public art and his opinion about the so-called neglected High Street area and that the proposal would perpetuate a back of house appearance and I afford it less weight.
61. I conclude that, inevitably, there is likely to be some perceived effect on the heritage character and setting of the Gawler town centre area (aligning partly with the opinion of Mr Alexander), given that a TF monopole, at any of the locations considered, including the subject land and Council’s multi-storey car park site, would be seen as a back drop and part of the picture, in association with items, places and areas of historic character and value. That may be no more or not much more, than the case with the numerous overhead electricity and public lighting poles and infrastructure. They too have a negative effect on heritage character. I am not convinced that integration with a sculptured/artistic structure in the north western corner of the Council car park location, would have less effect or impact on heritage values and character than the slender, single monopole proposed. It could well appear contrived, artificial and bulky. It is also largely hypothesising at this point in time.

Visual Amenity Impacts/Minimisation/Streetscape Character – Vistas Consequences

62. The location and siting of the proposed TF is in a moderately sensitive area – located to the rear of two State Heritage Places, adjacent one other State Heritage Place and two Local Heritage Places; moderately near to Murray Street and within the TCeZ in an area of high public use and visitation. It is likely to be moderately visible from many vantage points such as:
    • from the north or south along High Street;
    • from the western side footpath of Murray Street for its central sections;
    • from Bridge Street South on arrival to the town centre area; and
    • from residential and other areas on higher ground to the east;
      

as set out in detail in the statement of Mr Wyatt (Exhibit A1).

63. However, several aspects of the design serve to minimise its likely visual impact from certain viewing points namely:
    • its location and siting behind two buildings fronting Murray Street, obscuring the lower portions of the monopole from view from along Murray Street 30–40 metres to the west; and along High Street to the north and south;
    • its positioning on the site, setback some 5.5 metres from the High Street boundary alignment;
    • its neat, slimline, tapered, monopole nature with flat tuft antenna panels at the top and internal wiring (like the new TF approved by the Court at Jetty Road near the corner of Brighton Road, Glenelg – Telstra Corporation Ltd v City of Holdfast Bay [2008] SAERDC 47); vastly superior to and unlike those with headframes and the protruding clutter of antennae of larger dimensions, together with climbing pegs, wiring and the like as shown in a number of the photos of telecommunications facilities in Exhibit 18;
    • its height, whilst tall is approximately 3 metres less than that considered ideal by Mr Edwards; and
    • its non reflective materials and the flexible position of the appellant regarding external colour so as to blend and be in keeping with the conditions of the sky or the vegetated hillside backdrop to the east.
      
64. I do not place heavy weight on the negative visual affects the proposed TF was said likely to have on the vistas along High Street as was the position of Mr Wohlstadt, as I do not assess it to be a main focal point or significant vista in the Gawler context. Messrs Wyatt, Smith and Harry were in support of that view point. In addition, I assess and find that no other alternative location is visually superior in terms of minimising visual impacts though a number are reasonably similar.
65. I assess and find that the degree of minimisation of visual impact is sufficient in all of the circumstances and meets Council Wide Principle 155(f). It also meets Principle 155 as a whole and Principle 156 and the other relevant amenity guides in the Plan.

Affect on Heritage Places/Character

66. The subject land of the development proposal is located in the south eastern part of the LH(C)PA, a large area that covers most if not all of the town centre zones (Refer Fig. HC/2 and Enlargement A, pp 53 and 54 of the Development Plan and Maps Ga/5 and 16).
67. Only one alternative site is not located in this policy area (site numbered 8 on the Smith locality plan), located within the adjoining even more sensitive residential zoning. I consider that no alternative is better located on a zoning basis.
68. On my assessment the proposal will have some negative impact on the character and setting of the LH(C)PA and on adjacent heritage places, but only to a minor extent, contrary to the conclusions of Mr Harry (Exhibit A4, p 16 “... no detrimental impact on heritage values ...” and “... no meaningful impact on their setting”; and Mr Wyatt (Exhibit A1, p 22) “... will not have detrimental impact on the local heritage places in the area.”.
69. I have some sympathy for Mr Alexander’s conclusion 6.4, but whilst there will be some impact, it will not be considerable as espoused. His conclusions are also perhaps coloured and a little misguided (6.3 and 6.5) with respect to the emphasis of the guideline (Principle 157) envisaging the potential use of sculpture and art, and the view that the proposal, or its location, would discourage improvement and perpetuate the “back of house” appearance in neglected locations such as High Street. I do not hold that concern or reservation.
70. Whilst there is a varied density – spread of individual heritage places within the policy area, I do not agree with Mr Alexander that the density is so much greater in the vicinity of the subject land, compared to that of most of the alternative locations. With respect to site No.2, the Council Finniss Street car park building, I consider that he places insufficient weight on the State Heritage Area designation of land nearby and its proximity to individual places/items to the west, north and east (facing Murray Street). No other site/location is a significantly stronger candidate in considering heritage character and visual amenity, and that is available, to warrant rejection of the subject land development proposal and the pursuit of such alternative(s).
71. I assess and find that the subject land and proposal is adequate and is not sufficiently detrimental to the character or amenity of the Historic (Conservation) Policy Area, or the Local or State Heritage Place listings or the State Heritage Area and is acceptable having regard to the Development Plan “heritage” criteria as cited by the experts (CW Principles 86, 90-92, 95, 106 and 159); and the Local Historic (Conservation) Policy Area, Objectives 2, 4, 6 and 13, and Principles 6-8 as well as the Town Centre Zone Objective 1, Future Character guides and Principle 2.

Conclusions

72. I have carefully considered the development proposal on the subject land, particularly whether it sufficiently minimises visual amenity and heritage character impacts. To that end, I intimated to the parties nearing the conclusion of the appellant’s case, that two alternative locations had not been analysed and pursued sufficiently, and I enabled them to further analyse and pursue those as serious practical alternatives. I heard further substantive evidence on those alternatives and/or relevant alternatives. In the end, the parties and particularly the appellant were unable to pursue either of them for differing reasons.
73. I am satisfied that sufficient investigations and consideration of alternatives have now been pursued and that no other represents a realistic alternative with greater merit in terms of minimising visual amenity impact and detrimental affect on heritage/historic character of areas or individual places/items, to warrant rejection of the development proposal (on the subject land) before the Court.
74. After consideration of the evidence, the view taken of the subject land, the locality and alternative siting locations in the Gawler town centre, the relevant Development Plan guidelines and on my assessment, I conclude as follows:
    • that there is a community need for the facility to provide appropriate and expected telecommunication services to the community within the target area of central Gawler;
    • that the Light Historic (Conservation) Policy Area designation and location of the subject land and the TF proposed siting adjacent certain State and Local Heritage Places on the existing telephone exchange site, are acceptable and particularly the siting at the rear of the State Heritage Places, away from Murray Street and setback 5.5 metres from High Street;
    • that realistic alternatives are of no greater merit on the basis of that required to meet the technical needs of Telstra, whilst also significantly minimising visual amenity impacts;
    • with regard to the alternative site No.2 comprising the multi-storey Council car park site at Finniss Street, I note the reasonable progress achieved, make no criticism of the positions, approaches, or progress of either party, note the indicative tower concept on which a TF could be placed, but find that it remains problematic due to any application of the kind being likely to be required to be referred to the Minister administering the Heritage Places Act 1993 for advice and likely to be determined by the Development Assessment Commission given Council’s apparent conflict of interest as land owner and beneficiary;
      
    • that there will be some negative visual amenity impact on the locality and specific parts of it, but it is minimised to an acceptable extent and is otherwise difficult to avoid or eliminate entirely;
    • that the three State and two Local Heritage Places in the near vicinity are not materially affected, directly or indirectly and nor are their heritage values affected in any significant or meaningful way;
    • that I concur, in general, with the evidence of Messrs Wyatt, Harry and Smith in preference to that of Messrs Wohlstadt and Alexander; and
    • the proposal is worthy of Development Plan Consent with appropriate conditions and the decision of the Council should be reversed.
      
75. Implicit in my assessment and conclusions is that the development is not seriously at variance with the Development Plan. This was not submitted in the case of the Council and I do not accept the assertion along those lines by Mr Alexander.
76. I intimated by Memorandum dated 22 December 2008, that the decision of the Court would be to uphold the appeal and to reverse the decision of the Council to refuse the application. I invited the parties to confer with respect to conditions of planning consent and to make further written submissions thereon to the Court by Friday, 16 January 2009. I received submissions from both parties and but for two topics, that of car parking loss and make-up, and screen fencing details, the balance were agreed to a general extent by each. I am satisfied with the conditions generally agreed between the parties.
77. The Council submission was that the space to be utilised by the proposed monopole would take up the space otherwise capable of the parking of two cars. The evidence of Mr Smith for the appellant at p18 (Exhibit A5), was that the monopole “will reduce the space available to manoeuvre a car within this space but it would not diminish the car parking capacity of the site”.
78. On the basis of the Council’s position and apparently some occasional use of on-street parking which may not be available in the future, it sought a condition that required the appellant to produce a report to set out typical vehicle parking requirements for all uses on the subject land. If such requirements exceeded the amount of space available for vehicle parking on the subject land, then the appellant would need to make a contribution to the Council’s car parking fund or demonstrate that alternative arrangements were to be made to cater for the shortfall, but that there would be a demand for no more than contributions for two car spaces or alternative arrangements required for an additional two car parking spaces.
79. I am inclined to the view of Mr Smith and the submissions of the appellant, namely that any change to the position with regard to car parking is largely historical and that the proposal will make minor and insignificant difference to that position. I therefore assess and determine that it is not a reasonable requirement for this monopole application that the potential loss of one or at most two informal vehicle parking spaces on the site is relatively minor and not so significant as warranting the conditions and course of action sought by the Council. It is not appropriate to investigate and make-up for any shortfall with respect to the balance of existing use(s) on the subject land as a whole.
80. I have modified the screen fencing conditions taking account of the submissions of each party.
81. The other conditions as generally agreed between the parties have been adopted but with several minor variations.

Decision

82. The appeal is upheld and the decision of the Council reversed. Development Plan consent is granted to the application subject to the following conditions:
    1. The design and siting of all buildings and structures and site works must be as shown on the plans in respect of which consent is granted, more specifically being plans with Drawing Nos. 6153-G2, 6153-S1 and 6153-S2 (being sheets No. 1 through 3 of 3 respectively) each Issue 3 with last amendment dated 18 July 2006 drawn by TIA Consulting (comprising appendix 2 of Exhibit A5), unless varied by any subsequent conditions.
       
2. Screening is to be provided along or near to the High Street frontage to a height of 2.4 metres above ground level using screening which comprises galvanised steel support posts with an infill of flat vertical galvanised steel bars or timber slats framed by a galvanised steel perimeter, with the design to be submitted to and for approval by the Council prior to the issue of Development Approval.
   
3. The above screening as approved must be constructed within three months of erection of the monopole and may be located to either replace the existing chain link fence and gate which is constructed on the boundary of the subject land with High Street (preferred by the Council) or on a parallel alignment behind that fence and gate.
   
4. All structures herein approved must be maintained, kept tidy, free of graffiti and in good repair and condition at all times.
   
5. The monopole must be finished in Wattyl N53 paint and with a satin finish.
   
6. Such finish must be applied to the monopole prior to or within 1 month of its erection and must thereafter be maintained.
   
7. Construction must only take place between 7am and 7pm Monday to Saturday inclusive and not on Sundays or public holidays. Work outside these hours may only occur if the prior written approval for such variation is obtained from the Council.
   
83. There will be an order to that effect.