Telstra Corporation Limited v Campbelltown City Council

[2006] NSWLEC 762

Land and Environment Court

of New South Wales

CITATION:	Telstra Corporation Limited v Campbelltown City Council [2006] NSWLEC 762
PARTIES:	APPLICANT Telstra Corporation Limited RESPONDENT Campbelltown City Council
FILE NUMBER(S):	10589 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application :-
LEGISLATION CITED:	Campbelltown Local Environmental Plan
CASES CITED:	Telstra Corporation v Hornsby Council (2006) 146 LGERA 10, [2006] NSWLEC 13
DATES OF HEARING:	22 November 2006
EX TEMPORE JUDGMENT DATE:	11/22/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr A Hill, solicitor Blake Dawson Waldron RESPONDENT Mr D Baird, solicitor Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

22 November 2006

06/10589 Telstra Corporation Limited v Campbelltown City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

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

1. COMMISSIONER: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Campbelltown City Council (the council) of Development Application 5395/2004 for the erection of a mobile telephone tower and associated base station equipment at a Telstra Corporation compound at Appin Road, Rosemeadow (the site). The site located adjacent to, and as an intrusion into the grounds of, Ambarvale High School (the high school).

2. The application was determined by refusal by the council in mid-2005 but now comes before the Court as proposed consent orders.

3. Leave was granted (not being opposed by the council) for amendments to the plans to utilise a differing version of the mast – a design difference resulting in no overall increase in the height of the development nor in its scale.

4. I have heard submissions from the President of the Parents and Citizens Association of the high school and from the Principal of the high school into whose grounds the Telstra compound acts as an insertion on its north-eastern side. I also heard submissions from a representative of the Department of Education and Training.

5. All three submissions opposed the installation of the facility on the basis of prudent avoidance of risk.

6. The question of prudent avoidance of risk must be considered in the context that fears, although honestly and reasonably held, must be capable of some rational certainty of fulfilment before the Court is able to take account of them. These issues were dealt with by Preston CJ in Telstra Corporation v Hornsby Council (2006) 146 LGERA 10, [2006] NSWLEC 133.

7. As a consequence of this decision, I do not need to traverse these matters – including the application of the precautionary principle and whether the precautionary principle, on the present state of knowledge and Australian Standards with respect to electromagnetic emissions and radiation, required some a greater degree of caution being taken than which is adopted by the Council on this proposal.

8. I am satisfied that, absent the availability of some alternative, viable site which is not intrusive into the school's grounds, there is no merit basis upon which to refuse the proposed consent orders.

9. At the commencement of the hearing, I asked the council, through its solicitor, Mr Baird, if I could be provided with information as to why a number of alternative sites which were canvassed by the applicant and which were located on council owned land were not made available as they these appeared to be less sensitive sites.

10. I was taken of the provisions of the Campbelltown Local Environmental Plan (the LEP) and I am satisfied that the three possible sites potentially involved are zoned for local open space. As a consequence, I am satisfied that the erection of telecommunications facilities thereupon is prohibited by the LEP.

11. I am therefore satisfied that the Council of has not acted in some obstructive fashion in order to require the erection of the facility on the site.

12. As a consequence, I am satisfied that, by consent:

1. The appeal should be upheld; and
2. Development consent, subject to the agreed conditions that will be annexed to the orders, should be granted to Development Application 5395/2004.

Commissioner of the Court