Telstra Corporation Ltd v Holroyd City Council

[2006] NSWLEC 527

Land and Environment Court

of New South Wales

CITATION:	Telstra Corporation Ltd v Holroyd City Council [2006] NSWLEC 527
PARTIES:	APPLICANT Telstra Corporation Ltd RESPONDENT Holroyd City Council
FILE NUMBER(S):	10261 of 2006
CORAM:	Moore C
KEY ISSUES:	Development Application :- Mobile phone tower Radiation
LEGISLATION CITED:	Holroyd Interim Telecommunications Code .
CASES CITED:	Telstra Corporation Limited v Hornsby Shire Council 2006 NSWLEC 13.
DATES OF HEARING:	10 August 2006
EX TEMPORE JUDGMENT DATE:	08/10/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso, barrister INSTRUCTED BY Mallesons Stephen Jaques RESPONDENT Mr A Pickles, barrister INSTRUCTED BY Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C

10 August 2006

10261 of 2006 Telstra Corporation Ltd v
Holroyd 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 Act1979 (the Act) against the refusal by Holroyd City Council (the council) of Development Application 2005/319 for the removal of an existing Roads and Traffic Authority (RTA) camera and pole at a site on the south eastern corner of the intersection of Coleman Street and the Great Western Highway, Mays Hill (the site).

2 The site is bounded on its western side by Coleman Street; on its northern side by the Great Western Highway; and, on its southern side, by the M4 tollway. In the place of the current camera and pole, it is proposed to erect a Telstra mobile telephone base station.

3 As a consequence of a plan revision as part of a review pursuant to s 82A of the Act, the proposed tower has had its height lowered by several metres and the applicant has the number and design of the aerials to be arranged on it. Also reduced is the total height of the structure including antennas – by 2.9 m – to 24.3 m in height. There will also now be a single tuft assembly arrangement comprising three antennas. The antennas have dimensions of 2.90 m in height and 0.575 m in diameter.

4 The council originally refused the application (and the s 82A review application) on the basis of a number of issues relating to the proposed appearance of the pole and its aerials and on matters relating to the Holroyd Interim Telecommunications Code (the code) and non-compliance with a number of standards contained in it – particularly standards relating to separation distances from a number of enumerated land uses set out in that code.

5 A report has been provided by a court appointed expert, Dr David Black, in these proceedings. Dr. Black has provided an interim report and a compendious final report (accompanied by numerous technical documents on a compact disc).

6 In effect, the conclusion that he reaches is one, in the first instance, that the council’s code is fundamentally flawed and that separation distances are an entirely inappropriate basis for setting standards for such facilities. He has also concluded that the radiation which would be emitted from the proposed installation, unless one were at the height of the aerials and in the immediate vicinity of the aerials, poses a negligible risk.

7 These findings are entirely consistent with the evidence given and the conclusions reached by Preston CJ in Telstra Corporation Limited v Hornsby Shire Council 2006 NSWLEC 133.

8 If there be a criticism made of Dr Black’s report, it is not as to his competence or diligence. It is as to the fact that, to a lay reader, it contains a deal of difficult to digest technical material and a wide range of technical acronyms.

9 I propose to recommend to the Chief Judge, as I indicated to the legal representatives of the parties on site this morning, that where Court-appointed experts provide such reports in highly technical, scientific or engineering matters in the future, they should be obliged to provide a short summary of their conclusions in common or everyday English.

10 In this case, although each of the objectors has been provided by the council, quite properly, with a copy of Dr Black’s report, I am sure that they will have had a similar difficulty to that which I experienced in reading and digesting his conclusions. A simple plain English statement would have assisted in that proposal.

11 During the course of inspecting the site this morning, I had the opportunity of reading all of the public submissions that were made to the original development application and on the s 82A review application.

12 I also heard evidence from Ms Linda Johnson, a resident at 2 Lynette Crescent, Merrylands, in the vicinity of the site. Ms Johnson’s concerns essentially were dealt with in his technical evidence by Dr. Black. I am satisfied that, although Ms Johnson has an honestly held fear, that fear has no rational basis in scientific fact – my assessment being based, as I am obliged to do, on consideration of Dr. Black’s uncontested evidence in the proceedings.

13 Ms Johnson also raised concerns about the scope of notification that was made (of the development application and the review application) to residents in the vicinity and whether there was an appropriate degree of notification to persons who might potentially be concerned about it.

14 I have been provided by Mr Pickles, counsel for the respondent, with a list of the persons to whom notification and information was provided. It is a list of close to three hundred names in the broad vicinity of the area of the site. I am satisfied that there was an appropriate degree of public notification.

15 As a consequence of the council receiving and considering Dr Black’s report, it is now proposed that there be consent orders upholding the appeal and granting development consent for the erection of the proposed facility subject to agreed conditions between the parties.

16 I have been provided with correspondence from the council’s solicitors indicating that all those who lodged submissions in opposition have been provided with a copy of Dr Black’s report and a copy of the proposed consent orders and of the conditions to be appended to and form part of those orders. I am satisfied that that took place on or about 17 July and that that is entirely consistent with the requirements of par 9 of the Court’s Consolidated Practice Direction.

17 It is therefore my intention to uphold the appeal by consent and to grant consent to Development Application 2005/319 for the removal of an existing RTA camera and pole and the erection of a Telstra mobile phone and telecommunications facility at the corner of Coleman Street and Great Western Highway, Mays Hill, subject to the agreed conditions between the parties. The orders will provide that the exhibits, other than Exhibits 6 and B, are returned.

Tim Moore
Commissioner of the Court