Telstra Corporation Limited v Tweed Shire Council

[2014] NSWLEC 1240

Land and Environment Court

New South Wales

Medium Neutral Citation:

Telstra Corporation Limited v Tweed Shire Council [2014] NSWLEC 1240

Hearing dates:

11 November 2014

Decision date:

20 November 2014

Jurisdiction:

Class 1

Before:

Morris C

Decision:

Appeal upheld

Catchwords:

Consent Orders, telecommunications tower

Legislation Cited:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy Nos 14, 44, 55, 71, (Major Development) 2005
Tweed Shire Consolidated Development Control Plan 2008
Tweed Local Environmental Plan 2014
Tweed Local Environmental Plan 2000
North Coast Regional Environmental Plan

Cases Cited:

Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133

Texts Cited:

NSW Telecommunications Facilities Guideline Including Broadband

Category:

Principal judgment

Parties:

Telstra Corporation Limited (Applicant)

Tweed Shire Council (Respondent)

Representation:

S Duggan SC (Applicant)

K Gerathy (Respondent)
King & Wood Mallesons (Applicant)

HWL Ebsworth Lawyers (Respondent)

File Number(s):

10548 of 2014

Judgment

1. Telstra lodged Development Application No 13/0201 with Tweed Shire Council seeking consent to erect a telecommunications facility. Consent was refused and Telstra is appealing that decision.

1. The issues between the parties have been resolved and they are seeking Consent Orders from the Court.

The site and its context

1. The site is located at the western end of Depot Road, at Kings Forest. It is a former waste depot owned by the council and was the subject of a development consent that authorised the placement of 50,000 cubic metres of clean fill following completion of the landfill operations. The earthworks associated with that consent have been completed.

1. The land is described as Lot 1 in DP397082. It has a total area of 8.094hectares.

1. Kings Forest is a semi-rural area the subject of a Concept Approval issued initially by the Department of Planning and Infrastructure in 2010 and modified on a number of occasions, the most recent amendment dated 16 August 2014. The effect of that plan is to define land use precincts for urban land release. The proposed facility is adjacent and to the west of Precinct 3 (Community/Education), to the north of a town centre/neighbourhood precinct and to the east of an Environmental Protection area under that concept plan. Development of the release area has not commenced however the Planning and Assessment Commission has approved Major Project Application No. 08_0194 for the Stage 1 bulk earthworks, road works and subdivision of Precinct 5. Precinct 5 is to the south of Precinct 3.

1. Land to the north is outside the area to which the concept plan applies and is used for rural/residential purposes and includes environmentally sensitive areas.

1. The site is also subject to development consent DA09/0836 which approved development of sportsfields, an associated access road, carparking, lighting, amenities building/clubhouse and sewer rising main. Earthworks associated with that consent have been partially completed.

1. The site of the proposed facility is in the northeastern corner of the allotment. It is generally clear of vegetation however would require the removal of a number of slash pine trees.

The proposal

1. The application involves the construction of a telecommunications facility within a compound area comprising the following:

• One 30m high monopole (maximum height including antennas is 31.6m or RL 41.6AHD);
• Two Telstra panel antennas (2.63m and 2.09m long) mounted on a triangular headframe at Centre Line 30.0m (with capacity to increase the number of antennas to 8 in the future at 29.3m, 30.0m and 30.9m);
• Equipment shelter on elevated concrete piers (3.28m x 2.28m and 2.995m high)
• A 2.4m high chain link security fence around the proposed compound covering an area of 10m x 8m;
• 3m wide double access gates;
• 3m wide access track; and
• Clearing for the track and lease area.

The planning controls

1. At the time the application was lodged, the site was zoned Special Uses 5(a) (Garbage Depot) under Tweed Local Environmental Plan 2000 (LEP 2000). It is now zoned RE1 Public Recreation under Tweed Local Environmental Plan 2014 (LEP2014).

1. The objectives of the 5(a) zone are:

Primary objective

· to identify land which is developed or is proposed to be developed, generally by public bodies, for community facilities and services, roads, railways, utilities and similar things.

Secondary objective

· to provide flexibility in the development of the land, particularly if it is not yet or is no longer required for the relevant special use.

1. Public utility undertakings are permitted with consent in the 5(a) zone. The following definition applies:

public utility undertaking

any of the following undertakings carried on or permitted or suffered to be carried on by or by authority of any Government Department or under the authority of or in pursuance of any Commonwealth or State Act:

(a) railway, road transport, water transport, air transport, wharf or river undertakings,

(b) undertakings for the supply of water, hydraulic power, electricity or gas or the provision of sewerage or drainage services,

(c) undertakings for the provision of telecommunications infrastructure.

A reference to a person carrying on a public utility undertaking is to be construed as including a reference to a council, county council, Government Department, corporation, licensed telecommunications carrier, firm or authority carrying on the undertaking.

1. Clauses 4, 5, 8, 11, 15, 16, 17, 34, 35, 39, 39A and 54 of LEP 2000 are particularly relevant considerations in terms of the application.

1. The North Coast Regional Environmental Plan and State Environmental Planning Policy Nos 14, 44, 55, 71, (Major Development) 2005 and (Infrastructure) 2007 also apply to the site.

1. Clause 115(1) of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) permits the proposal with consent, and cl 115(3) requires the consent authority to take into consideration any guidelines concerning site selection, design, construction or operating principles for telecommunications facilities that are issued by the Director-General for the purposes of this clause and published in the Gazette.

1. NSW Telecommunications Facilities Guideline Including Broadband issued by the NSW Department of Planning in July 2010 is the relevant document that must be considered in assessment of the application.

1. Tweed Shire Consolidated Development Control Plan 2008 (DCP), in particular clauses A2, A3, A11 and B9, apply to the application.

The issues

1. The Council filed a Statement of Facts and Contentions on 4 September 2014 (Exhibit 2). It no longer presses Contention 1 and says that Contention 2 is a summary of issues raised by objectors to the application. Ms Gerathy, for the Council, advised the Court that the council does not contend that these issues warrant refusal of the application. The issues raised in contention 2 are:

• contamination;
• koala habitat;
• visual impact;
• human health;
• required buffer distance;
• environmental value/health;
• noise;
• premature development;
• conflict of interest;
• alternative sites available.

The evidence

1. The hearing commenced on site and evidence was heard from three objectors to the proposal, owners of adjoining land, the developer of the Kings Forest Urban Release area and a representative of the Department of Education and Training. Notes of the evidence have been provided to the Court as Exhibit 6 with further information provided by the adjoining landowners (Exhibit 4) and the developer (Exhibit 5).

1. The adjoining landowners were concerned about the impact of the proposal on groundwater/contamination and the nearby wetland, asbestos that had been found on the site, their proposal to participate in the council's Koala Connections Project, the loss of pine trees that are said to provide screening of the pole, the accuracy of the photomontage, impact on Threatened Species (in particular Wallum Froglet, Wallum Sedge Frog and Microbats), the need for further investigation of contamination, stormwater impacts and foundation designs, the impact on human health and the possible cumulative impact in the event that additional antennas are added to the tower, lack of available electricity to service the site, the proposal being premature in relation to the release area and the proximity to a possible school site.

1. The developer is concerned that, because of a policy of the Department of Education and Training, the proposed tower is too close to one of the two sites nominated in the concept plan as a State school site. That is the land nominated as Community/Education in precinct 3. He suggested two alternate sites, one at the western end of the site and the second in precinct 9 adjacent to Melaleuca Road. The former is on land owned by the council and the latter owned by the developer.

1. A representative of the Department of Education and Training advised the Court of concerns of the department in relation to its preference for a 500m separation between a school and a mobile communications facility and stated that the site nominated within the concept plan would be impacted by the tower and may lead to a decision not to proceed with the construction as planned, affecting the work that had been done to date. He confirmed that other site constraints such as proximity to the proposed substation and the floodprone nature of the site nominated are also matters which may affect the Department's ultimate decision to site a school.

1. Mr N Juradowitch, a town planner, provided a Statement of Evidence (Exhibit C) and was not required for cross examination. His report considered the range of matters that must be assessed under s 79C of the Environmental Planning and Assessment Act 1979 (EP&AAct) and the issues raised in submissions to the council. He concludes that the proposed development complies with the relevant local, regional and State planning controls and policies, the site is suitable for the proposed development and the facility will have no adverse material impact on the natural or built environment, or the amenity of neighbouring properties. He states there are no adverse health, safety, social or economic impacts and the proposal will have minimal visual impact within the locality. The proposal readily complies with the relevant Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) standards relating to electromagnetic energy (EME) because the maximum EME from the proposal is just 0.27% of the ARPANSA maximum permitted emission levels. In his opinion there is no scientific basis, or justification for requiring any separation distance buffers to other land uses in the locality, either existing or proposed and the proposal will not reduce the suitability of adjacent land to the east, as a site for future school development.

Conclusion and findings

1. It is common ground that the proposed development is permissible with consent pursuant to the provisions of SEPP Infrastructure. The council does not press any contentions other than those matters raised by objectors and detailed in contention 2 of Exhibit 2 and outlined at [18] above. In accordance with the provisions of s 79C(1)(d) of the EP&A Act, these matters must be taken into consideration when determining the application.

1. I will deal specifically with those issues. With regard to contamination, a Preliminary Site Investigation has been undertaken and assessed by the council. In addition, the council has investigated asbestos dumping at the site. That report demonstrates that the proposed site is outside the waste disposal area and would not compromise the landfill cap. The report noted that it is likely that the site has been impacted by migration of leachate and landfill gases such as methane and that there is some contamination of ground water in the vicinity of the site. No evidence of asbestos was found on the site of the proposed tower. The report recommends certain protection measures and the preparation of environmental management plans for construction works and these recommendations have been assessed by the council and found to be satisfactory. The recommendations of the report have been incorporated into the agreed consent conditions. Having regard to the evidence, I am satisfied that the issues associated with contamination and groundwater can be satisfactorily addressed through the imposition of those conditions.

1. In relation to koala habitat and Threatened Species issues, the council has assessed a flora and fauna survey conducted for the proposal and is satisfied that there are no issues that warrant refusal of consent. That report concludes "Whilst some localised impact on amphibians and lower-order prey communities such as insects and/or avoidance behaviour by birds, micro-chiropteran bats and larger mammals may result from increases in EME in the area surrounding the proposed facility, we consider any such impact to be insignificant for purposes of Sec. 5A of the Environmental Planning and Assessment Act 1979." Based on this evidence, there is no reason to refuse consent.

1. The proposed tower will be visible from the playing fields when constructed and the release area to the south when developed. At the present time the vegetation associated with the koala corridor and adjacent pine species provide screening of the tower from the north. The Court notes that these pines may be removed as part of the council's work within the corridor however does not consider that the loss of those trees is such that the visual impact of the tower is unacceptable when viewed from adjoining properties, particularly given the separation distance to dwelling houses.

1. The objectors suggest that a standard higher to that recommended by ARPANSA (RPS3) should apply particularly in relation to the proposed school site and threatened species considerations.

1. According to its website, ARPANSA is the Australian Government's primary authority on radiation protection and nuclear safety. ARPANSA regulates Commonwealth entities using radiation with the objective of protecting people and the environment from the harmful effect of radiation. ARPANSA undertakes research, provides services, and promotes national uniformity and the implementation of international best practice across all jurisdictions.

1. This issue has been considered by the Court on a number of occasions. The Chief Judge, in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 considered this issue including the siting of towers near to schools. At [98], [99], [100] [101] and [102] he states:

98 It is not appropriate for a court to set aside or disregard such an authoritative and scientifically credible standard as the Australian Standard RPS3.........

99 Nor is it appropriate for a court to pioneer standards of its own. The creation of new standards is the responsibility of other authorities with special expertise, such as ARPANSA. ...

100 The Court should accept and apply the Australian Standard RPS3.........

101 The Australian Standard RPS3 embraces a precautionary approach. The exposure limits set are conservative relative to the scientific evidence on biological effects of exposure to RF fields. There are margins for safety in the basic restrictions and associated reference levels. The reference levels are based on worst case assumptions.......

102 Another precautionary approach advocated by the Australian Standard RPS3 is, in relation to the general public, to adopt the principle of: "Minimising, as appropriate, RF exposure which is unnecessary or incidental to achievement of service objectives or process requirements, provided this can be readily achieved at reasonable expense. Any such precautionary measures should follow good engineering practice and relevant codes of practice. The incorporation of arbitrary additional safety factors beyond the exposure limits of this Standard is not supported": section 5.7(e) of Australian Standard RPS3 at p.29.

1. Having regard to the evidence, I am satisfied Telstra has followed this precautionary approach. The maximum EME level is 0.27% of the Australian Standard. The proposal in effect generates a maximum EME almost 400 times less than the ARPANSA standard.

1. The Department of Education's policy states "While the Department cannot state a specific separation distance between a proposed mobile telecommunications facility and a school or TAFE campus, the Department has a preference for a distance of at least 500 metres from the boundary of the property." No scientific basis for this distance was put to the Court and, based on my comments in relation to compliance with the ARPANSA standard, I do not consider the location of the proposed tower would ultimately mean that a school could not be constructed on that land identified in the Concept Plan as Community/Educational purposes. Other constraints such as its floodprone nature and proximity to a substation are also issues that would need to be considered however it is not for this Court to go behind the process that has led to the decision to identify the site for that purpose.

1. I am satisfied that the agreed conditions will ensure noise generated from the plant associated with the tower will be within acceptable limits.

1. The proposed tower is to address the proposed residential development at Kings Forest but also to assist with improving in-building coverage to houses and buildings currently experiencing reduced service. Given that there has been an approval issued for the first stage of the release area and there are existing service gaps, it is not considered to be a development that is premature, it will ensure that adequate services are available for that development.

1. The Court has become the consent authority so any perceived conflict of interest between the council as owner of the land and undertaking its assessment role is irrelevant.

1. Two alternate sites have been suggested however, based on the available evidence, they are not satisfactory. One would require penetrate the landfill cap and the other would be more visible and not meet service requirements. Accordingly, without detailed analysis, I dismiss those options.

1. I am satisfied that the proposal is lawful, is permissible under LEP and complies with the relevant provisions of the applicable State Planning Policies, the LEP and the relevant controls of the DCP as well as the objectives of the EP&AAct. The agreed conditions of consent address the issues raised in submissions.

1. There being no reason why the Consent Orders should not be made, by consent, the Orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application DA13/0201 for a proposed telecommunications facility including a 30-metre monopole, two panel antennas and an equipment shelter at Lot 1 DP 397082, known as 80 Depot Road, Kings Forest is determined by granting consent to that application, subject to the conditions in Annexure "A".

(3)   The exhibits, other than exhibits A, B, 1 and 2, are returned.

Sue Morris

Commissioner of the Court

Annexure A

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Decision last updated: 20 November 2014