Telstra Corporation Ltd v Cairns Regional Council
[2009] QPEC 84
•29 September 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Telstra Corporation Ltd v Cairns Regional Council and Ors [2009] QPEC 84
PARTIES:
TELSTRA CORPORATION LTD
Appellant
V
CAIRNS REGIONAL COUNCIL
Respondent
And
DEPARTMENT OF MAIN ROADS
Co-Respondent by election
And
LISA-JEAN BROUGH, WENDY ANN CAHILL, COMBINED BEACHES COMMUNITY ASSOCIATATION INC, RODNEY LLOYD CROSTHWAITE, SUSAN ELIZABETH DACEY, TERRY DAVID FARLEY, WARREN ANDREW HERKESS, JULIE MARGARET HOGAN, DUNCAN MELHUISH HOWES, NERISE YVONNE HOWES, RIMA ISMAIL-JONES, PETER WILLIAM JOHNSTON, DAMIEN JONES, ARMIN KULLACK , JOHN WYNDHAM LEWIS, JOHN LAYTON MAYO, ANTHONY JOHN MCCORMACK, LORRAINE BEVERLEY MCCORMACK, MARILYN JANICE NEILSEN, ALLAN LEOPOLD REID, VIOLET ELIZABETH SCOTT, TIMOTHY JOHN SHEEHAN, ROBYN PATRICIA STACK, PAUL ASKEL THUESEN, FIONA JAN TULIP, DUNCAN FRANCIS WALLIS, ROSS EVAN WATSON, JAMES WILLIAMS WILLOUGHBY, MICHAEL ANTONY WINSBURY
Co-Respondents by election
FILE NO/S:
CD 301 of 2008
DIVISION:
Original jurisdiction
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, at Cairns
DELIVERED ON:
29 September 2009
DELIVERED AT:
Brisbane
HEARING DATE:
24, 25 and 26 June 2009 in Cairns; written submissions received up to and including 5 August 2009
JUDGE:
Alan Wilson SC, DCJ
ORDER:
1 Appeal allowed
2 Adjourn the matter for further review at 9am
on 21 October 2009
CATCHWORDS:
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING LAW – where refusal by local authority – where opposition from local residents – whether conflict with planning scheme – whether compromise of Desired Environmental Outcomes – whether planning grounds to overcome conflict – construction of planning scheme
Commonwealth Constitution 1901 s 51(v)
Commonwealth Telecommunications Act 1997
Integrated Planning Act 1997 s 2.1.23(2), s 3.5.5, s3.5.14(2), Schedule 10Cases Cited:
Alex Gow Pty Ltd v Redland Shire Council [2009] QPELR 116
Bad Girls Maroochy Pty Ltd v Chief Executive [2004] 2 Qd R 352
Baglow v Livingstone Shire Council [1983] QPLR 352
Baptist Union of Queensland v Brisbane City Council [2003] QPELR 61
Bim Holdings Pty Ltd v Pine Rivers Shire Council [2002] QPELR 363
Dixon v Burwood Council [2002] 123 LGERA 253
Green v Brisbane City Council [2005] QPELR 121
Hutchison 3G Australia Pty Ltd v Mitcham City Council (2006) 80 ALJR 711
Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13
La Trobe City Council v Telstra Corporation [2000] VCAT 2488
Novak v Woodville City Corporation (1990) 70 LGRA 233
Perry Properties Pty Ltd v Ashfield Council (No. 2) (2001) 113 LGERA 301
Raceway Motors Ltd v Canterbury Regional Planning Authority [1976] 2 NZLR 605
Telstra Corporation Limited v Caloundra City Council [2005] QPELR 412
Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10
Telstra Corporation Limited v Pine Rivers Shire Council [2001] QPELR 350
Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [1986] 53 P&CR 293
Wagner v Brisbane City Council [2007] QPEC 092COUNSEL:
D Gore QC and D Morzone for the appellant
W Cochrane for the respondent
W Herkess, co-respondent in person
P Johnston co-respondent in personSOLICITORS:
Mallesons Stephens Jacques for appellant
King and Company for respondent
Lehmann Featherstone for Department of Main Roads
W Herkess as a self-represented co-respondent
P Johnston as a self-represented co-respondent
Telstra wishes to erect a mobile phone tower at Clifton Beach, a pretty seaside township on the coast just north of Cairns. It says the tower is a necessary and important part of the mobile network and the tower itself, a single pole 27 m high, will not have any serious effect on the visual amenity of the area. Council took a different view, and rejected the application.
A number of householders at Clifton Beach and the surrounding northern beaches area also oppose the tower and lodged submissions against Telstra’s development application for it, and elected to appear as respondents in the appeal. Although a number attended in court during the hearing, and some recorded an appearance on the first day, only Mr Herkess and Mr Johnston sat at the Bar table, asked questions of witnesses, and took a generally active role in the appeal. At the close of the hearing parties were invited to exchange and deliver written submissions and six co-respondents, including Mr Herkess and Mr Johnston, chose to do so[1]. The first co-respondent by election, the Department of Main Roads, appeared on the first day but, with the consent of all parties, was excused further attendance.
[1]Submissions were also received from Ms Dacey, Mr Farley, Mr Howes, and Ms Tulip on behalf of the Combined Community Beaches Association Inc.
The site of the proposed tower and the surrounding area were inspected during the hearing. Clifton Beach is situated on the narrow coastal plain between the heavily forested mass of the MacAlister Range to the west, and Cook Bay to the east. It lies, largely, between the Captain Cook Highway and the ocean. The site itself has a frontage to the highway and also Endeavour Road (the main access road to the town) and Elford Street. It is one of three adjacent lots, owned by Telstra, which presently contain some small buildings holding a Telstra telephone exchange.
Clifton Beach and the area around it have all the balmy tropical charms for which Cairns and the FNQ area are so well known. The area is dominated by relatively low dwellings surrounded and visually overborne by tropical trees and foliage. The only large building in the area is a shopping centre immediately to the south of Telstra’s site, which services the town and traffic on the highway.
The site itself is almost level, and rectangular in shape. The proposal is for a monopole with a total height of 27 m with three slimline panel antennae, each 2.63 m high, attached to a turret headframe. Its likely appearance is shown in various photomontages prepared by Mr Mark Elliott which were accepted as fair representations by the experts called for Telstra and the Council on the issues of visual amenity and landscape character – Mr Chenoweth, and Mr van Pelt. Inspection included the various sites of the photographs Mr Elliott used to prepare his photomontages, an exercise which aided understanding of the experts’ evidence about the potential visual impact of the tower.
Inspection also included other nearby, older, telephone towers. That exercise corroborated evidence in the case which suggested the design of these structures, at least in terms of their visual impact, has come a long way – the older structures involve scaffolding, cross-members and the like and appear cluttered, and bulky. In contrast, the proposed new structure is of a much simpler and thinner design.
The visual impression left by the photomontages is of a structure resembling a telegraph or light pole but somewhat thicker, and considerably taller.
Visual impacts are, unsurprisingly, the central issues in the case. They were addressed, by the parties, under the discrete headings of visual amenity questions, and town planning issues. The latter involved parts of the relevant planning scheme, Cairns Plan 2005, which focus upon the beauty of this part of Australia and the importance of preserving its visual qualities.
The planning scheme otherwise designates the area as lying within the Residential 1 Planning Area of the Cairns Beaches District, and the site itself is designated a telecommunications facility. Under the Cairns Beaches District Assessment Table the facility is, then, impact assessable.
This means Telstra’s application falls to be assessed under s 3.5.5 of the Integrated Planning Act 1997 (IPA) and decided within the parameters laid down by s 3.5.14(2), which requires that the decision must not compromise the achievement of desired environmental outcomes (DEOs) for the planning scheme area, or conflict with the planning scheme (unless there are sufficient grounds to justify the decision, despite the conflict).
In the planning scheme the relevant Assessment Table also includes, as a separate category, impact assessable (inconsistent use) designations for certain types of uses. It was argued, for Telstra, that an impact assessable use which is not designated in that way should be seen as generally consistent with the aims of the scheme and, indeed, similar to what were called consent uses under pre-IPA planning schemes. It was also suggested that an impact assessable (inconsistent use) designation is about as close as a planning scheme can come to actually prohibiting particular uses without breaching IPA s 2.1.23(2) (which provides that planning schemes may not prohibit development).
Ultimately, I do not think it is necessary to decide the question: the nature and process of impact assessment are set out in s 3.5.5 and 3.5.14 and ‘impact assessment’ is defined in Schedule 10 of IPA to mean assessment of the environmental effects of proposed development, and the ways of dealing with the effects. That is, then, the exercise which must be undertaken under both IPA, and the planning scheme.
Council’s grounds for refusal were fourfold: that the proposal did not comply with the requirements of the Residential 1 Planning Area Code; that it also failed to meet the requirements of the Telecommunications Facilities Land Use Code; that it compromised the achievement of the DEOs and in particular DEO 2.2.5, ‘the scenic landscape’; and, that there was ‘insufficient justification’ to override conflicts with the planning scheme. It is appropriate to address these consecutively.
The purpose of the Residential 1 Planning Area Code is to facilitate the achievement of nominated DEOs for the area including, relevantly here, that the residential character and amenity of residential neighbourhoods is maintained and enhanced; and, that the scale and density of development is consistent with existing forms of development in established residential neighbourhoods. Council alleged the proposal did not comply with these requirements.
Similarly with the Telecommunications Facilities Land Use Code, where the two grounds for refusal advanced by Council asserted that the proposed facility would not be located ‘… so as to minimise its impact on the landscape or townscape’, or ‘ … such that it is visually integrated as much as possible within the landscape or townscape so as not to be visually intrusive’.
DEO 2.2.5 looks to the conservation and enhancement of the essential elements of the city’s scenic landscape, nominated as ‘… the forested hills and foothills and headlands, streams and rivers, wetlands, open spaces and rural land …’. The ‘performance indicator’ for compliance with the DEO is in these terms: ‘where development has occurred, has it adversely affected the scenic landscape of the city or any of the essential elements of the scenic landscape?’
The expert witnesses who commented upon questions of visual amenity produced an initial joint report in which they agreed that the pole would be screened by trees for 50 – 60% of its height from most view points within Clifton Beach, although it would be more visible to motorists on the Captain Cook Highway and those turning into Endeavour Road; that its form is similar to light, electricity and telephone poles along the highway, and the streets of the town; that it would be separated and buffered from most surrounding houses by streets and trees; that it was designed for ‘minimal visual intrusion’; and, that it was a ‘slender needle-like structure visually integrated into its highway and commercial development node setting, notwithstanding that its height will make it visible from those view points’[2].
[2]Appeal book, Exhibit 2 tab 9, [3.19].
They also agreed that although it was a structure considerably taller than any other built form in the locality it would not be ‘ … significantly out of scale’[3]. Council’s expert, Mr van Pelt, also agreed that the extent of local vegetation provided considerable screening and that only a ‘handful of local residents’ would be able to see the structure. Mr Chenoweth estimated it would be visible from about 20 houses.
[3]Ibid at [3.15].
Again, the conclusions of these experts accords with what is seen in the photomontages which, I accept, accurately predict the appearance of the tower from a number of important and appropriate vantage points. That evidence compels acceptance of the conclusion reached by Mr Chenoweth in his appeal report[4] in which he said[5] that ‘… the structure is so slender that it can and will be integrated visually. It cannot be hidden, but full screening is not the only way to achieve visual integration. A tall green needle-like monopole, seen above the treetops and against the backdrop of trees and forested mountains, represents visual integration ‘as much as possible’ as intended by the telecommunications facilities land use code’.
[4]Exhibit 3.
[5]Ibid at [3.1].
Issues like visual amenity must, properly and necessarily, be considered in light of the reasonable expectations of local inhabitants for the amenity of the area[6]. Here, 414 submissions were received, of which 276 came from individual households in the immediate northern beaches area. Some 380 were, however, in a common form which referred to potential adverse health effects – a matter also raised in nine of the statements from co-respondents tendered during the hearing[7].
[6]Baptist Union of Queensland v Brisbane City Council [2003] QPELR 61, at 80 per Brabazon QC, DCJ.
[7]Exhibits 13, 15, 16, 19, 20, 23, 24, 25 and 29.
Although the co-respondents abandoned potential adverse health effects from these transmission towers in their case at the appeal hearing they nevertheless signified in their opening written submission that health implications remained ‘ …of great concern to residents’. As a number of decisions have established, however, no court in Australia has been persuaded that these base stations present a danger to the public and several have concluded that residents’ perceptions of potential adverse effects, being unsubstantiated, are without reasonable evidentiary foundation[8].
[8]Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10 per Preston CJ & Brown J at [196]; Telstra Corporation Limited v Pine Rivers Shire Council [2001] QPELR 350; and, Telstra Corporation Limited v Caloundra City Council [2005] QPELR 412 per Brabazon QC, DCJ at [58].
The particular difficulty created here is that it is unclear, then, how much weight particular submitters placed upon possible adverse health effects, vis-à-vis the weight they also placed upon perceptions of adverse visual impacts. In any event, the weight to be given to the individual subjective views of residents largely hinges upon the degree of reasonableness which can be ascribed to those views: Broad v Brisbane City Council (1986) 59 LGRA 296 at 299 (per Thomas J) and 305 (per de Jersey J).
The cases in which subjective perceptions have received a relatively high degree of attention ordinarily involve uses with an obvious negative quality, like escort agencies, adult entertainment nightclubs, brothels, taverns, or funeral parlours[9]. As was said in written submissions for Telstra[10], the visual amenity issues raised in this case are not of that character. The mere height of this relatively slender pole does not justify significant adverse perceptions, or the according of decisive weight to such perceptions.
[9]Novak v Woodville City Corporation (1990) 70 LGRA 233; Perry Properties Pty Ltd v Ashfield Council (No. 2) (2001) 113 LGERA 301; Dixon v Burwood Council [2002] 123 LGERA 253; Bim Holdings Pty Ltd v Pine Rivers Shire Council [2002] QPELR 363; Bad Girls Maroochy Pty Ltd v Chief Executive [2004] 2 Qd R 352; and, Alex Gow Pty Ltd v Redland Shire Council [2009] QPELR 116.
[10]Mr Gore QC, and Mr D Morzone.
There are also a number of aspects of the planning scheme which reveal that, on its proper construction, it does not set its face against this form of development in locations of this kind. The scheme includes a specific telecommunications facilities code. One of the five desired development outcomes for the Residential 1 Planning Area is the very establishment of facilities which provide ancillary services to the local community. DEO 2.3.6 contains an explicit acknowledgement that efficient, economical and timely delivery of physical infrastructure is an important part of land use planning, and particularly notes telecommunication services.
Nor, once it is appreciated that the visual impact will be minor, can it be said that the proposal has any adverse impacts on the elements of the scenic landscape referred to in DEO 2.2.5. The site is on flat land between forested hills to the west, and beach and ocean to the east; and, in an area already replete with the paraphernalia of modern urban living like street lighting, telegraph poles and wiring, traffic lights, and (in the immediate vicinity) commercial development.
The proposed site of the tower is, too, at the periphery of the Residential 1 Planning Area and has a frontage to a major road and an important artery for Clifton Beach. It is directly opposite the only land in the town in the Local Centre Planning Area and the nearby shopping centre and service station are large and prominent. The site itself has, of course, been used for non-residential purposes for some time and has the very thing upon which the scheme focuses – a telecommunications facility.
Materially, too, the present Telstra land is both unsuitable and undesirable for Residential 1 Planning purposes in that it abuts a major highway. Another material factor must be that the use to be introduced is not a new, or foreign one – a communications tower is to be placed within the confines of an existing communications facility.
So far as the requirements of the Telecommunications Facilities Code are concerned the principal question is whether or not there has been compliance with provisions which look to minimising visual impacts, and visual integration with the landscape and townscape. As observed earlier, the evidence of Mr Chenoweth on these points was persuasive, because it was in accord with what was shown in the photomontages, and on inspection.
Relevantly, too, the Code does not look to a result by which towers or poles are rendered invisible[11].
[11]See Wagner v Brisbane City Council [2007] QPEC 092; and, La Trobe City Council v Telstra Corporation [2000] VCAT 2488.
Similar conclusions arise in the face of the particular provisions in the Residential 1 Planning Area Code and its expressed desire for, at least, the maintenance of residential amenity and character and the preservation of consistency with the existing forms of development.
It was also submitted for Telstra that these provisions fall to be considered in the light of the provisions of the Commonwealth Telecommunications Act 1997, legislation which cements the power of the Commonwealth to make laws relating to postal, telegraphic, telephonic, and other like services[12]. That is not to say, of course, that Telstra’s activities with reference to that Act mean it can ride roughshod over local planning schemes[13].
[12]Commonwealth Constitution 1901 s 51(v).
[13]Hutchison 3G Australia Pty Ltd v Mitcham City Council (2006) 80 ALJR 711, at [112].
An interesting aspect of the Commonwealth Act and its associated regulations arises, however, in relation to evidence that other mobile phone service carriers could, by law, attach antennae to this pole if they desire. It appears that, as was submitted for Telstra, it would not be within the power of the local authority to refuse additional antennae and, sensibly, the planning scheme recognises that[14]. It follows that, in this appeal, questions about impact will exclude the possible visual impacts of additional antennae. It is nevertheless appropriate to remark that, in light of what the illustrations of the proposed tower show, these modern antennae are properly described as ‘slimline’ and it is unlikely more of them would materially add to the visual impact of the tower pole itself.
[14]CairnsPlan 2005, definition of ‘telecommunications facilities’ at Appeal book, tab 28 p 294.
An additional issue which appeared during the case and upon which Council placed considerable weight was the possibility that other sites may be at least equally adequate in providing appropriate mobile phone service coverage, and evidence from a senior Telstra engineer, Mr Roberts, that this tower would not provide coverage over a larger area but, rather, greater capacity and better service for existing users. It is submitted, for Council, that Mr Roberts’ evidence about investigations to identify alternative sites was unsatisfactory and Telstra had failed to establish proper investigation of alternative sites – like, for example, the top of the nearby shopping centre.
This court’s task is not, however, to decide whether a proposed development might be better placed in some other location[15]. In its submissions Council referred to a New Zealand decision in 1976[16] and an English case in 1986[17] in support of the proposition that, in the absence of evidence establishing that the subject site is critical to the provision of an enhanced service, there is a heavy onus upon the appellant to extinguish the viability of other sites and Telstra, it is alleged, has failed to do that here.
[15]Green v Brisbane City Council [2005] QPELR 121.
[16]Raceway Motors Ltd v Canterbury Regional Planning Authority [1976] 2 NZLR 605.
[17]Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [1986] 53 P&CR 293.
In this case, however, the applicant is the intended operator of the facility, and a very experienced one. While Mr Roberts’ evidence about alternative sites might be said to have suggested, at the highest, that other locations carried benefits which, in some aspects, equalled those attached to the subject site, it was also clear that in terms of capacity (as opposed to coverage) this site offered the best solution for mobile phone users in the Clifton Beach area.
As I understood his evidence, it was led in support of what might be described as Telstra’s ‘secondary’ case – that is, if conflict with the planning scheme or the DEOs was found, there are sufficient planning grounds to overcome that conflict and that is a matter where the question of need reasonably falls to be considered. In that context, his evidence establishes that the proposed operator has considered and excluded other sites. Finally, it should also be observed that, even to the lay person and non-scientist, the notion that the closer one of these towers is to its users, the better, is both unsurprising and logical.
For reasons already advanced I am persuaded that this telecommunications facility would affect visual amenity in a way which can best be described as minimal. While taller than everything around it, it is slim and, so far as possible, unobtrusive; partially concealed by foliage; and, falls to be viewed, as it were, against a backdrop of tall trees and forested mountains.
In terms of the Residential 1 Planning Area Code it at least, I think, maintains the residential amenity and character of the neighbourhood – or, on the most adverse view, has only a minimal visual impact. Its scale is only slightly inconsistent with existing forms of development, but is not dramatically or seriously discordant with them. With reference to the Telecommunications Facilities Land Use Code it has been located in a way which does, in my view, minimise its impact on the landscape and townscape, and has been sited and designed with a view to maximum visual integration. It does not compromise the achievement of DEO 2.2.5.
Even if a contrary view is reached, the level of conflict with both the relevant parts of the planning scheme and the DEO cannot be described as more than minor. The grounds[18] advanced by Telstra (and its experienced town planner, Mr Venn) are sufficient to overcome that minor conflict: the tower is in co-location with an existing telecommunications facility; it is consistent with the commercial character of the streetscape in the vicinity; it is slender, and also consistent with other tall vertical forms in the locality; it is a desirable facility, needed to give the community a contemporary and effective mobile network; and, it achieves the outcomes in DEO 2.3.6.
[18]‘Grounds’ is defined in Schedule 10.
As Telstra’s counsel said in their final submissions these cases can attract significant opposition, and arouse local passions. As their submissions also note, proposals for quarries seem to excite most public interest, but telecommunication towers are not far behind. When, as here, there is vivid public interest and a large number of submissions in the form of objections, this court has consistently taken the view that the most important factor is the substance of those objections and the basis upon which they are founded[19].
[19]Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13 (a case involving 4,210 objections); and, Baglow v Livingstone Shire Council [1983] QPLR 352 (over 500 objections).
The residents of Clifton Beach who took an active part during the appeal proceedings, while plainly having strong feelings about the proposal, conducted themselves creditably and their submissions (and those of others who took a silent but interested role during the appeal hearing) were fair and sensible.
Ultimately, however, the real scope of the contest is relatively narrow and the question contracts to a confined arena in which the particular structure is considered in its visual catchment. When that exercise is undertaken, the compelling conclusion is that visual impacts will, in truth, be minor and this slim, albeit tall, tower will not intrude in a way which can be described as materially adverse to the elements of the existing visual environment.
Finally, analysis of CairnsPlan concerning the location and design of this facility show that it is, essentially, compliant or, on the most adverse view, any conflict with the terms of the scheme is minor and readily overcome by strong supportive planning grounds. For these reasons, the appeal should be allowed.
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