Telstra Corporation Limited v Blacktown City Council

[2012] NSWLEC 1132

Land and Environment Court

New South Wales

Medium Neutral Citation:	Telstra Corporation Limited v Blacktown City Council [2012] NSWLEC 1132
Hearing dates:	22-23 May 2012
Decision date:	23 May 2012
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	Development application, phone tower, visual impact, suitability of site for proposed development
Legislation Cited:	Blacktown Local Environmental Plan 1988
Cases Cited:	Telstra Corporation Limited v Hornsby Council [2006] NSWLEC 133
Texts Cited:	Australian Communications Industry Forum Industry Code ACIF C654: 2004 Deployment of Mobile Phone Network Infrastructure Blacktown Development Control Plan 2006; NSW Telecommunications Facilities Guideline Including Broadband July 2010; Radiation Protection Series No 3 - Radiation Protection Standard for Maximum Exposure Levels to Radiofrequency Fields - 3kHz to 300 GHz (2002);
Category:	Principal judgment
Parties:	Telstra Corporation Limited (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel Ms S Duggan SC (Applicant) Solicitors Mr P Arnold Ashurst Australia (Applicant) Mr S Simington Lindsay Taylor Lawyers (Respondent)
File Number(s):	11246 of 2011

Judgment

1. This is an appeal against the refusal by Blacktown City Council of Development Application 11-80 lodged by Telstra Corporation Limited and proposing the construction of a mobile phone base station comprising a 25m high concrete monopole, 3 turret mounted panel antennas and ancillary equipment shelter at 85 Bali Drive, Quakers Hill.

1. The contentions in the case are whether the site is an appropriate location for the facility and its visual impacts are acceptable.

Background and the proposal

1. Telstra lodged the development application on 25 January 2011 and sought consent to erect the tower and associated equipment building in the north-eastern corner of a carpark servicing an Aldi supermarket. Telstra holds a lease over that portion of the site and the area is 49.84sqm. Whilst the application relates to the whole of Lot 111 in DP 1018513, Ms Duggan, for the applicant, advises that Telstra is not currently authorised to undertake any works on the site outside the lease area.

1. The development consists of a 25 m monopole accommodating three panel antennas on a turret mount on top of the monopole (total height including antennas is 28.25 m). Panels are 2.63 m high, 370 mm wide and 120 mm deep and would be attached to the top of the pole. One equipment shelter near the base of the pole and associated works such as cables, cable ladders and support posts, fibre pit, bollards and weed with gravel topping is also required. Future provision has also been made for three panel antennas to be installed below the turret-mounted antennas however those antennas do not form part of the application.

1. The facility would occupy an approximate area of 10.25 m x 5.5 m that is currently landscaped and bordered by a concrete kerb that separates a garden bed from the carpark. The building has dimensions of 3.28 m x 2.28 m, would stand 2.995 m high and is to be constructed with a faux brick finish to match the existing retaining wall. That retaining wall would totally screen the shelter from Hambledon Road due to the significant cut that has occurred in this portion of the site.

1. An existing tree approximately 5 m high, hedging, native shrubs and grasses within the landscaped area would be cleared as part of establishing the site compound. The applicant had not proposed, prior to the hearing, any landscaping of the site and the council's determination was based on that fact.

1. Construction and maintenance access to the site would be via the existing access to the Aldi store off Bali Drive and through the carpark.

1. The council notified the application from 27 April to 11 May 2011 and, according to the Statement of Facts and Contentions, received 23 individual objections, 40 pro-forma letters and petitions containing a total of 684 signatures, all of which objected to the proposal.

1. The council refused consent to the application on 4 April 2012 on six grounds on which the contentions are based.

The site and its context

1. The site is an L-shaped allotment fronting Bali Drive, Hambledon Road and Morrell Crescent Quakers Hill and is currently occupied by an Aldi supermarket and carpark. A BP service station and the Quakers Hill Anglican Church are located to the direct north of the site.

1. The surrounding land use on the opposite sides of these roads is predominantly residential with the Quakers Hill Public School approximately 390 m north west of the site, Quakers Hill Nursing Home 165 m to the south and a chid care centre 215 m south-east and one further to the north of the school site.

1. The BP service station includes an 8.99 m high pylon sign to the north of the site. Due to the change in levels, the base of that sign is approximately 3.4 m above the ground level of the development area. The tower, at its highest point, would be approximately 15.86 m higher than the BP sign.

The planning controls

1. The site is zone 3(a) General Business under Blacktown Local Environmental Plan 1988 (the LEP) and the proposed development is permitted with consent in that zone.

1. Blacktown Development Control Plan 2006 (the DCP) applies to the site and Part N - Telecommunications Facilities is particularly relevant to the application. The objectives of that section are to minimise possible adverse public health effects of telecommunications facilities by designing and siting facilities in a sensitive manner and to preserve the visual character and amenity of the Blacktown City Council area by providing siting and aesthetic guidelines, minimising the number of and encouraging the sharing/co-location of facilities and not supporting the location of facilities on Community Land unless the core objective of that land are met.

1. The DCP prioritises zones where the facilities should be located with industrial first and commercial/business zones second and provides guidelines in relation to siting, landscaping and visual/aesthetic considerations.

The evidence

1. The hearing commenced on site and three local residents provided evidence. The issues raised are summarised as being: the visual impact of the development including any additional structures to be attached in the future, proximity to residential and other sensitive uses and resultant health/amenity impacts, non-compliance with council and agency guidelines, loss of property values, Telstra hasn't examined alternate sites adequately and lack of need for project. The Minister from the adjoining church also expressed concerns raised by his church members in relation to the health impacts from the pole and stated that this is likely to affect attendances by some congregation members. He was also concerned in relation to the tower location and plans to expand the church building to include children and youth facilities.

1. Mr Baddah, an electrical engineer employed by Telstra as a Technology Specialist, Wireless Networks, provided evidence in relation to the operation, siting, design and location of the tower and also information on the need for the tower. The council did not provide any engineering evidence. He says it is needed to address customer complaints in the Quakers Hill area relating to coverage quality and reliability of mobile voice and data services and in particular, to improve depth of coverage (indoor reception).

1. There are a number of tables and diagrams contained within Mr Baddah's Expert Report, Exhibit A, that compare an alternate location suggested in submissions. That location is at Mihkelson Reserve. The data shows that the construction of a tower in that location would not address the target area. He also details the company's review of alternate locations and concludes the subject site is the best available to address the service area.

1. Mr Baddah provided evidence of the predicted electro-magnetic radiation emission levels (EME) at a range of distances from the proposed tower developed in accordance with the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) procedures. Based on the Environmental EME Report generated by RFMap for the proposed facility, he says the maximum cumulative EME level at 1.5 m above ground level is estimated to be 0.3% of the EME exposure limit for the general public specified in the ARPANSA standard Radiation Protection Series No 3 - Radiation Protection Standard for Maximum Exposure Levels to Radiofrequency Fields - 3kHz to 300 GHz (2002) (RPS3). He says that the maximum cumulative EME level is 333 times lower than the exposure limit set by ARPANSA's RPS3 Standard and that standard is the relevant standard to apply to the application.

1. Mr Baddah also referenced tables that modelled predicted EME levels and these are provided below, one looking at distances from the proposed tower and one considering specific sensitive sites in the vicinity of the tower site.

Distance from the antennas at 85 Bali Drive in 3600 circular bands

Maximum Cumulative EME Level - All carriers at this site

(% of ARPANSA exposure limits)

Public exposure limit = 100%

0m to 50m

50m to 100m

100m to 200m

200m to 300m

300m to 400m

400m to 500m

0.041%

0.18%

0.3%

0.13%

0.061%

0.035%

Maximum EME Level

121.94m from the antennas at 85 Bali Drive

0.3%

Additional Locations	Height/Scan relative to location ground level	Maximum Cumulative EME Level All Carriers at this site (% of ARPANSA exposure limits) Public exposure limit = 100%
Hambledon Public School Jellyfish Child Care Centre Willunga Child Care Centre Quakers Hill Nursing Home Anglican Church Play Centre	0m to 3m 0m to 3m 0m to 3m 0m to 3m 0m to 3m	0.032% 0.057% 0.05% 0.19% 0.22%

1. In response to a question from the Court, Mr Baddah indicated that the EME level in the vicinity of the proposed additions to the church as discussed on site would be less than that calculated at the play centre due to the proximity of that work to the tower. He says that even at the play centre, which is the community location that received the highest level of predicted EME from the tower, the level of EME is 0.22% of the ARPANSA exposure limit set out in RPS3.

1. Mr Baddah advises that the height of the tower cannot be reduced and still meet Telstra's coverage objective as to do so would reduce the coverage provided and require additional towers at other locations to meet that demand.

1. Expert town planning evidence was heard from Mr N Juradowitch for Telstra and Mr G Apps for the council. They agree that the proposed facility results in EME levels that are below the relevant Australian Standards and that the maximum levels identified in those standards include a significant "exposure" margin, reflecting the precautionary principle.

1. It is also agreed that:

• The DCP, in terms of its locational preferences, seeks to maximise the separation distance between telecommunications facilities of the type proposed and residential areas and other land uses deemed to be sensitive uses, and that the underlying objective of the control is to minimise exposure to EME and visual impacts to residents;
• That the site is zoned for commercial purposes and is therefore a preferred location;
• The application has been supported with an assessment of alternative sites and that there is no other site within the search ring that is suitable for this facility due to either technical constraints or unwilling land owners;
• The antennae must have clear "line of sight" over other structures and trees, and therefore planing cannot screen the full height of the monopole;
• The views of the proposed tower would be screened from the north by the service station and the Anglican Church, including the mature trees on the church land;
• The street pole infrastructure in the neighbourhood is limited to street lighting poles and traffic control lights, with other infrastructure being reticulated underground;
• Commercial signage (including Aldi and BP) also forms part of the streetscape;
• Views of the proposed pole structure from dwellings are considered to be a relevant consideration and where the facility is seen from residences, that visual impact would be experienced for a greater period of time that would be the case with passing motorists and pedestrians and for that reason, the visual impact to residents would have a greater weight;
• There are no viable options for mounting the structure on existing buildings within the search area;
• Where possible, measures to mitigate the visual impact should be applied, as recommended in the Department of Planning's NSW Telecommunications Facilities Guideline Including Broadband July 2010 (the DoP guideline);
• The design of the pole is less visually obtrusive than the more traditional tower form with large antennae headframe and that there is no further design measures with respect to the physical form of the facility that would further reduce its visual impact because lowering the height of the pole would result in insufficient coverage and service level;
• There is limited opportunity to screen the pole structure from Hambledon Road;
• That street tree planting would assist in screening the lower portion of the tower from residences provided those trees were evergreen.

1. Mr Apps advised that it would, subject to appropriate siting so as to avoid services within the footpath area, be possible to supplement the existing street tree planting to assist in mitigating the visual impact of the proposal however, preferred that any supplementary planting was undertaken on the site of the proposed development rather than in the public road. Mr Juradowitch agreed that additional planting was desirable and concurred that it should be on the site but if that were not possible, in the road reserve. Mr Apps said there would be no difference from the viewer's perspective if the trees were on the Aldi site or in the street.

1. As a result of discussions on site and during the hearing, the applicant prepared amended landscape plans that made provision for the planting of 4 street trees, 2 in Bali Drive, 2 in Morrell Crescent and 2 within the lease area. Mr Apps said that the planting of the trees in accordance with that plan would assist in resolving the visual impacts of the development however did not go as far as saying it would totally resolve the matter.

1. Mr Juradowitch says the visual impacts of the tower, being an essential service, are acceptable and that, in accordance with the DoP guideline, it is important to ensure the ancillary structures are screened and that this can be achieved in accordance with the amended landscape plan. Mr Apps accepts that phone towers are now an essential element of the environment however, maintains that, in accordance with the provisions of the DCP, should be located as far away as practical from sensitive uses. Mr Juradowitch says that this is to address the EME issue rather than visual considerations and that, as agreed, the emissions are well below that recommended in the Australian Standards.

Conclusion and findings

1. From the evidence provided, I am satisfied that the EME produced by the towers is well below the limitations imposed through the relevant Australian Standards. The evidence of Mr Baddah was not contested. I have regard to the decision of Preston CJ in Telstra Corporation Limited v Hornsby Council [2006] NSWLEC 133 and find that there would be no reason to refuse the application on the basis of health risks as raised by resident objections. I note the council did not raise as a contention on the case the perceived health risks and that it is the evidence of Mr Apps that the tower meets all appropriate standards. I accept the uncontested evidence of Mr Baddah that the emission levels are as stated in his expert report and summarised in the tables at [20]. Those levels are well below the recommended standards.

1. I have regard to the DCP and the fact that the council encourages the establishment of telecommunication facilities in, firstly industrial areas and secondly on land zoned commercial/business. From the evidence provided, there is no land zoned industrial that would service the target area and accordingly, the business zone is the next preferred location.

1. The site chosen is screened from Hambledon Road by the existing retaining wall and it would be the tower structure that is visible from that location. The landscaping now proposed by the applicant would, as agreed by Mr Apps, assist in screening the equipment shed and lower parts of the tower from Bali Drive and Morrell Crescent. Conditions of consent are agreed to plant two trees within the lease area and also plant four evergreen trees within the setback area with a minimum mature height of 15 m, if consent from Aldi can be obtained, or within the road reserve if that consent is not granted. It is desirable that all of the planting is undertaken on the site of the proposed development and the applicant should use its best endeavours to obtain that consent. The failure of Telstra to address landscaping and screening up until the hearing had been a concern of the council and, on the evidence of Mr Apps, Telstra has now done as much as it can to screen the development from residences in proximity of the site.

1. It is agreed that it is not appropriate to attempt to screen the entire tower due to the transmission requirements and for that reason, the upper portion of the tower would be visible from all adjoining roadways. Photomontages had been prepared (Exhibit K) that show the visual impact of the tower without the agreed landscaping.

1. The DCP requires the facility to be located as far away as practicable from nominated uses recognising that there may be a need for trade offs to achieve a balance between visual and aesthetic considerations and separation from sensitive land uses. It requires consideration of incorporating structures into building architecture and on rooftops and says the visual impact of antennas, masts and associated equipment structures can be reduced by sympathetic or co-ordinated colouring within their context so that they blend in and are not obtrusive. It also says the design of freestanding structures should be carefully considered so as to result in shapes or surfaces which are complementary to existing environments and not at odds with existing urban forms.

1. Having regard to the evidence, the site view, and in particular, the presence of street light poles that, whilst considerable lower in height than the proposed tower, are of similar style, material and construction, I am satisfied the landscaping proposed would screen the lower portion of the tower. The provision of landscaping is clearly an issue that should have been addressed by Telstra earlier when requested by the council and, is an important element in achieving the objectives of the DCP. I accept the tower will be visible from locations close to and further away from the site including residential properties however I do not consider that impact is such that it would justify refusal of consent and is consistent with the approach required under the DCP to minimise the visual impact.

1. Residents expressed concerns in regard to future installations that may be attached to the tower without the need for further development consent. Whilst this may occur, it is a matter for another day however, I am satisfied, based on the photomontages in Exhibit K and the evidence of Mr Baddah that, if this was to occur, the impact would be similar or less than that demonstrated because of his evidence that technological changes mean that antennae are becoming smaller rather than larger and that there would not be any further structures attached below the height of the second towers if built because anything lower would not provide any rational level of service.

1. The evidence is that the site has been selected to address complaints received in relation to service issues within the locality and, its zoning is consistent with the DCP requirements. It is clear that the location and height of the tower will address a need within the locality and, in accordance with the DCP guidelines, would lead to the minimisation of the number of towers in the locality and has been located as far as practicable from sensitive land uses. I am also satisfied that adequate regard has been had to the DoP guidelines and the Australian Communications Industry Forum Industry Code ACIF C654: 2004 Deployment of Mobile Phone Network Infrastructure and mitigation measures employed reduce the visual impact of the proposal.

1. In view of the above findings, I am satisfied that, with the provision of landscaping as agreed between the parties, that consent to the application should be granted.

1. The Orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application 11-80 for the construction of a mobile phone base station comprising a 25m high concrete monopole, 3 turret mounted panel antennas and ancillary equipment shelter at 85 Bali Drive, Quakers Hill is approved subject to the conditions included in Annexure 'A'.

(3)   The exhibits, other than exhibits E, H, 3 and Folios 75-77 of exhibit 2 (plans), are returned.

Sue Morris

Commissioner of the Court

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Decision last updated: 23 May 2012