Indara Infrastructure Pty Ltd v Wollongong City Council

[2023] NSWLEC 1460

Land and Environment Court

New South Wales

Medium Neutral Citation:

Indara Infrastructure Pty Ltd v Wollongong City Council [2023] NSWLEC 1460

Hearing dates:

Conciliation conference on 10 August 2023

Date of orders:

17 August 2023

Decision date:

17 August 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to rely on the plans and documents at Annexure A.

(2) The appeal is upheld.

(3) Development consent is granted to DA 2022/366, for the installation of a telecommunications facility, consisting of a 35m monopole, equipment shelter, antennas, ancillary equipment, and tree removal on Lot 4 DP 249038, known as 328 Kanahooka Road Brownsville NSW 2530, and Lot 8 DP 560853, subject to the conditions of consent contained at Annexure B.

Catchwords:

DEVELOPMENT APPLICATION: installation of telecommunications facility in C3 Environmental Management zone – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.143

Wollongong Local Environmental Plan 2009, cll 4.3, 4.6, 5.21, 7.1, 7.4, 7.5, 7.6

Texts Cited:

NSW Department of Planning and Environment, NSW Telecommunications Facilities Guideline including Broadband, July 2010

Category:

Principal judgment

Parties:

Indara Infrastructure Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
N Hammond (Applicant)
J Reilly (Solicitor) (Respondent)

Solicitors:
Maddocks (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2023/105078

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Wollongong City Council of development application DA-2022/366 seeking consent for the installation of a telecommunications facility, consisting of a 35m monopole, equipment shelter, antennas, ancillary equipment, and tree removal, at 328 Kanahooka Road, Brownsville.

2. On 10 August 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided.

3. Prior to the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 10 August 2023, in accordance with s 34(10) of the LEC Act.

4. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

6. For the reasons that follow, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. The proposed development comprises development on Lot 4 in DP249038 and Lot 8 in DP 560853. The written consent of the owners of the land on which the development is proposed accompanies the development application.

8. The development application was lodged with the Respondent on 30 March 2022, and was notified from 14 November 2023 to 28 November 2023, in respect of which no submissions were received.

9. The site on which the 35m monopole, equipment shelter, and antennas is proposed is located within a C3 Environmental Management zone, according to the Wollongong Local Environmental Plan 2009 (WLEP).

10. Cabling and earthworks are also proposed on both of the Lots identified at [7]. Lot 8 is located within a SP3 Tourist zone according to the WLEP. The one objective of the SP3 zone is to provide for a variety of tourist-oriented development and related uses.

11. Telecommunications facilities are not identified as being permitted with or without consent in the C3 zone or SP3 zone. As such a use is not specified, such a use is prohibited.

12. That said, development for the purpose of telecommunication facilities is permitted with consent pursuant to s 2.143(1) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP).

13. However, before determining a development application for such a purpose, certain guidelines, issued for such a purpose, must be taken into consideration, in accordance with s 2.143(2) of the Infrastructure SEPP.

The height of building standard is exceeded

14. While the proposed development is permitted with consent by operation of the Infrastructure SEPP, subject to certain guidelines being taken into consideration, the proposal is for a telecommunications facility comprising a monopole structure, head frame and antennas that exceed the height of building development standard at cl 4.3 of the WLEP (the height standard).

15. The height standard applicable to the site is 9m. The proposal is for a structure that is depicted in drawings prepared by Indara Digital Infrastructure (Engineering plans) to be a total of 38.8m in height.

16. In the first instance, the parties consider that a telecommunication facility falls within the scope of the exclusionary text of the Dictionary to the WLEP “…excluding communication devices, antennae, satellite dishes, masts…and the like” from measuring building height. So understood, the proposal does not exceed the height standard.

17. However, in the alternative, the Applicant relies upon a written request prepared in accordance with cl 4.6 of the WLEP to justify the contravention of the height standard.

18. For the reasons set out in the written request, I am satisfied that compliance with the height standard is unreasonable or unnecessary as the proposal achieves the objectives of the standard notwithstanding the non-compliance. This is because, firstly, the proposal is predominantly a tall, slim element to be finished in a non-reflective grey finish, that will not impact on the surrounding buildings and public area’s access to view of the sky and exposure to sunlight. Secondly, by accommodating not one but two telecommunication providers, the proposal also avoids the proliferation of telecommunications infrastructure in the area with an urban form that is consistent with other similar structures in the vicinity, including high voltage towers and playing field floodlights, and as depicted in a visual impact analysis at Figure 8 of the Statement of Environmental Effects prepared by Axicom, dated October 2022. As such, I accept that the proposal achieves a high-quality urban form.

19. I also accept that the underlying objective or purpose of the standard is not relevant to the development and therefore compliance is unreasonable or unnecessary in the circumstances of the case where permissibility derives from s 2.143 of the Infrastructure SEPP that also requires consideration of the NSW Department of Planning and Environment’s NSW Telecommunications Facilities Guideline including Broadband, July 2010 (the Guideline) which in turn, contains principles to be achieved in respect of visual impact, colour, screening, landscape and landscape setting, heritage impact, views and streetscape, siting and design. To the extent these principles represent underlying objectives to be achieved, I have taken into consideration Appendix 4 of the Statement of Environmental Effects which details the ways in which those principles of the Guideline are achieved.

20. I am also satisfied that there are sufficient environmental planning grounds to justify the contravention of the height standard for the reasons contained in the written request. In particular, I accept that the site is separated from visually sensitive residential development, and is instead located where there are already a large number of established floodlight poles with a comparable appearance to the proposed telecommunications facility. I also accept that the proposal is for public benefit infrastructure with discrete technical requirements, such as the height of the facility, essential for its function.

21. Finally, the written request asserts consistency with the objectives of the C3 and SP3 zones, that are as follows:

1. The objectives of the C3 zone are:

•  To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

•  To provide for a limited range of development that does not have an adverse effect on those values.

2. The objectives of the SP3 zone are:

•  To provide for a variety of tourist-oriented development and related uses.

22. The written request asserts consistency with the objectives at [21], because:

1. In respect of the objectives for development in the C3 zone:

1. The proposal will not have an adverse impact on the ecological values of the local environment, which has been extensively cleared in the past. While further clearing of vegetation is proposed, replacement planting is also proposed.

2. As stated at [18], the proposed structure is predominantly a tall, slim element of 35m in height, with a diameter of 700mm at the top of the monopole, to be finished in a non-reflective grey finish, and so protects the aesthetic values of the area.

3. There are no indigenous sites identified on the subject property, and so the cultural values of the area are managed.

2. In respect of the objectives for development in the SP3 zone:

1. The facility will improve mobile connectivity for the local area, and so will expand the capability of the mobile network to support the community, and tourists visiting the region.

23. The Respondent is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the WLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development in the C3 and SP3 Zones.

24. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the WLEP.

25. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.

26. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the applicable zones for the reasons given in the request.

27. In forming this opinion of satisfaction, I accept that there is a public interest in improving network coverage in the local area and that the proposal is, in essence, a tall and slender addition to a cluster of similar lighting towers servicing playing fields in the immediate vicinity of the proposed development.

28. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the WLEP and I find no grounds on which the Court should not uphold the height request.

The relevant provisions of the WLEP are considered

29. The site is flood affected. Accordingly, the provisions at cl 5.21 of the WLEP apply to the site. I have considered those matters at cl 5.21(3) of the WLEP as they are explained in the Flood Assessment prepared by Martens and Associates dated 28 September 2022. On the basis of this explanation, I am satisfied that:

1. the development is compatible with the flood function and behaviour on the land; will not adversely affect flood behaviour in a manner that is detrimental to other development or properties;

2. will not adversely affect the safe occupation of people in the event of flood;

3. incorporates appropriate measures to manage risk to life in the event of flood; and

4. will not adversely affect the environment or cause erosion, siltation, destroy riparian vegetation or the like.

30. The Engineering plans 1992-G1 identifies a connection to the existing main switch board at the Dandaloo Hotel, sited on Lot 8 for which owners consent has been provided, and an underground path for a power sub main is also identified. On this basis, I am satisfied that adequate arrangements have been made for the relevant public utility infrastructure essential for the development to be available when it is required, in accordance with cl 7.1 of the WLEP.

31. The underground path for electricity to the telecommunications facility passes through riparian land, according to the Riparian Land Map at cl 7.4(2) of the WLEP. I have considered the impact of the proposed path for electrical power on the riparian land and I note the proposal is to suspend the relevant cabling across the watercourse affixed to a small pedestrian bridge, depicted in Figure 13 of the Planning Report prepared by Axicom dated March 2022.

32. The site is located within an area classified as Class 3 Acid Sulfate Soils, pursuant to the Acid Sulfate Soils Map at cl 7.5(2) of the WLEP. A letter prepared by Martens & Associates, dated 9 August 2023 accompanies the amended application. The letter cites the results of a Geotechnical Site Investigation Report completed by Intrax in May 2022, and Structural Plans prepared by Roam Pty Ltd that show the extent of excavation required by footings that are both concrete pad and screw pile footings. The letter concludes that an Acid Sulfate Soils Management Plan is not required given the extent of earthworks required by the development.

33. For similar reasons to those above, and after considering the flood characteristics of the site summarised at [29], I conclude that the earthworks associated with the proposed development will not have a detrimental impact on environmental processes, neighbouring uses or heritage items and features surrounding the land, consistent with cl 7.6 of the WLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

34. The parties agree that the Geotechnical Site Investigation Report completed by Intrax in May 2022, and an audit by the Respondent’s Environment Officer indicate the site is not contaminated and is suitable in its current state for the development as proposed, in accordance with s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

Conclusion

35. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

36. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

37. The Court notes that:

1. Wollongong City Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application DA 2022/366 in accordance with the plans and documents at Annexure A.

2. The plans and documents listed in Annexure A were filed with the Court on 10 August 2023.

Orders

38. The Court orders that:

1. Leave is granted to the Applicant to rely on the plans and documents at Annexure A.

2. The appeal is upheld.

3. Development consent is granted to DA 2022/366, for the installation of a telecommunications facility, consisting of a 35m monopole, equipment shelter, antennas, ancillary equipment and tree removal on Lot 4 DP 249038, known as 328 Kanahooka Road Brownsville NSW 2530, and Lot 8 DP 560853, subject to the conditions of consent contained at Annexure B.

……………………

T Horton

Commissioner of the Court

Annexure A (95120, pdf)

Annexure B (229673, pdf)

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Decision last updated: 17 August 2023