Telstra Corporation Ltd v Pine Rivers Shire Council

[2001] QPEC 14

IN THE PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Telstra Corporation Limited v Pine Rivers Shire Council & Ors [2001] QPE 014
PARTIES:	TELSTRA CORPORATION LIMITED

Applicant

AND:  PINE RIVERS SHIRE COUNCIL

Respondent

AND:  KENNETH WILLIAM CHATER and
BERNICE ELLENOR CHATER

First Co-Respondents

AND:  GRAHAM JOHN SERISIER and
MERILYN JEANNE SERISIER

Second Co-Respondents

AND:  ROBERT GOURLAY and
CHERYL GOURLAY

Third Co-Respondents

AND:  DARRYL GEORGE SMITH and
ROBYN JOAN SMITH

Fourth Co-Respondents

AND:  BRUCE WILLIAM TAYLOR and
NOELEEN MARY TAYLOR

Fifth Co-Respondents

AND:  ELIZABETH ANNE WHITE and
JOHANNE MAJELLA WHITE

Sixth Co-Respondents

AND:  OCKERS TUCKERS WAGON PTY LTD

Seventh Co-Respondents

AND:  NEIL GREAVES and
SUSAN GREAVES

Eighth Co-Respondents

AND:  CATRIONA LARCOMBE-WEATE and
ANTHONY WEATE

Ninth Co-Respondents

FILE NO:	231 of 1999
PROCEEDING:	Appeal
COURT:	Planning & Environment Court, Brisbane
DELIVERED ON:	9 March 2001
HEARING DATES:	25, 26 & 27 October, 29 & 30 November, 06 December 2000. 31 January, 01 & 02 February 2001.
JUDGE:	Newton DCJ
CATCHWORDS:	Application for Material Change of Use (public utility) – erection of mobile phone tower – issues of visual amenity and adverse health effects considered.
COUNSEL:	Mr M Hinson S C and Mr M Rackemann for the applicant. Mr R M Needham for the respondent. Mr B W Taylor (fifth co-respondent) in person, also for first and second co-respondents Mrs N Taylor (fifth co-respondent) in person Mr N Walker in person for seventh co-respondent No appearance for or by third, fourth, sixth, eighth
or ninth co-respondents
SOLICITORS:	Mallesons Stephen Jaques for the applicant. Pine Rivers Shire solicitor for the respondent.

IN THE PLANNING AND ENVIRONMENT COURT

REGISTRY : BRISBANE	APPEAL No: 231 of 1999
BETWEEN:	TELSTRA CORPORATION LIMITED

Appellant

AND:  PINE RIVERS SHIRE COUNCIL

Respondent

AND:  KENNETH WILLIAM CHATER and
BERNICE ELLENOR CHATER

First Co-Respondents

AND:  GRAHAM JOHN SERISIER and
MERILYN JEANNE SERISIER

Second Co-Respondents

AND:  ROBERT GOURLAY and
CHERYL GOURLAY

Third Co-Respondents

AND:  DARRYL GEORGE SMITH and
ROBYN JOAN SMITH

Fourth Co-Respondents

AND:  BRUCE WILLIAM TAYLOR and
NOELEEN MARY TAYLOR

Fifth Co-Respondents

AND:  ELIZABETH ANNE WHITE and
JOHANNE MAJELLA WHITE

Sixth Co-Respondents

AND:  OCKERS TUCKERS WAGON PTY LTD

Seventh Co-Respondents

AND:  NEIL GREAVES and
SUSAN GREAVES

Eighth Co-Respondents

AND:  CATRIONA LARCOMBE-WEATE and
ANTHONY WEATE

Ninth Co-Respondents

REASONS FOR JUDGMENT – NEWTON DCJ

Delivered the Ninth day of March 2001

[1]        The appellant (Telstra) applied to the respondent (Pine Rivers Shire Council)

for a development permit for a material change of use (public utility) in respect of

land described as Lot 4 on RP 856814 at Broads Road, Closeburn. The proposal

involves the erection of a mobile phone tower and associated equipment hut within a

fenced enclosure. This application was assessed and refused by the respondent on 21

December 1998. The grounds for refusal were that if approved, the proposed use

would have a deleterious effect specifically on the amenity of contiguous properties

and generally on the amenity of properties in the locality. It is apparent from the

report of the Planning & Environment Committee Meeting that the properties of

concern were Lots 4 and 5.

[2]        The respondent noted, in its letter of refusal, that it recognised the appellant’s

“responsibility in providing communication services to the Cedar Creek, Samsonvale

and Kobble Creek Valleys and would be prepared to assist you in facilitating a

process of community consultation with a view to identifying a site for the proposed

mobile phone tower which may be acceptable to property owners and residents in the

general locality.”

[3]        The original application made to the respondent proposed that the base station

be located in the south-western part of Lot 4, close to the common boundary between

Lot 4 and Lot 5. Telstra appealed against the refusal of the application and

subsequently amended its proposal. On 29 September 2000 the Court ordered that the appeal be heard on the amended proposal. The amendments relocated the base station

in a north-easterly direction and reconfigured the antenna facilities to reduce their

visual impact. In the course of the hearing of the appeal, the appellant undertook to

ensure that the maximum height of the proposal does not exceed 30 metres.

[4]        The respondent’s attitude to the amended application is that the amended

proposal removes the irreversible adverse impact which the respondent considered the

original proposal had on the amenity of Lot 5, and does not create an unacceptable

impact on the residential amenity to other nearby present or proposed residences, nor

does it create an irreversible impact on the environment. Mr McGrath, the

respondent’s director of development and environment, gave evidence supporting the

conditional approval of the amended proposal. Conditions have been agreed between

the appellant and the respondent, subject to any changes required by the Court.

[5]        Notwithstanding the amendments, some of the co-respondents have

maintained their objection to the proposal. The issues identified by the co-

respondents included the following:

1.          If approved, the proposed use of the subject land will have a

deleterious effect on the amenity of the adjoining properties.

2.          If approved, the proposed use of the land will have a deleterious effect

on the amenity of properties in the locality.

3.          Properties in the locality will suffer significant environmental impact

from the proposed use of the subject land.

4.          The siting of the proposed development is not consistent with good

town planning practice.

5.          The proposed use of the subject land impacts visually on properties in

the locality.

6.          The visual appearance of the proposed development is inconsistent

with the existing environment.

7.          The evidence regarding the potential health impacts of electromagnetic

radiation in its various forms, means that the proposed development is

sited too close to residential areas such that there is a significant risk

that it will adversely affect the health of residents. The precautionary

principle should be applied in this instance.

8.          The proposed use of the land is not necessary in that alternative

solutions are available.

9.          No public consultation has occurred as to the proposed use of the land.

10.        The proposed location of the proposed development conflicts with, or

is in close proximity to, the nominated building sites on the adjacent

land and on the subject land.

11.        If approved, the proposed use of the subject land will interfere with the

day-to-day activities of residents in the locality.

[6]        These issues may conveniently be summarised as relating to:

(a)	Visual amenity; and
(b)	Potential health effects (including the fear of health effects) from radio

waves.

[7]        The appellant bears the onus of establishing that, in spite of these issues, its

appeal should be upheld.

SITE DESCRIPTION

[8]        The subject land is situated on the Mount Samson Road which extends from

Samford to Dayboro in a generally north-north-west direction. Samford and Dayboro

are the two largest communities in the western part of the Pine Rivers Shire. Both are

within a rural or semi-rural environment with an immediate hinterland featuring both

rural activities and large rural residential development. The subject site is closer to

Samford (approximately six kilometres from the township) and is within the locality

of Closeburn.

[9]        Land use within the locality of the subject land is mixed. The environment is

predominantly rural with residential uses in the form of rural residential dwellings on

large rural blocks, evident within a three to four kilometre range of the subject land.

Within the pockets of rural residential development there remain large farm holdings

including active dairy activities and hobby farming.

[10]      The locality is relatively hilly in topography and particularly on the eastern

side of Mount Samson Road, rises quickly to a high elevation. Views from the area of

the subject land and from Mount Samson Road itself, extend toward the D’Aguilar

Range which presents a dominant physical edge to the wider Samford Valley. Several

waterways exist in the locality, the most prominent of which is Cedar Creek which

crosses Mount Samson Road to the south of the subject land. The site is situated at

the end of Broads Road which climbs from Mount Samson Road to the site. The

subject site, together with other similar sized parcels of land, are located on a ridge top at the end of Broads Road. The site is grassed and sloping and enjoys views to

both the D’Aguilar Range and eastwards towards Clear Mountain and Eaton’s Hill.

[11]      The locality may best be described as predominantly rural with acreage

subdivision proceeding in the area involving allotments of some two hectares or more.

The effect of the hilly topography and rolling nature of the land form, together with

the large areas of open space being retained in the area, presents a predominantly rural

environment. The predominant element of the landscape is that of open areas either

cleared for rural residential or farming activities, or retained or improved with

vegetation. Interspersed within these open areas are structural elements including

houses and outbuildings and other utilitarian structures such as farm buildings,

communication poles and facilities, roads and dams. The perception of the various

elements of the landscape changes according to elevation, obstructing topography and

vegetation, and orientation. However, when driving through the locality, the observer

has clear views of existing roadside and high tension electricity transmission lines and

existing telecommunication facilities. The character of the immediate area may be

said to be in transition with houses expected to be constructed on adjoining Lots 5 and

6 as well as on a new estate below the site to the north.

THE PLANNING DOCUMENTS

[12]      There are two relevant planning documents in this case, namely the planning

scheme and Local Planning Policy 44 – Guidelines for the Development of

Telecommunication Structures. The relevant town planning scheme for the Shire of

Pine Rivers came into effect on 8 May 1998. The planning scheme in part 1 includes

in its definition of “public utilities” any premises used or intended for use for major facilities relating to the provision of services such as… telephone. Under the planning

scheme, facilities of the nature of the proposed development are a permissible form of

development in almost every zone under the planning scheme, including all of the

residential, rural, open space, commercial or industrial type zonings. Thus, the

proposal is for a form of development which is contemplated within the relevant zone

(Future Rural Living zone) and is not one which is seen, in a town planning sense, as

inherently incompatible in that zone.

[13]      Local Planning Policy 44 applies to telecommunication structures such as

mobile phone towers installed on land other than road reserves. The policy aims to

ensure that the potential impacts on the amenity in the vicinity of the development

site, and on people living in or using the area around the site, are minimised. The

intent of the policy is to facilitate a safe and effective telecommunications service

while minimising potential impacts on the community and the environment by

promoting early community consultation with respect to appropriate design and

locational factors.

[14]      In relation to visual amenity the policy recognises that telecommunications

facilities have the potential to adversely impact on the visual amenity of a site or

surrounding areas, particularly given the frequent location of such facilities within

elevated sites and the height of such structures. The policy recognises the desirability,

therefore, of locating a site for a facility in a position to limit its visual impact. The

policy requires the following matters to be considered in order to ensure that impacts

on visual amenity are minimised:

(a)	The elevation, visual prominence and visual significance of the site;
(b)	The relative elevation of adjoining land;
(c)	Whether the site adjoins, or is within the line of sight of, existing or

future residential areas;

(d)	The proposed location of the installation of structures within the site;
(e)	The height, shape, form and bulk of the installation;
(f)	The material, configuration, finish and colour of the development;
(g)	How the development would appear from a street or other public place

and the impact on the character of other development in the vicinity;

and

(h) The development proposal in relation to the natural outlook of existing

or proposed development on sites in the vicinity of the proposal.

[15]      The policy also identifies a number of design and construction solutions to

assist the minimisation of impacts on visual amenity:

(i)         Existing trees should not be removed from the site except in the area

required for construction and works associated with the erection of the

facility;

(ii)        The facility should be located so that surrounding land forms can be

utilised to screen the facility;

(iii)       Proposals within sites which have been clear felled or denuded of

natural vegetation should be accompanied by a proposal for major

landscaping and screening works. Additional landscaping should be

dense and of sufficient height within a two-year period following

construction to screen the facility to the satisfaction of Council, whilst

maintaining personal security in the vicinity of the development;

(iv)       Provision should be made for a vegetated buffer between the site and

adjoining land, if such adjoining land is zoned for residential purposes

or occupied by residential or other sensitive land uses such as parks;

(v)        The finish or colour of the tower, equipment shelter or other structure

should be appropriate, taking into account the backdrop and situation

of the location. Appropriate colour treatment solutions are encouraged

and the tower, equipment shelter or structure shall be treated so as to

reduce glare and reflectivity;

(vi)       The design of the proposed structure should complement the

surrounding environment, particularly where the site cannot, or will

not, be shared with other carriers;

(vii)      The structure should be limited to a reasonable height to achieve its

function while minimising impacts on visual amenity;

(viii)     Careful choice of antennae and its arrangement may assist in producing

a more aesthetic outcome;

(ix)       An alternative type of support structure may result in a more aesthetic

profile;

(x)        The provision of screening or painting of structure where there is an

elevational element or structure mounted on buildings.

[16]      In relation to public safety the planning policy acknowledges that there is

community concern that the power output levels from mobile phone network base

transceivers may be a risk to health and safety. In order to address community

concern and remain consistent with the precautionary principle, the policy requires

that carriers should certify that:

(a) All measures have been taken to ensure public health and safety is

maintained; and

(b) That the power output levels which would be emitted from any

proposed transceiver tower are as low as possible and do not exceed

the maximum exposure limit set by the Australian Standard 2772.1

(Radio Frequency Radiation – Maximum Exposure Levels).

Sites for telecommunications towers, equipment shelters or other structures are

required to be enclosed by security fencing so as so prohibit access by members of the

general public and to maintain public safety. Erection of warning and/or information

signs on the site will be required where considered necessary.

[17]      The site and the adjacent land are zoned “Future Rural Living” in the town

plan. This zone is a “holding zone” for land intended to be used for rural residential

purposes. The intent of the zone is:

“To identify areas which are suitable for eventual re-zoning to the Rural Residential, Park Residential or Special Residential zones. Uses that would be incompatible with such development, such as intensive animal husbandry, are prohibited while duration of other uses for which consent is granted may be restricted. Permitted uses within the zone are only those which are compatible with the future use of the land for residential development such as parks, while consideration of any applications for consent will include the location and nature of the proposed use in relation to future residential use of land in the locality. Applications for re-zoning from the Future Rural Living zone to facilitate Rural Residential development will be considered in relation to the requirements of any development control plans and the available stock of land in the proposed zone, and the progression of orderly development of the Shire, among other matters.”

[18]      The land to the south of Lot 5 is zoned Rural, as is the case with some more

distant parcels to the north-west. Mr McGrath points out that this zoning reflects that

parts of these properties are steep, and while it is probable that they will eventually be

developed in part for rural residential purposes, the overall density may be lower, or some of the allotments may be larger, to accommodate the steeper areas of land in the

overall parcel. Some of the Rural zoned land may remain in rural uses, such as

grazing, but the majority will transform over time to rural residential uses.

[19]      In the Future Rural Living zone, public utilities are a Column 4 use which is

impact assessable, as such, it is not a use which by its nature is necessarily

incompatible with the zone.

[20]      Mr Buckley, a consultant town planner who testified on behalf of the

appellant, observes that it is instructive to note that in all the typical “urban” zonings,

i.e. be they residential, rural, open space, commercial or industrial type, “public

utilities” have the same Column 4 status as the subject zone. This is considered by Mr

Buckley to be a sensible and common approach to planning scheme structure,

recognising that flexibility is paramount in the provision of these facilities so that they

can be located to serve and function for the community as a whole.

CONSIDERATION OF AMENITY

[21]      Mr Taylor, one of the fifth co-respondents, submits that the site of the

proposed tower is within 40 metres of the proposed house site for the owner of Lot 4

and is within 65 metres of the designated house site for Lot 21 and within 100 metres

of the existing Ross and Heffernan dwellings. He submits that the impact on visual

amenity of those residents in particular, will be severe. So far as his own property is

concerned, Mr Taylor submits that the proposed tower will be clearly visible from

many parts of his allotment, always against the skyline and as such, the visual amenity

of himself and his family will be adversely affected. Mr Taylor contrasts the present proposal with the existing Vodaphone tower at Closeburn which is visible only

against a hillside backdrop and has, as a result, a much reduced effect on visual

amenity of residents in the locality.

[22]      Mr Taylor submits that the view of the proposed tower from the Ross

residence will be predominantly of the tower itself and that although two trees are

situated in the general direction of the tower from the residence, these will not hide

the tower significantly. Furthermore, he points out that the trees are not within the

Ross land and as such are not under the control of the owner of that site.

[23]      Mr Taylor submits that the future owner of Lot 21 will be faced with the tower

every time the access from Broads Road is used.

[24]      The owners of houses in Rosemount Court, submits Mr Taylor, will have

views which will encompass the tower site and the tower will be visible against the

skyline.

[25]      Generally, Mr Taylor’s submission is that the impact on visual amenity of

local residents in the surrounding district will be high and unacceptable because the

tower will be viewed against the sky and because it will have a profile totally at odds

with that of the natural trees and vegetation of the area. Mr Taylor, who has some

experience in the development of land in the locality, believes that the area is not

likely to change substantially because of the relatively steep terrain and because of

Council’s restrictions on land development in steeply sloping areas.

[26]      Mrs Taylor, a fifth co-respondent, has expressed some cynicism in respect of

the ability of trees and vegetation to effectively screen the proposed tower. She points

out that any new trees planted would take at least 20 to 30 years to reach maturity and

that the threat of bush fire is a very real one in the area. Mrs Taylor considers that the

photographic evidence demonstrates, in very graphic terms, how a tower would

impede on people’s lives despite the fact that the simulated tower used for

demonstration purposes was of a much smaller diameter than that of the proposed

structure. Mrs Taylor considers that the residents of Lot 4, Lot 5, Lot 21 and the Ross

household will be particularly affected by the placement of a tower in the proposed

location.

[27]      Mr Walker, a director of the seventh co-respondent, submitted that the close

proximity of the proposed tower to two existing houses and two future houses (one

within 20 metres of the proposed tower) and all within a small area of land on top of a

hill, is bad planning practice. He points out that some 200 to 300 trees which had

existed on Lot 4 were suspiciously bulldozed just prior to the commencement of these

proceedings. Whilst accepting that the appellant had nothing to do with the

bulldozing of this vegetation, Mr Walker submits that an open visual look has been

created by the bulldozing which will allow everything on top of the hill to be visually

prominent. He complains that had the trees been left untouched, they would have

created a backdrop for people living in Hills Road and Rosemount Court when

looking up at the proposed tower.

[28] Mr Buckley considers that the new position of the tower under the modified proposal is unlikely to prejudicially affect any person to a substantial degree. He considers that the location of the tower faces land of steep topography and of

substantial tree cover and land which is unlikely to be used, at least in the short term,

for rural residential living. He further considers that the access arrangements for land

on the eastern side of the ridge and its topography, make it unlikely to be subject to

any serious proposal for rural residential living.

[29]      Mr Chenoweth, an environment planning and landscape architect who testified

on behalf of the appellant, concluded that the original proposal was not considered to

have undue deleterious impacts on the visual amenity of the contiguous properties in

the locality, nor generally, on the visual amenity of properties in the locality. He

considers that the visual impact of the new tower design will be significantly less than

the original profile proposed in 1998 and that this improvement reduces the visual

impact from all observer positions.

[30]      More specifically, Mr Chenoweth considers that although the owner of Lot 4

(Mr Sim) proposes to lease the development area to the appellant and is not an

objector to the application, the proposed new tower position is approximately the

same distance from his proposed house site as the earlier proposed position.

Furthermore, the ocean views from Mr Sim’s proposed house will not be degraded by

the proposed tower. Mr Chenoweth notes that Mr Sim is currently planting several

hundred trees along the eastern and northern boundary and across the contour below

the proposed new tower position, to form a full, dense tree hedge. This will provide

screening of the proposed tower and proposed house as viewed from the top end of

Broads Road.

[31]      In relation to the visual impacts of the proposed tower on Lot 5 (south of Lot

4), Mr Chenoweth is of the view that these will be reduced by the repositioning,

which will not only shift the tower from 50 metres to 120 metres away from the

Heffernan’s proposed house, but will screen the shed and base (by the intervening hill

top) and by two trees, approximately 14.8 metres and 12.7 metres respectively in

height.

[32]      In relation to the effect on Lot 169 (the Ross house), the proposed new tower

position will be the same distance from the residence as the earlier position, that is,

some 120 metres from the rear house fence. Mr Chenoweth expects that the new

proposal will have less visual impact because the tower in its proposed new position

will be partly screened by trees from the driveway entrance to the residence and also

from the views from the rear windows and back door. Furthermore, the tower in its

proposed new position will be seen from the back door of the Ross residence against a

backdrop of forest. Mr Chenoweth notes that Mr Sim is currently planting new trees

between the Ross house and the proposed new tower position and has agreed to plant

several Black Bean trees (with dense, rounded canopy) as well as Kauri Pines

between and close to existing vegetation.

[33]      With respect to the effect on proposed Lot 21, Mr Chenoweth concedes that

the proposed new tower position is slightly closer to the likely house position on

proposed Lot 21 than the 1998 position (140 metres compared to 180 metres).

However, Mr Chenoweth considers that the likely house position will be better

screened by existing trees than was the case with the earlier proposal. He contends

that the effects of distance, screening and the change from a protruding to “flush cylindrical” antennae profile will result in the visual impact of the new proposal being

similar to or slightly better than, the impact of the earlier proposal. Mr Chenoweth

identifies the prime position for a house on proposed Lot 21 will be on the cleared

ridge line with views to the north (to lake Samsonvale) and valleys to the south-west

and east. In this position a house would be well screened from views of the tower by

a group of hill top trees immediately north of the boundary fence. Mr Chenoweth

sees little or no advantage for any owner of proposed Lot 21 to construct a residence

closer to the boundary with Lot 4, because views to the south-east are blocked by

forest and topography. Again, a double row of trees recently planted by Mr Sim

approximately three to six metres from the common boundary will provide additional

screening, even when relatively young. Mr Chenoweth believes that due to their

relative position on the hill, trees of 10 metres height will effectively screen most of

the proposed 30 metre tower.

[34]      In relation to the effect of the proposed development on views from Clear

Mountain Road, Mr Chenoweth considers that, taking into account the change from a

protruding antennae profile to a “flush cylindrical” antennae profile, as well as the

screening effect of trees, the new proposal will reduce any visual impact on motorists

and residents on Clear Mountain Road.

[35]      Generally, Mr Chenoweth suggests that mobile phone towers cause less visual

intrusion into rural and semi-rural landscapes than HV electricity transmission lines

and roadside poles for telephone and power. He points out that wire-less tele-

communications facilities can be widely spaced without linear swathes of cleared

vegetation, and can be sited and constructed as relatively slender structures with colours that blend into nearby vegetation. Mr Chenoweth concedes that while such a

structure cannot be hidden in the landscape, its position, form and colour can be

chosen to ensure minimal impact on the amenity of the locality and the character of a

Future Rural Living zone. Mr Chenoweth concludes that, given that a tower of the

proposed height and ridge top location is necessary for mobile phone communications

in the locality, the site selection, design and colour of the tower (and the proposed

landscape screening of the shed) are appropriate.

[36]      Mr Chenoweth submitted an addendum to his report on the visual impacts of

the modified proposal to take account of apparent inaccuracies of measurements in his

report of the distance from the proposed tower position to the centre of a rectangular

“likely house position” close to the northern boundary of proposed Lot 21. Mr

Chenoweth explained that this “likely house position” was an assumed location that

offered attractive views from a cleared knoll on proposed Lot 21, and that allowed a

group of trees to be retained for screening nearby development. In the addendum, Mr

Chenoweth indicates that the “likely house position” is slightly outside the

“nominated house pad” position for the proposed Lot 21 as shown on a plan of

“Highland Park Estate” dated 15 November 1999 and submitted to Pine Rivers Shire

Council as evidence that a house could be accommodated on the site. Mr Chenoweth

had assumed that a future land owner would renegotiate the “likely house position”

with the respondent in order to retain hill top trees. The “nominated house pads” are

50 metres by 30 metres in size and offer flexibility for land owners to locate houses at

various alternative positions. Mr Chenoweth points out that one pegged corner of the

“nominated house pad” on proposed Lot 21 is within 12 metres of the southern lot

boundary (and therefore will be approximately 63 metres from the boundary of the proposed development area), and a future land owner could choose to build a new

house in this corner, although this would entail removal of some trees. However, Mr

Chenoweth maintains his view that a future land owner was more likely to build a

new house further to the north (down the slope) on an attractive knoll with views to

Lake Samsonvale, in a position where these large old trees do not have to be removed.

Accordingly, the new tower position will be slightly (approximately 40 metres) closer

to the future position of a house on proposed Lot 21 than the 1998 tower position,

irrespective of the house position chosen by the future land owner.

[37]      Mr Chenoweth notes that any future land owner of proposed Lot 21 will have

the opportunity to locate the preferred house position in full knowledge of the Telstra

mobile phone tower, and could avoid views of the tower by constructing the house

further down the knoll where the topography and existing trees offer screening. Mr

Chenoweth maintains his position that the lower knoll offers the most attractive

combination of views for a new house, irrespective of the presence of the proposed

tower. The “worst case” house position will have views to the west blocked by trees,

while the “best case” house position has better views to the edge of Lake Samsonvale.

Mr Chenoweth expressed the opinion that almost certainly a house constructed on

proposed Lot 21 would not be oriented to emphasise views to the south because:

(a) The prime views will be to the north and west, with some attractive

views to the east;

(b)	The driveway access to the house will be from the west;
(c)	The northern aspect will receive more sunshine; and
(d)	Views to the south will include the house on Lot 5 and the house

proposed for Lot 4.

[38]      Mr Chenoweth has sought to demonstrate by photographic montage that the

proposed tower will have minimal adverse impact on the visual amenity of a house

located toward the northern edge of the “nominated house pad” position within

proposed Lot 21, if intervening trees are retained. These trees occupy a ridge top

band parallel to the boundary between Lot 4 and proposed Lot 21, and will partly

screen any view of the tower, and ensure that the tower will be seen through a forest

of tree trunks. It should be noted that the photo montage makes no allowance for the

trees recently planted by the owner of Lot 4 (Mr Sim).

[39]      The “worst case” view of the tower from the southern boundary of the

“nominated house pad” position on proposed Lot 21 can be screened by the boundary

tree planting undertaken by Mr Sim. If these trees have not become well established

by the time of construction of the proposed tower, then additional landscape screen

planting will be undertaken close around the edge of the facility.

[40]      In assessing the impacts on visual amenity by the proposed tower I have

accepted, from the evidence, the following propositions:

(i)         The proposed location for the base station, despite being elevated, has

a relatively contained visual catchment;

(ii)        The area in question is in transition from rural lots to large lot rural

residential blocks of approximately two ha. with the consequence that:

(A) “Rural” vistas will change to more rural residential vistas with

more structures that breach the skyline;

(B)	The proposal will be seen in the context of other built form on
the hill, rather than in isolation;
(C)	Lot sizes will still be large enough to afford considerable
flexibility in terms of the design and orientation of residences.

(iii)       The proposal has been relocated on the site so that it is removed from

the boundaries of its immediate neighbours;

(iv)       Mobile phone towers are very common in the community and exist

within the Samford area (e.g. the Vodaphone tower);

(v)        The facility in this case uses a slimline pole with antennae which have

been redesigned to reduce visual impact;

(vi)       It is proposed that the pole itself will be treated so as to adopt a colour

which reduces visual impact;

(vii)      The site will be landscaped; and

(viii)     Telstra would be prepared to further assist Mr Walker by means of the

provision of trees for planting.

{41] In relation to the Taylor residence, I observe that the house is located down the

hill and is orientated to achieve views away from the subject proposal. Although the

tower will be visible from some positions along the driveway, in general the proposal

will not be visible from the house and if it is visible, it will appear as a relatively

slender line which is unlikely to unduly affect amenity.

[42]      In relation to the Ross house, I accept that there is significant separation from

the pole (probably in excess of 100 metres). Furthermore, when viewed from the

back of the house, the proposal would appear amongst trees. The house is orientated in the opposite direction from the proposed tower. The topography of Miss Ross’

land is such that future subdivision to create lots closer to the tower is unlikely. I note

that Miss Ross did not object to the initial proposal or when notice was given of the

amended proposal.

[43]      The previous owner of the subject site consented to the application being made

by Telstra and the relocation and redesign of the proposal was made possible by the

consent of the new owner of the subject site.

[44]      The owners of Lot 5 purchased the property in the knowledge of the proposal

to locate the tower immediately adjacent to their boundary. Potential impacts upon

the owners have been partly addressed by the relocation and redesign of the proposal.

The owners were not called to give evidence against the proposal in its current form.

[45]      In relation to the impacts on visual amenity of the seventh co-respondent, it

should be remembered that Mr Walker’s company has recently obtained approval for

a large lot subdivision of his property. The repositioning of the proposed tower has

taken account of the subdivision with the majority of lots (those in the valley) having

no views of the tower. Those lots that do have views of the tower will not, it must be

concluded, be unduly affected. Each of the latter allotments are quite large and afford

potential for those who construct houses in the future on those lots, to do so having

regard to the location of the facility which does not, in any event, impede panoramic

views which those lots enjoy in other directions. From those lots the view of the

proposal is but one component of the view in one direction. Furthermore, insofar as

the closest new allotment on that site is concerned, it will be physically separated from the proposed tower by approximately 60 metres and will contain a large building

envelope which will allow considerable flexibility in the location of a house. The

proposal will not affect the panoramic views available from the allotment to the north

and the west and there is some existing vegetation near the common boundary with

the subject site which will provide filtered views to the tower from the likely future

house location. Even if a house were to be constructed as close as possible to the

common boundary, there would still not be an unobstructed view of the tower unless

significant trees in that area were removed and the house orientated towards the least

attractive view. This may be regarded as an unlikely scenario. Finally, it should be

noted that the condition of the approval of Mr Walker’s subdivision requires 200 trees

to be planted on each new allotment, directed towards the ridge line. This condition

itself would, in my view, provide ample opportunity for screening.

[46]      With respect to those people using Broads Road, views of the tower would be

restricted to fleeting glimpses and it is unlikely that the tower would be noticed

amongst the trees.

[47]      With respect to the residents of Rosemount Court, the location of the proposed

tower will not affect the panoramic views of the Samford Valley to which most, if not

all, of those houses have been orientated. The distance separation from these

residences is such that the tower would appear as a very slender, needle-like structure

that is not at all intrusive. These residents already experience a mobile phone tower

as an existing part of their visual amenity in that the Vodaphone tower is visible from

Rosemount Court.

[48]      There is no doubt that the proposed tower will be able to be seen from many

points within the neighbouring locality. However, visibility is not the test and no-one

has a right to preservation of a particular view, although interference with a view may

have an effect on amenity (see Cromar Pty Ltd & Anor v Brisbane City Council &

Anor [1996] QPELR 84 at 90 per Skoien SJDC). In particular, there is no

requirement for facilities such as those proposed to be located so that they cannot be

seen. Indeed, the nature and operational requirements will ordinarily require them to

be elevated structures visible to heights which exceed that of the existing vegetation.

It must be remembered that the proposal is not something which is prohibited by the

planning scheme. The facilities are a permissible form of development in the zone.

The Local Planning Policy expressly contemplates that a large number of facilities are

proposed to be built on elevated land and hill tops, (para 4.1(c)). In Prime Group

Realty Ltd v Brisbane City Council [1995] QPLR 173 at 176 Quirk DCJ stated that:

“It is important not to ignore the status of this use as a discretionary use… To assert that it is a use inherently incompatible with residential amenity and that this level of incompatibility is such as to withstand every reasonable attempt to ameliorate it is, in my view, to overlook this.”

[49]      I have already referred to the provisions of paragraph 4.3 of the Local

Planning Policy in relation to visual amenity. It will be noted that the paragraph

speaks of “limiting” visual impact and ensuring that such impacts are “minimised”.

Having regard to the evidence of Mr Buckley and Mr McGrath that the proposal is

acceptable from a town planning perspective in relation to visual amenity, and

accepting that the appellant has undertaken to design the proposed tower to minimise

visual impact in terms of its shape, height and colour, I am satisfied that any adverse

impact on the visual amenity of the surrounding area is not such as to warrant refusal

of the proposal. The visibility of the tower to nearby residents must be balanced

against those policy provisions of the planning scheme which permit the provision of this form of infrastructure. It must also be balanced against the general community

benefit to be derived from the development of a comprehensive telecommunication

network. In this context I am satisfied that the visual impact of the proposal is not

unacceptable. (See e.g. Telstra Corporation Ltd v Latrobe City Council unreported

decision of the Victorian Civil and Administrative Tribunal dated 22 November

2000).

[50]      The report of the respondent’s Planning & Environment Committee meeting

appropriately notes that:

“When assessing a telecommunications facility proposal, the impact on visual amenity is an important factor to be evaluated. However, the concept of the amenity is not just based on visual amenity but is created by a number of elements which go together to create ‘a quality of being pleasant’. In today’s society these elements would not only include matters relating to noise, shadow, vibration, fumes, waste products etc. but would also include having an acceptable quality of drinking water, a reliable electricity service and increasingly sophisticated levels of effective and efficient communication facilities.

It must be recognised that mobile phones have become an everyday and perhaps necessary part of modern urban and rural life, and a technology which is increasingly being embraced by the Australian population. To facilitate the increasing demand for this service, it is necessary to locate infrastructure on suitable sites to ensure a satisfactory and reliable service within the target area… The subject site and the surrounding lots are gradually being developed for low density residential development. If approved, the mobile phone facility will provide a service to the area.”

[51]      Both Mr Taylor and Mr Walker have queried the need for the proposed tower

in this location. However, Mr Wright, the manager of network development for the

appellant’s mobile networks in the Queensland region, testified that the proposed site

on the north-eastern aspect of the land meets all the technical and coverage

requirements of the appellant. Mr Wright considered in detail a number of alternative

sites, including sites proposed by Mr Burke, a local Councillor. None of the alternative sites evaluated by Mr Wright were considered suitable for the proposed

development. In particular, the present proposed location provides coverage between

the Closeburn/Mount Samson area and Kobble Creek areas. It also extends coverage

to the end of Cedar Creek Road and contains radio signals predominantly within the

target area without overshoot and resulting interference into other parts of the

network. These coverage and performance objectives will be achieved through the

location of the proposed facility on a ridge system that runs in a north-westerly

direction between the Eaton’s Crossing area and the Mount Samson area. The

location of the proposed facility at the top of Broads Road positions the base with

predominantly line of sight communication paths to the majority of the target

coverage area. This includes paths in a westerly direction along the Cedar Creek

Valley and to the north over the end of this ridge system, along Mount Samson Road

and across the end of Lake Samsonvale to the Kobble Creek area. The location also

takes advantage of higher peaks at 254m and 288m to the south-east along this same

ridge line, as a means of isolating unwanted signal propagation and interference into

the north Brisbane area.

[52]      The alternative locations considered by Mr Wright included the following:

(i) Lot 2 on RP167894, McDowalls Road, Yugar (located along the end of

the House Mountain Range at Yugar in the vicinity of a 222m high

point on the ridge line);

(ii)        Lot 1 on RP196631, Hills Road, Closeburn (located on Hills Road to

the south-west of the proposed site and at a lower elevation);

(iii)       Lot 56 on S312518 (Lots 31/32) at the end of Cedardall Court, Yugar

(located to the east of Mount Samson Road, Yugar on the south-

western side of the range, which runs north-west of the subject site);

(iv)       Lot 10 on RP207195, House Mountain Range (located at a height of

approximately 380m along the House Mountain Range);

(v)        Mount Glorious, summit, Telstra radio-telecommunications tower (an

existing Telstra radio tower located on the summit of Mount Glorious

to the west of Closeburn);

(vi)       Mount Glorious, Telstra telephone exchange tower (600m site height)

(an existing telephone exchange site located along Fahey Road near

Mount Glorious);

(vii)      Samford Optus site, Bygotts Road (an existing Optus site that has

already been established with a Telstra Base station to provide

coverage in the Camp and Whites Mountain area);

(viii)     Vodaphone site (125m site height), Old Mount Samson Road, Mount

Samson (a Vodaphone Base station site located to the west of

Closeburn along the Old Mount Samson Road at a relatively low

elevation);

(ix)       Pine Rivers Shire Council land on Clear Mountain;

(x)        Private property, end of Fahey Road, Mount Glorious; and

(xi)       Lot 169 on S312192 (located to the east of the subject site and

occupying the northern face and part of the top of the ridge line that

runs south-east to north-west along the Closeburn Valley area.

All these alternative locations were considered by Mr Wright and eliminated on the

basis of failing to provide sufficient service to the target area. Mr Wright notes that if an alternative site were to be used, two towers would need to be installed to obtain the

equivalent coverage of the proposed tower. Such an approach would not be

economically viable for this area.

[53]      Having regard to the steps taken by Mr Wright to assess alternative locations

for the proposed tower, I find myself unable to accept the submissions by Mr Taylor

that, contrary to Telstra’s assertions, they did not, at the time of selecting the proposed

site, assess all other possible sites in the locality. Mr Taylor is critical of Mr Wright

conceding under cross-examination that he visited other sites with a local Councillor.

This was not undertaken until after the decision by the respondent to refuse the

appellant’s application for approval. Mr Taylor again criticises Mr Wright for

reviewing alternative sites prior to the resumption of this hearing in January 2001, but

after Mr Wright had given his evidence. Mr Taylor contends that, in order to

demonstrate properly the localities that would be suitable for a tower, Telstra should

have prepared a plan which demonstrated in a blanket approach, suitable areas. Mr

Taylor submitted that such a plan would have shown areas or pockets of many

hectares in the district within which the tower could have been located. He argues

that for Telstra to demonstrate that the Broads Road site is the only suitable site,

Telstra would need to be able to comment on the relative suitability of each portion of

land contained within the blanketed areas. Mr Taylor complains that Telstra had

failed to do this and has merely taken a number of locations at random and addressed

these particular sites. Mr Taylor complains that the appellant has not undertaken a

sufficiently rigorous analysis to demonstrate that the Broads Road site is the only

suitable site for the proposed tower. No doubt criticism or complaint may be made of

the approach favoured by the appellant in this case. However, in my view it would be unfair to be overly critical of Telstra in relation to their assessment of alternative sites,

having regard to the large number of sites actually investigated by Mr Wright and the

detailed explanation provided by him in his supplementary statement of the reasons

why each alternative site failed to meet the necessary technical and coverage

requirements of the appellant.

[54]      A stated objective of the Commonwealth Telecommunications Act 1997,

Schedule 1, Part 5, is to facilitate the sharing of carrier infrastructure, including

towers. I accept that the installation of this facility is likely to accommodate this

objective as Telstra is willing to co-locate facilities with other providers. The

evidence of Mr Wright establishes to my satisfaction that the proposed location gives

optimum coverage in the area. In particular, the proposed facility will improve

mobile telecommunications services in the vicinity by extending the range of

coverage of service between the Closeburn to Kobble Creek area where there are

currently areas of no service, and also improve the call quality and reliability of

service in the area where calls may currently be made but may be of poor quality and

frequently drop out. I accept that the benefit of this improved service will extend not

only to the local community, but also to adjacent communities who commute through

the area as well as visitors, doctors, emergency services and tradespeople who may

rely on a mobile telephone for emergency, social or business use.

[55]      Mr Wright identified in his evidence some particular safety advantages that

would be extended to mobile users by the proposed facility. These include:

(a) A more robust and ubiquitous communications system throughout the

area in times of heavy rainfall where flooding may damage local phone

lines and where roads or houses may be isolated by flooded creeks;

(b) A more robust and ubiquitous communications system throughout the

area in times of bush fires which may damage local phone lines and

where travellers or home owners may be isolated and endangered;

(c) A means of security for communications around areas that are isolated

and not lit by street lighting at night;

(d) A means of emergency communications to call ambulance or fire

services to isolated locations in case of accidents or fires; and

(e) A means of emergency communications for walkers or visitors who

may become injured or lost while using some of the walking tracks and

parks in the area.

[56]      Although the co-respondents’ objection to having a facility of this type in their

immediate area is perfectly understandable, the expectations of residents of the forms

of development which may occur on land near them must take account of the

provisions of their local government’s planning scheme. It has been said on many

occasions in this Court that a landowner must generally be taken to contemplate that a

nearby parcel of land will be put to one of the uses to which the land may be put as of

right, and that it may be put to one of those uses permitted with the consent of the

local government (see E G Bell v Noosa Shire Council (1983) QPLR 311 at 313).

[57] There is one aspect, however, of Mr Wright’s evidence that must be the subject of comment. The proposal is for a telephone tower no taller than 30 metres. During the hearing of this appeal, it became apparent that what Telstra was actually

proposing was to erect a tower somewhat taller than 30 metres (probably closer to 31

metres than to 30 metres). Although Telstra promptly instructed its Counsel to

undertake to ensure that the overall height of the tower would not exceed 30 metres,

this error should not have occurred. Mr Wright dealt with the issue in a further

supplementary statement which explained that although his previous statement

indicated that the height of each antennae to the “top” was 2978mm, closer

examination revealed that the distance to the “top” excluded a cap some 10mm high

which would be fitted to the topmost antennae. Furthermore, a subsequent check of

the exact height of the pole revealed to Mr Wright that the specifications for the

proposed type of pole to be erected on the subject site, was greater than 30 metres,

mainly due to a “spigot” at the top of the pole. Accordingly, if the pole to the original

specification were to be used, both the original and modified proposals would have

been higher than Mr Wright previously indicated. Although it may be possible by

further excavation to achieve an overall height of 30 metres using the particular pole

originally specified, a preferable way of dealing with the unexpected height would be

to order a “one-off” pole. The co-respondents have indicated to Mr Wright that their

preference is for the latter solution rather than to carry out further excavation. Mr

Wright’s inquiries with the manufacturer suggest that the desired height will be

achieved by retaining the same style of pole from ground level to about 20 metres and

by customising the top section of the pole to achieve the required height.

HEALTH EFFECTS

[58] Mrs Taylor, in particular, has expressed concerns with regard to the health aspects associated with the erection of the proposed tower. In her written submissions to the Court she acknowledges that health aspects have been discussed in detail during

the course of the hearing but, nevertheless, does not feel that her concerns about

electromagnetic radiation have been reduced in any way. Mrs Taylor submits that

until there is universal agreement amongst the experts as to a safe level of

electromagnetic radiation from such facilities, the sensible solution is to treat this

aspect with extreme caution. I accept that this aspect of the appeal must keep in mind

the need to adopt a precautionary approach. I further acknowledge that there may

well be a psychological impact on nearby residents in relation to their health, even if

the radiation levels are accepted as falling within tolerable limits. Subjective

perceptions are one aspect of amenity which must be considered and weighed against

the merits of the proposal otherwise. However, such perceptions, although relevant,

will not necessarily prove to be determinative, even where they are found to be both

rational and reasonable. In Broad v Brisbane City Council & Anor [1986] 2QdR 317

at 325 de Jersey J (as he then was) stated that:

“In determining the likely effect of a proposed development on the amenity of a neighbourhood, the Local Government Court is clearly entitled to have regard to the views of residents of the area. The question is whether a resident’s view should be disregarded where it appears to be purely subjectively based, with no suggested justification in objective, observable likely consequences of the establishment of the proposed use.

In my opinion, such a subjective view need not necessarily be disregarded. Very often, of course, the evidence of such a view would be accorded little, if any, weight. In forming his own view on the likely effect of a proposed development on the amenity of an area, a Judge would, I think, ordinarily prefer views from residents which find justification in specific, concrete likely effects of the proposed development.”

[59]      In Jeteld Pty Ltd v Council of the City of Toowoomba & Anor [1997] QPELR

213 at 215 Quirk DCJ stated that:

“The relevance of matters of public concern in town planning cases was discussed in Edmondstone & Assoc v Emerald Shire Council (1994) QPLR 123. It was pointed out that matters of this kind do not necessarily rule out a particular development proposal but the Court went on:

‘The concerns of objecting members of the community, though quite sincerely held, may be set aside if they are shown to be clearly unfounded or unreasonable and that, in the circumstances of a particular case, they should not be allowed to stand in the way of a proposal. The point I seek to make is that, in a town planning context, public concern is not automatically nullified by evidence that such concern lacks any scientific or technical basis.’ (at p126).

In this case we are left well short of the position where public concern regarding likely detriment to health from EMF has been shown to lack any scientific or technical basis. Furthermore, the Respondent planning authority is entitled to consider whether an area proposed for park to which members of the community should feel free to resort happily and confidently will, in reality, satisfactorily fulfil its intended role. It appears to me that the existence of a body of opinion that proximity to high voltage power lines is not conducive to health is not without relevance in this appeal.”

[60]      I respectfully adopt the comments made in each of the above-mentioned cases.

However, that is not to say that substantial local controversies, without demonstrable

environmental impact which cannot be adequately dealt with, form a basis for a

consent authority to refuse approval (see Vertical Telecoms Pty Ltd v Hornsby Shire

Council unreported decision of the Land and Environment Court of New South Wales

dated 10 August 2000). Of course, in the matter before me the concerns expressed by

the co-respondents do not relate to intangible matters but rather to matters which are

capable of measurement and testing against established standards to see whether the

concerns are justified or not. In these circumstances the weight to be given to the

subjective perceptions of the co-respondents should be significantly reduced if not

disregarded. As was said in Optus v C C Kensington & Ors unreported decision of

the South Australian Environment, Resources and Development Court dated 29 May

1998 at p8:

“In Novak, Broad and Venus Enterprises (above), it was accepted that amenity may be subjective. Those cases each involved a use, the knowledge of which would give offence to the residents, according to their evidence, in a way that could not be measured objectively, but which would lower the amenity of the locality in the perceptions of the residents. Here, the proposed use is of a different nature and the basis of the residents’ concern is measurable and able to be assessed against standards. We are not prepared to give weight to their perceptions in these circumstances.”

[61]      While the concerns of the co-respondents in relation to the health effects of the

proposed facility are undoubtedly genuinely held, they cannot be acted upon to refuse

development approval unless there is evidence that the proposed use would, measured

objectively, lower the amenity of the locality to an unacceptable level. Such objective

measurement, in my opinion, must have particular reference to national and

international standards for health and safety. Furthermore, in considering the

evidence of the experts in relation to such standards, I accept that it is not appropriate

for this Court to attempt to establish standards of its own. The Court is not the

appropriate forum to assess whether national or indeed international standards are

adequate. Nor is the limited nature of a hearing in a case such as this an appropriate

vehicle for carrying out such assessment. The sole criterion for acceptability must, in

my opinion, be that standard referenced in the Commonwealth statutory instruments

together with the Local Planning Policy. It is not any part of the process of this Court

to determine whether some different or more conservative standard should be adopted

by the responsible authorities.

[62]      I turn, then, to the evidence of the experts as to the health effects of telephone

towers such as that proposed in this case. Dr Black is a registered medical

practitioner and a specialist physician in occupational medicine. He is a founding

director of the New Zealand Institute of Occupational and Environmental Medicine

and senior lecturer at the University of Auckland Medical School. Dr Black’s current

practice is mostly concerned with biological effects of non-ionising radiation, in particular, radiofrequency. He is currently writing a thesis for the degree of Doctor of

Medicine (MD) on the topic of rationale for standards to provide health protection

against effects of ultra-high frequency radiofrequency radiation. He is a Fellow of the

Australasian Faculty of Occupational Medicine and is recognised by his peers in

medicine as a specialist in the area of health effects of radiofrequency radiation. He

has been an active member of the International Commission for Occupational Health

Radiation and Work Committee for over a decade and since 1990 has been a member

of the New Zealand standards committee reviewing the original New Zealand

standard for radiofrequency and also a member of the Joint Australasian Standards

Committee which produced the draft for a joint Australasian standard which was

published as an interim document in 1998. In February 2000 Dr Black was

approached by the Australian Radiation Protection and Nuclear Safety Agency and

asked to become a consultant member of a committee formed to produce a new

standard for Australia. This work is currently in progress.

[63]      Dr Black was asked by the appellant to review the proposal. To this end he

undertook a visit to the site in April 2000. He was provided with technical details of

the transmitting equipment and of the antennas which will be used. He instructed

biophysicists at the New Zealand National Radiation Laboratory in Christchurch to

produce estimates of power flux density levels around the site, with particular regard

to the contours of the land in order to obtain an accurate prediction of power flux

density levels for comparison with relevant standards. Dr Black testified that in

considering the scientific evidence regarding the safety of RF, and the standards

which provide protection for public exposure, it is important to understand that there

is a substantial difference between levels of exposure and the approach to protection in respect of environmental exposure from base stations, such as that proposed for

Closeburn, and from personal use of devices such as cellular phones. In the case of a

base station, the transmitted signal is of extremely low level, even within a few metres

of the site. In the case of a hand-held cell phone which is transmitting, even though

the power output of the phone is very low (below 2 watts and only for one-eighth of

the time) it is held directly against body tissue and therefore there is close coupling

and energy transfer. There is a separate standard for portable devices operated by

aware users, which allows for maximum levels 25 times the environmental standard.

It is accepted that minor biological effects, although not necessarily adverse effects,

may be observed at these levels. No such effects are observed or permitted at

environmental levels which govern installations such as that proposed for Closeburn.

[64]      Dr Black’s evidence in respect of international and national standards may

conveniently be summarised as follows. In 1998 the International Commission for

Non-ionising Radiation Protection (ICNIRP) published their latest guidelines for

limiting human exposure to time varying electromagnetic field across the entire

spectrum from 0-300 GHz. Included in this is the region generally regarded as RF

(3KHz to 300GHz). ICNIRP is an independent scientific body set up under the

mandate of the International Radiation Protection Association (IRPA) which is linked

to the World Health Organisation. Membership of ICNIRP is restricted to scientists

working from an independent academic basis, and the outputs of the committee are

always published in a highly-respected, peer-reviewed biophysics journal, Health

Physics. As a result of following this process all of the outputs of the ICNIRP

committee are themselves subjected to peer review before publication and normal

scientific peer review after publication.

[65]      The 1998 ICNIRP Guidelines are a refinement of the earlier International

Radiation Protection Association Guidelines which were originally published in 1982

and then revised in 1988. The approach of this association is based on providing

limits which can be indexed to biological health effects which are demonstrated by

replicated scientific experiments of conventional methodology. The guidelines take

note of other scientific data, including unreplicated studies, however would not use

these as a basis for standards setting unless there were compelling reasons to believe

that such science indicated a significant departure from orthodox beliefs about

electromagnetic radiation safety or is indicative of a need for an alternative approach

to standard setting. The conventional approach adopted by the association and later

followed by ICNIRP, is to identify the adverse effect which occurs at the lowest level

and to use this effect as a limiting benchmark, usually with an additional safety factor.

[66]      The ICNIRP Guidelines regard tissue heating as a result of RF absorption as

the effect which occurs at the lowest level at frequencies above 10MHz. By ultra-

high frequencies, such as the cell phone bands, this is unarguably the case so the basic

restriction in the standard is based on specific absorption rate (SAR), which is a

measure of the rate at which energy is absorbed into tissue. For general public

exposure the standard with which this proposal by Telstra has to apply is 0.08W/kg

whole body average SAR. The measurement of SAR is complex and difficult. The

only way it is done in practice is to study the actual amount of power absorbed, and

this is done in the context of assessment of cell phone hand sets by using phantoms

which simulate human tissue. For assessment of a radio transmitting site, the

measurement of SAR is both impractical and unnecessary. It is therefore necessary for standards to find a way to provide an equivalent or surrogate measure which can

be readily measured in the field. The ICNIRP approach provides tables of reference

levels which form part of the ICNIRP Guidelines.

[67]      So far as standards in Australia are concerned, an Australian Standard was

developed in1985 which followed the then relatively new International Radiation

Protection Association approach of using an SAR of 0.08W/kg as a basis. However,

the standard deviated from the practice accepted elsewhere in not following a

dosimetric response curve in providing reference levels for power flux density. Thus,

effectively the Australian Standard had two basic restrictions at frequencies about

400MHz, one based on SAR, and another based on power flux density. The only

implication which could be drawn from this, if it was intended, would be that there

was some effect of power flux density levels which was not reflected in SAR, or that

the IRPA approach of estimating the effective SAR as a result of variations in power

flux density was wrong. Dr Black’s understanding is that neither of these arguments

were explored at the original meeting in sufficient detail to provide a reasonable basis

to argue such a position. Attempts were made to revise the standard and bring it into

line with international practice throughout the 1990’s, and in 1999 a new document,

closely aligned with ICNIRP, was put to the vote of a combined Australian and New

Zealand Joint Standards Committee, and approval was defeated. At this time,

Standards Australia made a decision to abandon any attempt at setting a standard for

RF, and shortly afterwards the Australian Standard lapsed.

[68] The Australian Communications Authority (ACA) has responded to this problem by mandating the levels in the old standard and regulations which is now the current situation in Australia. The Australian Radiation Protection and Nuclear Safety

Agency have set up a new expert committee, the RF Working Group, to develop a

new scientific evidence-based Australian Standard and the ACA have also facilitated

the development of another committee to develop a Code of Practice for application

of the standard. Dr Black comments that there is however a lot more work to be done

before Australia will have a new standard for RF. The situation in New Zealand is far

more settled, as the new draft was taken back to New Zealand and approved as a New

Zealand Standard and is now current. Dr Black finds the difficulty experienced in

Australia in developing standards for RF, particularly related to mobile telephony,

extraordinary, given the relative stability and certainty of the science.

[69]      There are well-accepted methods for assessing the thresholds at which

biological effects may occur from exposure of humans to radio-frequency fields.

There is an extensive body of scientific literature over the past 50 years which has

been published in peer review journals and which has resulted in substantial review

documents and recommendations by internationally credible organisations, such as

the World Health Organisation, the International Commission for Non-Ionising

Radiation Protection and the International Radiation Protection Association.

Furthermore, many countries and standards authorities throughout the world have

developed their own standards for radio-frequency exposure based on this underlying

scientific research. Dr Black testified that all modern standards are based on the

context of dosimetry, that is, the scientific methodology of assessing the maximum

amount of power which could be transferred by either induction or absorption, or any

other mechanism, to a human or animal in a radio-frequency field. These

dosimetrically derived standards are presented in the following table:

International Standards for UHF Power Flux Density

[70]      Dr Black, in his evidence, reviewed a number of studies involving the

relationship between RF and cancer. He points out that by far the greatest volume of

research activity about biological effects of EMR in recent years has been the body of

research looking at the idea that RF might cause cancer. This has occurred for several

reasons. Firstly, there has been a high level of interest in cancer research for the last

40 to 50 years. Secondly, according to Dr Black, there is the incorrect but inevitable

association with the genotoxic effects which have been established from

electromagnetic radiation at the upper end of the spectrum where ionisation occurs.

Thirdly, cancer is a disease which is becoming more prevalent and certainly more

conspicuous in the community as the incidence of it increases with age, and Western populations are living longer. In addition, many other diseases are now more readily

cured, controlled or even eliminated, leaving cancer as a major challenge.

[71]      Dr Black explained that studies looking at RF and cancer causation fall into a

number of categories. Firstly there are experimental studies on whole animals, and

experimental studies undertaken on isolated tissue samples in test tubes, which are

known as in-vitro studies. At this level studies can only look for mechanisms, which

if found, could provide support in terms of biological plausibility for any effect which

was observed in whole animal studies. Then there are human cohort and case control

studies. There is also a number of epidemiological studies. Dr Black stated that the

latter two groups have been thoroughly reviewed in a paper published in 1999 by

Professor Elwood which Dr Black considers to be a thorough and detailed analysis of

the science to 1998 by an acknowledged expert in the area. Dr Black notes that this

review by Professor Elwood concludes that there is no substantial evidence for a

relationship between human exposure RF and cancer, despite the existence of a

number of studies, some quite detailed and reasonably powerful.

[72]      Dr Black concludes that there can be no doubt that the balance of the scientific

evidence argues against a conclusion that radio-frequency emissions are either a cause

or a promoter of human cancer. Dr Black concedes that some of the studies which

have been published do have some limitations as a result of generally weak design,

with poor quantification of exposures and often a lack of adequate controls for

confounding. However, Dr Black considers that the best of the studies, such as Dolk

et al and Morgan et al are negative and the hypothesis that RF might cause cancer is

not supported by any other criteria such as biological plausibility.

[73]      The Dolk studies resulted from an observation made by general practitioners

in Sutton Coldfield that there seemed to be a local excess of cancer in an area which

was in proximity to a large radio and television transmitting tower. Although the

existence of the excess was shown to be true, it was known that such excesses can

occur by the mechanism of chance variation, in which case they are known as

“clusters”. Dr Black states that the existence of a cluster in itself proves nothing.

However, it can be used as a launch pad to provide an hypothesis for a further study.

This was done in this case, and Dr Helen Dolk and her colleagues found that there

were over 20 similar transmitter sites throughout Great Britain which, together with

UK cancer statistics, provided a readily accessible source of data. Dr Black considers

that these studies are ecological studies and are therefore of relatively low power.

Nevertheless, the result of the second larger study was that the results in the first study

could not be confirmed and so it was concluded that the findings in Sutton Coldfield

were a true cluster thus indicating that no further investigation was warranted.

[74]      The Morgan et al study is considered by Dr Black to be of particular

importance. This is a study of mortality in American Motorola employees. The study

looked at large numbers of workers (19,775) and Dr Black considers that the study

was well designed and executed. The Motorola employees had worked for the

company between 1976 and 1996 and their mortality (death rate) was studied up until

1996. Each individual’s exposure to radio frequency was categorised into four groups

which were described as background, low, moderate and high. The study, in Dr

Black’s view, correctly compared the rate of mortality to that of the wider United

States population. The average age of the workers was relatively young, and nearly half were women. The mortality ratio for all causes was 0.66 and for all cancers,

0.78. This is lower than the overall rate for the population because it reflects the

“healthy worker effect” which is a well-known phenomena in epidemiology which

occurs when studying a population of workers which are generally more healthy than

the overall population. Dr Black points out that the Morgan et al study did not

identify any overall excess of death, nor did it give any indication of a dose response

relationship based on the job categorisation of RF exposure. Dr Black considers that,

overall, this is a negative study which substantially adds to the weight of evidence that

RF does not cause cancer.

[75]      Dr Black further referred to a number of studies which have looked at the

possibility that radio frequency exposure may have an adverse outcome in females

who are exposed in occupational settings. Dr Black believes that although these

studies are not directly relevant to the much lower exposure environment from a

community cellphone based station, these studies are interesting in the overall

assessment of RF safety and in standard setting. Groups of female workers who may

have particularly high exposure to RF include physiotherapists who have at times

used diathermy units which use short waves or microwaves for tissue heating, and

plastics workers who use RF for plastic welding. The studies arise from Sweden,

Denmark, Finland and the USA. Dr Black states that the studies have been analysed

in detail by a number of reviews, including ICNIRP and that they show very little

consistency in their results. If there were real mechanisms of disease causation,

contends Dr Black, given that the nature of the exposures are quite similar (all being

physiotherapists), a pattern would be expected to be evident. In addition, the

techniques for determining pregnancy outcomes and exposure are all very similar,

which would be expected to increase the precision of the study. Dr Black’s conclusion is that, taken as a whole, this particular body of research fails to identify

any clear association between antenatal EMF exposure and either congenital

malformations or spontaneous abortions. As a result of this, the data has not been

taken as definitive in determining standards by ICNIRP.

[76]      Dr Black’s evidence also encompassed the United Kingdom independent

expert group on mobile phones (Stewart) report. This report was released in May

2000 and is a comprehensive report of a committee chaired by Sir William Stewart.

The committee had been formed by the British government to establish an

independent expert group to examine possible effects of mobile phones and base

transmitter stations on health. The group undertook broad consultation with

community and industry groups as well as undertaking an evidence-based review of

contemporary scientific literature. Dr Black states that overall the report points out

that the balance of evidence does not suggest that mobile phone technology has put

the health of the general population of the UK at risk. Dr Black notes that the report

does acknowledge that “There is some preliminary evidence that outputs from mobile

phone technologies may cause, in some cases, subtle biological effects although

importantly, these do not necessarily mean that health is affected”.

[77]      Dr Black states that the Stewart report undertakes a detailed review of current

scientific evidence and accurately portrays the peer reviewed conclusions of the vast

majority of data which had been published up until early 2000. One of the

recommendations of the Stewart report is that the UK adopt the ICNIRP guidelines.

Dr Black considers that there are some important points to note from the

recommendations of the Stewart report, insofar as they may be applied to the situation in Australia. It should be remembered that Australia already uses an ICNIRP based

standard, based on a specific absorption rate of 0.08W/kg which is identical to the

ICNIRP guidelines to which the UK is being encouraged to change.

[78]      The Stewart report also canvasses the idea of imposing a lower standard than

that provided by the ICNIRP exposure guidelines. However, the report acknowledges

that there is no satisfactory scientific basis on which to set the size of any increase of

protection. The report suggests that, “An alternative would be to adopt the exposure

guidelines recommended by ICNIRP and in addition have a policy that requires best

engineering practice for equipment and installations that ensures that fields are kept to

the lowest levels commensurate with the telecommunications system operating

effectively. We believe that this approach is preferable”. Dr Black’s view is that this

precautionary approach is precisely what is being done in Australasia and that the

[112]    Dr Cherry, it will be recalled, has referred in his evidence to radiofrequencies

having an effect on melatonin. The Stewart report states:

· “5.99 (Melatonin) Although few studies have been conducted, they do not suggest that exposure to RF fields affects pineal function or melatonin production. Relevance to the use of mobile phones could, in any case, be assessed only through laboratory studies of people because of species differences in the pattern of circadian rhythms. It must also be emphasised that the hypothalamus and pineal gland are much further from the surface of the head in people than in animals. Therefore, even if there were an effect on melatonin production in animals resulting from a direct interaction of fields within the brain, it would be much less likely to occur in people.”

[113] Professor Elwood concludes, in relation to these scientific studies, that

although there is considerable discussion and some results which warrant further

exploration, the results show no confirmed effects of radiofrequencies on cellular

metabolism or genotoxicity.

[114] Contrary to Dr Cherry’s conclusion that local workers and residents in

properties to the east of the site will be placed at risk of advanced serious health

effects if this site is approved, Professor Elwood considers that the scientific evidence

does not indicate that health effects will occur at the very low levels of exposure

which will occur around this site, and does not support Dr Cherry’s conclusions.

Professor Elwood also does not support Dr Cherry’s conclusion that cell sites are

raising the exposure to radiofrequencies to levels which are known to cause serious

adverse health effects. In Professor Elwood’s view this is not shown by the scientific

evidence.

Professor Elwood further considers that the available scientific evidence does not

support Dr Cherry’s conclusion that such health effects will include miscarriage,

cancer, heart attacks and neurological diseases and to reduce these risks public

exposure must be limited to less than 0.1 microwatts per square centimetre. Professor

Elwood considers that his opinion is supported by extensive reviews recently carried

out in the United Kingdom and in Canada.
The available scientific evidence, in Professor Elwood’s view, does not show any

adverse health effects from radiofrequency exposures at the levels calculated by Dr

Black in relation to the proposed mobile phone tower.

[115]    Before leaving the evidence of the experts in this area, brief mention should be

made of a review of a report by Dr Cherry entitled Criticism of the Health Assessment

in the ICNIRP Guidelines for Radiofrequency and Microwave Radiation (100kHz-

300GHz). Dr Cherry, in his report, stated that an independent scientific assessment of

the ICNIRP Guideline for limiting public exposure to RF/MW radiation shows that it

should not be adopted for several strong reasons:

· Public health standards should be based on public health studies, i.e.

Epidemiology – and not thermal basis.

·	The ICNIRP Guideline is based on established or proven effects, whereas
New Zealand law, the Resource Management Act, is based on potential
effects and epidemiological evidence (a potential effect of low probability
which has a high potential impact).
·	The assessment of effects in the 1998 ICNIRP statement is seriously and
systematically scientifically flawed by the misuse of the research cited.
·	The ICNIRP assessment ignores the large volume of epidemiological and
biometeorological studies that do show adverse health effects.

The review of Dr Cherry’s report was carried out by Dr Bates at the request of the

New Zealand Ministry of Health. Dr Bates focused in his review, on Dr Cherry’s

assessment of cancer epidemiology studies and their implications. In particular, Dr

Cherry’s evaluations of nine cancer epidemiology studies concerning possible exposure to radiofrequency fields were critically examined. The review found that Dr

Cherry’s critique revealed an apparently limited awareness of the potential for bias

that rendered most of his re-analyses and re-interpretations of studies invalid, or at

least highly suspect. It was not possible for Dr Bates to pass an authoritative

judgement on the other, non-epidemiological, aspects of Dr Cherry’s paper.

However, Dr Cherry’s main basis for recommending a much lower level of exposure

to radiofrequency fields than did ICNIRP was his re-interpretation of the

epidemiology studies. Dr Bates felt that, generally speaking, the other material in Dr

Cherry’s paper seemed to be present mainly to buttress the conclusions derived from

the re-evaluation of the epidemiology studies. Dr Bates concluded that he could not

recommend that Dr Cherry’s critique of the ICNIRP Guidelines be accorded weight in

determining the final shape of the guidelines being drafted for the New Zealand

Ministry for the Environment in partnership with the Ministry of Health for managing

the health effects of radiofrequency transmissions. I should indicate that Dr Bates is

not the only expert to be critical of the methodology adopted by Dr Cherry. Both Dr

Black and Professor Elwood have also commented adversely on Dr Cherry’s selective

consideration of data produced in the reports of others and his re-interpretation of that

data to reach a contrary conclusion to that reach by the authors themselves in reports

which have been peer-reviewed and published.

[116]    The Court is extremely grateful for the care with which the expert witnesses

have presented their evidence in this hearing, regardless of their ultimate conclusions

as to the desirability of approving the subject proposal. I am, of course, completely

satisfied that the expert witnesses gave their evidence honestly and that they were at all times conscious of their responsibilities. In assessing this evidence it is important

to bear in mind that there is international agreement by responsible scientists in the

ICNIRP Guidelines that exposure to less than 450mW/cm2 is very likely to be safe.

Furthermore, I must have regard to the standard mandated by the Australian

Communications Authority under section 162 of the Radiocommunications Act 1992.

That standard adopts the standard set in AS2722.1 (Int) 1998 of 200mW/cm2. That

standard was recommended by the body set up by the Federal Government to regulate

the radiocommunication industry and was specifically made under the requirements of

section 162 of the Act. Thus, the Australian Communications Authority was required

to have regard to the provision that standards are to consist only of such requirements

as are necessary or convenient for, inter alia:

“(f)

Protecting the health or safety of persons who:

(i)	operate radiocommunications transmitters or radiocommunications receivers; or
(ii)	work on radiocommunications transmitters or radiocommunications receivers; or
(iii)	use services supplied by means of radiocommunications transmitters or radiocommunications receivers; or
(iv)	are reasonably likely to be affected by the operation of radiocommunications transmitters or radiocommunications receivers.” (Section 162(3)(f)).

Before making a standard the Australian Communications Authority is required to try

to ensure, so far as is practicable, that interested persons have had adequate

opportunity to make representations about the proposed standard (either directly or

indirectly by means of a report) and that due consideration has been given to any

representations so made. (Section 163(1)).

The object of part 4.1 of the Act which relates to standards, is to establish an efficient

flexible and responsive system for technical regulation of equipment that uses, or is effected by, radio emissions. The system is intended to, inter alia, protect the health

and safety of persons who work on, use or are reasonably likely to be affected by

radiocommunications transmitters or receivers. (Section 155).

[117] The standards made by the Australian Communications Authority are

mandatory and imposed by Federal legislation and must be complied with by Telstra.

In these circumstances, I accept that the mandated standard should be given great

weight by the Court and that 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. Ultimately,

notwithstanding the conflicting evidence as to what may or may not be an appropriate

standard, it is probable that the levels of RF/MW expected to be produced as a result

of this proposal, are sufficiently low as to satisfy the concerns of all the experts,

including, perhaps, Dr Cherry. I reach this conclusion, having regard to the evidence

of Dr Black as to the maximum exposure level to which any person could reasonably

expect to be exposed by the proposed tower. Because this evidence was really

unchallenged and uncontradicted by any sworn testimony to the contrary, I am

confident in accepting it. The passage of evidence to which I refer, as it appears in the

transcript, is in the following terms:

“MR RACKEMANN: In terms of the power flux density contours that we see
in the – in your report-----?-- Mmm.

-----what then is the maximum exposure level at which any person could reasonably expect to become exposed? Is it one or less than one or something else?-- It’s certainly less than one. I’d point out that that would include – this is in line with most ICNIRP based standards and it would include, for example, somebody standing on their roof because that is somewhere – so that is a point at which somebody could reasonably be exposed but it wouldn’t include somebody in a hot air balloon or on a cherry picker or something like that. So, any position on somebody’s property where they could reasonably be exposed would have to be covered and, in my interpretation of the proposals at Closeburn, that level would be less than one microwatt which is less than one 200th of the Australian standard although, as I have said, the correct number really is the ICNIRP number of 450, so it’s actually less than one 450th of the-- ---

HIS HONOUR: How much less than one?-- I would say at a guess, sir, usually much less than a tenth of one. In my experience of a site like this, the levels on the ground, particularly down the hill a bit from it, would be getting to be in tenths or hundredths of a microwatt which they would actually be-----

Well, that would satisfy Dr Cherry, wouldn’t it?-- Well, sir, I don’t wish to give credibility to Dr Cherry’s standard because Dr Cherry’s standard has no proper basis in science, so-----

No, but leaving that aside-----?-- Yes.

-----the level he’s advocating and the level you’ve just mentioned would seem to be rather close to each other?-- Yes, sir, but then it would be a matter of if there were to be a standard of, say, .1, then it’s a matter of how you would apply that standard in terms of – generally a standard is something which is a maximum, taking any possible exposure into account and taking factors like reflections and things like that into account. So usually you are – in terms of complying with a standard you are in a – if I’m asked to give an opinion as to whether something complies, I like to see it comfortably below it. So I think Dr Cherry’s level is more set at about what levels generally turn out to be, and I think that’s a problematical way to set a standard.

MR RACKEMANN: Could I just take you to Exhibit 26 which-----

HIS HONOUR: See, I am not concerned in this case with setting standards?--
Mmm.

My concern in this area is simply to make some assessment as to what the likely level of exposure is and to form a view as to whether or not that’s acceptable in all the circumstances?-- Yes, sir.

Now, from what you say, it seems that you’re positing an exposure level of considerably less than one-----?-- Yes, sir.

-----and perhaps even as low as .1?-- Oh, well, sir, I think that in practice the levels on people’s properties will be a lot less than .1 because this, of course, is based on double the power that Telstra propose to build and also with everything on which there usually won’t be. So that on a day-to-day basis, the levels on people’s properties will be much less than .1 but I must emphasise, sir, that I would be – I’m no more comfortable with that than I would be if they were 10 or 50 because, to me, they are equally safe. So I wouldn’t like to make any sort of merit – apply any merit to the fact that they’re so low because I am certain they’re quite safe if they’re higher but the fact is – your Honour is quite correct, they are. As it happens, they are, they’re low. I mean, to give some perspective on it, the sort of instrument that would routinely be used for doing radio frequency safety assessments, a NADA radiometer, would probably not work there. Most of the levels around that site would be off the bottom of the scale because a NADA radiometer is interested in assessing levels for compliance with standards and of course up to occupational levels and those levels would be too low to detect, and I think that just perhaps goes to illustrate – I mean, the fact is cell phones are really very sophisticated receivers which do operate at extraordinarily low levels of energy.”

[118] I do not overlook that, in his cross-examination of Dr Black, Mr Taylor, by

referring to the various conservative allowances that Dr Black had made, attempted to

have Dr Black agree that a person in the vicinity of the proposed tower could be

subject to more than 0.1mW/cm2 . However, while Dr Black was prepared to concede

that in making all the conservative allowances that he had made, it could appear that a

person could be so exposed, he maintained his evidence that in a real situation it

would be surprising were anyone to be exposed to a level greater than 0.1mW/cm2 .

[119]    Although I have come to the view that Dr Cherry’s opinions, as expressed in

the evidence before me, are to be regarded as not generally accepted by the majority

of experts in the field, I do not entirely disregard his views. Human experience, after

all, has demonstrated that from time to time minority scientific and medical opinion

can become mainstream opinion within a relatively short period of time.

Nevertheless, I am confident that the generally currently accepted mainstream views

of such experts as Dr Black and Professor Elwood should be preferred in this case. In

any event, I am satisfied that the levels of RF/MW likely to be produced by the

proposed facility are so low that even Dr Cherry and those who support his views,

should be hesitant to express concern at potential adverse health effects in this case. I

recognise that my preference for the views of Dr Black and Professor Elwood rather

than those of Dr Cherry is unlikely to completely appease the strongly held concerns of the co-respondents. I acknowledge that no guarantees have been or can be offered

by the experts in relation to potential health effects likely to result from approval of

this proposal. However, ultimately, on the evidence before me, I conclude that there

exists no reason, based on health effects from the proposed facility, that would

warrant dismissal of this appeal. In my opinion, the New Zealand Environment Court

in Telecom New Zealand Ltd v Christchurch City Council (unreported decision of 15

November 1996) correctly summarised the function of a Court in a case of this nature: “It would be wrong in principle for the Court to fly in the face of that body of accumulated knowledge merely because it is not yet possible to demonstrate beyond any doubt that this technology is safe. No human activity can go forward on that basis and it would be a misuse of our discretion to reject this application by approaching the matter in that way. Our clear obligation is to evaluate the evidence, satisfy ourselves, as far as we are able, that the methodology and factual basis for the view currently held by the scientists carries conviction, and having done that then to take those matters into account in considering the overall exercise of our discretion… ”.

[120]    As I have indicated, it is, in my view, inappropriate for this Court to approach

the health issue on anything other than the basis of the nationally mandated standard

which is made directly applicable to town planning considerations by the Local

Planning Policy which applies in the respondent Shire. It is the case that I have

permitted evidence to be adduced by the parties which looks behind the nationally

mandated standard and internationally accepted standards. That evidence, particularly

from Dr Black and Professor Elwood, establishes clearly enough that those standards

have gained broad acceptance, are soundly based, incorporate wide safety margins

and afford adequate protection to the public.

[121] The precautionary principle, as expressed in the Integrated Planning Act,

applies in the case of threats of serious or irreversible environmental damage. Having

accepted the evidence of Dr Black and Professor Elwood, I am satisfied that no such threat exists in this case. McLauchlan QC DCJ in Sol Theo v Caboolture Shire

Council (unreported decision of this Court dated 14 September 2000) has previously

noted that the precautionary principle is not concerned with bare possibilities of such

damage, but situations where such damage can reasonably be said to be threatened.

Even where the principle applies, it requires careful evaluation “to avoid wherever

practicable serious or irreversible environmental damage including, if appropriate,

assessing risk-weighted consequences of various options”. Having regard to the wide

safety margins incorporated by the relevant Standard and that the proposal is so

located that the potential emissions are a fraction of that Standard, thus increasing the

safety margin, and also bearing in mind that the facility will operate by varying its

output to ensure that only the minimum power is used at any time, I conclude that a

precautionary approach has been satisfied in this case, even although the

circumstances requiring its application may not have been established.

[122] There remain for consideration, with regard to the effects on health of the

proposed tower, the views of the residents relating to fear and stress caused by their

perceived vulnerability to radiofrequency microwaves. Having regard to the very low

predicted levels of the facility together with the wide safety margins contained within

the relevant standards, the fears of the co-respondents must be regarded as

unreasonable. I do not, of course, characterise the residents’ fears as irrational and I

am not to be taken to be indicating that fear should not be taken into account in

assessing the aspect of health. However, given my acceptance of Dr Black’s evidence

that it would be surprising if exposure exceeded 0.1mW/cm2 at any point and that the

level mandated in the referenced Australian Standard is the 200 microwatt standard, I

am not prepared to place any substantial weight on the expressed fears of the residents. The predicted exposure levels in this case are less than one 200th of the

relevant standard. Those levels should be viewed in the context of the extraordinarily

conservative modelling exercise conducted by Dr Black in which:

(a) Power levels were determined assuming the maximum number of users

over the lifetime of the pole and then doubling that figure;

(b) The tower was assumed to be operating at its full power whereas, in

reality, such facilities generally operate at only about 25 per cent;

(c)	The maximum down tilt of antennae was assumed;
(d)	No power losses were assumed.

Against this background, although I do not believe the co-respondents’ fears to be

irrational, I do consider that the co-respondents have failed to assess the proposal

reasonably. Their concerns simply cannot be sustained in the light of the evidence of

Dr Black and Professor Elwood (which I have accepted), that the safeguards built in

to this proposal are far more stringent than has been shown to be necessary. The co-

respondents’ contention, in line with Dr Cherry’s view, that a limit of less than

0.1mW/cm2 be adopted is simply not a view which has been adopted by those charged

with the responsibility for setting standards for public health and safety in this

country. Dr Black and Professor Elwood, whose levels of expertise and experience in

these matters compare favourably with those of Dr Cherry, do not support the view

that “The no adverse effect level is zero exposure”.

[123]    I have formed the view that it would be inappropriate for the proposal to be

rejected on health grounds, given that it has a maximum output which is so

comfortably within the Australian and international standards and in particular, the standard which the planning policy mandates “In order to address community

concern”.

[124]    I therefore order that the appeal be allowed and that the approval be subject to

additional appropriately worded conditions requiring a maximum height of 30 metres

for the tower, and compliance with relevant noise standards in respect of the domestic

air conditioning unit associated with the equipment hut and appropriate maintenance

of the access track. Furthermore, there should be included a condition requiring the

reasonable provision of trees by the appellant to Mr Walker for screening purposes. If

the parties are unable to agree on the appropriate wording for these conditions, the

matter may be brought on again before me in due course. Mr Walker expressed a

desire to have the relevant contour at the proposed site enshrined in a condition.

However, in the absence of any evidence to suggest that the contour map is

inadequate, such a condition would seem unnecessary.