Telstra Corporation Limited (ACN 051 775 556) v Newcastle City Council
[2007] NSWLEC 371
•21 June 2007
Land and Environment Court
of New South Wales
CITATION: Telstra Corporation Limited (ACN 051 775 556) v Newcastle City Council [2007] NSWLEC 371 PARTIES: APPLICANT:
Telstra Corporation Limited (ACN 051 775 556)
RESPONDENT:
Newcastle City CouncilFILE NUMBER(S): 10124 of 2007 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Location of a telecommunications tower
Impact on the amenity of the public parkLEGISLATION CITED: Newcastle Local Environmental Plan 2003, (NLEP)
Hunter Regional Environmental Plan 1989, (HREP)
Newcastle Development Control Plan 2005, (NDCP)
Environmental Planning and Assessment Act 1979, ss79C and 97DATES OF HEARING: 18/06/2007
DATE OF JUDGMENT:
21 June 2007LEGAL REPRESENTATIVES: APPLICANT:
Mr A E Galasso, SC, instructed by
Ms A L Walker, solicitor
SOLICITORS:
Blake, Dawson WaldronRESPONDENT:
Ms N L Simmons, solicitor
SOLICITORS:
Sparke Helmore
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
21 June 2007
10124 of 2007 - Telstra Corporation Limited (ACN 051 775 556) v Newcastle City Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Newcastle City Council (the council) to refuse a development application to erect a telecommunications facility at Lot 3173, DP 755247, being No 51 Karoola Road, Lambton, NSW. The council now seeks a consent award.
2 I have concluded that the consent orders sought by the parties may be endorsed, and I grant consent subject to conditions.
The land
3 The land that is owned by the State government under auspices of the Lands Department of NSW is situated on the western side of Karoola Road, and is leased by the Crown to the Lambton Bowling Club. The land is irregular in plan shape with a frontage to Karoola Road of 37.3m, and depth of 131.49m giving an area of some 9,611m2 with the area of development being only 40.68m2.
4 There is a car park on the land that falls from the Karoola Road frontage towards the rear. The actual site of the proposal would be in the northwestern corner of the land in an area that is relatively flat.
5 Lambton Park extends to the north and west of the subject land and there is a concrete stormwater channel immediately adjacent to the west. Lambton Pool adjoins to the south and there are residential properties located to the east on the opposite side of Karoola Road.
Relevant planning controls
Newcastle Local Environmental Plan 2003, (NLEP)
6 Under the provisions of the NLEP the land is zoned 6(a) Open Space and Recreation and the proposal as a ‘utility undertaking’ is permissible with consent.
Hunter Regional Environmental Plan 1989, (HREP)
7 The HREP applies to the land.
Newcastle Development Control Plan 2005, (NDCP)
8 The NDCP applies to the land.
The proposal and its history
9 Development application No 05/0559 was lodged by Telstra, with the respondent council on 8 April 2005 to erect a freestanding telecommunications facility on the land including:
· the erection of a 23.5 metre high slimline steel pole with six panel antennas; and
· the construction of a steel ‘Colourbond’ equipment shelter to house electrical equipment associated with the facility, [Note: Exhibit B, Tab 1].
10 Six Telstra ‘Argus’ antennas would be collar mounted in two groups of three panels. The base of the lower and upper groups of antennas would be 20.31m and 22.905m respectively. Each antennae would be 370mm wide and 2095mm high. The equipment hut would be 3.28m x 2.28m in plan and 2.8m high and would be finished in ‘Colourbond’ ‘Wilderness Green’ to complement the predominant colours of the landscape and the bowling club structures. Security fences would surround the Telstra compound that would be adjacent to the bowling club’s water tank. The sunshade pole support for Bowling Green No 2 would be located outside the compound.
11 The Department of Lands issued owner’s consent by letter dated 21 March 2005 for the installation of telecommunications equipment on the land, [Note: Exhibit B, Tab 1].
Notification
12 The application was publicly notified in accordance with the Council’s Public Notification policy from 27 April 2005 to 11 May 2005 and the council received twenty-seven (27) proforma letters, as well as a submission from the New Lambton Residents Association and two petitions with a total of 50 signatories (one petition from the Lambton Seniors Association). A Public Voice Session was also held.
13 Concerns raised by objectors included the following:
· the need for the facility;
· development at Lambton Park should be limited;
· heritage issues;
· visual impact;
· suitability of the site;
· impact of the proposal on future park improvements and the existing recreational uses off the park;
· clarification of construction period and access;
· alternative locations;
· health effects, EME and radiation;
· graffiti;
· recent court cases;
· property values;
· potential for expansion; and
· public notification.
14 The development application was forwarded to the Department of Infrastructure, Planning and Natural Resources on 28 April 2005, and the department advised the council that the development did not require a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948.
15 The Development Application was forwarded to the Department of Lands on 10 May 2005 seeking comment and the council did not receive a response.
16 The council’s planning officers recommended approval of the development application in a report dated 21 February 2006. However the council refused the application by notice dated 28 February 2006.
17 The applicant submitted an application for a s 82A review on 5 April 2005 and this was further notified and the council received 10 submissions and 131 proforma style letters raising the following issues:
· visual impact;
· permissibility;
· justification for the proposal;
· review of the decision;
· health issues;
· park values;
· impact on park improvements;
· impact on property values;
· land and environment court proceedings;
· existing mobile phone facilities should be improved rather than constructing new facilities.
18 In a letter to the council dated 16 May 2005 the NSW Department of Commerce noting that the land is of local heritage significance. The department commented that the statement of heritage significance provided with the application is adequate to assess the application, and considered that the siting of the proposed pole structure near and amongst existing 12m high lighting poles “…mitigates the impact, …the height of the structure will have a visual impact wherever it is sited.” The department specified colours for the tank and the building.
19 In a report dated 20 May 2005, Ms G Schofield, environmental protection officer of the council on behalf of the ESU (Electromagnetic Survey Unit) raised no objection to the 2G-system proposal on environmental grounds. The maximum predicted ground level radiofrequency EME of 0.7% of the ACA mandated exposure level would be likely to occur 104m from the proposal. At the nearest residence in Howe Street the predicted EME level would be 0.215% of the ACA mandated exposure limit. At the nearest residence in Karoola Road 149m from the proposal the maximum predicted EME level would be 0.395% of the ACA mandated exposure level. The unit concluded that this 2G-system proposal would readily comply with the ACA mandated exposure limits for EME and standard and a non-standard conditions were recommended be applied to any consent. These conditions were incorporated in the draft conditions and the non-standard condition, Condition 1.2, was further amended during the hearing.
20 In accordance with the Court’s directions of 12 April 2007, the council further notified amendments to the application, made after commencement of these proceedings and further submissions were received.
The council’s decision
21 When the appeal was filed on 16 February 2007, the council had not determined the application. However, by notice dated 28 February 2006 the council formally refused the application for two reasons.
22 In respect of the s 82A review the council resolved to confirm its original decision to refuse the development application and be letter dated 2 June 2006 the applicant was notified of the reasons for refusal:
1. The location, within open space zoned land is not suitable for the erection of a telecommunications tower.
2. The impact on the amenity of the public park, which is used by a large number of local residents and visitors.
The hearing
23 The appeal was filed on 16 February 2007.
24 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr G R Taylor, resident of No 13 Fitzroy Road, Lambton;
· Ms L Alexander, resident of No 58 Karoola Road, Lambton;
· Ms D Orlandi, resident of No 52 Karoola Road, Lambton.
25 On behalf of the applicant written evidence was provided by:
· Mr D’Avico, RF (radio frequency) design and optimisation engineer.
· Dr R Lamb, visual analysis consultant (Exhibit B, Tab 5).
26 Ms R Hazzard, town planner of Newcastle City Council prepared the statement of basic facts dated 7 June 2007.
The issues
27 In its statement of facts and contentions dated filed 8 June 2007, the council raised the following issues:
1. The location, within open space zoned land is not suitable for the erection of a telecommunications tower.
2. The impact on the amenity of the public park, which is used by a large number of local residents and visitors.
28 However, in a report to the council dated 21 February 2006 the issues were identified as the impact of the proposed development:
· upon the visual amenity of the locality;
· on the heritage significance of Lambton Park;
· on the recreational use of Lambton Park.
The evidence and findings
29 When the matter came on for hearing the respondent had resolved to agree to consent orders allowing the appeal and granting development consent subject to conditions.
30 The respondent accepted that the concerns raised by objectors when the application was advertised might be raised at the hearing.
Location of a telecommunications tower
31 The location of the proposal is within the grounds of the Lambton Bowling Club that is within Lambton Park. The height of the Telstra pole would be about twice as high as the lighting poles within the bowling club leased area. The use of the land for bowling appears to be entirely consistent with the aims of 6(a) open space and recreation zoning under cl 2(a) the NLEP being a leisure, recreation, and sports activity within a park for the general use of the community where consistent with an adopted plan of management under the Local Government Act 1993 or the Crown Lands Act 1989. Also, the bowling club use appears to be consistent with cl 2(c) of the NLEP as it could be seen as compatible and consistent with the heritage and character of the open space and with the character and amenity of the neighbourhood.
32 The same could not be confidently said of the proposal, as it would be a use that would alienate part of the park for a sectional interest, that some of the residents likened to a commercial use. However, utility undertakings are permissible with consent in the zone and whilst the bowling club operates, the proposed use could be seen as assisting in the viability of the recreational use since the land on which it is proposed to erect the communication facility is part of the land leased to the bowling club by the Minister for Lands. Mr Galasso, SC, submitted that it is likely that the club would be economically assisted by this leasing arrangement.
33 However, were the club to close there would be no strong justification for maintaining the utility undertaking within Lambton Park environs. The utility undertaking would have no relationship to the recreational use of the park, a point strongly made by Mr Taylor in evidence. Also, Ms Orlandi pointed to the fact that it is likely that the council will de-formalise the concrete lined stormwater canal that passes to the west of the land and in that event the proposal might be an impediment to the landscaping of the park.
34 Thus I am prepared to consent to the utility undertaking proposal on the basis that:
- The applicant will decommission the proposed tower within a reasonable period of:
(a) the demolition of the buildings and greens comprising the bowling club and adjacent light poles and the de-formalisation of the watercourse and the site’s conversion to open space; or
(b) the proposed tower no longer being required in the opinion of the applicant for the provision of telecommunication services.
35 This condition has become Condition 1.3.
Impact on the amenity of the public park
36 Dr Lamb carried out a visual assessment of the proposal in its present setting, which includes the light poles within the bowling club leased area. In that context Dr Lamb found “…there are no unacceptable visual impacts that would result from the construction of the proposed pole.”
37 I accept that evidence and agree that while the light poles within the bowling club remain the proposal could not be considered to be of a level of significance, which would justify its refusal.
38 However, were the bowling club to close and the greens and lighting poles removed the proposed telecommunication facility would appear as a foreign element in the park setting. For that reason, I would only approve the development with a condition that the applicant will decommission the proposed tower in those circumstances. Condition 1.3 is added to address this matter.
Other amenity impacts
Electromagnetic radiation
39 Mr Galasso, SC, submitted that in the latest amendment that changed the technology changed from 2G to 3G, the number of antennas would remain the same. The height of the pole had been reduced from 25m to 23.5m previously. With the change in technology, he submitted that, the EME would be reduced from 0.7% at 104.765m distant from the pole at 301.12 degrees to 0.3% at 144m bearing 191degrees.
40 In a memorandum dated 17 April 2007, Mr M Manning, environmental protection officer of the council confirmed the proposal, given the new technology, would emit 0.3% of the maximum continuous exposure limit at any distance, [Note: Exhibit 2, Tab 8].
41 Given that Ms Schofield, the council’s environmental protection officer on behalf of the ESU (Electromagnetic Survey Unit) raised no objection to the 2G-system proposal on environmental grounds and the 3G-system would more than halve the radiation, I am satisfied that the proposal should not be refused on this ground.
Heritage impacts
42 Lambton Park is a listed heritage item by the NSW Heritage Office. Within the park the drinking fountain, the gates, the rotunda are also listed heritage items. The statement of significance of the park is that it has “…intact layout features and numerous supporting items giving the park a furnished character”, [Note: Exhibit B, Tab 2, p 1]
43 I consider the proposal set within the grounds of the bowling club surrounded by the existing light poles would be acceptable in the heritage context, however, were the club disbanded and the light poles removed the proposal would appear as a foreign element in the landscape and appear intrusive. Thus, it is necessary to impose conditions that would require its removal in certain circumstances. I grant consent to the proposal on an interim basis with the imposition of Condition 1.3.
Vehicular access
44 In order to build and to maintain the proposed communication tower and equipment shed it will be necessary to gain access through Lambton Park. Telstra has indicated to the council that, “…it is willing to consult with local sporting groups who regularly use the park to ensure that the construction of the proposed facility does not in any way interfere with training or competition schedules”, [Note: Exhibit B, Tab 6]. Telstra is also committed to making-good the park should any damage occur. Telstra employees would gain access on foot through the club to maintain the facility and a cherry-picker might be used to service the antennas on occasions. Access through the park would be needed for the cherry-picker, however, Telstra maintains that no driveway would be required through the park.
45 Given that Telstra would obtain approval of the council for any access through the park, the respondent did not object to the proposal on these grounds. I accept that the proposal would be reasonable in this regard and if access were required through the park, it would be infrequent.
46 For the above reasons, the appeal is upheld and approval granted subject to conditions.
Conditions
47 The conditions are those in Exhibit 1 as amended by the new Condition 1.2 in Exhibit 8 and the new Condition 1.3 that would require the removal of the proposal in certain specified circumstances. Given that the applicant did not agree to the additional Condition 1.3, I have assumed that the applicant no longer gives consent.
Orders
48 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 05/0559 lodged with the respondent council on 8 April 2005 to erect a telecommunications facility at Lot 3173, DP 755247, being No 51 Karoola Road, Lambton, NSW, is approved subject to Conditions 1 to 6.2 in Annexure A.
3. The exhibits except for Exhibits A, B, 1, 2 and 8 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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