Hutchison Telecommunications (Australia) Pty Limited v Baulkham Hills Shire Council

The Council had opened its case on the basis that conditions 7 and 9 should be imposed because the precautionary principle as contained in s 6(2)(a) of the Protection of the Environment Administration Act 1991 (the POEA Act) should be applied given the possibility that fields of 1v/m would be experienced within some residences. Section 5(a)(vii) of the EP&A Act provides that one of the objects of the EP&A Act is to encourage "ecologically sustainable development". The E&PA Act does not contain a definition of "ecologically sustainable development" (ESD).

The Council argued that guidance on the meaning of ESD could be obtained from other Sate legislation. Section 6(2) of the POEA Act provides that, for the purposes of the objectives contained in s 6(1)(a): … ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs: (a) the precautionary principle - namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options. …

I agree with the Council's submissions that the precautionary principle is a relevant consideration under s 79C of the EP&A Act given the reference to ESD in that Act's objectives. The POEA Act, amongst other sources, can provide assistance on what ESD and the numerous principles incorporated in it mean. I consider these matters can be taken into account under s 79C. This approach was also taken by Lloyd J in Carstens v Pittwater Council (1999) 111 LGERA 1 . The Applicant's submission that, in the absence of a definition of ESD in the EP&A Act, the ARPANSA approach (see Appendix 6 to exhibit 10) to the precautionary principle is the only relevant consideration is not accepted. This Court is not limited on a merits assessment by the ARPANSA approach to the precautionary principle.

The difficulty for the Council's case is that there must be a legally valid basis under which the principles of ESD can be applied by this Court. Given that the evidence as agreed by the parties is that no residence will be affected by a field strength of 1v/m and that the current ARPANSA standard has been met there does not appear to be any basis on which to apply the precautionary principle to this development. The Council urged this approach on the Court at the outset of its case when it was arguing 1v/m was likely to be reached at some residences.

One legal issue which potentially arose is whether this Court is able to impose operational limits on the Applicant which are tighter than the relevant Commonwealth standard. The interaction between the Commonwealth legislation dealing with this issue and the New South Wales EP&A Act is unclear. The Applicant submitted that this Court does not have the power to do so. However, the Applicant also stated that this Court could impose standards other than the ARPANSA standard if it considered these necessary. If this Court cannot impose stricter standards than the relevant Commonwealth standard then the matter could rest here. However, the Court is not able to reach a conclusion on this legal issue on the basis of the arguments presented by the parties' legal representatives and, because of the way the evidence eventually fell out, it is not necessary that I resolve this difficult issue here.

Another issue which arises is whether this Court should impose stricter limits than are contained in the ARPANSA standard in the absence of another recognised standard. In this case the parties agreed that an exposure limit of 1v/m is not a recognised standard. The Applicant submitted that there was not another standard which the Court could apply in any event, even if it were so minded. In other words, should courts determine on a case by case basis that stricter limits ought apply? In this regard, I note the decision of the Victorian Civil and Administrative Tribunal in R Hyett v Shire of Corangamite [1999] VCAT 794 (30 April 1999) where the Tribunal held that: …the Tribunal is obliged to apply the relevant regulatory standards as it finds them and not to pioneer standards of its own. The creation of new standards is a matter for other authorities.

The TNO study, while potentially an important piece of research does not attempt to provide standards and has not been adopted by the Dutch government or any other authority. The letter from the authors (exhibit D) suggests that further validation work and peer review is required and this has not been done. In these circumstances I do not think it is appropriate, or in the public interest, to apply the study directly as the Council's expert Dr Hocking urged on the Court. I also note that the Council's draft DCP No 57 Telecommunication Facilities dated January 2004 does not include a 1v/m limit on field strength.

In final submissions, the Council's legal representative urged the Court to nevertheless impose conditions 7 and 9 (and 10) as these were also directed at the regulation of future activity on the site, namely co-location of facilities by this Applicant or other telecommunications operators. However, my understanding is that conditions directed to the regulation of future activity would be beyond the power of this Court to impose under s 80A of the EP&A Act. This Court is only empowered to consider conditions which relate to the impact of the development before the Court. Section 80(1)(a) of the EP&A Act provides that a condition of development consent may be imposed if " it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent." Section 79C(1)(b) of the EP&A Act refers to " the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality." Section 79C(1)(b) of the EP&A Act does not make any reference to the impacts of future developments such as those at which draft conditions 7 and 9 are aimed.

This Court has accepted in James and Anastasia Markakis v Mosman Municipal Council [1998] NSWLEC 223 (18 September 1998) that the principles derived from the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] A.C. 578; [1980] All ER 731 apply to limit the scope of statutory power to impose conditions on the grant of development consent. In Newbury it was held that for a condition to come within the relevant statutory power it must fulfil three conditions: (i) it must be imposed for a planning purpose; (ii) it must fairly and reasonably relate to the development for which permission is being given; and (iii) it must be reasonable.

It is clear to the Court that conditions 7 and 9 as proposed by the Council do not fairly and reasonably relate to the development for which permission is sought. Rather, these conditions seek to constrain future activities, not covered by the development application, which may or may not occur on the site of the proposed development. I do not therefore consider that I can impose conditions 7 and 9 as sought by the Council. 34. A further matter is that the legal framework dealing with co-location of telecommunications facilities is basically governed by Commonwealth law in any event. This is a further impediment to the imposition of conditions 7 and 9. I deal with this later in my judgment in relation to condition 3. 35. In conclusion I do not consider I can or should impose the 1v/m limit referred to in the Council's draft conditions 7 and 9. I impose conditions 7 and 9 without the 1v/m reference. This means the ARPANSA standard will apply.

Condition 10 36. Draft condition 10 reads as follows: Power to Antennae and Antenna Position of Section 3 Antenna (a) The power to the antennae shall be no greater than 10 watts. (b) The transmission equipment within the cabinet on-site is to be labelled "antenna power not to exceed 10 watts". (c) The antenna position of the Sector 3 antenna is to be at 300 degrees of azimuth. (d) Council may inspect the site to check and confirm the power to, and the position of, the antennae. Condition 10(a) can be incorporated into condition 1 to the extent this is possible in the context of this development application.

37. It is not necessary to impose condition 10(b), in my view. The Council submitted this was imposed for abundant caution, presumably in case the Applicant exceeded 10 watts inadvertently or deliberately. A sign on the facility stating that "antenna power not to exceed 10 watts" is very unlikely to prevent such an occurrence given the complexity of this technology and is arguably unnecessary given condition 1.

38. Condition 10(c) was not pressed by the Council in final submissions. Following evidence from the Applicant's experts that operating the sector 3 antenna at 300 of azimuth would impact on the optimum use of the technology, the Council did not press this condition. Condition 10(d) is advisory because the Council has power under s 191 and s 118A of the Local Government Act 1993 to enter the site and do whatever checks it considers necessary. It is therefore an unnecessary condition.

39. For the above reasons I do not intend to impose condition 10.

Condition 3 40. Condition 3 also deals with co-location of telecommunication facilities and reads as follows: Future Co-location - Any mobile network operator, who wishes to co-locate on the approved telecommunications facility, is required to: (a) provide details of the visual impacts of any proposal and an updated electromagnetic energy (EME) report for review and consideration by Council; (b) obtain all approvals required to be obtained by that operator under New South Wales law in respect of the subject property; and (c) ensure that the use and operation of the subject property by that operator will not be in breach of the terms of these conditions of consent.

The applicant shall ensure that these requirements are contained in any future contract documentation with other mobile network operators. 41. Once again the difficulty with this condition is that it deals with possible future activities at the site and does not relate to the current development application. Furthermore, the co-location of facilities is likely to be exempt by the Telecommunications Act from the need to obtain development consent under the EP&A Act.

42. Clause 36(1) of Schedule 3 of the Telecommunications Act contains a general rule to the effect that it does not: operate so as to authorise an activity to the extent that the carrying out of the activity would be inconsistent with the provisions of a law of a State or Territory . This general rule is subject to the specific exceptions contained in Divisions 2, 3 and 4 of Schedule 3 of the Telecommunications Act.

43. In brief, divisions 2, 3 and 4 of Schedule 3 of the Telecommunications Act give carriers certain broad powers, subject to certain conditions being met, in relation to: · the inspection of land; · the installation of facilities; and · the maintenance of facilities.

44. In particular, a carrier is exempt from any need to obtain development consent when: (a) installing a "low impact facility" within the meaning of the Telecommunications (Low-impact Facilities) Determination 1997 (as amended by Amendment No. 1 of 1999) (the Determination) published by the Minister pursuant to the Telecommunications Act; and (b) "maintaining" a facility; pursuant to divisions 3 and 4 of Schedule 3 to the Telecommunications Act.

45. The effect of these provisions is that: (a) any future works carried out by the Applicant in relation to the proposed development; or (b) any further telecommunications facilities, such as antennas, installed by other carriers seeking to co-locate on the pole forming part of the proposed development; are likely to constitute either "low impact facilities" within the meaning of the Determination or "maintenance" and, hence, be exempt from any requirement to obtain development consent under the EP&A Act. In Optus Communications Pty Limited v the Corporation of the City of Kensington and Norwood and Or [1998] SARDC 480 (29 May 1998), the South Australian Environment Resources and Development Court refused to uphold a condition limiting the number of antennas which could be attached to a mobile phone base station on the grounds that it would not be appropriate to do so if the Telecommunications Act permitted such antennas to be installed without development consent. 46. The Council made it clear in its closing submissions that its concern in relation to co-location of facilities was not so much to restrain future development but rather to ensure that the Council is kept fully informed as to any future developments in relation to the proposed facility.

47. Operators such as the Applicant are required to comply with cl 5.6 of the "Industry Code - Deployment of Radiocommunications Infrastructure" prepared by the Australian Communications Industry Forum (the Code) when seeking to co-locate facilities. The Code was registered by the ACA on 10 October 2002 pursuant to s 117(2) of the Telecommunications Act. The Applicant is a signatory and accepts that it is bound to comply with the Code from that date. Clause 5.6 of the Code relevantly specifies that: 5.6.2 The Carrier must give the Council notice of the proposed work which must include: (a) the proposed location; (b) a written description of the proposed work; (c) a statement setting out whether the Carrier regards the infrastructure as a Low Impact Facility under the Telecommunications (Low-impact Facilities) Determination 1997 and the reasons for that conclusion; (d) a statement that the proposed infrastructure will be in compliance with the ACA EMR regulatory arrangements; (e) if the radiocommunications infrastructure is associated with a base station used for the supply of public mobile telecommunications services, a statement of estimated EMR exposure levels in the ARPANSA Report format (see Appendix B - Additional Design Information); and (f) a statement that Council may obtain further information on the proposed work, and contact details for the Carrier's representative from whom the information may be obtained.

5.6.3 The Carrier must also publish in a newspaper circulating in the area surrounding the location of the proposed work a notice which must: (a) describe the proposed work and its location; and (b) state that members of the public may obtain further information on the proposed work, and set out contact details for the Carrier's representative from whom the information may be obtained; and (c) invite written submissions on the proposed work; (d) specify the closing date for submissions, which must be at least 10 days after the date on which the notice is published; and (e) state the address to which submissions should be sent.

5.6.4 The notice must be legible and be in the public notice section of the newspaper.

5.6.5 Before commencing the work, the Carrier must have regard to any submissions received from the public and Council. 48. Condition 3(a) requires more of an operator than cl 5.6 of the Code but is beyond the power of this Court to impose in my view, given the scope of the Commonwealth legislative regime for telecommunications. Conditions 3(b) and (c) are advisory as, assuming there will be approvals required by New South Wales law and there are not at present, these would have to be complied with in any event. Accordingly, these conditions are superfluous. The primary aim of condition 3, as described by the Council and reflected in the last sentence, is to ensure that the Applicant includes these matters in any future contract documents it enters into with carriers seeking to co-locate. This basis for the condition is also beyond the power of this Court. It seeks to affect the rights of third parties in relation to future activities at the site. Further it is not legally open to this Court to impose conditions affecting the contractual rights of parties not before it in this Class 1 appeal.

49. The remainder of conditions in Annexure A, were agreed between the parties. The conditions regarding landscaping as agreed specify that the only trees to be removed are the ten trees identified in the Flora and Fauna Assessment of David Robertson, Cumberland Ecology, dated February 2004. Orders 50. The Court considers that development consent should be granted subject to conditions and accordingly makes the following orders:
    1. The appeal in respect of DA 2696/2003/HB in relation to Lot 1 DP576773 Sydney Water Reservoir Castle Hill is upheld.
    2. Development consent for a telecommunications facility is granted subject to the conditions contained in Annexure "A".
    3. The exhibits except for 3, 4 and L are returned.

ANNEXURE "A" CONDITIONS OF CONSENT Hutchison Telecommunications (Australia) Pty Limited v Baulkham Hills Shire Council

(1) Development in accordance with submitted plans - The development being carried out substantially in accordance with the Statement of Environmental Effects dated January 2003 (as amended to reflect a pole height of 33.6 metres plus a 2.8 metre turret for a total height of 36.4 metres - which reflects a centre line of 35 metres), report number T30516 (16/5/03) by EMC Technologies Pty Limited and the following plans, except where amended by the conditions of this consent: Drawing A0: By Dated Revision Site Locality Plan A01 SKM 06/ 02 /2004 D Site Setout Plan A02 SKM 06/ 02 /2004 D Site Elevation Plan A03 SKM 06/ 02 /2004 E

The power supply to the antennae must be no more than 10 watts as described in the application. (2) Construction Certificate - Submission to, and approval by, Council or an Accredited Certifier of a construction certificate. Plans submitted with the construction certificate are to be amended to incorporate the conditions of this consent.

(4) Protection of Existing Vegetation - Care is to be exercised during the construction of the proposed works to ensure natural vegetation and topography on the subject site is not unnecessarily disturbed.

Vegetation clearing will be kept to the minimum necessary and will be limited to the removal of groundcover species and a maximum of ten small trees as identified in part 4.1 of the Flora and Fauna Assessment of David Robertson of Cumberland Ecology dated February 2004.

Care will be taken to ensure there is no damage to vegetation that does not require clearing. All vegetation cleared from the study are will be disposed of appropriately offsite.

Locally-indigenous vegetation comprising species characteristic of the adjoining bushland will be planted around the equipment shelter fence where practicable upon the completion of works.

(5) Reflective Qualities - Construction materials are to exhibit low reflective qualities and are to blend with the landscape of the site and the surrounding environment.

(6) Noise emissions - Plant used for the purpose of, or in conjunction with, the proposed development (other than plant used merely for the construction of the proposed development) and likely to emit noise shall be located to minimise any impacts to adjoining properties. The noise level of all plant, both individually and collectively, shall not exceed the background noise levels by more than 5dB at any time, when measured at the boundary of the subject property.

(7) Emission Levels - The telecommunications facility is to comply with the Australian Radiation Protection and Nuclear Safety Agency Radiation Protection Standard - Maximum exposure levels to radiofrequency fields - 3kHz to 300GHz as amended from time to time.

(9) Report on Emission Levels - A Validation Report shall be submitted to Council within 12 months of the facility commencing operation. This report shall demonstrate emission levels for adjoining areas, including Melia Court, Forest Knoll, Hoop Pine Place and Telfer Road comply with the Australian Radiation Protection and Nuclear Safety Agency Radiation Protection Standard - Maximum exposure levels to radiofrequency fields - 3kHz to 300GHz as amended from time to time. (10) Deleted

Prior to any work commencing on site: (11) Erosion and Sediment Control - Erosion and sediment control measures shall be implemented and maintained, prior to commencement of work. Measures are to incorporate: (a) A silt fence or other device to prevent sediment and other debris escaping from the cleared or disturbed area into drainage systems or waterways. (b) A stabilised all weather access point to prevent the tracking of sediment by vehicles onto roadways. (c) The disturbed area is to be promptly stabilised by revegetation or re-constructed by any other approved method. (12) Notification - Two days before work commences, Council shall be notified of the Principal Certifying Authority in accordance with Form 7 of the Regulation.

(13) Protection of Existing Vegetation - Paraweb Fencing - Except as provided in condition 4, trees are to be preserved in accordance with Council's Tree Preservation Order which prohibits the ringbarking, cutting down, topping, lopping or wilful destruction of trees except with the prior approval of Council. All trees to be retained are to be protected by paraweb fencing, firmly staked four metres from the trunk of the tree. This fencing is to be erected prior to the commencement of any site works and is to be maintained in position for the duration of the works. The area within the dripline of the tree should not be used for the stockpiling of new or demolition material, nor for vehicular or pedestrian convenience or uses that would compact the soil in this area.

(14) Hours of work - Work on the project to be limited to the following hours:

Monday to Saturday 7:00am to 5:00pm No work to be carried out on Sunday or Public Holidays.

The builder/contractor shall be responsible to instruct and control sub-contractors regarding the hours of work. Council will exercise its powers under the Protection of the Environment Operations Act, in the event that the building operations cause noise to emanate from the property on Sunday or Public Holidays or otherwise than between the hours detailed above.

(15) Works - All work shall be undertaken in accordance with manufacturers and structural requirements.

(16) Building Inspection Notification - The following inspections are required to be carried out during the construction of the building: Building complete prior to occupation.

You are advised that Council provides the service of carrying out the above inspections at the rate of $60.50 each (GST inclusive). Council may also issue a Compliance Certificate. Each Certificate for the above shall be at a charge of $71.50 (GST inclusive). 48 hours notice must be given, either in writing, or by telephone prior to Council carrying out the inspection. Should you however, wish to obtain the services of a private accredited certifier to carry out the required inspections, you are required to notify Council of the Principal Certifying Authority within the maximum of 2 days prior to commencement of work. It is the responsibility of the builder and/or owner to obtain from the Principal Certifying Authority relevant Compliance Certificates or inspection results prior to proceeding with any further work NOTE: No building shall be occupied or used prior to a satisfactory final inspection being carried out.

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.