VCAT decision makes a towering difference

THERE has been victory for the common man – and commonsense – in the battle over a site for a telecommunications facility at Port Franklin.

That, at least, is how Chris and Ailsa Richter see it.

The Port Franklin couple refused to accept South Gippsland Shire Council’s decision to grant a permit for construction of a tower for the National Broadband Network slap bang in the middle of their rural view. Despite warnings that they might be wasting their time and money, they took the matter to the Victorian Civil and Administrative Tribunal (VCAT) – and won.

VCAT member Dalia Cook, who presided over the hearing, concluded: “There is a policy support for the rollout of the National Broadband Network. However, in assessing this proposal against the relevant layers of planning controls and policy, I have found that the visual impact of the facility in its proposed location cannot be supported.”

The Richters heard the welcome news in mid-December, six weeks after the November 7 VCAT hearing in Melbourne and two weeks after Ms Cook made a site visit to assess the situation for herself.

The Richters represented themselves at the hearing, up against a phalanx of professionals presenting for NBN Co Ltd and South Gippsland Shire Council.

The Richters argued that the Mattsons Road site which had been selected was unsuitable, largely because of the visual impact the tower would have. They said that they would support the proposal if the facility was relocated 200 metres or so further west at 60 Lawrence Road. This was ‘Option 2’ of the original three options considered for location of an NBN tower at Port Franklin. It had been dismissed in favour of Option 3 (Mattsons Road) for reasons which were never made clear to the Richters.

The Richters were pleased to see a letter from the owner of the Lawrence Road land expressing support for Option 2 tabled at the hearing. They believe this helped the decision go in their favour. They were also interested to hear Gavin Spain from NBN Co Ltd say of Option 3 that it was only “slightly superior in overall performance in terms of fixed wireless coverage compared to candidate Option 2”.

However, when they left the hearing at the end of the day on November 7 they had no idea which way the decision would go.

What the Richters believe made all the difference was the site visit made by the presiding member at the hearing, Dalia Cook. She offered to come down to South Gippsland and view the area under contention for herself, and she did just that early in December.

“We are very grateful that she took the time and made the effort to see for herself,” said Mr Richter.

If she had made her mind up then, however, she gave nothing away. It was not until a couple of weeks later that the Richters were advised that the decision to grant a permit to NBN Co Ltd to erect a 30-metre tower in Mattsons Road had been overturned. They were overjoyed.

In her general comments Ms Cook noted: Without making findings about the appropriateness of siting the proposed facility in the position referred to as “option 2” in the original application assessment, it would appear to me that this option may well be suitable. A fresh permit application would need to be lodged with the responsibility authority and considered on its merits. As an observation, it may potentially be resolved without objection noting the open ‘offer’ made at the hearing.”

As yet, however, no further application for a tower at Port Franklin appears to have been lodged.

The Richters are now wondering whether the decision regarding the Port Franklin facility sets a precedent.

“Perhaps the visual impact a tower will have can’t be dismissed so readily,” said Mr Richter. He expects the decision will be regarded with interest by opponents of the site chosen for an NBN tower at Yanakie North. A report to council dismissed the loss of visual amenity as a groundless concern and South Gippsland Shire Council approved the application for a planning permit at the November council matter. It remains to be seen whether this and/or other decisions will also be taken to VCAT.

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