Connell Wagner Pty Ltd v Sutherland Shire Council

Land and Environment Court (NSW)|2005-01-19

Background 1 This appeal is against council's refusal of a development application for the construction of a 30 m high telecommunications tower, incorporating associated ground level equipment shelters. The tower is to be a co- location facility to service both the Telstra and Optus digital telephone networks. It is proposed to be located on a privately held site, adjacent to the Royal National Park at Deer Park. 2 During the consideration process of this application, a number of amendments have been made in response to objections and concerns raised. This has reduced the outstanding issues in the appeal to the visual impact of the proposal due to its height, heritage impact and other public interest considerations.

The site 3 The proposed telecommunications tower is to be sited within the Anglican Youth Department Conference Centre Deer Park, which is next to the Royal National Park, as shown on Annexure A.

5 The tower is proposed to be located within the south-western corner of property in an area that has previously been cleared of vegetation.

The proposal 6 The co- located tower for the two operators comprises: Optus component: · One 30 m high steel monopole, · Three panel antennas (measuring 2670 mm x 370 mm) mounted to the top of the monopole at an elevation of 30 m, resulting in a total height of approximately 31.5 m, · One radiocommunications antenna (600 mm in diameter) mounted on the monohull at an elevation of 28 m; and · A prefabricated external colourbond equipment shelter coloured "Mist Green" and located adjacent to the tower within the security compound fence. Telstra component:

· Three panel antennas (measuring 2095 mm x 370 mm) mounted on a purpose-built headframe attached to the monopole at an elevation of 25 m · One radiocommunications antenna (600 mm in diameter) mounted on the monopole at an elevation of 27 m; and · A prefabricated external colourbond equipment shelter coloured "Mist Green" and located adjacent to the tower within the security compound fence. 7 The monopole is to be located between the two equipment shelters. The total area of the security compound is 6 m x 13 m. The base of the monopole is to be at a RL 41.17 and its top will be at approximately RL 72.67.

8 The proposal also includes the construction of a 65 m x 3 m wide maintenance access track.

Planning controls Sutherland Shire Local Environmental Plan 2000 (SSLEP)

9 Under this LEP the site is zoned 5(a) Special Uses. This development proposal is permissible pursuant to cl 60 of SSLEP 2000, being within the classification of a "utility installation".

10 Clause 60 of SSLEP 2000 outlines the following objectives of the 5(a) Special Uses Zone:

Zone 5(a) Special Uses 1. Objectives of the zone (a) The provision of community services and facilities to provide necessary services to the community. (b) To provide for development by public authorities. (c) To provide for educational, religious or similar land uses. 11 Also relevant is cl 55, which deals with maximum heights as follows: 55 What height limits apply in special use zones

(1) Except where a maximum height is specified in a development control plan, the maximum height for building in a special use zone is: (a) 7.2 m to any point on the uppermost ceiling, and (b) 9 m to the highest point of the roof. (2) The consent authority must consider any maximum height specified in any development control plan applying to the land. Telecommunications and Radiocommunications Development Control Plan (DCP)

12 This DCP was adopted by council on 3 November 2003 and came into effect on 18 November 2003.

13 Clause 11 sets out design controls, including cl 11.1 which deals with visual amenity. Clause 11.4 deals with heritage and environment.

Draft Sutherland Shire Local Environmental Plan 2004

14 The site is affected by the provisions of this draft LEP, where it is zoned Special Uses. The development proposal is permissible under the provisions of this draft LEP, which incorporates similar control to the DCP.

The evidence 15 I note initially that the extent of the proposal was amended during the proceedings, from that originally submitted, resulting in a reduction in the bulk of the head antennas on the monopole.

16 With respect to the heritage issue, the parties agreed to the appointment of Mr R Staas, as the Court Appointed Expert (CAE).

17 Other detailed evidence on behalf of council was presented by: · Mr G Hand, town planner (SSC), report Exhibit 9.

18 The various written objections and oral evidence from residents was considered.

19 Evidence on behalf of the applicant was presented by: · Mr D Brady, consulting town planner, report Exhibit B, · Mr M Wright, landscape architect/visual assessment consultant, Exhibit C. Discussion of the evidence 20 It is apparent that a telecommunications tower is permissible with consent on this Special Uses 5(a) site, as it contributes to the provision of necessary services to the community. Notwithstanding this, any such tower should not create unacceptable amenity impacts.

21 In this regard, one of the primary controls requiring consideration is the maximum height allowed in this zone, as specified in cl 55 of SSLEP. This control applies to a building, where the maximum height is 9 m to the highest point on the roof. Whilst the applicant does not initially consider that this is applicable. Nevertheless a SSEPP 1 objection has been submitted for consideration. I deal with this issue separately.

22 On the basis of the original proposal, Mr Staas assessed the heritage impact on the Chaldercot youth camp and conference facility. He reviewed the applicant's (Godden Mackay Logan) heritage assessment, noting that Chaldercot is listed as a local heritage item in Sch 2 of SSLEP as: Fine period grouping, enjoying a bushland setting on the foreshores of Port Hacking. Well preserved "Chaldercot" is one of the Shire's best examples of a Federation home. Considerable historic interest as one of those built in the National Park by wealthy Sydneysiders when the remainder of the Shire was essentially rural. Associated buildings have historical and architectural interest of the age, type styling and construction - regional historical associational significance. 23 Accordingly, Mr Staas finds that:

The surroundings of the "Chaldercot" Group are currently modified from their early 20th century form and detail and include a variety of late developments that do not reinforce any identifiable heritage character of the group. The main building and the ancillary structures have undergone considerable modification that would suggest a lower level of heritage significance than that claimed by the council in their assessment of the impacts of the proposed application. 24 He concludes that the heritage issues raised by council are insufficient to warrant refusal of the application. Furthermore he expresses the opinion that the proposed tower will have limited and acceptable impact in the immediate area of the proposal and low impact from other vantage points in the wider context. But he qualifies this, by deferring to the visual assessment specialist in regard to the acceptability of the tower in the wider landscape.

25 I accept Mr Staas's opinion that the heritage concerns, regarding the towers impact on the existing buildings is such that could reasonably be covered by conditions of consent.

26 The threshold issue then concerns the visual impact of the proposal and in this regard I note the disparate positions of the respective witnesses. Notwithstanding this, it is apparent that the tower will be seen from many viewing of points along the northern foreshore of Port Hacking and also from the waterway. Depending on the viewing position, the tower will penetrate the skyline, above the treed ridgeline by approximately 12 -15 m.

27 Insofar as the structure is relatively slim and the degree of visual impact can be restricted to some extent by its design and colour, nevertheless the controls require assessment of the visual amenity in terms of its context and consistency with the character of the area. This context is the setting against the Royal National Park backdrop, where there is minimal development when observed from the waterway and northern shore. This existing development comprises only relatively low scale youth facilities near the water level and there is no development penetrating the skyline.

28 Considering the significance of Royal National Park, being Australia's first National Park, I think that exceptional circumstances should be demonstrated before a communications tower, of this height is allowed to alter this existing visual amenity of undisturbed treed ridgelines. This is despite any significant objections from NPWS, because the tower is not sited specifically on national parkland.

29 In support of this position, I also note that the land is within the Coastal Zone, under the provisions of SEPP 71, which seeks to protect and manage the natural, cultural, recreational and economic attributes of the NSW coast. Its aims also include to ensure the visual amenity of the coast is protected and that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area.

30 Because of the degree of visibility of the tower, i.e. the 12 m - 15 m height above the ridgeline, I accept Mr Hand's opinion, that the tower is likely to cause a detrimental impact on the visual amenity of the coastal foreshore and accordingly is not consistent with the provisions of SEPP 71.

31 I have also considered his references to the principles stated in Super Studio v Waverley (2004) NSWLEC 91, where Roseth SC stated: Several planning principles are relevant to the determination of this appeal. The first is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey balcony in a house that already has three other balconies.

32 In my opinion, this first principle is relevant in the current matter, in terms of the acceptability of the visual impacts of this proposal, considering the competing private and public interests.

33 On this basis, the Statement of Environmental Effects states that: Optus and Telstra regularly undertake detailed assessment of the performance and coverage of their digital mobile telephone networks to insure their systems are reliable and achieving the required objectives. Reference to customer demand also provides an indication of areas of poor performance or where coverage does not exist.

These network assessments have indicated that improved mobile telephone coverage is required for both carriers within the suburbs of Yowie Bay, Caringbah, Lilli Pilli and Port Hacking Bay. However, given the topography and the design of the urban environment within this area, the siting of a facility in a non-residential area has been extremely difficult to achieve. Over the past few years both carriers have pursued a number of options for either a "low impact" facility or a facility requiring council's consent. However, none of these proposals have been able to achieve the coverage objectives while at the same time being removed residential dwellings or other sensitive land uses. 34 From this statement it is apparent that the intention of the proposal is to improve the level of service for the local mobile telephone networks. This is confirmed by reference to the various coverage plans submitted (Exhibit H), which indicate that some of the lower level, waterfront properties receive poor reception and service.

35 However, it seems to me that the extent of this restricted service may not be as widespread as indicated on the generalised coverage plans. This is confirmed to some degree by the evidence of Mr R Jacobs, 308 Attunga Way, Yowie Bay. He says that mobile coverage is available to most of the properties, with the main problem being poor reception inside some of the dwellings. Notwithstanding this, there are alternative landlines available and consequently he objects to the proposal on the basis of its prominent visual impact, which results in limited telecommunications service improvements.

36 In my assessment of the evidence, the competing positions are between the private interests to provide improved mobile telephone services to a limited number of residential properties that surround the northern shores of Port Hacking and the public interest considerations of the visual impact of the proposed 30 m telecommunications tower, against the Royal National Park background.

37 Arguing against the proposal, Mr Hand says that it is unreasonable that a telecommunications tower designed to serve the needs of urban areas to the north of Port Hacking should be located adjacent to the Royal National Park. He says this is particularly so, given the alternative option of constructing a number of low impact facilities (which do not require development consent) within those urban areas to be served.

38 Mr Hand expresses the opinion: that the development would have the effect of markedly changing the intrinsic visual character of the site. A viewer with limited detailed knowledge of the area would be likely to notice the change to this intrinsic character and react negatively to it. The capacity of the site to visually absorb the development proposed is low because the site is within a natural context that contains no other such towers. The detrimental contribution that the development would make to the visual experience of the landscape is a matter of concern … 39 Both Mr Wright and Mr Brady responded to these concerns. Mr Wright has presented a detailed visual analysis assessment, which considers view impacts from several land and water viewing locations. In this regard, he says that "visual sensitivity is the measure of how critically a change to the existing landscape will be viewed from the various use areas".

40 The visual impact assessment has been prepared on the basis of the interaction between visual sensitivity and visual effect, which is tabulated on a scale from low, moderate to high. 41 Accordingly he expresses the following opinions: · that the residents in areas to the north and east of the site, which have the potential of seeing the top section of the pole would have a high to moderate visual sensitivity to the change. The visual effect of the structure from distances approximately 1000 metres and greater would be low. · visitors and National Park staff viewing the proposed structure from either the two reserves at Willarong Point and Lilli Pilli Point or the National Park are likely to have a high visual sensitivity. The visual effect of the structure would be low from the two reserves and most areas of the National Park due to distance and limited visibility of the site from many areas. However within the immediate vicinity and within the National Park, the proposed space station would or likely have a high to moderate visual effect depending on how close the view was to the base station. It is therefore the visual impact of the base station on the public reserves and the National Park will be moderate in all areas except in immediate vicinity of the site where the visual impact will be high. · most visitors and residents using the waterways in publicly or privately owned vessels would be likely to have a higher visual sensitivity to change due to the scenic character of the waterway and the adjoining southern foreshore. The visual effect of top section of the monopole being visible above the tree canopy from place to the southern foreshore, within 400 to 500 metres is likely to be moderate. 42 In addition to this, Mr Brady responded to some of the other concerns raised by Mr Hand and indicated that some inquiries have been made regarding alternative sites. He listed a number of matters taken into account regarding alternative locations, noting that one of the critical factors is the attitude of the local community and proximity of sensitive land uses such as schools, which can lead to substantial community protest.

43 Accordingly he says that the carriers seek to minimise potential community outrage during the implementation of these facilities through appropriate site selection and this involves compliance with the Australian Communications Industry Forum Code for the Deployment of Radiocommunications Infrastructure (ACIF Code). 44 Based on his experience in the Sutherland Shire Council area, Mr Brady says that it would be is extremely difficult to obtain a suitable site for a telecommunications tower, capable of obtaining development consent. Furthermore he acknowledges that while the carriers are empowered to install "low impact" facilities, it is clear to him that there would be significant community outrage and opposition to the extent that the carriers would either be defending the sites in the Court will be abandoning installations because of community and political pressure.

45 Whilst it seems apparent to Mr Brady that there are no realistic options on the northern side of Port Hacking for telecommunications towers, nevertheless no details of alternative site investigations has been presented to the Court. In my opinion, this is a deficiency in the applicant's case, because it does not confirm the "necessity" for this facility as compared to its convenience, as detailed in the Super Studio principles.

46 Apart from these merit considerations, Mr Brady has also presented a SEPP 1 objection to the building height development standard contained in cl 55(1) (b) of SSLEP 2000, because the proposed 30 m tower exceeds the specified maximum height of 9 m.

47 The SEPP 1 refers to the height limit development standard in cl 55 and acknowledges that the tower would be defined as a "building" under the SSLEP (although it does not have a conventional roof or ceiling) and this clause would require compliance with this height. Insofar as there was some argument about the necessity for compliance with the standard for the tower, I accept the acknowledgement and have assessed the SEPP 1 Objection accordingly on the basis of the tests outlined by His Honour Justice Lloyd in Winten Properties v North Sydney. 48 The SEPP 1 ascertains that the underlying objects or purposes of the standard are: · to control the height of development to ensure compatibility with the built form within urban areas. · to control the bulk of buildings to minimise impacts on the streetscape. · to minimise consequential impact such as overshadowing, privacy issues, visual impacts. 49 In terms of the test as to whether compliance with the development standard is consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a) (i) and (ii) of the EP&A Act, the objection states: It is considered that the strict imposition of the standard is both unreasonable and unnecessary as compliance would render the site of no utility .

50 With regard to the fourth test on whether compliance with development standard is unnecessary and unreasonable, the objection contains the following points in support: - strict compliance with the height standard of 9 m would result in the antennas being lower than the surrounding 16 18 m - this would result in the trees having a significant blocking effect, which causes signal loss or significant static, - antennas on the tower need to be elevated to a certain height to achieve coverage required by this facility. Considering the topography surrounding Port Hacking, the proposed height is required in order to achieve "line of sight" operations, · compliance with the height standard would mean that the combination of blockage by vegetation and topography would render the site of no utility to the carriers, which is considered unreasonable, - the proposal seeks to provide necessary telecommunications services for the orderly and economic use of land. Further, the proposal has been designed to properly manage natural resources, and it also promotes the social and economic welfare of the community. While to single facility, the proposal forms part of an Australia wide telecommunications network. 51 Insofar as Mr Brady concludes that the SEPP 1 Objection is well founded, Mr Hand nevertheless assesses it on a different basis. He states that the underlying object or purposes of the standard are to: (a) Achieve consistency in the scale of buildings, (b) Minimise adverse visual impacts from development on the existing character of the area, and (c) Minimise the visual intrusion of development in its setting. 52 On this basis, he says that the development does not meet these objectives because it will be inconsistent with the scale and character of its surroundings and does not at all relate to the topography of the site. Of particular concern is the fact that, due to its height, the tower will dominate the site and extend well above the tree-line into the skyline. Consequently, he concludes that compliance with the standard is not unnecessary and unreasonable in the circumstances of this case, because it would be more appropriate for the applicant to seek an alternative location, or locations for the tower to meet the needs of the mobile telephone users in the locality.

53 Apart from these matters, considerable public interest has been demonstrated with the various submissions. These can be generally categorised as follows: · adverse visual impacts, · impact upon the use of the Royal National Park and Port Hacking, · out of character with the natural bush land setting, · impact upon heritage values of the Chaldercot buildings, · health effects. 54 The overwhelming thrust of these objections is dissatisfaction with the proposal because of the adverse visual impacts, within the Royal National Park context. Interestingly, it could be reasonable to expect that some of these objectors would benefit from the improved services and be more accommodating to the balance between the competing public and private interests, but there is no significant demonstration of this position.

55 In addition to this, objections were made by Mr G Schoer, Secretary - National Park Association of NSW Inc. His concern is that the integrity of national parks should be protected by minimising development adjacent to them. Furthermore, he says that current trends endeavour to remove development adjacent to the parks and this proposal is contrary to that trend. He also expresses dissatisfaction with the loss of educational value that the intrusive tower will have in environmental studies, impacting on the natural attributes of the Royal National Park. Conclusions 56 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent, principally because its height will cause adverse visual impacts within the character of the Royal National Park setting. 57 I accept that the telecommunications tower as proposed is permissible within this 5A Zone, under the provisions of SSLEP 2000, subject to reasonable compliance with the various objectives and associated controls, including the maximum height control. 58 The relevant associated controls are contained within the Telecommunications DCP, which specifies a number of purposes including: to balance the needs of different stakeholders, including the community/industry/local, state and federal governments, and … 59 The DCP provides guidance for assessment of this balance and encourages co-location of services, which this proposal achieves. However the design controls also refer to specific visual amenity considerations that require the design of antennas and infrastructure to minimise or reduce the visual and cumulative impact on the public domain and adjacent areas. Specifically infrastructure must be unobtrusive where possible and be consistent with the character of the surrounding area. 60 In the application of these provisions, it is apparent that the design of this facility on the site results in the uppermost portion of the tower extending above the tree ridgeline by some 12 - 15 m, in order to achieve the desired improved level of service. 61 Consequently, this introduces a new, obtrusive visual element into the views of the ridgeline that does not currently exist within the Royal National Park context. I note that Mr Wright has variously described the view impact sensitivity as varying between moderate to high. Taking into account that that this will be the first intrusion in this area, I consider it a significant change to the character of the area, which is not consistent with the provisions of the DCP, because it does not minimise or reduce the visual impacts. 62 Insofar as there is some development at the youth camp, this appears to me to be of a different form of development, which is concentrated towards the water level and does not interfere with the ridgeline. Accordingly, I give reduced weight to Mr Wright's visual assessment analysis that the impacts are acceptable. 63 Instead I accept Mr Hand's opinion that the visual intrusion in this context is unacceptable. Furthermore, I accept his reference to the general planning principle that it is undesirable for developments to puncture the ridgeline. Therefore I do not consider the design of this proposal demonstrates adequate consistency with the natural, wooded, background character of the Royal National Park. In my opinion then, it does not adequately satisfy the DCP provisions. 64 I have also given consideration to the principles stated in Super Studios by the Senior Commissioner. It appears to me that the first principle requiring consideration of the reasonableness and necessity of the development, relative to the impacts it creates, is relevant. In this case, there will be moderate to high visual intrusion experienced by the widespread general community, in order to improve mobile telephone services to a restricted number of properties on the northern shores of Port Hacking. But according to Mr Hand's evidence, it is likely that there are other alternative sites to achieve these improved services within the area of demand. However, considering the level of objection to the proposal from the service area, it does not seem to support the necessity for the proposal or that the overall outcomes are reasonable. 65 Insofar as the applicant relies on the SEPP 1 Objection to the building height standard, I do not consider this is adequately made out. In the absence of specific objectives for the standard, I am inclined to accept Mr Hand's extension of the underlying objectives so as to include the minimising of visual impacts from development on the existing character of the area and its setting. 66 Accordingly, I consider that the points in support of the objection are biased towards the development proposal and do not objectively address the intent of the restriction that the development standard places on the land. The response to the test on compliance " that strict compliance with the standard would render the site of no utility", does not justify in my opinion, setting the standard aside. Instead, the non-compliance more likely indicates the unsuitability of this site for the proposed development. Therefore I do not consider that the SEPP 1 Objection should be allowed. 67 For these reasons then, I consider that the section of the proposed telecommunications tower that protrudes above the ridgeline results in adverse visual impacts, which is not consistent with character of the area, particularly the Royal National Park and therefore this application fails.

Orders 68 The orders of the Court are: 1 The appeal is dismissed. 2 The SEPP 1 Objection to the maximum height development standard contained in cl 55 of Sutherland Shire LEP 2000 is disallowed. 3 Development consent to DA 03/1380 for a telecommunications tower at Deer Park is refused. 4 The exhibits may be returned except for Exhibits 2, 8, 9, 15, A, B and C.

      R Hussey
      Commissioner of the Court
      rjs

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Connell Wagner Pty Ltd v Sutherland Shire Council [2005] NSWLEC 8

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Judgment (49 paragraphs)

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