NTL Australia Ltd v Willoughby Council - [2000] NSWLEC 244

Land and Environment Court

of New South Wales

CITATION: NTL Australia Ltd v Willoughby Council [2000] NSWLEC 244

PARTIES:
APPLICANT
NTL Australia Ltd
RESPONDENT
Willoughby Council

FILE NUMBER(S): 10528 of 2000

CORAM: Bignold J

KEY ISSUES: Development :- Development-extension of existing television transmitting tower-impact of electromagnetic radiation-the "precautionary principle"-appropriate conditions of consent-whether deferred commencement consent is appropriate-Conditions requiring creation of positive covenant under the Conveyancing Act 1919

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97(1)

CASES CITED: North Sydney Gas Company v North Sydney Municipal Council Cripps CJ (unreported June 1991);
MacDonald v Mosman Municipal Council (1999) 105 LGERA 49

DATES OF HEARING: 16th October 2000

DATE OF JUDGMENT:
11/27/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr T Hale SC
SOLICITORS
Minter Ellison
RESPONDENT:
Ms D Townsend, Solicitor
SOLICITORS
Malleson Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No . 10528 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 27 November 2000

NTL AUSTRALIA LTD

Applicant

WILLOUGHBY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979 s 97(1) (the EP&A Act) against the Council’s deemed refusal of the Applicant’s development application for (i) the extension of the height of the existing television tower situate on land known as No 196 Hampden Road, Artarmon (the development site) from 203 m to 224 m; (ii) for the erection on the development site of a two storey transmitter building to house equipment associated with SBS broadcasts; and (iii) demolition and removal from the development site of an existing shed and existing diesel fuel tanks.

2. The stated purpose of the tower extension is to relocate from Gore Hill (situate 1.5 km to the south of the development site) the existing SBS transmission facility so as to improve the service for the SBS Television Channel.

3. On the hearing of the appeal, the Council’s Solicitor informed the Court that the Council had resolved to enter into consent orders with the Applicant for the disposal of the appeal by the grant of development consent subject to conditions. However, the Court was informed that the parties had not reached agreement upon all conditions and the Court was requested to adjudicate upon the disputed conditions in the context of a hearing limited to that dispute and upon the basis that there were no resident objectors who had taken up the Council’s invitation (given pursuant to the Court’s Practice Direction) of the opportunity to appear in Court to give evidence opposing the disposal of the appeal by the contemplated consent orders.

B. THE COUNCIL’S ALTERED STANCE ON THE DEVELOPMENT PROPOSAL

4. Before considering the question of the conditions in the dispute, I should briefly note the fact that following the commencement of the proceedings, the Council had determined the development application on 18 July 2000 by refusing consent on the ground that the Council adhere to its previous resolution (Council Resolution 98/1033) regarding Telecommunications Facilities which states:

That Council advise all telecommunication…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWLEC 244
Decision Date: 11/27/2000

CaseChat Overview and Summary

The case of NTL Australia Ltd v Willoughby Council involved an appeal against the Council's refusal of NTL Australia Ltd's development application for the extension of a television transmitting tower. The primary issue was the imposition of various conditions of development consent, particularly those concerning electromagnetic radiation and lead contamination. The Land and Environment Court, presided over by Bignold J, adjudicated on these conditions. The court examined the Council's suggested conditions and the applicant's proposed alternatives, considering expert evidence on the health implications and technical assessments of the proposed development. The court ruled on several conditions, amending some and rejecting others, based on the evidence and the need for appropriate safeguards without imposing unnecessary burdens. Notably, the court rejected a condition requiring the creation of a positive covenant under the Conveyancing Act 1919 for on-site stormwater detention, finding it neither necessary nor generally appropriate. However, it upheld the Council's condition on lead contamination, subject to amendments to ensure comprehensive coverage of the proposed works. Regarding electromagnetic radiation, the court rejected both parties' proposed conditions, opting instead to require the applicant to verify predicted levels with actual measurements after the tower extension is operational, with an added requirement to explain any significant discrepancies. The court's final orders granted development consent subject to the amended conditions.

Orders