Service Stream Maintenance Pty Ltd v Bayside Council

[2024] NSWLEC 1481

Land and Environment Court

New South Wales

Medium Neutral Citation:

Service Stream Maintenance Pty Ltd v Bayside Council [2024] NSWLEC 1481

Hearing dates:

Conciliation conference on 23 April 2024, 29 May 2024, 27 June 2024

Date of orders:

09 August 2024

Decision date:

09 August 2024

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted for DA 2022/0271 for the installation of a telecommunication’s facility, consisting of a 25m monopole and equipment associated with telecommunications on Lot 1 Deposited Plan 534743, known as 90 Russell Avenue, Sans Souci NSW 2219, subject to conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – telecommunications facility - monopole – conciliation conference – agreement between the parties – orders

Legislation Cited:

Airports Act 1996 (Commonwealth), Div 4, Pt 12 ss 181, 182

Environmental Planning and Assessment Act 1979, ss 3.28, 4.15, 4.16, 4.17, 8.7, 8.11, 8.13

Land and Environment Court Act 1979, s 34

Airports (Protection of Airspace) Regulations 1996 (Commonwealth), regs 4, 5, 6

Bayside Local Environmental Plan 2021 cll 1.9, 2.3, 4.3, 5.21, 6.1, 6.2, 6.7

Environmental Planning and Assessment Regulation 2021, s38

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Chs 2, 6

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

State Environmental Planning Policy (Transport and Infrastructure) ss 2.7, 2.48, 2.143

Texts Cited:

NSW Telecommunications Facilities Guideline, including Broadband, October 2022

Category:

Principal judgment

Parties:

Service Stream Maintenance Pty Ltd ABN 87081540847 (Applicant)
Bayside Council ABN 80690785443 (Respondent)

Representation:

Counsel:
A Hammond(Applicant)
P Brown (Solicitor) (Respondent)

Solicitors:
Maddocks Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/282956

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Bayside Council’s (Council) refusal of development application DA-2022/271 (DA) lodged with Council on 6 September 2023 seeking approval for the construction of a telecommunications facility, including a 25m monopole and equipment associated with telecommunications, at 90 Russell Avenue, Sans Souci NSW 2219 being the whole of the land in Lot 1 Deposited Plan 534743 (the Site):

1. Council refused the DA on 7 March 2023 via its Local Planning Panel, and the Applicant filed its appeal pursuant to s 8.7(1) of the EPA Act and within the time provisions of s 8.11 of the EPA Act.

2. The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings are found in ss 4.16 and 4.17 of the EPA Act, and s 34(3)(a) and subs (b) of the LEC Act.

2. The works proposed by the DA include:

1. The installation of a new monopole;

2. The installation of a triangular headframe on top of the monopole;

3. The installation of nine Optus panel antennas;

4. The removal of one small tree;

5. The installation of a four bay equipment cabinet;

6. The installation of ancillary equipment including feeder cables, remote radio units and cable trays.

7. The overall height of the DA is approximately 27.62m.

3. The site is irregular in shape with an approximate:

1. 6m wide battle axe handle, with a front boundary to Russell Avenue to the south;

2. 57m eastern boundary to the battle axe handle shared with the residential development at 92 Russell Avenue;

3. 47m southern boundary, excluding battle axe handle, shared with residential developments at 92, 94, 96 and 98 Russell Avenue;

4. 90m shared north-eastern boundary with residential developments at 13, 15, 17, 19, 21, 23 and 25 Clareville Avenue;

5. 42m shared northern boundary with residential developments at 5, 5A, 7, 9 and 11A Clareville Avenue;

6. Several western and southern boundaries shared with Noel Seiffert Reserve, and totalling approximately 166m;

7. The topography of the Site is relatively flat, falling to the rear and to the west of the Site.

8. Current development on the Site comprises an existing Ausgrid substation. There are no proposed amendments to the Ausgrid substation.

9. Vehicular access to the Site is provided from an unsealed driveway crossover on Russell Avenue to the south.

10. There are several trees and open grassed areas within the Site, primarily located along the northern boundary, with various other trees adjoining the Site boundary to the west.

Figure 1 from Council’s Statement of Facts and Contentions (SOFAC) filed 17 October 2023 showing aerial photograph of the Site with the Site marked with a blue arrow.

Figure 2 of the SOFAC showing plan of proposed telecommunications lease site within the site, and also showing an expanded depiction of the proposed DA Site.

4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 23 April 2024, 29 May 2024, and on 27 June 2024. The Court granted an online court application to adjourn the conference listed for 27 June 2024 to 12 July 2024. On 7 July 2024 the parties reached agreement and the listing for 12 July 2024 was vacated.

5. I presided over the conciliation conference.

6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and granting consent to the DA subject to conditions.

7. Under s 34(3)(a) and subs (b) 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 ss 4.16 and 4.17 of the EPA Act to uphold the appeal and grant consent to the DA subject to conditions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how they have been satisfied, as follows:

1. The parties agree that all contentions raised in Council’s SOFAC have been resolved by the amended plans and documents filed in these proceedings on 14 June 2024.

2. Owner’s consent for the DA was filed under Tab 4 of the Class 1 Application, the owner of the Site being Alpha Distribution Ministerial Holding Corporation.

3. The DA was notified by Council for a period of 14 days from 14 September 2023 to 28 September 2023. Subsequently, twenty-eight submissions were received which raised the following concerns:

1. Health and wellbeing for people living in the area;

2. Young children’s health;

3. Proximity to a playground, preschool and library;

4. Decrease/impact on property values;

5. Visual impact;

6. Overshadowing;

7. Loss of landscaping;

8. Height;

9. Adverse impact on flora and fauna; and

10. Proximity to public spaces.

4. I read the objectors’ submission, heard from them, and inspected an adjoining neighbour’s home during the on-site view on 23 April 2024. The parties considered the residents’ objections, and Council agreed to the lodgement of amended plans and documents to address the issues raised in Council’s SOFAC.

5. As part of the conciliation process, the Applicant granted Council permission to provide amended plan/documents to the objectors. Subsequently Council received six further submissions, which raised similar issues to those set out in par [7(3)] above. These concerns have been considered by the parties, and the parties have agreed that the matters raised, where relevant, have been satisfactorily addressed, through the Applicant’s amended plans and documents.

6. The Site is in Zone SP2 Infrastructure under the Bayside Local Environmental Plan 2021 (BLEP 2021), cl 2.3 and the Land Use Table. Development for the purpose of a ‘telecommunication’s facility’ is an innominate prohibited use in the SP2 zone.

7. However, telecommunication’s facilities are permissible with consent on any land under s 2.143 of Div 21 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP):

Section 2.143 provides:

(1) Development for the purposes of telecommunications facilities, …. may be carried out by any person with consent on any land.

(2) Before determining a development application for development to which this section applies, the consent authority must take into consideration any guidelines concerning site selection, design, construction or operating principles for telecommunications facilities that are issued by the planning Secretary for the purposes of this section and published in the Gazette.

8. Section 3.28 of the EPA Act provides that in the event of an inconsistency between environmental planning instruments (EPIs), there is a general presumption that a State environmental planning policy prevails over a local environmental plan. Section 2.7 of the T&I SEPP and cl 1.9 of the BLEP 2021 are of similar effect. Therefore, the nomination of the ‘telecommunication’s facility’ use as a prohibited use in the SP2 zone of the BLEP 2021, is not a jurisdictional bar to the grant of consent to the DA.

9. The guidelines referred to in s 2.143(2) are the NSW Telecommunications Facilities Guidelines including Broadband, October 2022 (Guidelines). The Council has taken into consideration the Guidelines in its assessment of the DA.

10. In relation to BLEP 2021:

1. Clause 4.3Height of Buildings: the Site has no imposed maximum building height.

2. Clause 5.21 Flood Planning – requires the Council to be satisfied of various matters listed in that clause where the land is considered to be within a flood planning area. Council considers the DA is in a flood planning area. Council’s Planning assessment Report dated 19 January 2023 states:

“Council records indicate that the lot is subject to flooding in a 1% AEP event. The proposal was reviewed by Council’s Development Engineer who advised that the proposed level for the monopole is below the 1% AEP of RL2.38m. However, the proposed structures are non-habitable. As the development is essentially a pole, the development is not considered to have any impact on flooding. Therefore, the proposal satisfied Section 5.21 of the BLEP 2021”

3. Ultimately, it is not anticipated that the DA will increase the flood hazard risk at the Site or on neighbouring properties. Mobile phone base stations have minimal surface area, and therefore the DA will not be a significant generator in stormwater runoff. An appropriate condition addressed the matters in cl 5.21, within condition 17 in Annexure A.

4. Clause 6.1 Acid Sulfate Soils – the Site is mapped as Class 3 on the Acid Sulfate Soils Map in BLEP 2021. The parties agree that cl 6.1(2) and (3) has been satisfied by the Applicant lodging an Acid Sulfate Soils Assessment and Management Plan by Martens & Associates dated April 2024.

5. Clause 6.2 Earthworks – the parties have taken into consideration the provisions of cl 6.2(3), and the Council’s Planning Assessment Report states:

“The proposal involves excavation within the Site to accommodate the footings of the proposed tower. The application is supported by a Geotechnical Investigation Report prepared by Intrax Land. The Geotechnical Investigation comprised drilling of one borehole to a depth of 14.4mbgl. It encountered fill to 1.1mbgl overlying alluvial sediments. Groundwater table was encountered at 0.8mbgl. The report recommended a bored pile to support the proposed telecommunication’s tower. Conditions have been imposed… to ensure minimal impacts on the amenity of surrounding properties, drainage patters and soil stability. The proposal meets the objectives of this section. Therefore, the proposal satisfied Section 6.5 of BLEP 2021.”

6. Clause 6.7 Airspace operations – provides that the consent authority must not grant development consent to the DA if it is a ‘controlled activity’ within the meaning of Div 4 of Pt 12 of the Airports Act 1996 (Commonwealth) (Airports Act) unless the applicant has obtained approval for the controlled activity under regulations made for the purposes of that Division.

1. A ‘controlled activity’ is defined in s 182 of the Airports Act to include constructing a building, or other structure, that intrudes into the prescribed airspace.

2. “Prescribed airspace” is defined in s 181(1) to mean:

An airspace specified in, or ascertained in accordance with, the regulations where it is in the interests of the safety, efficiency or regularity of existing or future air transport operations into or out of an airport for the airspace to be protected under this Part.

3. Regulation 6 of the Airports (Protection of Airspace) Regulations 1996 (APA Regulations) states that for s 181 of the Airport Act, prescribed airspace for an airport is:

the airspace above any part of either an Obstacle limitation Surface (OLS) or a PANS-OPS’ surface for the airport; and

airspace declared in a declaration, under regulation 5, relating to the airport.

NB: PANS – OPS is an acronym for Procedures for Air Navigation Systems Operations – reg 4 APA Regulations

4. The DA has a maximum height of 27.9m above ground level, and a ground elevation less than 4m AHD, at an overall height of approximately 31.9m. The DA does not penetrate the OLS for Sydney Airport, and is not a controlled activity.

5. Clause 6.7 of the BLEP 2021 has been satisfied.

11. State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) – s 4.6(1) precludes the granting of development consent unless the consent authority has considered relevantly whether the land is contaminated. A Detailed Site Investigation (DSI) was undertaken by Martens & Associates Pty Ltd dated April 2024. The DSI states inter alia:

“The objective of the DSI was to assess contamination risks associated with proposed development consisting of the installation of a telecommunication facility including a new 25m monopole and associated equipment shelter within a proposed leased area (the IA).

Based on the findings of investigation works completed to date within the IA, contamination risk associated with proposed monopole installation works are considered generally low and limited to potential short term asbestos exposure risks to construction workers.

Subject to the implementation of appropriate asbestos management control measures during construction works and preparation of an asbestos clearance certificate confirming that post construction, the IA surface is free of any asbestos material, the IA is considered to be suitable for the proposed development.”

An appropriate condition of consent is proposed in condition 19 of Annexure A.

12. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (B&C SEPP) applies in relation to Chs 2 and 6:

1. Chapter 2 Vegetation in non-rural areas – the DA proposes to remove a small shrub to facilitate the DA. The Applicant has not applied to remove the shrub under the B&C SEPP but rather under the EPA Act. Therefore Chapter 2 of the B&C SEPP does not apply.

2. Chapter 6 Water Catchments – applies because the Site is within the Georges River Catchment. The DA can generally be assumed to have no identifiable potential to impact on water quality as the DA will not result in a concentrated flow of water, impediment on the flow of water, nor adversely discharge effluent, dust pollutants or stormwater. Therefore, the DA is exempt from requiring a NorBE Assessment as the DA will have a neutral effect on water quality within the catchment.

14. State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP) – s 2.48(1)(b)(ii) applies to the DA as it is a development carried out “immediately adjacent to an electricity substation” – see Figures 1 and 2 above. Before determining a development application for development to which s 2.48 of the T&I SEPP applies the consent authority must:

give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and

take into consideration any response to the notice that is received within 21 days after the notice is given.

1. On 12 June 2024, Council gave written notice to Ausgrid of the DA pursuant to s 2.48 of the T&I SEPP. As of 5 July 2024, Council has not received a response from Ausgrid, noting that more than 21 days has elapsed since notice was given by Council.

2. I am satisfied that the requirements of s 2.48 of the T&I SEPP have been satisfied.

8. I am not required, and I have not, considered the merits of the DA.

9. The parties have agreed on the conditions of consent in Annexure A, and further agree that they are lawful having regard to the provisions of ss 4.16and 4.17of the EPA Act and the relevant legal principles.

10. I accept the submission of the parties that the follows EPIs are not relevant to this DA:

1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004;

2. State Environmental Planning Policy (Exempt and Complying Development Codes) 2008;

3. State Environmental Planning Policy (Housing) 2021;

4. State Environmental Planning Policy (Industry and Employment) 2021;

5. State Environmental Planning Policy (Planning Systems) 2021;

6. State Environmental Planning Policy (Primary Production) 2021;

7. State Environmental Planning Policy (Resources and Energy) 2021

8. State Environmental Planning Policy No. 65-Design Quality of Residential Apartment Development.

11. As set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3)(a) and subs (b) of the LEC Act.

12. 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)(a) and subs (b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

13. The Court notes that:

1. Bayside 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 2022/0271 in accordance with the plans and documents in under Part A – General Conditions, condition 1 of Annexure A as follows:

Document	Date
Statement of Environmental Effects prepared by Planning Ingenuity	23 April 2024
Revised Plans:
1. Site layout and setout plan drawing no. S3943-G3 Rev. A by Downer	12 April 2024
2. Site elevation plan drawing no S3943-G4 Rev A by Downer	12 April 2024
3. Draft property layout plan drawing no S3943-P3 Rev 1 by Service Stream	29 August 2024
Visual Impact Assessment by Peter Haack Consulting – Appendix B: Photo simulations; Appendix C: Overshadowing analysis	22 April 2024
EME Report	10 April 2024
Noise Impact Assessment by RWDI	19 April 2024
Detailed Site Investigation by Martens	15 April 2024
Acid Sulfate Soils Assessment and Management Plan by Martens	19 April 2024

2. The Applicant agrees to pay the Respondent’s costs thrown away in accordance with s 8.13 of the Environmental Planning and Assessment Act 1979 in the sum of $5,000 within 28 days of receipt of a tax invoice from the Respondent.

14. The Court orders:

1. The appeal is upheld.

2. Development consent is granted for DA 2022/0271 for the installation of a telecommunication’s facility, consisting of a 25m monopole and equipment associated with telecommunications on Lot 1 Deposited Plan 534743, known as 90 Russell Avenue, Sans Souci NSW 2219, subject to conditions of consent in Annexure A.

M Peatman

Acting Commissioner of the Court

Annexure A

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Decision last updated: 09 August 2024