Telestra Corparation Pty Ltd v Hornsby Shire Council and Optus Mobile Pty Ltd v Hornsby Shire Council

[2006] NSWLEC 830

Land and Environment Court

of New South Wales

CITATION:

Telstra Corparation Pty Ltd v Hornsby Shire Council and Optus Mobile Pty Ltd v Hornsby Shire Council [2006] NSWLEC 830

PARTIES:

APPLICANT - 11456 of 2005
Telestra Corparation Pty Ltd
RESPONDENT - 11456 of 2005
Hornsby Shire Council

APPLICANT - 10546 of 2006
Optus Mobile Pty Ltd
RESPONDENT - 10546 of 2006
Hornsby Shire Council

FILE NUMBER(S):

11456 of 2005; 10546 of 2006

CORAM:

Brown C

KEY ISSUES:

Appeal :- Building Certificate - telecommunications facilities - visual impact - impact on heritage areas and conservation area

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Local Environmental Plan 1994

DATES OF HEARING:

24/04/06, 30/11/06, 14/12/06

 
DATE OF JUDGMENT: 

12/14/2006

LEGAL REPRESENTATIVES:

APPLICANT - 11456 of 2005
Mr D Miller, barrister
SOLICITORS - 11456 of 2005
Blake Dawson Waldron

APPLICANT - 10546 of 2006
Mr I Hemmings, barrister
SOLICITORS - 10546 of 2006
Minter Ellison

RESPONDENT
Mr T Pickup, solicitor
SOLICITORS
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

14 December 2006

11456 of 2005 Telstra Corparation Pty Ltd v
Hornsby Shire Council


10546 of 2006 Optus Mobile Pty Ltd v Hornsby Shire Council

JUDGMENT

1 COMMISSIONER: These proceedings involve two separate but related appeals against the refusal by Hornsby Shire Council of two separate applications for building certificates for telecommunications facilities erected in the Beecroft shopping centre.

2 Appeal 11456/05 (the Telstra appeal) is an appeal against the refusal of building certificate BC/194/2005 for a telecommunications facility comprising six panel antennas and an equipment shelter on the roof of the retail commercial building at 16-24 Hannah Street, Beecroft (the site).

3 Appeal 10546/06 (the Optus appeal) is an appeal against the refusal of building certificate BC/201/2005 for a telecommunications facility comprising three panel antennas and an equipment hut at the site.

Background

4 By way of background, the Telstra appeal commenced on site on 24 April 2006, however the proceedings were adjourned for the applicant to consider further options for the location of the telecommunication facilities. Prior to the resumption of the hearing and on 27 July 2006, Biscoe J ordered that the Telstra appeal and the Optus appeal be heard concurrently.

The site

5 The site is located within the Beecroft Shopping Village. This area consists typically of two storey development containing a variety of retail and commercial uses. A new mixed use development has recently been completed opposite the site, which contains residential units. The buildings within the area demonstrate a range of architectural styles and are of varying age.

Relevant planing controls

6 The site is zoned Business A (General) under Hornsby Local Environmental Plan 1994 (LEP 1994). The site is within the Beecroft Cheltenham Heritage Conservation Area as depicted in Schedule E of LEP 1994. There are item listed as heritage items in Schedule D of the LEP at 68, 72, 74, 83 and 95A Beecroft Road.

7 Under cl 18.1 of LEP 1994 the consent of the council is required to carry out certain development if it affects a building work, tree, relic or place that is a heritage item listed in Schedule D or is situated within a heritage conservation area.

8 As the site is within the Beecroft Cheltenham Heritage Conservation Area, the Hornsby Shire Heritage Development Control Plan applies to the land. Of particular relevance are the design, streetscape and heritage conservation elements.

9 The Hornsby Shire Business Lands Development Control Plan (Business DCP) also applies. Of relevance is the Building Design Heritage and Commercial Centre Master Plan element of the plan. The Beecroft Commercial Centre Master Plan within the Business DCP also applies.

The evidence

10 The parties agreed to the appointment of Mr Mark Robinson as the Court-appointed heritage expert for both appeals.

11 Additional heritage evidence was provided for the applicant by Mr Robert Staas and for the council by Mr David Logan. Dr Richard Lamb provided visual impact evidence for the applicants on both appeals.

12 Further evidence for the Telstra appeal was provided by Mr Stephen Collins, the National Site Acquisitions Manager, Mr Bill Papadatos, a Radio Frequency Design Engineer, and Mr Ken Carbury, the National Issues Manager.

13 Further evidence for the Optus appeal was provided by Mr Howard Game, the National Site Acquisition Environment Manager and Mr Graham Tabain, a Senior Technical Specialist.

The assessment approach

14 Section 149D of the Environmental Planning and Assessment Act 1979 (the EPA Act) provides the obligations of the council, and consequently the Court, when deciding whether to issue a building certificate. Relevantly, s 149D(1)(a) and (b) state:

(1) The council must issue a building certificate if it appears that:
(a) there is no matter discernible why the exercise of reasonable care and skill that would entitle the council under this Act or the Local Government Act 1993:
(i) to order the building to be demolished, altered, added to or rebuilt; or
(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt

15 Subsection (b) states:

(b) there is such a matter but in the circumstances the council does not propose to make any such order to take any such proceedings.”

16 Section 149F(3) states:

On hearing the appeal the Court may do one or more of the following:

(a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit;
(b) it may revoke, alter or confirm a notice under s 149C;
(c) it may make any other order that it considers appropriate.

17 For the purposes of these appeals, the matters called up by s 149D(1)(a) relate to the provisions in cl 18(5) of LEP 1994 and how the proposed structures relate to nearby heritage items and the heritage conservation area and in more general terms, the heads of consideration under s 79C of the EPA Act.

Findings

18 During the hearing Mr Galasso SC for the council, inquired whether I would provide the parties with preliminary findings so that the experts could further confer within a narrower range of issues. In agreeing that this was a sensible approach, I stated that based on the site view on 24 April 2006, the evidence of the experts and the requirements in LEP 1994 and the EPA Act, I was satisfied that a rooftop telecommunications structure could be adequately treated to minimise its overall visual impact, impact on the Beecroft Cheltenham Conservation Area and nearby heritage items. I acknowledged that it was a question of balance between the locational requirements of the telecommunication facilities that would provide an acceptable level of coverage and the visual impacts of the facility.

19 In finding the balance was in favour of the retention of the rooftop structure (including the equipment shed) I have taken into account the following matters:

(1) the public interest in providing acceptable levels of coverage around the Beecroft commercial area;
(2) the limitations on locations that would provide acceptable levels of coverage around the Beecroft commercial area;
(3) the co-location of the Optus facilities with the Telstra facilities and the consequent reduction in the number of antenna that would be visible from the area around the Beecroft commercial area;
4) satisfaction with the three storey height requirement in the Beecroft Commercial Centre Master Plan in the Business DCP;
(5) the opportunity to provide visual screening of the structure.

20 Based on my preliminary findings, and while the council maintained its opposition to the retention of the facilities shed on the roof of the existing shop, Mr Robinson, Mr Logan, Mr Staas and Dr Lamb provided their opinions on the most appropriate means of screening the facilities shed and antenna based on a number of different scenarios using system performance and visual/heritage impact as assessment criteria.

21 Of the heritage experts, Mr Logan and Mr Robinson agreed that the screening would assist in the reduction of the visual impact of the antenna and associated equipment, however it would still have adverse impacts on the streetscape and character of the Beecroft commercial centre and conservation area. Mr Staas was of the view that the installation would largely meet the objectives and would have an acceptable impact on the conservation area.

22 Dr Lamb concludes that screening of the antenna and associated equipment would result in an acceptable outcome from a visual point of view.

23 The council, through Mr Logan, pressed the relocation of the equipment shed from the rooftop location. Mr Logan stated that this would enable a smaller structure to be placed on the roof as it would only need to house the antenna. The structure would have a triangular base made of sides of 4.5 m and a height of 4.2 m. This is to be compared to a structure of 7 m by 5.4 m and a height of 4.2 m to house both the antenna and the equipment shed.

24 While I accept this option would have a reduced visual impact, the undisputed technical evidence indicated that the relocation of the equipment shed was potentially difficult because of the weight of the structure and the limit of some 35 m that it could be located from the antenna.

25 In any event I am not satisfied that the reduction in size brought about by the relocation of the equipment shed would have such a significant impact that it should be further considered. While there is a reasonably large difference in footprint, I am not satisfied this necessarily translates into an equivalent difference or significant reduction in visual impact. The existence of a structure of either size would be noticeable. While the triangular structure has a smaller footprint, it has the same height as the larger structure and will be equally noticeable although except it will have less bulk when viewed from surrounding areas.

26 While the council proposed a number of options for relocation, none had been investigated to the point where they could be seriously considered. Of the ten options, only options 2, 3 and 10 were considered to satisfactorily address the assessment criteria. Option 2 was seen as generally the most suitable. This option provided for the enclosure and screening of the Telstra facilities with the Optus antennas moved into the Telstra enclosure.

27 Mr Robinson, Mr Staas and Dr Lamb preferred the antenna and facilities to be fully enclosed, whereas Mr Logan preferred partial enclosure while allowing the top parts of the antenna to protrude above the screening enclosure. In his opinion the antenna, while adding to the clutter in the area, reduced the overall bulk of the structure.

28 In considering the different points of view, I prefer the full enclosure of the antenna and facilities. With proper treatment of the enclosure, I accept that it will provide more effective screening and will not adversely impact on any heritage items or the conservation area.

29 The parties were required to confer and provide draft orders and construction plans that reflected the above findings given on 30 November 2006. A further mention on 14 December 2006 was to be held if the draft orders and construction plans were not provided beforehand.

30 On 14 December 2006 a mention was held and a number of outstanding issues were addressed that allowed the preparation of final orders and the construction plans.

___________________
G T Brown
Commissioner of the Court