Vertical Telecoms Pty Ltd v Hornsby Shire Council

[2000] NSWLEC 172

Land and Environment Court

of New South Wales

CITATION:	Vertical Telecoms Pty Ltd v Hornsby Shire Council [2000] NSWLEC 172
PARTIES:	APPLICANT Vertical Telecoms Pty Ltd RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	11149 of 1999
CORAM:	Sheahan J
KEY ISSUES:	Development Consent :- transmitters - consent orders - objectors - precautionary principle
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Hornsby Local Environmental Plan 1994
CASES CITED:	Jarasius v Forestry Commission of NSW & Ors [No.1] (1990) 71 LGRA 79; Leatch v NPWS & Anor (1993) 81 LGERA 270; Newton v Wyong Shire Council (6 September 1983); Sydney Serviced Apartments v North Sydney Municipal Council [No.2] (1993) 78 LGERA 404
DATES OF HEARING:	01/08/2000
DATE OF JUDGMENT:	08/10/2000
LEGAL REPRESENTATIVES:	APPLICANT Barrister Mr B J Preston SC Solicitors Turnbull Hill Lawyers RESPONDENT Solicitor Mr Ian Woodward

JUDGMENT:

IN THE LAND AND Matter No: 11149 of 1999

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 10 August 2000

VERTICAL TELECOMS PTY LTD

Applicant

v

HORNSBY SHIRE COUNCIL

Respondent

JUDGMENT

Introduction

1. This is a class 1 development appeal which has been settled between its parties, and it was listed before me for the making of “ consent orders ”.

2. Some of the original objectors to the development are unhappy that the Council has agreed to the making of such consent orders, and have exercised their rights to attend court and express their concerns.

3. The applicant called expert evidence in response, and the court undertook a site inspection.

4. The applicant and the Council, after hearing the evidence of the objectors and the experts, and having the site inspection, reached a final agreement on a form of orders, save as to costs, and on conditions of consent. Exhibit C14 has overtaken Council’s first set of draft conditions ( Exhibit C3 ) and the applicant’s suggested amendments ( Exhibits V12 and V13 ).

The Development Application

5. The applicant lodged DA 1968/99 and associated plans in August/September 1999, with the apparent consent of the owner of the subject site, the Wireless Institute of Australia (NSW Division).

6. The DA sought approval for the “ installation of antenna (sic) on existing tower for digital television ” at 63 Quarry Road, Dural. It appears that mounting brackets have already been fitted to the tower to accommodate three additional parabolic “ dishes ” (digital microwave antennas).

7. The applicant also sought, as part of this DA, approval for the installation of a diesel generator as a “ power backup ”. ( Exhibits V8 , and V10 p2).

8. The relevant tower at No.63 is 76m high, and of lattice steel design. It was constructed pursuant to Council’s approval of DA 413/91 on 2 January 1992 (see Exhibit C6 p105 ff). The applicant owns the tower (and relevant associated buildings) and leases access to space on it - in this instance to free-to-air regional television broadcasters NBN Limited (trading as “ NBN Television ”), and the associated Soul Pattinson Telecommunications Pty Ltd (“SPT”) which, as a licensed telecommunications carrier, owns the subject antennas.

9. NBN is required by a Commonwealth Act of Parliament to introduce digital television broadcasting to its defined market region between 1 January 2001 and 2004, and SPT is constructing a digital communications network to meet NBN’s purposes and other regional communications objectives. That network originates and terminates in Sydney and Brisbane and operates by way of transmitter sites on hilltops.

10. Michael Simmons is company secretary of NBN and general manager of SPT, “ both of which are subsidiaries of Washington H Soul Pattinson Pty Ltd ”, and he provided an unsworn statement ( Exhibits V10 and V11 ) which relevantly made, inter alia, the following points:

· “ The nature of microwave transmission is that a signal can only be transmitted a distance of approximately 50kilometres before it needs to be repeated or regenerated ”.

· The Dural area is proposed as a suitable site for one such “ repeater ”.

· “ In practical terms the nature of the transmission is similar to a laser beam in that it is a thin beam transmitted point to point at the height at which the antennas are placed on the tower. The maximum variation of that beam is generally the diameter of the antennas. The greater the diameter of the antenna the greater the distance between repeated sites. The purpose of the antenna is to capture any slight variation in the beam that may occur. This variation is generally caused by climatic conditions”.

11. It is common ground that the proposal is permissible with consent, in accordance with Hornsby Shire Local Environmental Plan 1994 ( Exhibit C5 ), under which the subject site is zoned Rural B, and that it also complies with the interim Rural Lands Development Control Plan.

12. The Quarry Road ridge is said to be “ one of the highest points above sea level in the Sydney basin ” ( Exhibit C11 p3). Those geographical attributes which make it a desirable location for rural-residential living also make it a desirable location for towers such as those involved in this case.

13. There are already several other towers in reasonably close proximity to the subject tower, located as it is in an area of generally 5 acre rural residential settlement and development, and “ the increase in visual impact … is minor in relation to the height, bulk and scale of the existing tower ”. (Council officers’ assessment at Exhibit C6 p16).

14. Other towers in the vicinity include:

· a 39m wireless tower on No.63 Quarry Road, adjacent to the subject tower

· a concrete tower for mobile telecommunications on No.61 Quarry Road

· two lattice-design towers on the Telstra site at No.52 Quarry Road

· a 52m steel lattice-design tower north of the Quarry Road area in Mitchell Road, Dural.

15. One of this proposal’s three “ dishes ” has a diameter of 2.4m, and the other two each have a diameter of 3.0m. Two will operate as transmitters and one as a receiver. The 2.4m dish will be installed at a height of 36.4m and the other two (larger) dishes at heights of 21m and 32.6m.

The Council’s position

16. Council’s policy is generally opposed to “ the siting of telecommunication towers and associated facilities within 300 metres of any residents, hospitals, schools, places of worship etc ” in order to “ protect and maintain the visual amenity and public health of areas in the vicinity… ”. ( Exhibit C6 p60).

17. The Council also generally prefers co-location of equipment on an existing tower to the erection of additional towers ( Exhibit C6 p60).

18. The Council considered the DA at its meeting of 3 November 1999 , when it had before it a favourable recommendation from its officers, and 18 suggested conditions of consent ( Exhibit C6, items 2/3, pp 15-61). The only “ non-compliance ” noted was the location of the nearest dwelling 75m (cf 300m) from the tower.

19. The papers submitted to Council included an “ Electromagnetic Radiation Hazards Site Survey ”, prepared for the applicant by Mr R T Garrett of EMC Services Pty Ltd on 7 October 1999 ( Exhibit C6 pp 30-36), together with photographs, maps and photomontages.

20. Mr Garrett’s report is quoted in the Council Officers’ report ( Exhibit C6 p 22, taken from p 31) as concluding that:

The measured levels of electromagnetic radiation in the grounds of the WIA and at the adjoining properties were less than 0.15% of the limits set by the Australian Standard on Radiofrequency exposure levels AS 2772.1, and complies with the recommended radio frequency exposure safety requirements. The change due to the addition of the proposed microwave links will be imperceptible.

21. Garrett’s assessment itself ( Exhibit C6 p 34) concluded:

No danger is presented to either the nearby residents or to staff occupying the above areas. There is no prospective danger from the microwave links proposed for installation even in close proximity to their antenna(s).

22. The Council officers’ report also dealt with the Australian Standard (AS2772.1), referred to by Garrett, and acknowledged ( Exhibit C6 p20):

· “… there is no conclusive scientific evidence that these facilities are public health hazards ”.

· “… the total radio frequency output power, of all the transceivers including the proposed development, when operating at full power, satisfies the requirements of the … Standard … ”, which “ has been adopted to form the basis of the … mandatory standard for telecommunication facilities ” by the Australian Communications Authority.

23. Council and/or its officers also had before them as part of the DA documentation a certificate by James Morgan of Broadcast Communications Ltd (“BCL”), dated 24 June 1999, in these terms ( Exhibit C6 p8):

The antennas will radiate the power principally in one direction but a very small amount will be radiated in other directions. The closer to the antenna, the higher the intensity of the radiation. For distances beyond the antenna opening (in the radiating near field zone and beyond), the intensity of the radiation flux density is entirely described by the radiation flux density (power per unit area).

For this frequency band AS2772.1 1998 (Int) stipulates the maximum public exposure level of 200 W per square cm. This level is not exceeded anywhere outside the rim of the dish.

The maximum radiation flux density beyond the rim of the dish is 32 W per square cm (for 6.7GHz) and 25 W per square cm (for 5.0GHz).

However, its likely that these levels would be exceeded near the feedpoint of the dish and therefore people should not be allowed inside the dish while its in operation.

24. The Council resolved to refuse consent, and its 10 November 1999 notice of determination stated the following grounds ( Exhibit C6 p63):

1. The applicant has failed to provide sufficient documentary evidence to substantiate their claims that there are no adverse health impacts.
2. The proposal may cause significant adverse social impacts due to the uncertainty regarding health impacts.
3. The applicant has failed to provide evidence of pursuing alternative locations or potential co-locations with other future digital network users.
4. The proposal may lead to accumulated health impacts due to the increasing number of facilities and close proximity to residents.
5. The loss of amenity from visual impact.
6. The approval of the proposal would not be in the public interest.
7. The cumulative impact of the tower and its facilities with regard to objectives (a) and (b) of the Rural B Zone.
(a) To encourage the preservation of existing or potentially productive agricultural land.
(b) To provide for a range of compatible land uses which maintain the rural environment of the area.

25. The applicant lodged this appeal on 30 December 1999 . On 9 March 2000 the appeal was set down for hearing on 1-3 August 2000.

26. In preparation for the hearing, Council obtained independent expert reports from specialists in electromagnetic radiation (Dr Bruce Hocking), and the health effects of radio-frequency radiation (Mr Ian McFarlane).

27. Dr Hocking’s report to Council (see Exhibit C8 ) stated:

The proposed radiations from the parabolic antenna will be highly directional with little divergence of the beam. (It is like a search light). This beam will pass over Mr Pizzet’s and/or Clinton’s house at a height of at least 50m. The calculations show that the intensity of the field outside the beam created by the parabolic antenna will be negligible and I concur with this. Therefore I conclude the radiation from the parabolic antennae will not add measurably to the RFR already incident on their houses, and hence to increase the public health risks.

28. Council’s solicitors ( Exhibit C8 ) summarised Mr McFarlane’s conclusions as follows:

Mr McFarlane in his report to Council also concluded that the additional parabolic dishes would not increase radiation significantly nor would the increase in radiation result in a level above the Australian standard. Mr McFarlane indicated that the absolutely worst case estimate of increased maximum electromagnetic radiation in publicly accessible areas caused by the proposed addition of the parabolic antennae to the main tower indicates that the maximum possible exposure levels will be more than 220 times below the exposure limits of the former Australian standard.

29. Council then resolved on 19 July 2000 to conclude the applicant’s appeal by the making of “ consent orders approving the development subject to conditions ”, and notified the court and the objectors ( Exhibit C8 ) accordingly on 25 July 2000.

The objectors

30. As noted above, at least some of the objectors maintain their opposition to this proposal, and Council called five of them to give oral evidence. Several of those, or their partners, accompanied the court on the inspection of the site and near environs ( Exhibit C9 ).

31. Mr and Mrs Mettam reside at 53 Quarry Road, slightly north-east of the Telstra installations, and west of the subject site. Mr Mettam gave oral evidence, not only on behalf of himself and his wife, but also as the official spokesman for the Quarry Road Action Group ( Exhibit C10 ). The court has also examined their written materials ( Exhibit C11, Exhibit C6 pp 72-3, 96-104). Mrs Mettam attended the site inspection. They have lived at No.53 for 22 years, and have children aged 18 and 15.

32. Mr and Mrs Pezet reside at 67 Quarry Road, which is effectively adjacent to and immediately east of the subject site. Mrs Pezet gave oral evidence, and Mr Pezet attended the site inspection. The court has also examined their written materials ( Exhibit C13, Exhibit C6 pp 65-68, 78-81; see also pp 69, 89-95). They have lived at No.67 for 11 years, but are most anxious to sell their house because of an unfortunate illness suffered by Mr Pezet.

33. Mr John Clinton resides at 65 Quarry Road, which is a battleaxe block, north and directly downslope of the subject site. He gave oral evidence and attended the site inspection. He has lived there for 10 years and has one son, aged 21. The court has also examined his written materials ( Exhibit C6 pp 74-77; see also pp69, 89-90).

34. Mr Terry Birchall resides at 69 Quarry Road, east of the Pezets. He has lived there for 13 years, and has 4 sons aged between 16 and 23 years. He submitted an objection, which cannot be found, but gave oral evidence, and presented a written statement ( Exhibit C12 ).

35. Mr Peter Mudie gave oral evidence, but made no written objection or statement. He lives on the Telstra side of Quarry Road (No.80), and presented as a highly qualified structural engineer, recently retired due to ill health. He expressed personal concerns about the safety of the tower under the additional weight of the proposed dishes, and about the health effects of wave transmissions generally.

The issues

36. The Statement of Issues ( Exhibit C2 ) filed 9 March 2000 raised the following matters:

1. Whether there is sufficient evidence for a Consent Authority to substantiate that there will be no adverse health impacts as a result of the proposed Development.
2. Whether there will be a detrimental social impact due to the uncertainty regarding the health impacts of the proposed Development.
3. Whether authorised consent has been given by the owner of the land to the Development Application.
4. Whether the diesel generator required for the effective operation of the proposed Development will have detrimental impact in terms of vibration and noise.
5. Whether the proposed Development has the potential to lead to accumulated health impact due to the increasing number of facilities in the immediate area related to the proximity of the local residents.

6. Whether there will be a detrimental impact upon the visual amenity of the area.
7. Whether the cumulative impact of the tower and its proposed facilities meet the objectives:
(a) Of the Rural B zone of the Hornsby Shire Local Environment Plan 1994 namely:
(i) To encourage the preservation of existing or potentially productive agricultural land
(ii) To provide for a range of compatible land uses which maintain the rural environment of the area.

37. Mr Clinton was concerned also about what would happen if the microwave beam were diverted towards a residence or a person through some misadventure, and about vibration caused by the generator and transmitted to his property through the rock shelf (Issue 4).

38. Mrs Pezet seems to be the closest resident, and was particularly sensitive to health risks, and the impact, not only on property values, but on prospects of sale generally, given her personal need to relocate urgently. She presented expert real estate advisings to support her concern ( Exhibit C13, and Exhibit C6 p90-95).

39. Mr Mettam and his Action Group have a wide range of concerns ( Exhibit C11 ) including the way the Council, the applicant, and owner of the site, have dealt with the residents regarding this tower over the years. He raised some technical “ flaws ” he saw in the DA, but was especially concerned about the wide range of “ cumulative effects ” of the proliferation of electronic equipment in the local area - not only health effects, but maintenance visits, etc. He urged the court to apply the “ precautionary principle ”, as enunciated, for example, by Stein J in Leatch v NPWS & Anor (1993) 81 LGERA 270, and discussed by His Honour in a recent article [2 Env.L.Rev.1].

40. Mr Birchall was also concerned about cumulative effects, the precautionary principle, and the credibility of past dealings regarding the subject site.

Consent orders, conditions, and costs

41. Council wants the development approved on conditions, but with “ no order as to costs ”. Mr Preston SC, for the applicant, reached agreement with Council’s solicitor regarding the orders in respect of the approval and all the conditions ( Exhibit C14 ), but he asks the court to reserve the question of costs.

42. Mr Preston’s position appears to be that the Council has no material before it now that was not really available to it when consent was refused, but Mr Woodward contests that. The question of “ exceptional circumstances ” was not argued, and the question of costs should properly be reserved, in case it cannot be agreed, once my reasons for judgment have been published and examined.

43. I have come to the conclusion that all the concerns of the Council and the objectors have been satisfactorily answered by the applicant’s evidence, and adequately addressed by the agreed conditions, but I should elaborate on my reasoning.

Issue 3 - Owners’ consent

44. There has been some controversy about the endorsement on the DA document, and the point was taken by Mr Mettam.

45. I am satisfied that the owner’s consent to this DA has been validly given - see statement of Mr Simmons ( Exhibit V10 p3), and the letter from the Wireless Institute’s solicitors ( Exhibit C7), certifying the authority of the President to sign for the Institute.

Issue 4 - The Diesel Generator

46. I am satisfied that this element of the applicant’s proposal forms, by implication, part of its DA as finally submitted for the Council’s determination. (See Exhibit V8). Sydney Serviced Apartments v North Sydney Municipal Council [No.2] (1993) 78 LGERA 404.

47. As such its specific impacts have been assessed by Mr Haigh of Steven Cooper Acoustics Pty Ltd ( Exhibit V9 ), whose report concludes:

An acoustical assessment of the proposed generator installation located at 63 Quarry Road Dural, found that the generator proposed would result in an excessive degree of noise when assessed in terms of the standing EPA/Council criterion. In order to satisfy the required noise emission criteria and thereby minimise the impact of the generator if operated at night, it is necessary to implement additional noise controls which may be provided by means of masonry walls to the north east and south west of the generator that in turn will provide additional attenuation/shielding to the nearest affected residential premises. This barrier wall should be positioned to limit the ‘line of site’ of the generator equipment to the residential boundaries either side of the subject premises. The generator exhaust air outlet should be orientated towards the native vegetation to the north.

With the provision of the above noise control measures then the operation of the emergency generator at night will comply with the EPA requirements.

48. New Draft Conditions 20 to 23 have been included in Exhibit C14 to address these impacts, and they appear to the court to deal adequately with this issue, and with Mr Clinton’s particular concern about vibration.

Issues 6 and 7 - Visual impacts

49. As Mr Preston submits, the Council had before it, at the time of refusal, a photographic representation of the current and proposed situations (see especially Exhibits V1 and V2 ).

50. In preferring co-location to erection of the additional towers, the Council’s basic position works to minimise visual impact (see Exhibit C6 , par “D”, p16).

51. In this case also, it should be noted, the dishes proposed are to be affixed to the subject tower at relatively lower elevations, such that their impact is lessened, and/or screened, by existing or proposed vegetation (see Exhibit 6 pp 17, 19, 21-22).

52. The Council has considered the local residents’ objections (see Exhibit C6 pp 23-4) and subsequent submissions ( Exhibit C6 pp 37-8). The visual impact expert retained by the applicant (Dr Lamb) had formerly surveyed the Council area in some depth on Council’s behalf, and, on review for this current proposal, had reached no different conclusion, namely that the impact is, at most, minor, when impact is assessed in the context that this is a popular location for towers and some are already in situ.

53. Dr Lamb’s report ( Exhibit V1 ) stated the following conclusions:

(i) 3.1.1 Natural and built context
The immediate context of the subject land is a residential landscape in a bush setting, with outlooks across Type 2 landscapes to the north west, to landscapes of similar visual character and variety on a similar series of ridges and side slopes. Natural vegetation is an intrinsic element among residences and on street frontages and is a feature of the subject land. To the west of the site, the landscape character changes to the more open qualities of Type 2 landscape. The built context contains not only residences, but a variety of vertical infrastructure elements, such as transmission towers, aerials and lattice towers with antennae.
(ii) 3.2.1 Viewing places (visual catchment)
As would be expected of a built element such as the existing tower, which has been placed on the Quarry Road ridge to take advantage of lines of transmission in both directions, there are many locations from which the tower, or part thereof, can be seen. This does not imply however, that there are just as many locations in which the proposed additional antennae will be visible. The three antennae are relatively low upon the tower structure, and as such are screened from view from many viewing locations by vegetation both at the base of the tower itself and also in the surrounding landscape. As a result the visual catchment for the proposed antennae, is considerably smaller than that for the tower itself.
(iii) 3.2.3 Residences
The attachment of three antennae to the existing communications tower would generally make little change to the views that are experienced by neighbouring residents. This being said, the additional antennae would be visible to residents from their properties, especially in the Quarry Road area adjacent to the site. The antennae would not impede the views experienced by any resident, nor would it change the character of the view.
(iv) 3.3 Change to the intrinsic character of the site
The proposal would not have the effect of markedly changing the intrinsic visual character of the site. The change to the intrinsic character was judged to be low due to the present existence of the tower with some antennae already attached. Although the proposed antennae would result in an increase in the number of objects visible on the tower, the proposed antennae are not of a number, nor of a size that would have the potential to significantly impact upon the character of the view. A viewer with detailed knowledge of the area may notice change to the intrinsic character of the tower itself, however the average viewer would be unlikely to discern any change.
(v) 3.4 Assessment of the visual fit (visual absorption capacity)
The capacity of the site to visually absorb the development proposed was judged to be high. The reasons for this assessment are summarised below:

· The site is within a rural context, which amongst other elements is characterised by the presence of communication towers with attached antennae, and electricity transmission pylons;

· The tower is an existing element of the landscape, and it would not be greatly altered by the proposal;

· there are existing towers in the area of the site which have many more antennae attached to them than is proposed in this application; and

· the contribution that the development would make to the visual experience of the landscape would be minimal at all distances.

(vi) 3.6.3 Significance of impacts
Nature of the proposal
The proposal is not for the introduction of a new visual element into the scene. The tower after the additional [sic] of the proposed antennae would not appear greatly different than it does at present. Therefore the significance of the visual impacts should be down weighted.
Minimal cumulative effect
The reasons for refusal of the application refer to the cumulative effect of the proposal. While there is no doubt that the antennae proposed would add quantitatively to the number of such devices that are visible from some locations near the site, it does not follow that there would be a significant cumulative effect. In fact, the addition of the proposed antennae would have a minimal effect on the scenic qualities of the locality. Not only this, but it is clear that there is a considerable capacity for the absorption of the antennae into the existing context.
…
Scenic amenity
…
While I agree that antennae in themselves are not scenic, this does not lead me to conclude that scenic amenity would be unreasonably affected by this application, even in the closest views to the site in Quarry Road. Most viewers would not notice or react negatively to the addition to the existing tower. Indeed, other than for local people with a detailed local knowledge of the tower, I doubt that they would even raise the interest of an observer. Whether such people would express a strong emotional reaction to the additions I cannot judge. However, looked at as objectively as I can, I do not consider that such a reaction is supported by the evidence at hand.

(vii) 4.1 Issue 6
…
Briefly however, our assessment of the potential visual impacts of the proposed tower concluded that there would be minimal, if any, significant impacts as a result of the development. This is generally as a result of the rural landscape character of the area, in which other towers similar to that proposed already exist, and are a common, and not unexpected, element in such landscapes. It is also a result of the development proposal consisting of the attachment of three antennae to an existing tower structure. The proposal would not result in a new structure being constructed within the visual catchment, and in reality, it would be very difficult for most viewers to identify that there had even been any additions to the tower at all. Finally, the proposal would not result in the loss of views from any adjoining residential property, and the new antennae would not cause changes to the intrinsic character of the views presently experienced by these neighbouring residences.
(viii) 4.2 Issue 7
…
From both a visual and an agricultural perspective, it seems to me that this development would have no significant impact on agricultural land. The locality would not be affected in any way that would decrease or alter its agricultural capacity, there being no significant change to the built component or alienation of land and as far as I am aware no demonstrable effects on agriculture at a distance.
The land that surrounds the site and which characterises the landscape type identified in the Rural Lands Study is in any event not of a productive nature, in the sense of producing crops or having high intrinsic suitability for agriculture. It is marginal both geographically and in terms of its productivity.
(ix) 5.0 Conclusion
The assessment concluded that there were no significant visual impacts that would result from the attachment of three additional antennae to the existing tower. No residence would suffer view loss as an effect of the application. Further, there would be no change to the intrinsic character of the views experienced at present, nor would there be any significant impacts upon the rural character of the landscape. It is concluded that there are no visual impacts of this proposal that are grounds to refuse the development application. I consider that it should be approved and the appeal upheld.

54. In support of his conclusions, Dr Lamb has presented both photographic and photomontage evidence ( Exhibit V2 ).

55. The subject tower is already a very substantial factor in the visual landscape of the short-to-medium-distance area. The general area is well treed, and view corridors to the tower are quite substantial along the existing and important roadways, but the proposed dishes, being at a relatively low elevation, will be largely obscured by existing vegetation, sitting, as they do, in an area where significant structures, like telecommunications towers and large power line stanchions, are commonplace in the general landscape.

56. The court visited the properties of the principal objectors and acknowledges that, in their local environment, 76m towers are significant intrusions. The applicant acknowledges the objectors’ bona fide complaints, but wants them seen in context. As Mr Preston submitted, the extra dishes will make an adverse contribution to the views from such properties only when the viewer diverts his/her gaze from the “ principal view corridors ” or “ cones ” available.

57. The court accepts the general thrust of Dr Lamb’s evidence, and finds that the visual impacts of the subject proposal are not such that require the court’s approval to be declined.

Issues 1, 2 and 5 - Electromagnetic Energy Issues

58. The objectors adopted the stance that, as there remains some doubt about the alleged health risks of exposure to radiofrequency, the court should apply the precautionary principle and decline to approve this development.

59. In response, the applicant relied on Mr Garrett’s report ( Exhibit C6 pp 30-36), and called him to give supplementary oral evidence. He explained the NBN system in simple terms and responded to the objectors’ evidence:

· the beam is quite focussed with the larger sized dishes;

· there is little scattering and little or no risk of the wave striking a house or human so far below its designed elevation; and

· mishaps of any sort will cause no harm, but will trigger alarms and transmission will quickly cease.

60. The applicant also relied on the evidence of Dr David Black from New Zealand ( Exhibit V3 ), who was engaged in about April 2000 to “ provide an independent opinion on radiofrequency safety matters, including any potential for adverse biological or environmental effects which could conceivably arise ” from this proposal ( Exhibit V3 par 5).

61. He independently reviewed and accepted Mr Garrett’s work ( Exhibit V3 par 29), describing him as a “ competent expert in the field of electromagnetic radiation measurement ”, and he also reviewed the BCL reports ( Exhibit V3 par 9). He opined ( Exhibit V3 ):

· that emissions from the site now “ fall well within the regulatory requirements ” (which are set out in Exhibits V4 and V5) (par 9);

· that “ the addition of the microwave dishes will produce no perceptible change ” (par 9);

· that there is sufficient evidence for the court to accept that there will be no adverse health impact (par 13);

· that “ any detrimental social impact due to uncertainty can only be caused by misinformation or misunderstanding of the facts of the matter, or from a scientific assessment which is at odds with mainstream and widely accepted science, as accepted and defined by the World Health Organisation ” (par 17); and

· that “ social concerns are best addressed by competent application of proper standards and dissemination of validated information. Not allowing a facility which would have no real impacts does not help at all” (par 21).

62. On the question of accumulated impact flowing from the increasing number of facilities in the relevant area, Dr Black considered both the number of facilities and the exposure over time:

(i) Accumulation of facilities is taken into account by the international standards applied by Mr Garrett in his assessment which determined that the Dural installations in aggregate will not exceed those standards ( Exhibit V3 par 24); and
(ii) “ it is now widely accepted that there is no long term effect from radiofrequency exposure ” ( Exhibit V3 par 25) but an additional precautionary factor remains in the guidelines.

63. For completeness, I will quote in its entirety Dr Black’s “ Summary and Conclusions ” ( Exhibit V3 , par 27):

I am confident that the current RF installations at Dural, both relating to Vertical Telecoms communications facilities and the amateur radio activities of the Wireless Institute of Australia are entirely safe as they comply with the standards published by ICNIRP and endorsed by the World Health Organisation. The addition of the proposed microwave link for digital television will not increase the ambient signal levels on the ground in the surrounding communities to any perceptible or measurable extent, as the microwave beams are tightly contained for point to point communication. Any social concern which may arise from uncertainty about the science is best corrected by proper application of international standards and provision of proper information, not by responding to unsubstantiated and unreasonable fears. The issue of the cumulative effect of multiple transmitters has been taken into account in the assessments which have already been undertaken, and the issue of cumulative effect over time is taken into account in the standard. It is therefore my opinion that the existing and proposed installations at Dural do not pose any health risk to the surrounding community.

64. Dr Black also gave oral evidence about the thorough and definitive work done and published on human health aspects of the issues before the court by J Mark Elwood ( Exhibit V6 ), whose conclusions should also be quoted in full:

Several studies have assessed associations between likely exposure to RF and various types of human cancer.

The studies individually are weak and, as a consequence, the results cannot be easily interpreted in terms of cause and effect. The major impression from these studies is their inconsistency. There is no type of cancer that has been consistently associated with RF exposures.

The epidemiologic evidence falls short of the strength and consistency of evidence that is required to come to a reasonable conclusion that RF emissions are a likely cause of one or more types of human cancer. The evidence is weak in regard to its inconsistency, the weak design of the studies, the lack of detail on actual exposures, the limitations of the studies in their ability to deal with other likely factors, and in some studies there may be biases in the data used. Whereas the current epidemiologic evidence justifies further research to clarify the situation, there is no consistent evidence of any substantial effect on human cancer causation.

65. In answer to a question from me he ascribed no danger to the location of a residence as close as Pezets’ - approximately 75-80m from the tower - despite Council’s preference for separations of 300m or greater.

66. I found the evidence of Dr Black, the conclusions of Hocking and McFarlane, and the work of Garrett and Elwood, to be very cogent.

67. The antennas proposed in this DA will cause an imperceptible increase in electromagnetic energy, but no safety or health risk outside the rim of the dishes themselves, access to which will be physically very difficult, and will be seriously restricted by the proposed conditions.

68. In these circumstances the court is not constrained to apply the precautionary principle and withhold consent. See Stein JA’s article in 2Env.L.Rev.1-10 and the cases discussed therein. As His Honour says in the conclusion (at 10):

… the precautionary principle is not absolute or extreme. It does not prohibit an activity until the science is clear. It does, however, change the underlying presumption from freedom of exploitation to one of conservation.

Conclusion

69. As Hemmings J said in Jarasius v Forestry Commission of NSW & Ors [No.1] (1990) 71 LGRA 79 (at 93), and McClelland J noted in Newton v Wyong Shire Council (6 September 1983 - quoted in Jarasius ), substantial local controversies, without demonstrable environmental impacts which cannot be adequately dealt with, are no basis for a consent authority to refuse approval.

70. I certainly do not find the objectors’ concerns lacking in good faith, or “ irrational ” (see Exhibit V3 par 19, re Jackson J), but they cannot be sustained in the light of the evidence presented that the safeguards generally adopted, and applied to this proposal, are far more stringent than any research has shown to be necessary.

71. As the Introduction to the Australian Communications Authority’s March 2000 handbook, entitled “ Human Exposure to Radiofrequency Electromagnetic Energy ” ( Exhibit V4 p1) says:

The regulatory arrangements have been developed in response to considerable community interest in the possible adverse health effects associated with the use of radiocommunications equipment such as mobile telephones, and the siting of mobile telecommunications towers and other installations utilising radiofrequencies. These arrangements support and complement other initiatives of the Australian Government, for example, activities of the Electromagnetic Energy Public Health Issues Committee (CEMEPHI), to address the possible adverse health effects from exposure to radiofrequency electromagnetic energy, without unnecessarily compromising the benefits that radiocommunications technologies have brought to modern living.

The weight of scientific opinion is that there is no substantiated evidence of adverse public health effects from exposure to RF EMR from transmitters that comply with recognised RF exposure standards. Therefore, the ACA;s arrangements include the introduction of a mandatory standard which establishes exposure limits in various prescribed circumstances. Also included are compliance arrangements for manufacturers and importers supplying specified radiocommunications and telecommunications devices to the marketplace as well as for licensed owners or operators of radiocommunication facilities.

72. Accordingly, I can find no reason to refuse to make the orders and impose the conditions, upon which the parties have agreed.

Orders

73. The orders of the court will, therefore, be:

1. The appeal is allowed.
2. The Development Application 1968/99 lodged with the Council on 2 September 1999 seeking consent to the installation of three parabolic antennae upon an existing tower at 63 Quarry Road, Dural, being Lot 481C in DP401311, be approved, subject to the 23 conditions in Exhibit C14, which are annexed to this judgment and marked “A”.
3. The question of costs is reserved.
4. All the exhibits, except Exhibit C14 , are returned.