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

v

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 owners that as a matter of policy until such time as conclusive scientific research evidence is available which demonstrates that no adverse health impacts result from electromagnetic energy emitting telecommunications facilities that all applications lodged with Council will be refused.

5. That determination (which was immediately challenged by the Applicant in unconcluded class 4 proceedings (40126 of 2000) in the nature of relief by writ of mandamus) had been made by the Council despite the fact that its planning officers who had assessed the development application had recommended that development consent be granted subject to conditions, their assessment having expressed the following conclusion:

Emphasis has been placed on any health concerns that may relate to the proposal. The applicant was required to substantiate any conclusions or results via a technical report. The report was subsequently referred to an independent consultant of Council’s choice for verification prior to any decision being made. As previously mentioned, the conclusion by EMC Technologies was that having regard to known research, in relation to EMR, as well as the relevant standard, the proposed additions and facilities to the tower are not expected to increase the existing EMR levels and the risk to residents:, and that the results of the prediction be tested after the construction is completed. A condition may be placed on any consent to ensure the testing following construction.

Otherwise, it is considered that the proposal satisfies the requirements of the 5(a) Special Uses (Television) zone. Furthermore, it is considered that the proposal will have minimal adverse affects on neighbouring properties or properties in the general area.

On this basis, the application is supported

6. Thereafter, the Council’s Solicitor filed in Court on 7 September 2000 the Council’s Statement of Issues raising the following issues—:

1. Having regard to the precautionary principle, whether the applicant has demonstrated that the proposal will not result in unacceptable impacts on the health of persons in the Willoughby and Lane Cove local government areas.

2. Whether the proposal should be approved having regard to the Council’s policy resolution No. 98/1033 in the following terms:.

THAT Council advise all telecommunication carriers that as a matter of policy until such time as conclusive scientific research evidence is available which demonstrates that no adverse health impacts result from electromagnetic energy emitting telecommunications facilities that all applications lodged with Council will be refused.

3. Whether the applicant has demonstrated that no alternatives exist which would have the effect of lowering the electromagnetic radiation levels experienced by persons in the Willoughby and Lane Cove Local Government Areas.

4. Whether the applicant has demonstrated that cumulative impacts from electromagnetic radiation generated by the proposed SBS transmitter, other transmitters existing and proposed on the existing tower on the site and other transmitters in the Willoughby local government area will be acceptable.

Lead contamination

5. Whether the applicant has demonstrated that appropriate measures can and will be taken to prevent the spread of airborne lead contamination from the site and from the existing tower on the site to neighbouring properties during each of the excavation, construction and demolition activities proposed.

Soil contamination

6. Whether the applicant has demonstrated that appropriate measures can and will be taken to deal with soil contamination on the site during the excavation, construction and demolition activities proposed and to prevent the spread of contaminated materials from the site onto neighbouring properties.

7. Thereafter, in preparation of the Council’s case, the Council’s Solicitor sought and obtained the advice of Dr Bruce Hocking, a Specialist in Occupational Medicine, on the “possible health effects related to resiting the SBS UHF antenna” (from the existing site at Gore Hill to the development site). Dr Hocking provided a written opinion to the Council’ Solicitor who in turn provided advice to the Council (the content of which was not disclosed at the hearing) leading to the Council’s decision on 11 September 2000 to settle the proceedings (which had been listed for hearing by the Court on 16 October 2000) by entering into the consent orders that I have earlier referred to.

8. Dr Hocking’s advice included the following “Summary Regarding the Application and Health Effects”

The relocation of the SBS UHF antenna will result in little change of exposures to the surrounding community and should be well below current (or anticipated) Australian standards. The application should be approved noting some caveats regarding health effects. UHF has not been linked to most cancers in overseas studies except for a small increased risk of chronic lymphatic leukaemia. Obviously short of closing down the transmitter this risk will continue irrespectively but should not be worsened by the relocation. The concerns about increased incidence of childhood leukaemia mainly relate to VHF transmissions and are not so relevant to the UHF transmitter. The possible role of UHF in interacting with infants with leukaemia to affect their survival is speculative and needs more research before being a significant health issue when approving the application to relocate. It would be a token of good faith to the nearby community if all parties to the application urged for the necessary research (see 4.2) to properly assess the hypothesised health effects near the TV towers this also would be congruent with a precautionary approach .

9. What clearly emerges from this brief history of the Council’s processing of the development application is that it has thoroughly explored the community health implications of exposure to radio frequency radiation and has been satisfied that the proposed development will create little, if any, change in the levels of exposure already experienced by the local community. The process of becoming so satisfied has involved the Council’s consideration of (i) the expert assessment provided by the Applicant supporting the development application; (ii) a verification of clarification of that expert assessment; (iii) an evaluation by an independent consultant appointed by the Council and; (iv) Dr Hocking’s expert assessment of the proposal.

10. The Council’s ultimate satisfaction was not achieved until it received Dr Hocking’s report. Prior thereto, the Council’s position was apparently based upon its 1998 “policy” resolution which reflects an extreme understanding or application of the “precautionary principle”. In its preparation of its case defending the appeal, the Council’s filed statement of issues had directly raised the relevance of the “precautionary principle”.

11. However, it was following receipt of Dr Hocking’s advice that the Council apparently became satisfied that the proposal did not involve any meaningful increase in the local community’s overall exposure to radio frequency radiation beyond that already experienced in the City of Willoughby which is the location of three major television and radio transmission towers (Gore Hill, Artarmon, Willoughby).

12. I have dwelt upon the Council’s evolving stance in relation to the community health implications of the proposed development because of all the conditions in dispute, it is the Council’s suggested conditions relating to electromagnetic radiation that have attracted most interest and considerable debate at the hearing. As will be shown, the dispute between the parties has not revealed any departure by the Council from its ultimate stance on the public health implications of the proposed development. Rather, the pith and essence of the dispute concerns the relevant standard for community exposure to electromagnetic radiation, the degree to which the proposal complies with that standard and the importance of testing following installation of the extended tower to verify the predicted levels of such radiation to be emitted from the extended tower.

C. THE CONDITIONS IN DISPUTE

13. At the hearing, the Council tendered the conditions of development consent that it sought to have imposed on the grant of development consent: Exhibit 2 (Tab 13). These included three deferred commencement condition pursuant to the EP&A Act s 80(3).

14. The Applicant was opposed to a number of these conditions sought by the Council and was in particular, opposed to the grant of a deferred commencement consent. In respect of a number of the Council’s suggested conditions that were in dispute, the Applicant proffered its own version of the conditions it submitted were appropriate to be imposed: Exhibit G.

15. At the hearing, the Council did not call any witness to support the imposition of the conditions that the Council sought to have imposed. Rather, it relied upon the documentary evidence which included the planning assessment of the development application that had been submitted to the Council recommending that the application be consented to, subject to the imposition of conditions. As I have earlier indicated, the Council had originally rejected this recommendation. However, having decided not to oppose the proposal, the Council now substantially relies upon that assessment for the appropriate conditions to be imposed upon the grant of development consent.

16. The Applicant called expert evidence in its case opposing the imposition of the disputed conditions and in support of its version (where one was proffered) of the disputed conditions.

17. The Applicant’s evidence included numerous expert reports (Exhibits A, B, C, D, E and H). Additionally, the authors of two of these reports, Dr Black and Mr Moore were called as witnesses in support of the Applicant’s opposition to particular conditions proposed by the Council.

18. Ultimately, at the end of the hearing the following conditions proposed by the Council remained in dispute to the extent indicated—
(i.) Deferred Commencement Condition A which was wholly opposed by the Applicant;
(ii.) Deferred Commencement Condition B which was wholly opposed by the Applicant as a deferred commencement condition—but the Applicant proffered its version of an acceptable condition.
(iii.) Deferred Commencement Condition C which was wholly opposed by the Applicant as a deferred commencement condition—but the Applicant proffered its version of an acceptable condition.
(iv.) Condition 3 in respect of which the Applicant proffers a variant version.
(v.) Condition 4 in respect of which the Applicant proffers a variant version.
(vi.) Condition 21 in respect of which the Applicant proffers a variant version.
(vii.) Condition 25.9 which is wholly opposed by the Applicant; and
(viii.) Condition 42 in respect of which the Applicant proffers a variant version.

19. It is necessary to separately consider each of these conditions in order to adjudicate upon the matter in dispute, since I am satisfied in the circumstances of this case that it is appropriate to adopt the parties’ “consent orders” solution, subject only to my adjudication upon the disputed conditions.

D. ADJUDICATION ON DISPUTED CONDITIONS

(i) Deferred Commencement Condition A

20. The Council’s condition is in the following terms—

Paint removal and re-painting the tower

The Applicant is to prepare and provide to the satisfaction of the Council a Site Assessment and Management Plan prepared by a person with qualifications and experience in lead contaminated soils assessment with regard to the following:

(a) an assessment of any lead contamination on or in the ground at the site must be made.

If the assessment of the site reveals the presence of lead:

(i) the Site Assessment and Management Plan must make provision for remediation and proper disposal from the site of any lead Contamination. The Applicant is to provide to the Council certification from a site auditor accredited under the Contaminated Land Management Act 1997 that the site has been remediated. Such certification is to include a report of method and results of validation upon completion of remediation works.

(b) an assessment of the composition of the paint presently on the tower must be made;

If the composition of the paint presently on the tower is found to contain lead the Site Assessment and Management Plan must, to the satisfaction of the Council:

(i) detail the method to be employed to remove the existing antenna, install 2 new antennae, install aviation lights and strengthen the tower legs without causing lead contamination in the surrounding environment due to disturbance of the tower;

(ii) report on whether the proposal will alter or adversely impact on the existing paintwork on the tower and, if the existing paintwork is likely to be disturbed, provide details of how the tower is to be encapsulated to prevent lead based paint particles from entering the environment

(iv) provide details of how any waste lead based paint particles are to be collected, transported and disposed of.

(v) provide details of what methods are to be employed to ensure existing paintwork is sealed so as to prevent flaking in the future.

In this condition of deferred commencement consent Contamination means:


The presence of lead in, on or under the land in a concentration above the concentration at which it is normally present in, on or under land in the same locality, being a presence that presents a risk of harm to human health or any other aspect of the environment.

21. In support of this Condition, the Council relies upon written advice obtained from Molino Stewart, Consultants ( Exhibit 2, Tab 11 ) who were briefed to advise Council on two subjects for appropriate conditions of development consent, namely (i) the use of helicopters in the construction process and (ii) tower paint management.

22. That advice forms the content of the Council’s deferred commencement condition. The author of the advice was not called to give evidence.

23. Additionally, the Council relies upon the planning assessment that had been submitted to the Council (that I have earlier referred to) which recommended the imposition of conditions in respect of the risk of lead contamination posed by the proposed development. (Those conditions were not, however proposed as deferred commencement conditions). They have been adopted in the suite of suggested conditions under the heading “Environmental Health Requirements” which conditions are not in dispute.

24. The Applicant, in opposing the imposition of the deferred commencement condition, relies upon the evidence of Mr Peter Moore (contained in Exhibits E and H and in his oral testimony).

25. Exhibit E is Mr Moore’s original report which records that his brief was “to review issues relating to soil contamination and lead contamination from the site and tower at 92 Hampden Road, Artarmon” (I assume this is simply a misdescription of the development site) and in particular, “to consider whether current and historical activities on the site in relation to soil and lead contamination will preclude future expansion of the transmitting facilities”.

26. His conclusion was that any soil or lead contamination (as to the existence of which his Report suggests that he was unaware) “can be managed by well established guidelines and methods”.

27. In his supplementary report (Exhibit H), in which he expressed his opinion that he did not support the Council’s condition, it is apparent that Mr Moore had by this time, established that the tower was painted with paint that contained lead, typical of paint manufactured up to the 1970s.

28. However, I do not understand Mr Moore’s later report to involve any departure from the opinions contained in his earlier report which outlined the established procedures for environmental site assessment that would be employed “if the soils are impacted by petroleum hydrocarbons from the fuel tanks or from lead associated from the paint”.

29. In my judgment, there is no need for the imposition of a separate deferred commencement condition in view of the proposed imposition of the comprehensive conditions emanating from “Environmental health requirements” (which are not in dispute). This comprehensive provision is contained in Conditions 31 to 39 which deal with the following matters—

(i.) environmental site assessment;
(ii.) remedial action plan;
(iii.) site remediation; and
(iv.) validation of site remediation.

30. However, the drafted conditions should be amended so that there is included within their scope and ambit the environmental consequences of the physical works involved in extending the height of the existing tower.

31. Subject to those amendments to the relevant conditions under the heading “Environmental health requirements”, I am satisfied that the question of the environmental risks posed by lead contamination being created by the proposed tower extension will be appropriately safeguarded and dealt with, by dint of those conditions.

(ii) Deferred Commencement Condition B

32. The Council’s suggested condition is in the following terms:

Helicopter use and operation

The Applicant is to prepare and provide to the satisfaction of the Council a Helicopter Management Plan which provides a detailed description and plan of the proposed helicopter operation during the construction phase and which:

(a) details the proposed duration and time of operation of the Helicopter where such operation is proposed to occur outside the times contained in Condition 2 of the Conditions of Consent;

(b) provides details of where the removed antenna will be placed on the ground;

(c) provides details of where and how the new antennas are to be connected to the helicopter for lifting to the top of the tower;

(d) provides a detailed safety hazard analysis within the area of operations of the helicopter and how the identified risks are to be eliminated or satisfactorily controlled. Such an analysis should consider the manner in which lifted loads are to be secured to the helicopter and flight paths to avoid overflying residential areas;

(e) details the arrangement for road closure and traffic arrangements for Hampden Road and associated footpaths;

(f) details the weights of the antennae to be removed from and placed on the tower;

(g) details how the aviation lights are to be erected;

(h) details any planned use of the helicopter for strengthening of the tower legs; and

(i) considers assessment of alternative locations to the development site for loading and unloading the helicopter;

(j) full details of any activities related to helicopter use that may involve sites other than 196 Hampden Road; and

(k) details of the noise levels expected from the operations, method of notification to affected residents, and methods proposed to be employed to minimise effects on residents from noise, wind and dust generated during the use of the helicopter.

33. Again, the content of this condition can be traced to the advice obtained by the Council’s Solicitors from Molino Stewart.

34. The Applicant opposes the adoption of a deferred commencement condition and instead suggests a slightly variant version of the condition (adopting the content of the Council’s suggested condition except for par (i) and par (j)) which is expressed to operate “prior to the use of the helicopter for the purposes of construction”.

35. In respect of these paragraphs, the Applicant submits that the legitimate focus of the conditions should be confined to the development site.

36. In my judgment, the subject is adequately dealt with by the imposition of a condition along the lines suggested by the Applicant, but with the addition of par (i) and (j) in the Council’s version of the condition, subject to par (i) expressing the geographic limitation on sites (other than the development site) that are located in the City of Willoughby.

37. These additional matters are, in my judgment, legitimate considerations given the very unusual nature of the proposed development and more particularly, the proposed use of helicopters in the construction of the tower extension.

38. However, I do not think that the subject condition need be a deferred commencement condition.

39. The Council’s submission in support of the imposition of this deferred commencement condition (and the other deferred commencement condition A) was that the Council should itself be satisfied of the relevant matters, and its legitimate role in that behalf, should not be bypassed by the developer electing to appoint an accredited certifier pursuant to the EP&A Act s 109E.

40. The Council’s submission proceeds upon the unstated assumption that if the developer in the present case elected to appoint an accredited certifier pursuant to s 109E, that person would relevantly replace the Council in its functions relating to the execution and satisfaction of the condition requiring submission to the Council of the Helicopter Management Plan. In my respectful opinion, that unstated assumption (which was not the subject of any argument and was not otherwise elaborated upon) is not correct. Even if the developer appointed an accredited certifier, that person would not replace the Council as the person to whom the Helicopter Management Plan is to be submitted.

41. Since the matter was not argued, I do not think it necessary or prudent to go into further detail, other than to say that if, contrary to my opinion, the Council’s unstated assumption were correct, there would arise a question of considerable importance as a matter of principle, concerning the legitimacy of resort to the faculty of granting a deferred commencement consent, merely to avoid the operation of the provisions of the EP&A Act specifically enabling a developer to appoint an accredited certifier to discharge the functions contained in Pt 4A of the Act.

42. This question of principle was not explored in the present proceedings and I hasten to say, that it was no part of the Council’s submissions that this (ie namely the avoidance of the appointment of an accredited certifier) was the object of the Council’s suggested imposition of the deferred commencement conditions. Rather, they were advanced on the grounds of the obvious importance to the Council and to affected residents of the matters addressed by the deferred commencement conditions.

43. In leaving this condition, I should note that the condition to be imposed will not simply require the submission to the Council of the required Helicopter Management Plan but will be amended to require the content of the plan to be reasonably acceptable to the Council.

(iii) Deferred Commencement Condition C

44. The Council’s suggested condition is in the following terms:

The Applicant is to provide written confirmation to the satisfaction of the Council from the Civil Aviation Safety Authority and the Sydney Airports Corporation that the construction of the tower and the height and operation of the tower meets their requirements.

45. The Applicant submits that this condition need not be the subject of a deferred commencement condition. I agree.

46. In my judgment, the Council’s condition can be appropriately imposed but as an ordinary condition to be satisfied before the commencement of work on the construction of the tower extension.

(iv) Condition 3

47. The Council’s suggested condition is in the following terms—

Building and demolition work within the City being carried out only between the hours of 7am to 5pm Mondays to Fridays and 7 am to 12 noon on Saturdays. No building work is permitted on Sundays or Public Holidays. Applications for permission to work in urgent cases will be considered on their merits by Council. (Reason: Ensure compliance and amenity).

48. The Applicant’s variant version is that the permitted hours for work Monday to Friday be extended to 7 pm and for work on Saturday be extended to 5 pm but not involving the use of the helicopter during those extended periods.

49. The Applicant estimates a six week construction period if the extended hours are permitted. In my judgment, the Applicant’s suggested condition is appropriate upon the basis that the extended working hours will enable the project to be completed more quickly than would otherwise be the case.

(v) Condition 4

50. The Council’s suggested condition is in the following terms:

Consent Documents

The development to be strictly in accordance with Consent Drawings known to Council as Plans A, B, C and D submitted by NTL Australia Ltd on 23 December 1999, date stamped by Council 5 January 2000, the application form and any other supporting documentation submitted as part of the application, except as otherwise provided by the conditions of this consent. (Reason: Information).

51. The Applicant submits that the conventional and time honoured expression “ generally in accordance with etc ” is the more appropriate form of this condition. I respectfully agree.

(vi) Condition 21

52. The Council’s suggested condition is in the following terms:

The works associated with this application are to be in accordance with the General Methodology prepared by Transfield and date stamped by Council 30 March 2000. Furthermore, a detailed methodology is to be submitted to Council for its consideration and approval PRIOR TO THE COMMENCEMENT OF BUILDING WORKS as stated in the General Methodology by Transfield and is to be consistent with the aforementioned General Methodology prepared by Transfield. (Reason: Amenity and safety).

53. The Applicant’s variant version eliminates the requirement for “ Council’s consideration and approval ” of the detailed methodology for construction and instead proposes that the detailed methodology merely be required to be submitted to the Council for its information.

54. The Applicant submits that there should be no need for any further approval from the Council of the detailed methodology to be employed in the construction process.

55. Having regard to the fact that the “General Methodology” (which was not in evidence) was submitted to the Council (but was not approved by it, nor so it seems, was an approval required) it does not appear to be necessary for there to be any additional requirement for approval of the “detailed methodology”, which conformably to the condition is required “to be consistent with the General Methodology”. This conclusion is reinforced by related requirements made by other conditions, in particular, the condition requiring the submission to the Council of the Helicopter Management Plan.

56. In my judgment, the Applicant’s version of the condition is appropriate.

(vii) Condition 25.9

57. The Council’s suggested condition (which forms part of a comprehensive regime for on-site stormwater detention detailed in Condition 25) is as follows:

For all on-site detention (OSD) systems, including roof guttering and downpipe systems, a Positive Covenant and Restrictions on Use of Land shall be required to be placed on the Certificate of Title in favour of Council created under Section 88B of the Conveyancing Act 1919 for newly created lots or by application to the Land Titles Office using FORM 97-11(R) for existing Titles under S88E of the Conveyancing Act prior to the release of final certificates. The purpose of this is to ensure that the registered proprietor has care, control and maintenance obligations of the OSD system including the guttering and downpipe systems. A copy of Council’s draft terms for the above is available on request;
(Reason: Legal requirement)

58. The Applicant opposes this condition (but accepts all of the other requirements in respect of on-site stormwater detention) on three grounds—

(i.) the fact that it is not the owner of the development site since it is the owner that is required to enter into the positive covenant under s 88E of the Conveyancing Act 1919 ;

(ii.) there is no planning necessity for the creation of the positive covenant; and

(iii.) the doubt as to the power to impose the condition requiring the creation of the s 88E positive covenant.

59. The Council supports its case for the imposition of the condition by relying upon its “Local Policy for On-Site Stormwater Detention” adopted in 1994 (as amended in 1995): Exhibit 3.

60. The Applicant has referred to the recent decision of Lloyd J in MacDonald v Mosman Municipal Council (1999) 105 LGERA 49 where his Honour helpfully collects a number of earlier decisions of the Court which have considered the question of whether certain types of planning conditions imposed upon the grant of a development consent require or justify reinforcement or supplementation by way of the creation of restrictions on use or positive covenants under the Conveyancing Act 1919.

61. His Honour concluded his discussion of the earlier cases with the following observation at 53:

The abovementioned cases show that such a condition is neither necessary nor generally appropriate. I agree. In the present case, on a consideration of the merits, there is nothing in the present case that takes the matter outside these principles. The condition will not be imposed.

62. It was in these circumstances that his Honour found it unnecessary to decide whether the condition was ultra vires the Council as had been submitted by the developer: p 53.

63. In reply, the Council refers to an earlier unreported decision of Cripps CJ in North Sydney Gas Company v North Sydney Municipal Council (June 1991) where his Honour rejected a submission that a condition of development consent requiring the creation of a public covenant was beyond power, noting that “the cases demonstrate the contrary”.

64. A little earlier, Cripps CJ had said:

Negotiations during the proceedings resulted in agreement with respect to most of the conditions. Conditions will have to be drafted to give effect to the requirement that the owner of the land remain responsible for maintenance of the capped area which, as I have said, is to remain in private ownership. Although it is generally inappropriate for development consents to be conditioned by the imposition of public covenants, the present case is an exception. In my opinion, it is appropriate for the imposition of public positive covenants on the subject land to give effect to the conclusions and requirements of the Court.

65. Although the Applicant has not formally submitted that the disputed condition is beyond power, I would respectfully agree with the view expressed by Cripps CJ and would hold that the imposition of such a condition is within the power conferred by the EP&A Act s 80A(1) .

66. Moreover, the Applicant’s submission that the condition serves no planning purpose fails to appreciate that the purpose of the positive covenant is not simply to duplicate the obligations cast by the condition of planning consent in respect of the regime for on-site stormwater detention (if it merely did that, there would be a good case for holding that the creation of the positive covenant was neither necessary nor appropriate, conformably to the line of authority traced by Lloyd J in MacDonald) but is to maintain and to keep in repair the on-site detention infrastructure (see the draft s 88E covenant included in Exhibit 3 and cf the Conveyancing Act 1919 s 88F).

67. Finally, concerning the fact that the Applicant is not the owner of the development site, it is to be noted that the Applicant has adduced no evidence as to the difficulty it would experience in seeking to obtain the owner’s consent to enter into the positive covenant.

68. Secondly, it may be legitimately inferred that the Applicant has some substantial interest in the development (both existing and proposed) and in the development site.

69. In these circumstances the Applicant, having accepted all other aspects of the Council’s condition imposing a comprehensive regime for on-site stormwater detention, has not, in my judgment, made out its case against imposing the condition which is apparently conformable to the Council’s practice in implementing its Local Policy for on-site stormwater detention.

70. Accordingly, the disputed condition will be imposed.

(viii) Condition 42

71. The Council’s suggested Condition is one of two conditions dealing with the subject of “ electromagnetic radiation ”, namely Conditions 41 and 42 which are in the following terms:

41. The prediction as stated within the BCL Report being tested after the construction is completed. A report by an appropriately qualified consultant being submitted to Council comparing the results with the predictions to ensure that the installation has been completed correctly and that the antennas are functioning as per the prediction stated in the BCL Report. Such report being submitted to Council for approval within a period of sixty (60) days after completion of installation.

42. Where the EMR levels are greater than the predictions as stated by BCL Report, the applicant is to carry out all necessary works to achieve the criteria set out in the BCL Report and to submit a further validation report from a independent consultant.

72. The Applicant strenuously opposes Condition 42 and accuses the Council of ignoring all of the expert evidence which the Applicant has adduced, particularly in the circumstances of this case where the expert advice obtained by the Council on the issue (eg Dr Hocking’s advice) clearly indicated that the proposed development would not involve any additional community health risk caused by electromagnetic radiation and where the Council’s decision to settle the case by consent orders was evidently based upon, or influenced by, Dr Hocking’s advice.

73. The Applicant invites the Court to decisively reject the Council’s condition and instead to adopt its version of the condition which was drafted by Dr Black and is supported by his evidence (oral and documentary Exhibit A) and by the evidence of Dr Ellwood (Exhibit B) and by the report of Mr Woods (Exhibit C).

74. The Applicant’s suggested condition is as follows:

The Electromagnetic Field (EMF) levels transmitted from the antennas located on the site shall be such that at any point that is reasonably accessible to any member of the public, the total exposure shall not exceed the reference level for general public exposure recommended by the International Commission on Non-Ionizing Radiation Protection (ICNIRP) 1998 Guidelines for Limiting Exposure to Time-Varying Electric Magnetic and Electromagnetic Fields (up to 300GHz), Table 7.

75. As earlier stated, it was the dispute concerning Condition 42 which was the principal focus of the hearing of the appeal.

76. The Council’s conditions 41 and 42 reflect the recommended conditions contained in the Council’s planning officer’s assessment of the development proposal: Exhibit 2, Tab 5.

77. The content of Condition 41 is apparently inspired by the advice of the independent consultant (EMC Technologies) which was commissioned by the Council to review the technical data relating to electromagnetic radiation prepared by Broadcasting Communications Ltd (BCL) in support of the development application. The precise recommendation made by EMC Technologies as recorded in the Council’s planning officers’ assessment report was as follows:

The results of the prediction should be verified by testing after the construction is completed. The result should be compared with the predictions as stated in the BCL Report to ensure the installation has been completed correctly and the antennas are functioning as per the predictions stated in the BCL Report.

78. Although the report of EMC Technologies provided to the Council was not introduced into evidence, it would appear that the Council’s planning officers, in recommending what is now contained in Condition 42 went far beyond the recommendation of EMC Technologies, by in effect elevating to a criterion or standard, the levels of electromagnetic radiation of the extended transmitter tower that had been predicted in the BCL data.

79. It is this further step as encapsulated in Condition 42, that the Applicant strenuously opposes as betraying a fundamental misunderstanding by the Council of the relationship between predictive modelling and actual measurement of electromagnetic radiation, in the context of the present case, and most particularly having regard to the generally recognised standard limiting the maximum level of community exposure to electromagnetic radiation and to the predicted and measured levels emitted by the three existing transmitters in the City of Willoughby (the latter being only some 5 - 6 per cent of the former).

80. Accordingly, the starting point in understanding the true nature of the dispute in respect of Council’s Condition 42 is the fact that the BCL data supporting the Applicant’s development application stated that “all measured and modelled ground electromagnetic frequency levels emanating from both the Gore Hill transmitter tower and the transmitter tower located in the development site, both before and after the proposed relocation of the SBS transmitter are less than 5 per cent the maximum allowed for under the Australia/New Zealand Standard AS 2272.1 (Int) for 24 hour exposure (non-occupational exposure level) of 200 W/cm2.”

81. It is apparent that EMC Technologies and Dr Hocking accepted this data in their respective evaluations of the health implications from electromagnetic radiation levels to be emitted from the extended tower.

82. There is no suggestion in the evidence that the BCL measured or predicted levels are otherwise than reliable. Nor is there any question in the evidence that the current de facto Australian standard prescribes a maximum public exposure level of 200 W/ cm2. This standard is consistent with the relevant standard fixed in respect of public exposure by the “Guidelines for limiting exposure to the varying electric, magnetic and electromagnetic fields (up to 300 GH2)” published in 1998 by the International Commission on Non-Ionising Radiation Protection. I have described the Australian standard as a de facto standard simply because the Interim Standard adopted by the Australian Standards Association in 1998 in replacement of the then existing Australian Standard has not been finally adopted and has now formally expired. (The history of relevant Australian standards is discussed in detail in Dr Black’s Report Exhibit A in par 44 to par 47).

83. It is now necessary to refer to the evidence adduced by the Applicant concerning the proper function of predictive modelling and its relationship with actual measurement of electromagnetic radiation levels. The matter is discussed by Dr Black in par 65, par 66 and par 67 of his Report (Exhibit A) as follows:
65. In assessing the radiofrequency levels which surround a transmitting antenna, power density levels can be predicted by knowing the total amount of power fed to the antenna, the nature of the radiation pattern of the antenna in both a horizontal and vertical plane and the distance of interest from the antenna. Such figures can be readily calculated mathematically. The most effective way of understanding the nature of the spread of energy from an antenna is to use a computer programme, as there is a large number of calculations involved. Such programme has been developed for this exact purpose by Broadcast Communications Limited (BCL) in New Zealand which has been used in relation to emissions from both Gore Hill and Artarmon.
66. The BCL programme has been used to provide an understanding of the distribution of power from both the existing configuration at Gore Hill as well as the new proposed configuration with of the SBS transmission at Artarmon. In my opinion and experience, such techniques give a very accurate means of predicting potential real exposure as they assume an even distribution of energy in the environment, given the antennas characteristics. Bearing in mind that there is only a finite amount of energy available to the antenna to radiate, the mathematical model has to be ultimately correct unless there are local variations which are not accounted for. These may exist as a result of obstructions to the signal path, some of which may cause the signal to reflect.
67. It is also possible to undertake field strength measurements around transmitters to establish power flux density levels which can then be compared with predictions. In my opinion, the most valid reason for undertaking measurements around a transmitter is to confirm and understand the nature of the distribution of RF energy as predicted by the modelling. This approach, which in New Zealand has become known as the closed loop technique is to undertake predictions, and then after construction of the transmission facility, undertake measurements which are then compared to the predictions. In general, most predictions are fairly accurate, and occasional exclusions from predicted values can usually be explained by local variations in signal path, such as obstructions. In cases where there is a substantial difference between prediction and measurement which cannot be explained, further work needs to be done. This approach has now been going on for many years in both Australia and New Zealand, and has resulted in a high degree of refinement of the processes for both antenna design, and field measurement.

84. In his oral testimony, Dr Black strongly disagreed with Council’s Condition 42 on the ground that in his opinion, it “missed the point” in understanding the function of actual measurements of the electromagnetic radiation emitted from the extended tower and had the unfortunate effect of rendering the predicted levels of electromagnetic radiation into “pseudo standards” in circumstances where there already existed an appropriate standard for maximum public exposure to electromagnetic radiation (both at the Australian and International levels) which prescribed a level up to 20 times higher than the measured and predicted levels for the existing transmitter towers situate at Gore Hill and the development site.

85. It was for those reasons that he had drafted the Applicant’s version of Condition 42 which adopts the International standard that I have earlier recited.

86. The relationship between predictive modelling and actual measurement of electromagnetic radiation is further explained in Section 5 of Mr Wood’s Report (Exhibit C). This explanation is consistent with Dr Black’s views. Mr Woods, as an employee of BCL, has been engaged in a number of radio frequency radiation prediction studies in respect of the three existing transmitter towers situate in the City of Willoughby. It was he who undertook in March 2000 the further study verifying the BCL data supporting the development application, undertaken at the request of the Council, that I have earlier mentioned.

87. In the light of my acceptance of the evidence of Dr Black and Mr Woods, and in the absence of any evidence advanced by the Council in favour of the imposition of Condition 42 (save for the recommendation of the Council’s planning officers in their assessment report), there is, in my opinion, no evidential support for the imposition of the condition. In particular, I accept Dr Black’s opinion of the inappropriateness of elevating the BLC predictive modelling into the public health safety standard, in circumstances where there is a de facto Australian standard which is consistent with the International Guideline and which prescribes a maximum public exposure level of electromagnetic radiation 200 w/cm2 ie 20 times higher than the predicted or measured levels likely to be emitted from the extended transmitter tower.

88. On the other hand, I have not been persuaded that I should impose the Applicant’s version of Condition 42. It of course merely adopts the International Guideline for public safety exposure level. However, in the light of the expert evidence adduced in this case for the Court to adopt that standard would mean that all of the evidence adduced by the Applicant of BCL’s predicted and measured levels of electromagnetic radiation (upon which evidence the Council and Dr Hocking have obviously relied) is either by-passed or transcended or otherwise rendered irrelevant.

89. I do not regard this evidence as merely establishing how far the proposal’s electromagnetic radiation levels are likely to fall below the International Guidelines prescribing maximum public exposure levels to electromagnetic radiation. It goes much further by carrying the obvious implication that by virtue of this stark comparison, there is no reasonable basis for entertaining concerns about possibly adverse community health effects arising from the development. This implication is supported by the unanimous expert opinion that the proposal will not create any adverse community health effects.

90. In these circumstances, I do not think it appropriate that the Applicant’s version of Condition 42 be adopted. Senior Counsel for the Applicant submitted that it would be in the public interest if the Court were to adopt the International Guidelines, as establishing the relevant public exposure levels to electromagnetic radiation.

91. The Council’s Solicitor , in opposing the imposition of the Applicant’s version of Condition 42 submitted that if the Court were not disposed to uphold the Council’s condition, the Council would prefer the Court to impose no condition at all, leaving it to the Applicant to ensure that there was compliance with the development as proposed and as more precisely delineated in the documents supporting the development application.

92. This was particularly so, so it was submitted, in the present case where the Court had not had the benefit of any contrary case made against the adoption of the International Guidelines. I respectfully agree.

93. My conclusion that it is not appropriate to adopt either party’s version of Condition 42 does not however mean that there is no good purpose to be served in imposing Condition 41. In my opinion, there is a good purpose in requiring the Applicant to undertake the required measurement of electromagnetic radiation emitted from the tower after it has been extended and is operating so as to provide the SBS service.

94. There is nothing in the Applicant’s expert evidence that would suggest there is no utility in undertaking the actual measurements following the completion and operation of the extended tower.

95. However, I propose to amend Condition 41 by introducing unto it a degree of legitimate flexibility foreshadowed in Dr Black’s Report (Exhibit A) in par 67. The following provision will be incorporated in the Council’s condition:—

The report shall fully discuss the implications of any substantial or significant difference between the predicted levels of electromagnetic radiation and the measured levels. Such difference is to be fully explained and where no satisfactory explanation is available additional measurements are to be undertaken until the difference is fully and properly explained.

96. The Applicant’s obligation under the condition need not include the obtaining of Council’s approval to the Report, it being sufficient to furnish the Council with the Report fulfilling the requirements of the condition.

E. CONCLUSIONS

97. For the foregoing reasons, I am of the opinion that it is appropriate for the Court to adopt the parties’ joint submission that the appeal be disposed of by the making of consent orders granting development consent subject to appropriate conditions.

98. Those conditions are the conditions as sought by the Council but as amended by my adjudication upon the conditions in dispute.

99. The parties are directed to bring in short minutes within the next 7 days to give effect to my determinations when final orders will be made.