Telstra Corporation Ltd v Caloundra City Council

[2004] QPEC 85

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Telstra Corporation Ltd v Caloundra City Council & Anor [2004] QPEC 085

PARTIES:

TELSTRA CORPORATION LIMITED
(Appellant)

v

CALOUNDRA CITY COUNCIL
(Respondent)

and

DAVID FOXTON
(Co-Respondent by Election)

FILE NO:

3533 of 2003

PROCEEDING:

Appeal

DELIVERED ON:

10 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7 and 8 October and 19 November 2004

JUDGE:

Judge Brabazon QC

ORDER:

Appeal dismissed

CATCHWORDS:

LOCAL GOVERNMENT – PLANNING LAW – Amenity – Erection of mobile phone tower – visual integration into surroundings – whether tower complies with planning schemes.

LOCAL GOVERNMENT – PLANNING LAW – Amenity – Erection of mobile phone tower – whether subjective fear of risks to health is a valid ground for opposition.

Integrated Planning Act ss.4.1.50(2); 4.1.52; 6.2.1(3)

Crusade Construction Co Pty Ltd v Sutherland Shire Council (1961) 6 LGRA 372
Fowler v Brisbane City Council (1969) 20 LGRA 323
Hall v Vaucluse Municipal Council (1947) 16 LGR (NSW) 139 
Norris Clarke & O’Brien Pty Ltd v Brisbane City Council [1996] QPELR 262
Telstra Corporation Ltd v Pine Rivers Shire Council [2001] QPELR 350
Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206 Weightman v GCCC (2002) 121 LGERA 161

Mr S Ure for the appellant
Mr C Hughes SC for the respondent

SOLICITORS:

Mallesons Stephen Jaques for the appellant
Phillips Fox for the respondent

The Appeal

1. Telstra wants to put up a telecommunication tower on the Caloundra Golf Course.  The Caloundra Golf Club has agreed that it can do so on its land near the corner of Sugarbag Road and Nicklin Way. 

1. The Council has refused Telstra’s application.  It said that the refusal was because of the tower’s visual impact, because it was not consistent with the Council’s planning schemes, and because of residents’ fears about harmful emissions.

1. Telstra has appealed against Council’s decision to this court.  Five residents who were opposed to the tower became co-respondents.  Four of them withdrew before the appeal was heard.  Mr Foxton remains as a co-respondent, but he took no part in the appeal.

1. Some basic principles have to be kept in mind.  The duty of this court is to give an impartial decision on the merits of the application, based on the evidence before it.  Sometimes, it happens that the information before the court is more extensive than the information available to Council.  The court is in no sense a planning authority.  That is entirely the role of Council.  The court’s duty is to apply Council’s planning scheme, or schemes, to the facts revealed by the evidence.

1. Telstra has the task of persuading the court that the application should be approved.  See the Integrated Planning Act s 4.1.50(2). The hearing is a fresh one. That is, the court has to reach its own view about the merits of the application.

1. Telstra’s application to Council was lodged on 14 May 2003.  At that time, the 1996 Caloundra City Planning Scheme was in force.  Because of the provisions of IPA, it was a transitional planning scheme.  Then, on 29 September 2004, the new Caloundra City Plan 2004 came into force. 

1. Council refused the application in mid September 2003, at a time when the transitional scheme still applied.  This court is in a different position, now that the new scheme has been adopted.  That is because s 4.1.52 of IPA says this:

“If the appellant is the applicant for a development application, the court must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate …”

1. Under IPA, any prohibitions in the previous planning scheme lose their emphatic quality, and become expressions of policy.  See IPA s6.2.1.(3), which says that a prohibited use in a transitional planning scheme is to be taken as an expression of policy.  However, that does not mean that the provisions of a transitional planning scheme can be ignored.  The decisions of the Queensland Court of Appeal show a need for the consistent application of a planning scheme, and that the court should be careful and restrained when considering any departure from the provisions of the scheme.  See Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206 and Weightman v GCCC (2002) 121 LGERA 161.

1. The issues in the appeal are those of amenity (both visual amenity and the subjective fear of risks to health) and any conflict with Council’s planning schemes.

The Application

1. In mid May 2003 Telstra lodged a development application with the Council, seeking to make a material change of use of land for a public utility, being a telecommunication tower.  The physical components of the proposal are these:

(a)        The tower would be on the eighth fairway, in the north-west corner of the Caloundra Golf Course.

(b)        A slimline steel monopole, painted in the most unobtrusive colour; that would be either mist green or the plain grey of galvanising.  The tower would carry six panel antennas at the top.  They are mounted vertically on arms or spokes which stick out from the tower.  The diameter of the imaginary circle enclosing the three panels would be a little less than three metres.  The whole structure would not exceed 28 metres.  The actual structure would be 25 metres high.

(c)        There would be a colourbond equipment hut at the base of the pole, with dimensions of 3.6 metres x 2.08 metres x 2.8 metres (height).  A 1.8 metre high timber paling security fence would surround the compound, which would be 6 metres x 10 metres.  A 1.5 metre wide security gate would give access to the site.

(d)        There would be a concrete block wall up to 0.5 metre high to retain the levelled ground.

(e)        There would be underground power links and conduits; and

(f)        A new access route via a gravel road to be constructed from Cooroora Street along the north western edge of the golf course, running parallel to the Nicklin Way.

1. The site would be about 130 metres from the residential areas to the west, across Nicklin Way, and also to the north.  Because the site is in the north western corner of the golf course, there are substantial separation distances between the site and residential areas to the east and the south – about 750 metres.  A child care centre is about 300 metres to the north east of the site. 

1. The appearance of the tower, from numerous positions, can be understood by looking at the montages produced by Mr Van Pelt and Mr O’Brien. 

1. On the golf course, there are a few tall gum trees near the tower.  The tower would be about 15 metres taller than those trees.  It would be about 20 metres taller than the majority of surrounding trees.  On the nearby Nicklin Way, there are some very visible power poles carrying electricity lines.  The proposed tower would be about 1½ times the height of those power poles.

1. It was common ground that, were this tower is to be erected, then other carriers would have the right to co-locate their antennas on the same pole.  They would be located below Telstra’s antennas.

1. The application was publicly advertised.  It attracted 12 submissions, which were against it.

1. The matter was considered by Council’s staff, who concluded:

“4.        …

An assessment of the proposed development indicates that the proposal is consistent with the Strategic Plan, the intent of the Sport and Recreation zone, the requirements of section 4.22 or the Planning Scheme and the Local Planning Policy for Public Utilities (Telecommunication Facilities).

The Draft City Plan designates the land within the Open Space – Sport and Recreation Precinct.  While it is acknowledged that the current proposal conflicts with the Draft City Plan, it is noted that the application was lodged in May 2003, and was well advanced by the time the Plan came onto public display.  It is possible that there may be submissions against the precinct designation proposed by the Draft City Plan, which will need to be considered by Council in due course.  Further, it is considered that as the proposal complies with the requirements of the transitional Planning Scheme, approval of the Telecommunications Tower is supported.

It is recommended that approval of the application be granted subject to the conditions contained within the Recommendation.”

1. Notwithstanding this recommendation and without any further technical input, on 18 September 2003 the Council refused the application.  The reasons for refusal were these:

“REASONS FOR REFUSAL

(i)the proposed Telecommunication Tower is considered to be visually obtrusive as the proposed height of 28 metres substantially extends beyond the existing tree canopy and buildings on surrounding properties;

(ii)the proposed Telecommunication Tower is considered an inconsistent use under the Draft Town Plan.  The tower exceeds the maximum height for the precinct and as such it is unlikely that the proposal would be supported if assessed under that scheme; and

(iii)the proposed Telecommunication Tower could place a health risk to the near local residents, Kindergarten, School, Hospital and Retirement Home due to the risk from possible long term exposure to electromagnetic radiation (refer Senate Committee Recommendations Reflecting Community concerns on Towers report 3/7/2003).”

1. It is necessary to take note of both planning schemes.

The 1996 Scheme

1. The land is part of a large area designated “urban” in the strategic plan.  The urban areas are those which are developed or are considered suitable for predominantly urban purposes.  Objective 1(d) is “to ensure that urban areas are provided with the appropriate level of physical infrastructure.  That is then followed by implementation criterion (a):

‘The strategic plan maps identify preferred urban growth areas only in locations which are physically and economically capable of being provided with a reticulated water supply, electricity and telephone services and an appropriate road network.  All urban development in these areas will be required to be provided with the full range of these urban services. …”

1. Objective 2(b) is to maintain and where possible improve the amenity of residential areas.   In order to preserve the amenity of existing and future residential areas, in considering development proposals in or near such areas (including new residential development  proposals) Council will have regard to:

   (i)         whether the development is likely to result in any detrimental environmental impacts affecting the attractiveness of such areas …;

   (ii)       …

   (iii)      whether the scale and character of the built elements of the development proposal would be compatible with the character of nearby residential areas existing or proposed;

   (b) Council may require that any development application involving a potential conflict with the amenity of any nearby residential area existing or proposed be accompanied by a planning report demonstrating the compatibility of the proposed development with the nearby residential areas.

1. Objective 2(c) is to ensure that residential areas are provided with the appropriate levels of physical infrastructure services.  Implementation (a) says this:

“Development proposals in low density residential and medium density residential designated areas will be required to be provided with reticulated water supply, electricity and telephone services, sealed roads and kerb and channel”.

1. Objective 14(a) arises out of a wish to maintain the city’s attractive image.  It is this, “to preserve and enhance those aspects of the city which comprise significant elements of its attractive image”.

1. This site itself is not in a residential area.  However, residential areas objective 2(b) extends to development in or near such areas and provides that in considering developments Council should have regard to:

   (i)         whether the development is likely to result in any detrimental environmental impacts affecting the attractiveness of such areas, and the likely effectiveness of any measures … that may be proposed to reduce or eliminate those detrimental impacts;

   (ii)       whether the scale and character of the built elements of the development proposal would be compatible with the character of nearby residential areas existing or proposed”.

2. Development Control Plan 3 – Caloundra applies to the golf course, which is described as being in the “Open Space – Recreation” category.  The intent of that designation is:

“To identify major existing and preferred areas of active and passive open space which meet the open space requirements of residents and visitors to the area.  These open space areas are to form part of an integrated and interlinked hierarchical open space system”.

1. The surrounding area is designated mainly Low Density Residential.  The implementation provision contained this statement, in paragraph 4.1(2)

“Council will encourage the development of this area for residential and other ancillary purposes consistent in nature with the intent of the designation, subject to the provision of normal urban infrastructure in accordance with Council’s development standards”.

1. There are height limits applicable throughout the DCP area.  Map 2A says that the golf course and its adjoining residential areas are to have a maximum of two storeys.

1. This planning scheme contains the definition of “storey”

“The vertical dimension within a building which is situated between one floor level and the floor level next above it, or if there is no floor above it the ceiling or roof above.  When such a dimension exceeds three metres, it comprises two storeys.

The term includes the space for the storage of goods or for the accommodation of vehicles”.

1. It can be seen that the definition is hardly apt to include this structure.

1. The golf club land is in the Sport and Recreation Zone.  The closest residential areas, to the west and the north, are the Residential A Zone.  In the Sport and Recreation Zone, the use of the land for a Public Utility is possible, with the consent of the Council.  The expression “public utility” is defined to mean “the installation or undertaking for … the provision of telecommunication services”.

1. Section 3.7 of the planning scheme provides for building heights.  In the Sport and Recreation Zone, the maximum building height is “as determined by Council in a Development Control Plan”.  It can therefore be seen that there is no provision thereabout the maximum height of this proposed tower. 

1. On 8 July 1999 the Council adopted a Planning Scheme Policy – Public Utilities (Telecommunication Facilities).  The policy philosophy was expressed to include this: “In assessing development applications for public utilities (telecommunication facilities) Council will consider the potential impacts on the character, visual amenity and environment of Caloundra City”.  Then follow some policy objectives:

“The objectives of this policy are to ensure that telecommunication facilities:

(1)visually integrate with their surroundings;

(2)satisfy public health and safety requirements;

(3)do not adversely affect the amenity of surrounding premises;

(4)are sited and installed so as to minimise environmental impacts.

1. The Policy Statement sets out the following position:

“The policy is based on a performance approach to the regulation of development and the management of its impacts.  This approach recognises that there may be a number of ways in which a development can meet desired environmental and community standards.”

1. Where a development application is required by the planning scheme for a public utility (telecommunication facility) the applicant must demonstrate that the performance criteria have been met by:

·     “Satisfying the acceptable measures nominated in this policy, or alternatively;

·     Demonstrating other measures that meet the performance criteria.

Developments which do not satisfy the performance criteria/acceptable measures detailed below are unlikely to be supported by the Council.”

1. The relevant performance criterion here is that of Visual Amenity – “development is visually integrated with its landscape or townscape setting so as not to be visually dominant or unduly visually obtrusive.

The acceptable measures which relate to that are these:

‘Development is underground or provides facilities to be

·     Established in an area other than a residential area and

·     Below the level of the surrounding tree canopy or any building situated on adjacent premises; and

·     Camouflaged through the use of colours and materials which blend into the surrounding landscape; and

·     Unobtrusive when viewed from any Scenic Route as defined by the Strategic Plan and/or

·     Co-located with existing facilities”.

1. The interpretation of planning policies has been the subject of earlier judicial comment.  In Norris Clarke & O’Brien Pty Ltd v Brisbane City Council [1996] QPELR 262 at 264, his Honour Judge Quirk said:

‘It is important that the Legislature has chosen to identify these planning instruments as ‘policies’.  Courts of this kind have, for a very long time, recognised the policy as a Town Planning instrument and have made pertinent observations regarding the manner in which a policy should be applied (Hall v Vaucluse Municipal Council 1947 16 LGR (NSW) 139;  Crusade Construction Co Pty Ltd v Sutherland Shire Council (1961) 6 LGRA 372; Fowler v Brisbane City Council (1969) 20 LGRA 323).

Relevant authority indicates that there may be a more flexible approach in the application of a policy than is required in respect of the provisions of a Town Planning Scheme or other Statutory Town Planning provision.  It is the substance of a policy rather than its form that is important.  That is not to say that there is any room for arbitrary or capricious application of a policy.   The planning objectives upon which the policy is founded must always be recognised and, where it is feasible, applied.”

Caloundra City Plan 2004

1. The present Plan was adopted on 25 August 2004.  It commenced on 29 September 2004, just before the hearing of this appeal.

1. Desired Environmental Outcomes which may be significant here are these:

DEO 2.3.1(1)(a) – … cohesive and identifiable communities with a high level of amenity which are reflected in identifiable coastal, urban and hinterland town communities with each being provided (amongst other things) with local services.

DEO 2.3.1(6)    -  There is support for development which supports enduring social networks … and services which support individual and family wellbeing and economic security.

DEO No 6 deals with infrastructure.  In principle “Caloundra City is supported by physical and social infrastructure systems which meet the differing needs of coastal and rural communities …”  In particular, development and urban areas provides essential infrastructure including connection to reticulated water and sewerage and access to baseline community services and facilities, such as … telecommunications. 

1. The new Scheme divides the City into 16 planning areas.  The golf course land is in the Eastern Beaches Planning Area.  Within that area, the golf course is designated as Open Space – Sport and Recreation.  The residential areas to the north and west, closest to the proposed tower, are Low Density Residential precincts.

1. Part 5 of Volume 1 sets out a code for the precincts.  For each precinct, uses might be either consistent or inconsistent.  In the sport and recreation class, a telecommunication tower is an inconsistent use.  That is, it is a development which Council does not intend to occur in that precinct.  That is because the overall outcome for the sport and recreation precinct is this:

“(a)The precinct provides for sport and recreational uses and those uses which are associated with those functions; and

(b)Development in this precinct as to its scale, appearance and intensity that is compatible with development in adjacent precincts.  (Part V, page 5-24).

1. The Caloundra Eastern Beaches Planning Area has a code which refers to the overall outcome for that area.  See Part 6, page 6-63.  In particular:

   “6.6.2(2)

   (a)The planning area’s primary role as a low density residential area is retained;

   (b)       

   Development in the planning area provides for low

   
      

   rise detached housing which complements the casual

   
      

   beachside identity evident in the established coastal

   
      

   neighbourhoods of Shelley Beach, Moffat Beach and

   
     

   Currimundi.

2. Building heights are limited to that of existing development (generally up to 8.5 metres) to maintain residential character and amenity and to ensure that significant viewsheds in the planning area (including views to Moffat Head and views from Moffat Head to Shelley Beach, Dickie Beach and Currumindi) are protected.

1. There is a further reference to the height of building or structures in para 6.6.3, which provides for Planning Area Specific Outcomes.  Specific Outcome 01 deals with the height of buildings:

“The height of buildings or structures:

(a)        contributes to retention of the inherent character and identity of the planning area;

(b)        is visually unobtrusive, and

(c)        does not adversely impact upon the amenity of adjoining development, having regard to :

(i)         overshadowing;

(ii)       privacy and overlooking;

(iii)      views and vistas;

(iv)       building character and appearance; and

(v)        building massing and scale as seen from neighbouring premises.”

1. The acceptable solution for assessable development,  is this:

“Unless otherwise specified on Map CEB 3, the height of a building or structure does not exceed 8.5 metres above ground level”

1. The new planning scheme also contains a Telecommunications Tower Code.  See Vol 2 at page 8-88.  The Overall Outcomes sought for the code are as follows:

(a)        telecommunication towers are located with compatible uses and facilities;

(b)        they are visually integrated with their surroundings;

(c)        they satisfy public health and safety requirements;

(d)        they do not adversely affect the amenity of surrounding premises; and

(e)        they are sited and installed so as to minimise environmental impacts.

1. Para 8.23.2 sets out these specific outcomes:

01The telecommunication tower is visually integrated with its landscape or townscape setting so as not to be visually dominant or obtrusive, and the site is landscaped where practicable and appropriate.  The probable solutions are these:

S1.1.The telecommunication tower is:

(a)        not established in the residential precinct class or the rural residential settlement precinct;

(b)        camouflaged with the use of colours and materials which blend into the surrounding landscape …

or

the telecommunication tower is co-located on an existing telecommunication tower.

S1.2     the height of the telecommunication tower does not exceed:

(a)        … 15 metres where on land in the open space precinct class.” (emphasis added)

1. The purpose of the Code is to regulate assessable development. 

1. A further specific outcome requires all built facilities or structures to be located to minimise any negative impacts on the amenity of the local area.  The probable solutions are these:

(a)        not located within 500 metres of a pre-school, primary school or high school;

(b)        not located within 400 metres of land included in the residential precinct class or the rural residential settlement precinct.

1. It is interesting to note that the draft scheme required that the height of telecommunication towers “be contained below the level of the surrounding tree canopy”.  It was pointed out to Council, that there needed to be some clarification of whether or not the building heights nominated in the Planning Area Codes applied to telecommunication towers.  Council’s response was the insertion of 15 metres as the maximum permitted height.

Need

1. Telstra would not have made the application, and pursued this appeal, unless it had a need, for technical reasons, to improve its mobile phone coverage in the Caloundra area. There is no reason to doubt the evidence of Mr Peterken who gave evidence for Telstra.  He was a senior Telstra officer, and responsible for the survey which revealed Telstra’s technical need for another tower in this area. At the present time, there is an inadequate coverage of six areas around the golf course.  They are the areas marked in pink on the first plan attached to Mr Peterken’s statement.  While Mr Peterken was not aware of any complaints by mobile phone users in those areas, he described the signal strength, inside residences, as being patchy.  That is, voices might be distorted and might drop out. 

1. His survey revealed that a transmitter at the 23 metre level would provide good coverage to all of those areas, apart from pink area 6.  When the test equipment was moved up to 25 metres, then all areas were covered adequately. That is why the proposed tower would be 25 metres high. 

1. Mr Peterken explained that tower heights depended on the topography, as the signals were largely line-of-sight.  They also had to be clear of vegetation, which affected signal strength.  For those reasons, Mr Peterken insisted that a 15 metre tower in this position would not be adequate.  Telstra could solve the problem by building more than one fifteen metre tower in the area, but it preferred not to do that.

1. As all carriers presently had a deficient service in the area, Mr Peterken thought it very likely that a Telstra tower would see the antennas of other areas co-located on the same pole. 

1. It should be understood that Mr Peterken’s evidence related to deficiencies in the present mobile phone coverage.  There is no suggestion that landline services were deficient.

1. It is clear that residents and visitors to Caloundra have a planning need for mobile phone reception.  That includes a signal strength which works adequately inside houses.  A telecommunications tower would be part of the infrastructure that the planning schemes accept as a desirable aspect of Caloundra City. It is necessary to consider the opposition to the proposal

Radiofrequency Exposure

1. Evidence was given by Mr Bangay, who has had much experience in the use and measurement of various forms of electromagnetic radiation.  He is an expert in that field.

1. He recognized that members of the public do express concern about radiation from mobile phone base stations.  In his experience, about one in twenty proposals to build base stations draw some public attention.  He receives about one telephone call a day from a member of the public expressing some concern over such base stations.  In his opinion, he did not think that the concern could be described as extensive or widespread.  The concern that did exist was that the radiation generated by the radio antennae might cause serious health problems, including cancer.

1. Mr Bangay’s written report explained why there was no scientific evidence to show that such base stations caused any health problems.  The key parts of his report can be summarized this way:

(a)        Radio waves form part of the electromagnetic energy spectrum, where energy is transferred by waves.  The very short wave lengths, such as x-rays, is called ionizing radiation, and can damage the human body, and cause cancer.  However, the long wave lengths, called non-ionizing radiation, has low energy which does not affect the human DNA, and cause health problems.  There is no evidence that radio waves cause cancer.

(b)        The only known adverse biological effect of exposure to high frequency radio waves is heating, and then only if the intensity is extremely high.  Australian standards have been set to protect people against the adverse effects of radio frequency waves, such as generated by mobile phones and mobile phone towers.  The typical maximum radio frequency intensity in public areas around mobile phone base stations could cause a miniscule rise in a person’s core temperature, much below the normal human variation of plus or minus .5 degrees centigrade.

(c)        Radio frequency variation is present in the environment from a variety of natural sources.  The sum of terrestrial radio frequencies alone is estimated to be more than five times greater than the combined maximum emissions from the proposed base station.

(d)        The Australian Standards with respect to body heating has a safety factor of 50.  That is, radio frequency exposure levels fifty times higher than the general public limit will cause a one degree increase in body temperature.

(e)        There is no scientific evidence to show that radio frequency radiation causes cancer, and has any adverse human effect other than heating. 

(f)        The current body of evidence shows that radio frequency exposure less than the Australian Standard limits do not cause harm.  It is not known what future studies about the use of mobile phones may reveal.  However, it is important to state that the difference in absorbed energy in a given volume of human tissue produced by an approved mobile phone may be as much as 400,000 times or more than that produced by the proposed base station, even at the point of highest exposure.

(g)        The proposed base station at the Caloundra Golf Course is estimated to produce a radio frequency exposure level which is 0.27 per cent of the limit set by the Australian Standard.  The highest level of exposure is 370 times less than the limit.  That is a worst case assessment – actual levels would be far less.

(h)        In 2003, an audit of 60 Australian base stations showed that the maximum levels for electromagnetic signals was 43,000 times less than the general public exposure limit set by the standard.  The GSM signals were an average of 4,900 times less than the limit.  The estimated levels, on average, were 28 times greater than the actual measured levels for cumulative signals radiating from co-located sites.  Exposure levels around base stations are very low. 

(i)         International audits, in many other countries, have all come to the conclusion that low levels of radio frequency radiation like those around base stations does not cause health problems.

(j)         People living around Australia’s capital cities are exposed to the combined total of all radio frequency signals present at the time of measurement.  These signals are from any sort of radio frequency generating electromagnetic emissions, and include TV, FM and AM radio, paging services and mobile phone services.  By far the greatest contributor to the radio frequency levels was AM radio, while at higher frequencies, TV and FM radio were the greatest contributors.  Compared to those existing exposure levels, the proposed base stations emissions will make little change to the level of ambient radio frequency signals in the homes of nearby residents.

(k)        The conclusion is that the predicted radio frequency exposure levels from this proposed mobile phone base station are much below the permissible limits and are not known to have any adverse health effects.

1. That evidence was not contested.  It was not suggested to Mr Bangay that he was wrong.  No other evidence to the contrary was given.  That is not surprising.  In earlier courtroom contests about the effect of mobile phone base stations, considerable evidence has been given about the possible health effects.  It seems that no court has been persuaded that such base stations present a danger to the public.  A Queensland decision is probably typical of court findings when there has been a contest about the matter.  See the decision in Telstra Corporation Limited v Pine Rivers Shire Council & Ors [2001] QPELR 350. There, Judge Newton of this court had to consider a great deal of evidence, including evidence that electromagnetic radiation could cause damage in humans.

1. The judge’s conclusions can be summarized this way:

(a)        The need to adopt a precautionary approach must be kept in mind in considering health effects of the proposal.  There may be a psychological impact on nearby residents in relation to their health, even if the radiation levels were within tolerable limits.  Subjective perceptions were one aspect of amenity which must be considered and weighed against the merits of the proposal. 

(b)        The concerns did not relate to intangible matters, but rather to matters, that were capable of measurement and testing against established standards to see whether the concerns were justified or not.  In those circumstances the weight to be given to the subjective perceptions of the objectors should be significantly reduced, if not discarded.  Primary concerns of the objectors in relation to the health effects of the facility were undoubtedly genuinely held.  They could not be acted upon to refuse development approval unless there was evidence that the proposed use would, measured objectively, lower the amenity of the locality to an acceptable level.  Such objective measurement must have particular reference to national and international standards for health and safety.  It was not appropriate for the court to attempt to establish standards of its own.  The sole criterion for acceptability must be that standard adopted by the Commonwealth, together with the Local Planning Policy.

(c)        In assessing the evidence about health impacts of the proposal, it was important to bear in mind that there was international agreement on guidelines about the level of exposure which was very likely to be safe.  Further, the court must have regard to the standard mandated by the Australian Communications Authority.

(d)        The standard should be given great weight by the court.  There would need to be very clear evidence, before the court would be justified in imposing some different form of standard to that set through the Federal process for application, Australia wide. 

(e)        Notwithstanding conflicting evidence about an appropriate standard, it was probable that the levels of radio frequency expected to be produced as a result of the proposal were sufficiently low to satisfy the concerns of all the experts.  On the evidence, it was concluded that there existed no reason, based on health effects from the proposed facility, that would warrant dismissal of the appeal.

(f)        Therefore, there was no threat of serious or irreversible environmental damage.  The precautionary principle did not apply.

(g)        Having regard to the wide safety margins incorporated by the standard, and that the proposal’s potential emissions were a reflection of that standards and also bearing in mind that the facility would operate by varying its output to ensure that only the minimum power was used at any time, it was concluded that the precautionary approach had been satisfied, if it were to be applied. 

(h)        The views of the residents relating to fear and stress caused by their perceived vulnerability to radio frequency microwaves has to be considered.  Having regard to the very low predicted levels of the facility, together with the wide safety margins contained within the relevant standards, their fears must be regarded as unreasonable.  It would be inappropriate for the proposal to be rejected on health grounds, given that it had a maximum output which was so comfortably within the Australian and international standards.

1. It is necessary to the turn to the concerns expressed here. 

1. About 40 people put their signatures to a petition which was headed “We the undersigned herewith lodge our objection to granting planning approval to erect a mobile phone tower in the location described on the public notice and shown on the attached plan”.

1. About 130 people  put their name to a further petition (Exhibit 18).  The heading of the petition was this:

“Proposed 28 metre high Telstra communications tower at Caloundra Golf Club

We the undersigned ratepayers and concerned citizens fully support Council’s refusal of this development proposal.  The tower will extend well above the existing tree canopy, interfering with the visual character of the area.  We remain concerned at the potential health risks associated with this facility, which is close to residences, the North Caloundra child care centre, hospital and retirement home”.

1. Evidence was given by Ms K G Lawley, who organized the larger petition.  She is the director of the North Caloundra Child Care Centre.  This centre can look after 44 children per day.  Over the week, 96 individual children attend the centre.  They vary in age from six months to five years.  There is a waiting list.  Ms Lawley is personally concerned about long term exposure to any sort of emissions to herself, her staff, and the children.  She feels that not enough is known about the possible health effects from such a facility, and so she cannot be reassured that no harm could possibly be caused by the proposed tower.  She believes that parents may be deterred from bringing their children to the centre if the mobile phone tower is visible, and located close to the centre.  It appears from the plans that it is about 300 metres away. (It is interesting to note that she had never noticed that mobile phone users at the centre had any difficulties, even though it is in one of Mr Bangay’s pink areas).

1. It can be accepted that there is a degree of genuine concern among the families who use the centre.  Ms Lawley’s own concerns are set out in her letter to Council, of 4 July 2003. 

1. The Telecommunication Tower Code appears to recognize, at least by implication, a similar concern.  It says that any unacceptable risks to personal and public safety have to be avoided.  That may be done by complying with the maximum exposure level set out in the Australian Standard.  See s. 3.1.  Subjective concerns would seem to be allowed for when it is said that structures must be located to minimize any negative impacts on the amenity of the local area.  A probable solution is to keep a tower more than 500 metres from a pre-school, primary school or high school.  That is not just a question of visual amenity. The assumption appears to be that the concerns in this case, rational or not, should be given some weight as Council shares those concerns.  To that extent, this case differs from that considered by Judge Newton, where there does not seem to have been a comparable planning requirement.

Visual Amenity

1. Much attention was paid in the evidence to the visual impact of this tower, and its antennas, including co-located antennas.

1. Mr Buckley, the planner, took into account the strong planning need for mobile phone services in the area.  He also recognized, as is the case, that there are limits to locating a tower anywhere in this residential area.  He therefore believed that the golf course was a suitable choice, as “a very deliberate attempt had been made to integrate this tower with the physical characteristics of the golf course …”.  He supported the proposal.

1. Mr Perkins, another planner, observed that the proposed tower conflicted with key provisions of both the transitional planning scheme and City Plan 2004.  He observed that there was no provision in the schemes to suggest that a building or structure other than the height of a domestic structure would be appropriate on the site.  Taking into account Mr O’Brien’s views about this visual impact, and public concern over the health risks, he thought that the proposal, from a planner’s point of view, should be refused. 

1. It became clear, during the evidence of Mr Van Pelt and Mr O’Brien, that the most serious concerns about visual amenity would be held by residents of land to the west of the proposed tower.  That was particularly so in those streets that were elevated and would have a good view of it, projecting above the trees of the golf course.  Allowance has to be made for the likely effects of trees within those newly developed areas.  However, the tower would be distinctly visible to many people, particularly in the more elevated streets.  For example, Mr Van Pelt’s paragraph 6.3 illustrates the appearance of the proposed tower from the intersection of Seagull Road and Albatross Avenue.  It can be seen that the antennas project above the horizon, formed by the distant ocean. 

1. It is true, as Mr Van Pelt observed, that from many positions within neighbouring suburbs the view of the tower will be obscured or interrupted by houses, trees, shrubs, telegraph poles, and street signs.  He also suggested that residents who were upset with the view of the tower could obscure it by planting a shrub or tree on their own property.  For those reasons, Mr Van Pelt was of the opinion that the effect on the visual amenity of the area was acceptable.

1. Mr O’Brien, a landscape architect, thought that the tower would provide unacceptable visual intrusion upon the visual setting of various nearby streets including Albatross and Seagull Avenues, and the Nicklin Way.  He thought that the mitigating effects of using a slimline pole and a mist green colour were insufficient to provide a visually acceptable outcome, given the proposed height, the setting and the range of backdrops.  There was no prospect of the visual effects of the facility being ameliorated by the growth of nearby vegetation or buildings.

1. It is difficult to accept Mr O’Brien’s observations with respect to views of the tower from the Nicklin Way.  That is not a “scenic route”, and so not a particularly protected view.  Traffic passes the golf club at 100 kilometres per hour, and drivers already have views of unsightly power poles.  This tower would not add greatly to the artificial structures already appearing taller than the height of the surrounding trees.

1. However, otherwise Mr O’Brien’s opinion should be accepted.  That is, the various planning documents having shown considerable sensitivity to the appearance of such a tower, the outcome here should not be regarded as an acceptable one. 

1. Considerable weight should be given to the 2004 planning scheme.  The height limitation of 15 metres in this area is not absolute, but it is a significant factor. There may be other ways of demonstrating compliance with the performance criteria, if the tower were built elsewhere, but this case is not one of them. 

1. In short, it is clear that the tower is not “visually integrated into its surroundings”, as both planning schemes require. That is why Mr Van Pelt thought that some residents might want to plant a tree or shrub to hide it.

1. This appeal could have been decided without any evidence from Mr Van Pelt or Mr O’Brien.  That is to say, the proposal receives no support from either planning scheme. Of course, there is a planning need for such facilities.  However, it is the duty of the Council to decide how and where those needs should be met.  In this case, it is clear enough that this tower in this location is not encouraged at all.  It may well be that the end result will be less than perfect mobile phone reception in the areas described by Mr Peterken.  However, perfect mobile reception is not a right conferred upon those who find themselves inside houses in certain parts of Caloundra. Council has to balance competing needs and values. In this case, the balance is against the proposed tower. Council was right to have refused the application.

1. The appeal is dismissed.