Hutchison Telecommunication (Australia) Limited v Ku-ring-gai Municipal Council

[2004] NSWLEC 665

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Hutchison Telecommunication (Australia) Limited v Ku-ring-gai Municipal Council [2004]  NSWLEC 665

PARTIES:
APPLICANT
Hutchison Telecommunication (Australia) Limited

RESPONDENT
Ku-ring-gai Municipal Council

CASE NUMBER:     11022 of        2004

CATCH WORDS:     Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Telecommunications Act 1997
Ku-ring-gai Planning Scheme Ordinance

CORAM:        Brown C

DATES OF HEARING:        10/11/2004

EX TEMPORE DATE:          10/11/2004

LEGAL REPRESENTATIVES

APPLICANT
Ms S Duggan, barrister
SOLICITORS
Truman Hoyle

RESPONDENT
Mr P Rigg, solicitor
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

10 November 2004

11022 of 2004                   Hutchison Telecommunication (Australia) Limited v Ku-ring-gai Municipal Council

JUDGMENT

1. This is an appeal against the refusal of DA 1619/03 by Ku-Ring-Gai Municipal Council (the council) for the erection of a 25 m high communication tower at 213 Kissing Point Road Turramurra (the site). 

1. The site is currently occupied by a BP service station.  The tower is to replace an existing installation located on the same site but attached to an existing advertising sign for the service station.  The tower consists of a single pole some 450 to 500 mm in diameter with no external antennae.  The antennae and other necessary equipment are located inside the pole or at ground level.  It is to be painted a passive colour

1. The installation of a stand alone pole structure does not fall within the exemptions in cl. 6 of the Telecommunications Act 1997 and as such the proposal is subject to consideration under the provisions of the Environmental Planning and Assessment Act 1979 (the EPA Act).

1. The site is zoned Business 3(c) (Business Retail Centre) under the provisions of the Ku-Ring-Gai Planning Scheme Ordinance (the KPSO).  It is a permissible use within this zone.

1. The council filed a Statement of Issues containing two separate issues.  The first related to streetscape and visual impacts and the second related to the public interest and principally further matters raised by local residents.  In addition to streetscape and visual impacts, the impact of electromagnetic energy was the major issue. 

1. Clause 79C(1)(e) of the EPA Act specifies the public interest as a matter to be taken into consideration in determining a development application. The provision of communication facilities is a matter included in s 5 (a)(iii) of the EPA Act where one of the objects is to encourage “the protection provision and co-ordination of communication and utility services”.  It is also a matter raised indirectly by the Telecommunications Act 1997 where the provisions of the EPA Act are essentially by-passed for the provision of minor telecommunication facilities.

2. On the issue of streetscape and visual impact, the Court had the benefit of a crane providing the location and height of the proposed tower.  An assessment of the proposed tower was undertaken from various locations around the area.  A number of local residents took the opportunity to point out their concerns to the Court at this time.  The Court also had the benefit of a bundle of documents containing the many submissions sent to the council objecting to the proposed tower. 

1. In considering the public interest, the more local aspects of the public interest are represented by the local community.  In this case, it was reflected in many objections to the proposal.  The wider public interest is also a matter that needs to be considered.  This wider public interest could be seen as being represented by the need to provide an adequate coverage for mobile phone users in the area. 

1. From the site view, the proposal was clearly visible from a number of locations around the area.  The most conspicuous viewing location is from Kissing Point Road, directly in front of the site.  It is an area lacking any vegetation because of the use of the site as a service station.  The tower was also visible from the residential property directly behind the site in Balmaringa Avenue.  With increasing distance from the site, existing vegetation tends to screen the tower although it is still visible, on occasions, above the tree line or through gaps in the trees in other locations.

1. To support the location, the applicant argues that as the area is predominantly a low density residential area with no industrial land uses and devoid of any existing tall buildings, locations to address a lack of transmission coverage in the area are restricted.  It was submitted that the possibility of other locations or other methods of providing the required coverage was not a matter raised by the council.

2. On the site view, the Court was taken on a particularly forensic exercise of visual impact assessment however I am not convinced that this is necessarily the appropriate test.  The tower has limited bulk and a person’s view will not be instantly be drawn to the tower unless it is pointed out or it is being sought out.  While the colour and design cannot hide the tower they nonetheless seek to minimise its visual impact.

1. Ms Duggan submitted that the mere presence of the tower is not a sufficient reason for its refusal.  I agree with this submission.

1. In balancing the local and wider aspects of the public interest and the limitations on other locations, I accept that the proposal achieves a reasonable balance.  I acknowledge that the applicant has endeavoured to minimise the potential impact through the design and location of the tower.

1. While not raised as an issue by the council, the residents raised considerable concern over the potential effects of electromagnetic emissions and potential impacts on nearby sensitive land uses such as schools and the people generally living in the vicinity of the tower.

1. The evidence provided to the Court on electromagnetic emissions was contained in the Statement of Environmental Effects submitted with the development application.  It states that the appropriate standards for electromagnetic emissions are provided by the Australian Radiation Protection and Nuclear Safety Agency.  The Court was advised that even the identified maximum levels contain significant safeguards and are under constant review.  For this installation, the predicted electromagnetic emissions indicate a maximum level at a distance of 239.23 m from the tower.  This rate is calculated at 0.0285% of the appropriate standard or General Public Reference Level.  I note that no evidence was provided to challenge any claims made by the applicant on electromagnetic emissions. 

2. Based on these predictions, the proposed tower will not threaten the health of any person in the vicinity of the tower.  I also note that the proposed tower will generate lower levels of electromagnetic emissions than the existing tower because of its increased height.

1. There being no substantive reasons why the appeal should not succeed the Orders of the Court are:

   1.The appeal is upheld.

   2.DA 1619/03 for the erection of a telecommunications tower at 213 Kissing Point Road, Turramurra is approved subject to the conditions in Annexure ‘A’.

   3.The exhibits are returned with the exception of Exhibits 4, 5, A and E.

   __________________________

   G T Brown

Commissioner of the Court