Optus Mobile Pty Ltd v Tweed Shire Council

Land and Environment Court (NSW)|2012-05-08

Judgment 1This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to Development Application DA 10/0295 for a telecommunications facility on Lot 7306 DP 1132011, 37 Boxsell Road Limpinwood (the site). 2The site is approximately 2.2 km from Tyalgum and has an area of 15,705 sqm. The site is located on a ridge, and slopes from approximately RL 179 m to RL 150 m. The site is presently used as a waste transfer station operated by the Council, and has a waste transfer building, a small shed, and an access track. The surrounding area is used predominantly for cattle grazing. There are several mature trees located within close proximity of the proposed facility. 3The proposed telecommunications facility comprises a 30 m high monopole with three panel antennas attached to a circular headframe, and three parabolic antennas at centre line 27 m; a prefabricated equipment shelter at the base of the monopole; and a 2.4 m high security fence enclosing the compound. 4The Council raised five contentions in its Statement of Facts and Contentions: unacceptable visual impact (1.1); co-location (1.2); unacceptable impact on flora and fauna (1.3); existence of better suited alternative sites (1.4); and the public interest (1.5). The Council did not press contention 1.2, and that part of contention 1.3 relating to impact on flora. The central issues in dispute related to the visual impact of the proposed development, and impact on fauna.

Evidence 21The hearing commenced on site, and included a view of the location of a proposed Telstra facility at 10 Boxsell Road, and a view of the site the subject of this appeal from six locations, being the home of Ms Megan Jack and Ms Elizabeth Jack on Limpinwood Road; Limpinwood Park; the Wanungra View cul-de-sac; the intersection of Brays Creek Road and Cougal Street; the intersection of Cougal Street and Balluna Street; and outside the Tyalgum community hall on Coolman Street. 22Evidence was given on site by Megan and Elizabeth Jack, and by the parties' experts. Notes taken by the parties during the site view were tendered and are exhibits J and 14. 23The Council notified the development application and 21 submissions including a petition were received. Those submissions are in evidence (exhibit 6 tabs 25-47). A number of the written submissions adopt a standard form letter, in which concerns are raised that the site was intended to become a picnic facility once the waste management facility closed; concerns as to Aboriginal heritage, incompatibility with future development of adjoining land, health dangers associated with EME, and impact on wildlife as the site is an important wildlife corridor; and the suggestion that Council assist in providing a more suitable site. The petition repeated those concerns. One submission supported the proposed development, stating that "we are desperate for decent mobile phone service in this area". Ms Megan Jack and Ms Elizabeth Jack had provided written submissions (exhibit 6, tabs 28, 29). In oral evidence Ms Megan Jack stated that the site is where it is possible to appreciate the size and scale of the caldera, both by locals and tourists; and the site is not the best location for a telecommunications facility. She and three or four people had prepared the form letter used by most of the objectors. Ms Elizabeth Jack stated concerns as to health impacts of the facility. 24Expert evidence was provided on behalf of the applicant by Ms Petra Kovacs (planning), Dr Richard Lamb (visual impact), Dr Anne Clements (flora) and Dr Stephen Ambrose (ecology). Expert evidence was provided on behalf of the Council by Ms Colleen Forbes (planning) and Dr Stephen Phillips (ecology). 25The planning and visual impact experts, and the ecology experts, gave oral evidence and were cross examined. Dr Clements was not required for cross examination.

Visual impact 26The Council contended that the proposed development will have an unacceptable visual impact, particularised as follows: (a) the proposal is 31.4m in height and will be visible above the tree line (shown as approximately 22m in the Applicant's drawings); (b) the proposal is inconsistent with Principle 1 (Visual Impact) of the NSW Telecommunications Facilities Guideline Including Broadband July 2010 which are the guidelines issued for the purposes of clause 115(3) of the Infrastructure SEPP (Guidelines), and which requires that a telecommunications facility should respond appropriately to its rural landscape setting and should be located so as to minimise or avoid obstruction of a vista or panorama; (c) the proposal is inconsistent with the aims of the LEP contained in clause 4 of the LEP which require the management of growth so that the unique natural and developed character of the Tweed Shire is retained; (d) the cumulative visual impact of the Proposal and the proposed Telstra tower to be located 620m along Boxsell Road will be unacceptable and inconsistent with clause 8(1) of the LEP; (e) the requirement of the Rural Fire Services to create a 10m Asset Protection Zone around the Proposal will result in removal of trees and further exacerbate the visual impact of the Proposal; (f) the Tweed Shire Scenic Landscape Evaluation 1995 (Landscape Evaluation) identifies the Limpinwood area within which the Site is located as having a Very High scenic quality and Tyalgum Creek as having a High scenic quality. 27In the joint report (exhibit 5) Dr Lamb, Ms Kovacs and Ms Forbes agreed in relation to contention 1.1(a) that part of the monopole will extend above the height of the tree canopy; there are a small number of viewing places from which the monopole will be visible from Limpinwood Road; viewers in Tyalgum Village are approximately 2-2.5 km from the proposed development; trees in the vicinity of the proposed facility may assist in decreasing its visibility; and the colour proposed for the facility may assist in mitigating its impacts. 28In relation to contention 1.1(b) the experts agreed that the facility may be partly visible in a vista or panorama in some instances. In relation to contention1.1(c) the experts agreed generally that it is appropriate to cluster uses such as utilities and industrial type activities and that the current zoning 5(a) special uses generally supports that. The experts agreed in addressing contention 1.1(f) that the Tweed Shire Scenic Landscape Evaluation 1995 does not have statutory force in the Tweed Shire, is not freely available or in a format accessible to applicants, and that the development control plan which implements it is not applicable to the proposed development. 29At the time the experts prepared their joint report the heights of the trees that may be relevant in determining the extent of the projection of the monopole relative to the trees was not accurately known because the heights had not been surveyed. A survey was undertaken as at 18 and 21 March 2012, and exhibit F provides a schedule of trees (A1-A5, A7-A9, B1, B3-B5, B8-B10) with the height of each tree, and distance to the monopole. Exhibit F was in evidence at the time the experts gave their oral evidence. Exhibit H provides a schedule of the same trees, with the RL at the base of each tree, the RL at the top, and the height. Exhibit H contains a note that "from Plan S8478B-G4/4 the top of the proposed monopole will be approximately at RL 205". It was common ground that the proposal is 31.4 m in total height. 30In the course of their oral evidence on 22 March 2012 each expert was invited to comment on their assessment of visual impact from each of the six locations visited on the site view. Based on their evidence, and on the site view, I find that from the premises of Ms Megan Jack and Ms Elizabeth Jack the site is not visible, other than from the driveway; there will be some screening effect from the trees, however between 5 to 10 m of the monopole will be visible above the trees. From Limpinwood Park, up to 5 m of the monopole will be visible above the existing tree line. A similar view would be obtained from Wanungra View; an additional factor at that location would be the utility pole in the cul de sac. At the intersection of Brays Creek Road and Cougal Street, depending on where a person was standing, part of the monopole would be visible above the tree line; the mountain would be a backdrop behind it. From the intersection of Cougal Street and Balluna Street, the monopole would be above the tree line, however there would be screening from the mountain behind. The final location visited on the site view was Coolman Street, outside the community hall. There are a number of street trees along Coolman Street that would screen the monopole; otherwise if a person were standing between the tree trunks part of the monopole would be visible without the backdrop of the mountain. Ms Forbes estimated that one third of the monopole would be visible; Dr Lamb disagreed that one third would be visible, because of the perspective effect of the trees A4, B4, B3 and B5 in the foregrounds and potentially by the canopy of A3. 31The Council's contentions require consideration of the impact of this visibility against the Principles in the Guideline and the aims and objectives of the LEP.

Asset Protection Zone 32An issue in considering visual impact is whether clearing of any of the vegetation that might otherwise screen the proposed facility may be required to provide an asset protection zone (APZ). 33The Council submits that the public interest in maintaining the facility in operational form during a bush fire means that its proposed condition 24 should be imposed: A 10m Asset Protection Zone (APZ) from the tower and buildings/structures associated with the tower shall be provided, in accordance with Rural Fire Service's Practice Note 1/11 (Version 0.2 July 2011). The APZ must be free of surface fuel and elevated fuel and should have minimum canopy. The APZ must be maintained for the lifetime of the structure. 34Optus opposes this condition, submitting that in the absence of any evidence of any response from the NSW Rural Fire Service (RFS) with regard to the proposal, there is no requirement of the RFS to create a 10m APZ around the proposed development. If condition 24 is imposed it should be amended to provide for no more clearing than is necessary, or that clearing should be under the guidance of an ecologist. 35It was common ground that the site is bush fire prone land, and that the proposed development does not require the concurrence of the RFS. The Council emailed the local branch of the RFS on 8 June 2010 and on 18 August 2010 in relation to the proposed development being located on bushfire prone land. The Council did not receive a formal response. The Council relies on correspondence with the RFS in relation to another development proposal, which refers to the RFS requirement for a 10 m asset protection zone (APZ) around the tower, buildings and associated infrastructure, and a requirement that the equipment shelter comply with section 8 (BAL 40) Australian Standard AS3959-2009 "Construction of buildings in bushfire-prone areas". In her statement of evidence (exhibit 2) Ms Forbes referred to the RFS Practice Note 1/11 Telecommunications Towers in Bush Fire Prone Areas (version 0.2 July 2011), which states that telecommunications towers in bush fire prone areas are critical infrastructure for fire fighting communications and for providing warnings, information and communication channels for people in bush fire prone areas during bush fire emergencies. The Practice Note states: When the RFS is asked for comment on new towers or for existing towers, a 10 metre APZ from the tower/buildings/infrastructure associated with the tower shall be provided. Infrastructure does not include: •road access to the site; •power or other services to the site; •associated fencing. The APZ must be kept free of surface fuel and elevated fuel and should have minimum canopy. 36In their joint report (exhibit 5) Dr Lamb, Ms Forbes and Ms Kovacs considered the Council's contention that a 10 m APZ would result in removal of trees and further exacerbate the visual impact of the proposal. They agreed that the RFS Practice Note is not a draft policy, and that as the proposed development was not integrated development the information provided by the RFS was advice only. Ms Forbes' evidence was that it is Council policy to apply RFS advice as they are the experts in bushfire matters; in oral evidence Ms Forbes conceded that there is no written policy to that effect. Ms Kovacs was of the opinion that if an APZ is required it should be measured from the monopole and equipment shelter as this comprises the critical infrastructure. 37While there is no requirement imposed by the legislation to obtain concurrence of the RFS, I agree with the Council that in considering the suitability of the site for the proposed development, which is for infrastructure likely to be called upon in a bush fire emergency, it is proper to consider RFS policy. The published policy of the RFS can be taken into consideration as a matter relevant to the public interest: Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195. Even though there was no direct response to the development application the subject of this appeal, the correspondence with the Council confirms that the policy as stated in the RFS Practice Note 1/1 Telecommunications Towers in Bush Fire Prone Areas (version 0.2 July 2011) is applied by the RFS in responding to individual development applications. I agree with the Council that it is appropriate to require an APZ of 10 m from the monopole and the associated infrastructure, which in this instance, as confirmed by Ms Kovacs, would include the equipment shelter. 38In considering the consequence of establishing an APZ, I note the evidence of Ms Kovacs who commented (at [36]) in her report (exhibit B)) that having regard to the RFS Practice Note the design of the compound was re-oriented to ensure that it was outside the surrounding tree drip line to ensure tree roots were not unduly damaged; the immediate area surrounding the compound will be cleared and maintained of undergrowth; and the approximate distance from the monopole to the closest three tree trunks is 14.33 m to the tree located to the north east, 12.16 m to the tree to the east, and 11.46 m to the tree located to the south east. At [38] Ms Kovacs commented that if a 10 m APZ is required as measured from the monopole and equipment shelter, the tree directly to the east will have to be removed as this would most likely be less than 10 m from the equipment shelter. If the APZ is measured from the compound fence line, the tree located directly to the east would have to be removed, as would the tree directly to the south east. The tree directly to the north east "should be able to remain". 39In their joint report (exhibit 4) Dr Phillips, Dr Clements and Dr Ambrose agreed that based on the surveyor's data and the spatial surveys of Dr Clements and Dr Phillips, no trees occur within 10 m of the proposed monopole and hence no trees would need to be removed. In oral evidence Dr Ambrose and Dr Phillips agreed that tree B3 may be within 10 m of the equipment shed. 40The plans for the proposed development (exhibit G) show the monopole at the western side of the rectangular Optus lease area, close to the security fence. The 3.0 m x 2.5 m equipment shelter is to the east of the monopole, extending approximately 4 m from the monopole to the east and 1 m to the north. Those plans together with the survey (exhibit H) confirm Ms Kovacs' evidence that if an APZ is measured from the equipment shelter tree B1 to the east would be within 10m. The plans and the survey confirm the evidence of Dr Ambrose and Dr Phillips that tree B3 to the south east would also be within 10 m. Based on the plans and the survey, and consistent with the evidence relating to trees B1 and B3, tree A9 may also be within 10 m of the equipment shelter. 41Dr Clements reported (exhibit E, pp 17-18) that the canopy of tree A9 has some dead wood which requires careful pruning if structures and persons are to be nearby; the canopy of tree B1 is relatively intact; and that the canopy of tree B3 has dead wood which requires pruning if structures and persons are to be nearby. In the joint report (exhibit 4, p 5) Dr Clements noted that tree B5 (which is to the south east of the facility, 27 m from the monopole) is largely dead and poses a risk to vehicles and persons on the access road and persons on the landscape area; trees B3 and B4 are declining and also pose a risk to vehicles and persons on the access road and persons on the landscape area; and recommended that trees in declining health and dead limbs that pose a safety risk should be carefully removed. 42Based on this evidence I am satisfied that the proposed development would probably necessitate the removal of tree B3, or at the least pruning, and the removal or pruning of trees B1 and A9, in order to establish an APZ; removal of tree B5 which is dead; and either removal or pruning of tree B4 would also be required to minimise the risk to persons and vehicles.

Assessment of visual impact 43It was common ground that the monopole will be visible from certain locations in the surrounding area; my findings based on the expert evidence and the view as to visibility in relation to the six locations visited on the view are provided at [30] above. I accept the expert evidence, which is consistent with the view, that there will be some screening of the monopole and the facility from certain locations by the trees that are on the site and on surrounding land, and that removal or pruning of trees required to provide an APZ may reduce any such screening. The experts agreed that visibility of itself would not determine whether the proposal is satisfactory; that is consistent with the purpose of the Principles in the Guideline being to encourage the provision of telecommunications facilities with minimal impact on the amenity of the area. 44Clause 115(3) of the Infrastructure SEPP requires consideration of the Guideline. Principle 1 of the Guideline states that a telecommunications facility is to be designed and sited to minimise visual impact. The evidence and submissions focussed on Principle 1(b), that the visual impact of telecommunications facilities should be minimised; (e), that a facility is to be located and designed to respond appropriately to its rural landscape setting; and (g), that it should be located so as to minimise or avoid obstruction of a significant view of a heritage item or place, a landmark, a streetscape, vista or panorama. 45In considering the Council's contention that the proposal is inconsistent with Principle 1, I agree with Optus that cl 115(3) of the Infrastructure SEPP requires consideration of the Principles, not that development applications be consistent with the Guideline. I accept the evidence of Dr Lamb that telecommunications facilities of their nature and because of their technical requirements are commonly proposed as pole or tower structures in rural landscapes, and are often isolated in open and prominent locations on hills or ridges. Dr Lamb was of the opinion that the monopole has minimised obstruction by its location amongst trees, and its slim structure of minimal bulk, seen as a small item in a large landscape, will not obstruct a vista or panorama. Ms Forbes was of the opinion that the proposal will break up the panoramic view from certain areas surrounding the site. Visibility of the monopole as such, in the context of the provision of necessary infrastructure, is not the issue: Telstra Corporation v Palerang Council [2009] NSWLEC 1391 at [24]. In considering Principle 1, having regard to the proposed colour of the monopole, and the screening effect of vegetation, even with some reduction as required to establish an APZ, and the background mountain, I am satisfied that the design and location of the facility would not obstruct a significant view of the vista or panorama, and that the design and siting of the proposed facility is not inappropriate in the landscape setting. 46The Council contended that the proposal is inconsistent with the aims of the LEP contained in cl 4 of the LEP, in particular giving effect to the desired outcomes, strategic principles, policies and actions of the Tweed Shire 2000+ Strategic Plan, the vision of which is the management of growth "so that the unique natural and developed character of the Tweed Shire is retained". Clause 8(1)(b) of the LEP requires consideration of the aims and objectives of the LEP, rather than consistency. I agree with Ms Kovacs that it is relevant that the site is a waste transfer station surrounded by cleared rural land; while the proposed facility will be visible, it is not for that reason inappropriate for the site. 47The Council's contention that the proposal will have an unacceptable visual impact included the particular that the cumulative visual impact of the proposal and the proposed Telstra tower is unacceptable and inconsistent with cl 8(1) of the LEP. That is a separate issue to that raised in contention 1.2, that the proposal is inconsistent with Principle 2 (Co-location) of the Guideline as Optus has not adequately demonstrated that co-location is not practicable; the Council accepted that Principle 2 relates to existing facilities, and did not press contention 1.2. 48Optus submits that the non-existence and uncertainty of the Telstra facility eliminates the consideration of cumulative impact, and the proper approach to considering under s 79C(1) the matters of relevance to the development the subject of the application does not include impacts of future developments. Optus submits that the complying development certificate issued for the Telstra facility is beyond power, being contrary to cl 116A(2)(c) of the Infrastructure SEPP, until the issue of Aboriginal cultural heritage significance is clarified. If, in the alternative, the Court is to assume two telecommunications facilities, Optus submits that having regard to Dr Lamb's evidence the Court would not find that cumulative visual impact would be unacceptable or inconsistent with cl 8(1) of the LEP. The Council submits that it is sufficient that Telstra has a complying development certificate which can be acted upon, and that regard must be had to the Telstra facility. 49Clause 8(1)(c) of the LEP was considered in Hastings Progress Association Inc v Tweed Shire Council [2008] NSWLEC 180, and on appeal to the Court of Appeal in Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285. At first instance, Pain J held: 103 Clause 8(1)(c) requires assessment of cumulative impact. Assessment of cumulative impact requires that the impact of similar developments to the one proposed and the accumulation of such development and successive developments of a similar type on the community or locality be conducted, see BT Goldsmith at [90] and Dames and Moore at [46], adopted in Gales Holdings at [43]. The issue of whether a development establishes a precedent is also required. It appears that this development is the first of its type in this medium density residential zone. I accept the Applicant's argument of what such an assessment requires (see par 77-78). It follows that it is not sufficient to assess the impact of the single development on the locality and community as the planner's report does. 50Paragraphs [77]-[78] summarised the submissions made by the applicant on those proceedings: 77 Clause 8(1)(c) requires the Council to be satisfied the development would not have an unacceptable cumulative impact on the community and locality, inter alia. The word "cumulative" anticipates a consideration of not just the development the subject of the application, but the development in combination with other development in the locality and the effect that the accumulation of such development and successive development of a similar type, will have on the community or locality. Thus it imports concepts of precedent as well as consideration of the effect of past approvals and developments. 78 There is also judicial support for this interpretation to include not only the effect of the subject development, but to include other developments of a similar type that might take place in the future and developments already approved; see for example BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210, Dames and Moore Pty Ltd v Byron Council [2000] NSWLEC 46) both adopted in Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 85. 51On appeal, the Court of Appeal (McColl JA at [8], Young JA at [94]) confirmed that cl 8(1) mandates that consent be refused unless each of the three conditions to which it refers are satisfied. The issue before the Court of Appeal was whether cl 8(1) of the LEP was inconsistent with cl 17 of the State Environmental Planning Policy - Seniors Living for the purposes of s36 of the Act, and cl 5(3) of the State Environmental Planning Policy - Seniors Living. The Court of Appeal (by majority) dismissed the appeal, and did not overturn the approach to application of cl 8(1)(c) identified by Pain J at first instance. The decision of Pain J is binding on me, and the authorities relied upon by Optus do not require a contrary approach. Hutchison Telecommunications (Australia) Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 104 concerned conditions imposing operational limits on telecommunications infrastructure, and at [31] Pain J held that conditions regulating future activity on the site, namely co-location of facilities by the applicant or other telecommunications operators, would not be within power under s 80A of the Act; it was in that context that Pain J observed that s 79C(1)(b) does not make any reference to the impacts of future developments such as those at which the draft conditions were aimed. The decision of Waddell J in Sofi v Wollondilly Shire Council (1975) 31 LGRA 416 confirmed that on an appeal by way of rehearing, the task is to determine the matter having regard to both the facts and the law as existing at the time of the hearing, rather than as at the date of the Council's decision or at the date the appeal was lodged. 52In considering the status of the proposed Telstra facility, it was common ground that on 9 February 2011 the Council received advice from Aurecon Australia Pty Ltd of a proposed Telstra installation at 10 Boxsell Road, considered to be complying development. On 21 February 2011 the Council advised the applicant that Telstra was proposing a 40 m monopole at 10 Boxsell Road; the Council requested the applicant to investigate the possibility of co-locating on the proposed Telstra tower. Ms Forbes' evidence (exhibit 2), which was not disputed on this aspect, was that on 28 March 2011 the Council received written confirmation of an approved Complying Development Certificate (CDC Number 110008, issued 22 March 2011). The documentation received included signatures of the owners of the allotment on which the Telstra facility is proposed providing consent to the application; on 9 January 2012 the Council received written confirmation that a lease agreement has been finalised with the land owner. Correspondence in evidence (exhibit 9) between the Council and Telstra indicates that as at 13 March 2012 the Telstra proposal was the subject of a cultural heritage assessment, and that if there were no issues with that assessment "then Telstra will be wanting to build the site in late June". While Optus submitted that the assessment of cultural heritage indicates that the Telstra site falls within paragraph (g) of the definition of "environmentally sensitive area" as applicable for cl 116A of the Infrastructure SEPP, there is no indication in the evidence before me that the Telstra site is so identified in an environmental planning instrument. It is not clear when, or on what basis, the advice to which Ms Kovacs referred (exhibit B, p8) that Telstra is unlikely to proceed, was provided. 53Having regard to the issue of the complying development certificate, which has the same effect as a development consent; the lease of the land on which the Telstra development is proposed; and the advice from Telstra recorded in exhibit 9, I am satisfied that there is sufficient certainty as to the Telstra proposal that it should be considered as an approved development of a similar type likely to take place in the future. Applying Hastings, the Telstra proposal must be considered in the assessment of cumulative impact required by cl 8(1)(c) of the LEP. 54It was not in dispute that the distance between the site and the proposed Telstra site is approximately 620 m. The plans for the Telstra proposal (exhibit 11) indicate that the proposed monopole is 40 m, with panel antennas extending to 41.3 m. It was apparent on the view that the land on which the Telstra facility is proposed slopes steeply. The plans include a rock anchor footing for the monopole and a 2.5 m retaining wall. 55In his statement of evidence (exhibit C, p23) Dr Lamb addressed the Council's contention relating to cumulative impact, stating that in his opinion the Telstra tower is in a significantly inferior position from a visual impact point of view and the proposed site is superior. Dr Lamb went on to consider the contention in terms of co-location, stating that the present application is in the best location, because it is in an area within lower intrinsic scenic quality, higher capacity to absorb the development and where the proposal is of greater compatibility, the landscape of the Telstra site is of higher scenic quality and less capable of absorbing the development without significant impact on that quality and the tower would be less compatible with the character and quality of its setting; the potential Telstra site is considerably higher in elevation, has a significantly greater visual catchment, and is visible from more locations; and a tower on the Telstra site would be visible above the tree line from many locations. Ms Kovacs did not regard the cumulative impact as a relevant consideration, given her understanding that Telstra's position is that it is unlikely to proceed with its proposal in the near future (exhibit B, p8). Ms Forbes was of the opinion that as a result of the facilities being located 620m apart, the cumulative visual impact will be unacceptable (exhibit 2). Exhibit 2 includes a photograph (figure 4) indicating the approximate position of both facilities when viewed from Tyalgum township, which was not challenged. 56In the joint report Ms Forbes stated that in her opinion the cumulative impact of having two telecommunications facilities in such close proximity is unacceptable in such a rural setting. Ms Kovacs did not consider this to be an applicable consideration given that no Telstra facility is in existence. Dr Lamb stated that as there is no tower the cumulative impact cannot be meaningfully addressed. 57The experts addressed this contention in oral evidence, by reference to the plans for the Telstra facility (exhibit 11). Ms Forbes' evidence was that in terms of visual amenity, co-location of the two onto the Telstra proposal would be of less visual impact than having two towers. Dr Lamb considered that the Telstra proposal is a bigger structure, has immediate visual catchment, and it would be inevitable that more of it would be visible above the treeline from more places; he did not consider that co-locating on the Telstra tower would be a good outcome. When asked to assume that the Telstra proposal was to go ahead, Dr Lamb agreed that as a general principle it would be preferable to have one pole from a visual impact perspective rather than two. Ms Kovacs' evidence was that the Telstra tower was on a high ridge that is quite dominant in the skyline; her understanding was that the cut and fill required on the Telstra site was quite significant. Dr Lamb and Ms Kovacs noted that the Telstra facility is not yet in existence. 58I accept the evidence that the Telstra tower, because of its height, and location on the ridge line in an area of minimal vegetation, would have a significant visual impact in the locality. The fact that it is authorised as complying development under the amended Infrastructure SEPP, and therefore does not require assessment as does the present proposal, does not alter this conclusion. I accept Dr Lamb's evidence that if constructed, both towers would be visible from locations other than those to the north of the site where the Optus tower would largely not be visible. The locations from which both would be visible would include Tyalgum township. Given the proximity of the Telstra tower to the proposed Optus tower, and having regard to Dr Lamb's evidence that it would be preferable to have one pole, I am not satisfied on the evidence before me that the proposed development would not have an unacceptable cumulative impact on the locality. 59Applying Hastings, the failure to satisfy cl 8(1)(c) means that development consent cannot be granted, and the appeal must be dismissed. However, it is appropriate, given the extensive evidence and argument on that issue, to consider the Council's contention relating to impact on fauna.

Impact on Fauna 60The Council contends that the proposed development has an unacceptable impact on fauna. Particulars of this contention (1.3) were: (a) The Proposal is inconsistent with Principle 4 (Minimise Disturbance) of the Guidelines as the Proposal has not minimised disturbance to flora and fauna; (b) Insufficient information has been provided to enable an accurate assessment of the impacts of the Proposal on flora and fauna; (c) There is the potential for significant impact on hollow-dependent and threatened species; (d) The Proposal is likely to exacerbate Key Threatening Processes including Loss of Hollow-bearing Trees and Clearing of Native Vegetation; (e) There is the potential for loss of primary and secondary Koala food trees; (f) An alternative less ecologically constrained location is available and would result in co-location. 61As noted above, the Council accepts the evidence of Dr Clements and does not press that part of contention 1.3 relating to flora. In relation to contention 1.3(e) the ecology experts agreed that koala food tree species, which are Primary and Secondary koala food trees, occur on the site, and that while the vegetation community on the site is Potential Koala Habitat it is not Core Koala Habitat; and that the potential loss of Primary and Secondary koala food trees is unlikely to occur. 62The Statement of Environmental Effects (SEE) provided with the development application did not consider potential impacts of the proposed development on threatened species, ecological communities and their habitats. Correspondence from the former Department of Environment Climate Change and Water to Optus (exhibit 6, tab 18) included a list of threatened species recorded within 5 km of the site, and advised that the proposed tower is within the Limpinwood to Wollumbin regional corridor linking Limpinwood Nature Reserve and Wollumbin National Park, and that the likelihood of the threatened species using the site "is considered to be minimal as the site is highly disturbed and surrounded by cleared land". The list provided included the Large-eared Pied Bat and the Little Bentwing-bat. Optus provided an Ecological Assessment dated 24 August 2010 undertaken by Orogen Pty Ltd based on a desktop review, and a site inspection on 12 August 2010 to validate the Council's vegetation mapping of the site, identify potential habitat for threatened flora and fauna, and determine the extent of impact of the facility on flora and fauna (the Orogen report). The Orogen report (exhibit 6, tab 18) concluded that none of the species considered would be expected to be significantly impacts upon as a result of the proposed facility, and that the impact on fauna species was negligible in that no trees are proposed to be removed. 63The focus of the evidence and the parties' submissions in relation to contention 1.3 was on the impact of the proposed development, in particular the emission of EME, on threatened species of microchiropteran bats, or microbats.

Evidence Microchiropteran bats 64Dr Phillips and Dr Ambrose agreed that microchiropteran bat species are members of a highly specialised fauna group that is reliant on echo-location to navigate, communicate and hunt for food. Only a few scientific studies have sought to investigate the impacts of EME on microchiropteran bats, and the observed responses of microbats in those studies range from a reduction in population to aversive behaviour close to EME sources. The biological processes responsible for these responses are poorly understood but explanations proposed by scientists involved in those studies range from the thermal induction of wing membranes leading to overheating and hyperthermia, and/or echo-location interferences. They agreed that the most significant ecological value of the vegetation on the site for fauna is the presence of hollow-bearing trees. 65Dr Phillips and Dr Ambrose agreed in oral evidence that the three most important trees in terms of the provision of hollows on the site are A8, A9 and B3. Dr Phillips expressed concern about any negative impacts on tree B3 arising from a need to create an APZ which may require the tree to be heavily modified or removed; Dr Ambrose was of the opinion that if an APZ required removal of that tree then any hollows would be lost, however the loss of that one tree or the hollows within it would be a negligible proportion of the total number of hollows available for bats in the valley. Dr Ambrose was of the opinion that there is potential for trimming of the canopy that could minimise the amount of damage done to the tree as potential habitat for microbats and other fauna. 66Dr Phillips and Dr Ambrose agreed that at least three threatened microbat species (Little Bentwing-bat, Eastern Bentwing-bat and East Coast Freetail Bat) and possibly one other threatened species (Greater Broad-nosed Bat) use the site. Dr Ambrose and Dr Phillips agreed that if EME irradiation results in evacuation of tree hollows by hollow-dependent and threatened species that has the same effect as removing tree hollows which is an exacerbation of a Key Threatening Process (KTP) under Sch 3 of the Threatened Species Conservation Act 1995. 67While Dr Ambrose and Dr Phillips agreed that the potential for disturbance to these species and their habitat exists, they disagreed about the extent and scale of the impacts on the status of these species and their local populations that could result from EME emissions from the proposed monopole. Survey evidence 68Both Dr Ambrose and Dr Phillips conducted surveys on the site. Dr Ambrose conducted inspections of the site and adjacent land on foot on 18 February 2012 (1610 to 1900 hours) and 19 February 2012 (0700 to 1630 hours) and inspections on both nights between 1930 to 2300 hours. Dr Ambrose's survey area was the site and neighbouring land within a 400 m radius of the proposed monopole location on the southern side of Boxsell Road. That distance was chosen because it represented the distance at which the amount of EME output from the facility would be greatest, the area adequately represented the range of fauna habitats present within the valleys and along the ridge line, and there was insufficient time to survey a larger area. Dr Ambrose detected 10 tree hollows on the site, a further three within 100 m, 25 within 100-200 m radius, 21 within 200-300 m radius and 31 within 300-400 m radius (exhibit D, Table 1). Dr Ambrose noted that not all the tree hollows would be suitable for use by hollow-dependent vertebrates. 69Dr Phillips inspected the site on 23 January 2012, and undertook a field survey during the period 13 to 20 February 2012. Dr Phillips documented the spatial distribution of trees present on the site by measuring the distance and bearing from a fixed point on the site, and measured the diameter at breast height of each tree and examined each tree using binoculars to locate and estimate the number of hollows and their approximate external dimensions. Dr Phillips recorded 14 trees within 30-35 m of the proposed development, six of which he determined were capable of being used by hollow-obligate fauna (exhibit 3, p5). 70In oral evidence Dr Phillips and Dr Ambrose addressed the issue of hollow bearing trees, and displacement. Dr Ambrose stated that his survey had categorised hollows into different hollow types, and he did not measure the internal dimensions of the hollow or the dimensions of the hollow entrance; there was a range of hollow types and sizes and a range of locations. Apart from Bentwing-bats, bats either roost together in small numbers or as solitary individuals and so small hollows are as suitable as larger hollows are; some bat species cohabit hollows with other fauna species. Dr Ambrose was confident that with the range of different hollow types and sizes there would be a suitable range of hollows in the locality. Dr Phillips stated that caution is needed; it is one thing to have an array of hollows, and another to understand why particular fauna groups are using them. Dr Phillips accepted that there is foraging habitat available within the locality, however he considered the issue of roosting habitat to be more important. Dr Ambrose agreed that even though there may be a hollow of a certain type or dimension with characteristics known to be suitable for a particular species that did not mean that that species would use that hollow; the surrounding habitat has to be taken into account. 71In Dr Phillips's opinion there are high levels of mortality associated with animals that are displaced or relocated from their homes either through misadventure or increased levels of predation. Dr Ambrose agreed that hollow use is a complicated process, however if any of the hollow bearing trees are removed the animals would be moving by themselves rather than being relocated. Dr Phillips was of the opinion that there is a degree of site fidelity in some species and the degree of that fidelity varies considerably between species, and he did not agree with Dr Ambrose about the availability of other roosting habitat in the area. Anabat monitoring 72Both Dr Ambrose and Dr Phillips undertook Anabat monitoring on the site, the locations and orientation of the recorders being marked on exhibit 12. Dr Ambrose operated two Anabat II Bat Detectors overnight on the nights of 18 and 19 February 2012 from approximately 1840-1900 hours to 0600-0620 hours. One of the recorders was located on the site with the microphone facing a hollow in a tree located less than 10m south of the proposed monopole. The second recorder was located in a patch of open forest outside the site approximately 300 m west of the proposed monopole (exhibit D, [42]-[44]). Dr Phillips used an Anabat CF bat-detector for a total of 34 hours of monitoring over four nights, which recorded 965 passes from 6-9 species of microbat. Dr Phillips recorded that the greatest period of bat activity was the two hour period following sunset. 73Dr Ambrose and Dr Phillips agreed that there are limitations on Anabat survey technology, based on the length of recording time, locations, and environmental conditions, including the need to protect the microphone in inclement weather. Dr Ambrose agreed that the variation in Dr Phillips's four nightly recordings could be the result of his different positioning of the Anabat recorders, but in his opinion it could also be the result of different bat activity considering that an Anabat recorder in a good location under optimal weather conditions should prick up bat calls within a 50m range. 74The microbat species identified by call-sequence identification from Dr Phillips's Anabat monitoring were: Eastern Horseshoe Bat Rhiopolphus megaphyllus (Confident) Gould's Wattled Bat Chalinolobus gouldii (Confident) Eastern Forest Bat Vespedalus pumilus (Confident) Little Bentwing bat Miniopterus australis (Confident) Eastern Bentwing bat M. schreibersii (Confident) East-coast freetail bat Micronomus norfolkensis (Confident) White-striped Mastiff Bat Tadarida australis (Probable) Unidentified Long-eared bat (Possible) Greater Broad-nosed bat Scoateanax rueppellii (Possible). 75Dr Ambrose accepted Dr Phillips's results as to the number of bat species recorded based on the different degree of survey effort. The Little Bentwing-bat (Miniopterus australis), Eastern Bentwing-bat (Miniopterus schreibersii oceanensis), East-coast Freetail Bat (Mormopterus norfolkensis) (or Eastern Freetail-bat) and Greater Broad-nosed bat (Scoteanax rueppellii) are listed as Vulnerable species under Sch 2 to the Threatened Species Conservation Act 1995. 76Dr Phillips and Dr Ambrose disagreed on the conclusions to be drawn from the data recorded by Dr Phillips. Dr Phillips considered that the timing of bat activity at the site indicates that aggregations are resident in tree hollows on the site, and that the recordings confirmed the egress of resident micro-bat populations from tree hollows at the site rather than general foraging activity of micro-bats arriving at the site from other areas (exhibit 3, p5-6). Dr Ambrose considered that while there may be a high level of recorded bat activity that may be a result of a single or small number of bats flying past the Anabat recorder repeatedly or a larger number of bats passing within the recording range of the recorder. In oral evidence Dr Ambrose disagreed that the spike in activity after dusk was associated with bats leaving hollows. He stated that micro bats come out of their roost sites one to one and a half hours before dusk, and the fact that Dr Phillips recorded a spike in activity after dusk indicated that it is possible that they had moved out on to the site from another location. Dr Ambrose agreed that there is a high density of hollows on the site, double the density of hollows found in his survey of the surrounding 400 m area. However he considered it highly speculative to say that because there is a higher density of hollows there would be a higher number of bats potentially roosting in the area. 77Dr Phillips was of the opinion that at least three of the threatened species roost in hollow bearing trees on the site and that the tree hollows being used as roost sites are a key component in the ecology of the local population. Dr Ambrose agreed that it is probable that the three threatened bat species confirmed on the site would use the site as foraging habitat, and that if the Greater Broad-nosed bat occurs on the site that it would also use the site as foraging habitat; however he disagreed that all four species would be roosting in tree hollows on or close to the site. In his opinion Little Bentwing-bats and Eastern Bentwing-bats do not roost in tree hollows and so are unlikely to be roosting in trees on or adjacent to the site; there is a high potential for Eastern Freetail Bats to reside in tree hollows on the site and there is a possibility that Greater Broad-nosed Bats do too. In oral evidence Dr Ambrose stated that the first published record of the Little Bent-wing Bat nesting in a tree hollow was a paper by Martin Schultz published in 1997; the usual roosting habitat is caves, abandoned mine shafts and tunnels. In Dr Ambrose's opinion subsequent sources including the Office of Environment and Heritage and the IUCN (exhibit 10) have used that source to state the potential for Little Bent-wing to roost in hollows. Impacts of EME 78Dr Phillips and Dr Ambrose agreed that in theory microbat species are likely to comprise the group of vertebrates recorded around the site that are at greatest risk of impacts from EME, because of their small body size and because they are flying mammals. Their small body size and disproportionately larger surface area makes them vulnerable to EME. Bats are nocturnal, spending their days roosting in tree hollows, which Dr Phillips considered will increase duration of exposure to EME. 79Dr Phillips and Dr Ambrose disagreed as to the level of significance of potential impacts of EME on local populations of each of the threatened bat species. Dr Phillips was of the opinion that the size and distribution of the local populations of these species is not known, that roosting habitat is a critical component of the species' local ecology conservation requirements, and that further surveys for bats over a larger area would be required to put the importance of the site into a local context. 80Dr Ambrose was of the opinion that while the physiology and/or behaviour of individual microbats may be impacted by EME, there are no data in the studies that demonstrate that these impacts alter the survival of individual bats or provide convincing information to indicate EME is responsible for a significant decline in the status of a species. Further, similar potential habitat for microbats occurs throughout the Tyalgum and Limpinwood Creek Valleys, based on the abundance of the native canopy tree species where Dr Phillips recorded the greatest amount of bat activity (Tallowwood and Pink Bloodwood); the occurrence elsewhere in the valleys of the same hollow-bearing tree species; and the likelihood that the Eastern Bentwing-bat and Eastern freetail Bat, which have been recorded as travelling up to 6km in a single night between roost site and foraging areas, will use other habitat areas in addition to those on the site. Dr Ambrose was of the opinion that if the bats that use the site do display some aversive behaviour in response to the EME from the proposed monopole, they are likely to use habitat resources away from the site and there are likely to be sufficient habitat and food resources for them beyond the area of potential EME impact. Dr Ambrose believes that the worst-case scenario would be the displacement of threatened microbats from the site and immediately adjacent areas as a result of aversion to EME; however it is highly probable that there are adequate habitat resources elsewhere in the valleys and other parts of the locality to support displaced individuals. Scientific literature 81Dr Ambrose and Dr Phillips identified the scientific literature on which they had relied in their respective statements of evidence, and in the joint report, and commented on that literature in their oral evidence. Dr Ambrose was concerned that some of the journals in which the articles relied upon by Dr Phillips were published were trying to address a target audience that was not ecologists or zoologists or animal physiologists, but rather human physiologists or people with an engineering background interested in electro-magnetic radiation and its potential effect on humans. His concern is whether the articles were peer reviewed by scientists who had the ability to understand the zoology behind the conclusions of the authors. Dr Phillips agreed that most journals have a target audience, however generally people familiar with the field do the review work. Dr Phillips stated that there are a number of journals considering microbiology, micro physiology, effects on cells, and radio microwave. Both Dr Ambrose and Dr Phillips agreed that there are few scientific studies that have sought to investigate the impacts of EME on microbats. In oral evidence Dr Phillips commented that the few publications that are there are looking at EME in a positive sense to understand how to use EME to reduce bat mortality from coming into contact with wind turbines. 82Dr Phillips and Dr Ambrose disagreed as to the relevance of studies undertaken by Nicholls and Racey which had exposed bats experimentally to very high EME levels (Nicholls & Racey, 2007 "Bats avoid radar installations: Could electromagnetic fields deter bats from colliding with wind turbines?" PLoS One. 2:3, e297; 2009 "The Aversive Effect of Electromagnetic Radiation on Foraging Bats - A Possible Means of Discouraging Bats from Approaching Wind Turbines" PLoS ONE 4(7), e6246). Dr Phillips considered their statement that that even at sites with lower levels of EME exposure of less than 2 volts per metre that activity and foraging effort was significantly in statistical terms reduced in comparison to control sites was important information. Dr Ambrose commented that the purpose of the Nicholls and Racey study was to investigate the potential effectiveness of radars in reducing bat activity around wind turbines thus minimising the risk of bats colliding with the turbines' rotor blades. They had used a marine radar that emitted EME pulses rather than a pulse modulated according to demand as would be the case for the proposed monopole. Dr Ambrose referred to differences in peak output, electric field intensity, and the rotation speed, angle and height of the marine radar in comparison to the antenna on the monopole, and stated that he did not accept their conclusion. Dr Ambrose commented that Dr Phillips had relied upon experimental studies on animals that showed some impacts on health as a result of long-term exposure to EME, however those studies involved animals that did not have the ability to avoid the EME.

Applicant's submissions 83Optus submits that sufficient information has now been provided to enable an accurate assessment of the impacts of the proposal on the relevant fauna. In considering whether there is the potential for significant impact on hollow-dependent and threatened species, Optus submits that the evidence of Dr Ambrose should be preferred to that of Dr Phillips and that on that basis the proposal has not failed to minimise disturbance. The Court should find that there is not the potential for significant impact on hollow-dependent and threatened species, on the basis of Dr Ambrose's evidence that the proposal is unlikely to have a significant impact for the purposes of s5A of the Act. 84The specific criticisms of Dr Phillips' evidence included that his opinion that six trees within a radius of 30-35m contain hollows capable of being utilised by hollow dependent fauna, in particular trees A8, A9 and B3, and that his Anabat monitoring confirms that there is a resident population of micro-bats, are not qualified by his later statement that neither the internal configuration of the hollows nor the exact locations of the micro-bats is known. Dr Phillips opined that the potential exists for the proposed development to have an adverse effect on the lifecycle of the Little Bentwing bat, Eastern Bentwing bat, East-coast freetail bat and Greater Broad-nosed bat such that viable local populations of those species could likely be placed at risk of extinction, however he did not know the extent and significance of such local populations based on his minimal survey work. Dr Phillips relied in part for his opinions on a literature review which he undertook for Optus in 2008-2009, which should not be regarded as being "peer reviewed"; and for his opinion that microbats are known to be sensitive to EME on the Nicholls and Racey 2009 report on the use of marine radar to test deterrence of micro-bats from the vicinity of wind turbines. Dr Ambrose's Anabat monitoring and his survey showing a total number of 13 different types of hollows within 0-100m radius of the monopole was more comprehensive evidentiary resource than that of Dr Phillips, and Dr Ambrose's findings were corroborated by the Orogen study. 85Optus submits that the precautionary principle is not triggered. The first requirement, that there be a threat of serious or irreversible environmental damage, supported by scientific evidence, is not met because the evidence on which the Council relies is not reliable and the Court should prefer the evidence of Dr Ambrose that there is not the potential for significant impact in the particular circumstances of microbats and a 31.4m low power output telecommunications monopole and existing surrounding habitat resources. If the first requirement is met, Optus submits that the second is not, as the literature on which the Council relies is not sufficiently "scientific" in Dr Ambrose's opinion to be a reliable source of the requisite scientific uncertainty as to the nature and scope of the threatened environmental damage. Optus submits that if the precautionary principle is triggered, the evidence of Dr Ambrose that the proposal is unlikely to have a significant impact for the purposes of s5A of the Act should be relied upon. Whether or not the precautionary principle is triggered, the proposed condition requiring the installation of bat boxes would be an appropriate response ameliorating any likely impacts.

Council's submissions 86The Council submits that Principle 4 of the Guideline requires that any disturbance to fauna should be minimised, and disturbance to identified threatened species should be avoided wherever possible; it does not require that there be a significant impact. Trees B1 and B3, both of which have hollows, are within 10m of the facility; Dr Ambrose and Dr Phillips agree that trees A9, A8 and B3 will be impacted. If hollows are lost there will be damage to the microbats, and if the EME causes health effects or aversive behaviour, that is a disturbance which Principle 4 requires to be avoided. The Council submits that it should be concluded that hollows will be lost as a resource for the only species actually identified as using them. Dr Ambrose's surveys of bats are inadequate, and the evidence of Dr Phillips that there are 17 hollows should be relied upon. There are limitations on the Anabat recordings to determine the number of bats, however Principle 4 requires avoidance without quantification. 87The Council submits that the precautionary principle is triggered. Dr Ambrose recognised the potential for disturbance or aversive behaviour and physiological damage; and there is scientific uncertainty, as both Dr Phillips and Dr Ambrose recognised that there is no study of the impact of EME on microbats. Both experts accepted that nesting boxes are not ideal. The Council submits that there are no ameliorative measures to adequately address this issue, and consent should be refused.

Consideration 88Both Dr Ambrose and Dr Phillips are well qualified, in terms of academic qualifications, experience, and publications, to provide evidence on the ecological issues in dispute between the parties. Both have extensive experience in flora and fauna monitoring, and threatened species investigations and management. Both conducted surveys and monitoring on the site, and both considered the available scientific literature. Their evidence should, in my view, be given greater weight than the advice from the former Department of Environment Climate Change and Water, which was based on a desktop survey, and that in the Orogen report, which both Dr Ambrose and Dr Phillips considered was inadequate. 89There are no EME standards relating to fauna, in contrast to the ARPANSA standards relating to human health. Dr Phillips and Dr Ambrose agreed that there are very few scientific studies that have sought to investigate the impacts of EME on microbats. Dr Ambrose in his statement of evidence noted that the studies that had been reviewed were conducted on northern hemisphere species and in the absence of scientific studies on animal species native to Australia, he could not say with scientific confidence or certainty that some animals would or would not avoid the immediate area around the monopole because of their lower behavioural tolerance to power densities in the relevant range. 90Dr Ambrose and Dr Phillips differed in the conclusions that they considered could properly be drawn from their respective survey and monitoring work undertaken on the site and its surrounds; the significance of differences in power output, and frequencies of emissions from TV masts which may already be an impact when compared with the proposed antenna; and the conclusions that could be drawn from the published literature relating to other species, in different experimental contexts. I do not agree with Optus that where Dr Phillips's conclusions differed from those of Dr Ambrose, they should be discounted. Both he and Dr Ambrose expressed their opinions and conclusions in qualified form where appropriate. For example, Dr Phillips noted the potential for the proposed development to have an adverse effect on the lifecycle of the four threatened species, and that EME may result in evacuation of tree hollows by resident microbat populations. Dr Ambrose referred to the potential for tree hollows to be present elsewhere in the valley, acknowledging that his survey work had not included examination of specific hollows. Dr Ambrose accepted that five of the species of microbats recorded on site roost by day in tree hollows. While Dr Ambrose did not accept Dr Phillips's conclusion, based on the Anabat recording, that microbats roost in tree hollows on the site, he did accept that the threatened species confirmed on the site would use it as foraging habitat. While Dr Ambrose did not accept that the evidence establishes an impact by EME on health, he did accept that there is the potential for displacement of threatened species of microbats as a result of aversion to EME. Both Dr Ambrose and Dr Phillips accepted that the type of hollows present in any alternative location is relevant in considering the consequences of hollows being lost as a resource for any animal that uses them. Precautionary principle 91Clause 8(1)(b) of the LEP requires consideration of objectives of the LEP relevant to the development. Those objectives include (in cl 5) the promotion of development consistent with the principles of ecologically sustainable development, which includes the precautionary principle. 92The approach to be adopted in relation to the precautionary principle was outlined by Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133. At [128] his Honour held: 128 The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative. Once both of these conditions or thresholds are satisfied, a precautionary measure may be taken to avert the anticipated threat of environmental damage, but it should be proportionate (reference omitted). 93Assessing whether there is a threat of serious or irreversible environmental damage, and the degree of scientific uncertainty, involves a process of analysis of many factors: Telstra at [131], [141]. The uncertainty is as to the nature and scope of the threat of environmental damage: Telstra at [140]. Both elements must be established to trigger the precautionary principle: 138 If there is not a threat of serious or irreversible environmental damage, there is no basis upon which the precautionary principle can operate. The precautionary principle does not apply, and precautionary measures cannot be taken, to regulate a threat of negligible environmental damage (reference omitted). 139 This was the conclusion in Alumino (Aust) Pty Ltd v Minister administering the Environmental Planning and Assessment Act 1979 (NSW) [1996] NSWLEC 102 (29 March 1996) where the evidence established that the development could be operated in a way which would not have any significant environmental consequence: at pp. 15-16. So too in Hutchison Telecommunications (Australia) Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 104 (26 March 2004), where compliance of a development with the relevant standard for the protection of public health and safety by a significant margin meant that there was no threat of serious or irreversible damage to public health and safety from the development, and hence no basis on which to apply the precautionary principle: at [27]. ... 149 If there is no, or not considerable, scientific uncertainty (the second condition precedent is not satisfied), but there is a threat of serious or irreversible environmental damage (the first condition precedent is satisfied), the precautionary principle will not apply. The threat of serious irreversible environmental damage can be classified as relatively certain because it is possible to establish a causal link between an action or event and environmental damage, to calculate the probability of their occurrence, and to insure against them. Measures will still need to be taken but these will be preventative measures to control or regulate the relatively certain threat of serious or irreversible environmental damage, rather than precautionary measures which are appropriate in relation to uncertain threats (references omitted). 94If both elements are established, the precautionary principle applies: 150 If each of the two conditions precedent or thresholds are satisfied - that is, there is a threat of serious or irreversible environmental damage and there is the requisite degree of scientific uncertainty - the precautionary principle will be activated. At this point, there is a shifting of an evidentiary burden of proof. A decision-maker must assume that the threat of serious or irreversible environmental damage is no longer uncertain but is a reality. The burden of showing that this threat does not in fact exist or is negligible effectively reverts to the proponent of the economic or other development plan, programme or project. 95Applying these principles, the first step is to assess the seriousness and irreversibility of environmental damage. The threat of environmental damage must be adequately sustained by scientific evidence; the evidence must pertain to scientific knowledge, and the requirement that expert evidence pertain to scientific knowledge establishes a standard of evidentiary reliability: Telstra at [134]-[135]. While there were differences between Dr Ambrose and Dr Phillips, considered above, there was agreement at the least that EME emissions from the facility have the potential for aversive behaviour to result in displacement of microbats. Both agreed that if EME irradiation results in the evacuation of tree hollows, that has the same effect as removing tree hollows which is a KTP. I am satisfied that the risk of displacement of the threatened species agreed to be present on the site is a threat of serious or irreversible environmental damage. 96There is uncertainty as to the nature and scope of the environmental damage. That uncertainty arises because of the uncertainty as to whether, as Dr Phillips considers, bats are roosting on the site; the impact of the actual loss of hollows by removal of trees or effective loss through aversive behaviour; and whether in fact there are suitable alternative hollows in the locality. While Dr Ambrose expressed confidence that that was likely to be the case, he acknowledged that his survey had not included examination of the hollows on the site or in the surrounding area, and he agreed that the type of hollows is relevant to understanding whether displaced animals may use hollows present in any alternative location. 97I am satisfied that the precautionary principle is activated, and the consequence is that the Court should assume that there will be a serious or irreversible threat of environmental damage and take this into account, notwithstanding that there is a degree of scientific uncertainty about whether the threat actually exists. 98The precautionary principle permits the taking of preventative measures. Preston CJ outlined the following principles relevant to preventive measures: (a)the type and level of precautionary measures that will be appropriate will depend on the combined effect of the degree of seriousness and irreversibility of the threat and the degree of uncertainty; the more significant and the more uncertain the threat, the greater the degree of precaution required: Telstra at [161]; (b)prudence would also suggest that some margin for error should be retained until all the consequences of the decision to proceed with the development plan, programme or project are known; this allows for potential errors in risk assessment and cost-benefit analysis: Telstra at [162]; and (c)one means of retaining a margin for error is to implement an adaptive management approach, whereby uncertainties are acknowledged and the area affected by the development plan, programme or project is expanded as the extent of uncertainty is reduced: Telstra at [163]. 99At [164] Preston CJ considered that an adaptive management approach might involve monitoring of impacts of management or decisions based on agreed indicators; promoting research, to reduce key uncertainties; ensuring periodic evaluation of the outcomes of implementation, drawing of lessons, and review of adjustment, as necessary of the measures or decisions adopted; and establishing an efficient and effective compliance system. The precautionary principle, where triggered, does not necessarily prohibit the carrying out of a development plan, programme or project until full scientific certainty is attained (Telstra at [179]), and the solution is to assess the risk-weighted consequences of various options and select the option that affords the appropriate degree of precaution for the set of risks associated with the option: Telstra at [181]. Mitigation measures 100In his statement of evidence (exhibit D) Dr Ambrose stated that in his opinion the mitigation and avoidance measures recommended in the SEE and the Orogen report minimise the risk of the proposed development harming fauna and habitat. Those measures include pruning of the canopy of some trees if an APZ is not required. If an APZ is required that may result in the loss of up to 13 tree hollows with external entrances, however in Dr Ambrose's opinion there was no evidence that threatened species are using those hollows and the removal of those hollows would not significantly limit the availability of this resource in the locality. Dr Ambrose recommended, however, as an additional precautionary measure that there be provided a nest/roost box for bats for every tree hollow removed, and at least three logs containing a large natural hollow be secured to tree trunks or large tree limbs within the Tallowwood open forest. 101Dr Ambrose and Dr Phillips addressed this issue in oral evidence. Dr Phillips stated that he would generally not be supportive of a condition requiring nesting boxes to be placed on the site. The requirements of hollow dependent fauna revolve around such things as humidity and temperature. Some animals and particularly microbats have very specific requirements in terms of where they can and cannot roost, and it is very difficult for nest boxes to replicate those parameters particularly when they are unknown as in this instance. His experience of monitoring the impacts of activities that have used nest boxes as an ameliorative measure is that the animals residing in nest boxes have tended to be the more common species. There have been some successes with alternative roosting sites for microbats but by and large they tend to house a poor facsimile of the fauna that is dependent on hollows. Dr Phillips stated that he would see the use of nest boxes as a last resort. If the trees were removed artificial hollows could be put in place and he would be looking towards a very strong monitoring program, but it would not be his preferred outcome, particularly given the size and age of the primary trees. Based on his data there are a relatively large number of microbats roosting in certainly two possibly three of the trees and in order for any ameliorative measures in that context to be successful he would advocate that the nest boxes be put in place beforehand and that there be evidence of those bats that are roosting in those trees have actually occupied those boxes before the hollow trees are disturbed. 102Dr Ambrose agreed that the science of hollow using animals and their use of artificial hollows and nest boxes is complex and involves such things as the orientation of the nest box entrance, size and structure of the next box and the ambient environment around it. Dr Ambrose stated that while there was similarity in his experience of nesting boxes, he considered that the degree of success in attracting bats had been more than Dr Phillips had extrapolated in his evidence. The Eastern Free-tail bat readily uses a specially designed bat roosting box and he has used those bat roosting boxes in a number of projects. There are bat roosting boxes that are specially designed to make it suitable only for bats and not for hollow dependent organisms or animals. Dr Ambrose agreed with Dr Phillips that there would need to be conditions as to what types of nest boxes should be used, and when they should be put in, and having some sort of monitoring program before any hollow bearing trees are removed. 103Dr Phillips and Dr Ambrose provided six proposed conditions (exhibit 15) that would require (1) that no development activity occur on the site until the annual cycle of microbat activity can be demonstrated to be minimal, noting that Little and Eastern Bentwing-bats generally congregate in maternity roosts from August/September and the young are born in December; (2) monitoring of microbat activity at the site to establish pre-development baseline data (with details of the minimum survey effort requirements); (3) installation of a minimum of 18 bat boxes in remnant open forest areas at a minimum distance of 300-400 m from the site, specifying arrangement in clusters, at least six weeks before any development activity on the site; (4) post-development monitoring of microbat activity on the site, including (5) monitoring of bat box uptake; and (6) provision of reports to the Council and the Office of Environment and Heritage. 104The draft conditions as provided by the parties (exhibit 13) are more limited than the six conditions drafted by Dr Phillips and Dr Ambrose. Condition 32 limits construction work to September to December in any one year. The Council also proposes to include in this condition a provision that no work commence until monitoring of bat activity demonstrates that microbats roosting or foraging on or near the site have departed the site and its surrounds; this latter provision was opposed by Optus. Condition 33 is the same as condition 3 as proposed by the experts, other than the reference being to "construction work" rather than "development activity". 105Neither party submitted that conditions 2, 4 and 5 as proposed by the experts should be imposed. Optus submits that the baseline data is already available; conditions 32 and 33 are agreed on the basis of assuming the worst case scenario, and assuming that microbats are using the site and roosting, but will be unaffected by the low power emitted when they are there, and will be away when they are likely to be disturbed. Optus submits that the experts' condition 5 is beyond power as it relates to post-development monitoring; if the Court considers that further monitoring is required there should be an opportunity to provide additional evidence. The Council does not press the experts' conditions 2, 3, 5 or 6 on the basis that the ecologists did not identify what would follow from the pre and post development monitoring. 106While Dr Ambrose and Dr Phillips discussed in their oral evidence their general position on the use of nest boxes, they had concluded their evidence before they provided their proposed six conditions. Exhibit 15 includes a statement by Dr Phillips that the provision of the proposed consent conditions was not an acknowledgement by him that such conditions would serve as a suitable measure by which the potential for significant impact on resident microbat populations on the site can or has been materially reduced; Dr Ambrose stated that he remained of the opinion that there is no scientific evidence to indicate that threatened microbat species roost in tree hollows on the site, however he believes that the provision of suitably designed and located bat boxes in the locality is an appropriate precautionary measure. Dr Phillips and Dr Ambrose agreed that pre and post-development monitoring of the possible use of tree hollows and the bat boxes would assess the effectiveness of bat boxes in protecting local bat populations in relation to the proposed and future phone tower developments. 107Given the qualifications expressed by the experts in exhibit 15, and given the position that the parties have adopted to the conditions proposed by them, I am unable to conclude on the evidence before me that Optus has discharged the burden of showing that the threat of serious environmental harm does not in fact exist or is negligible. 108Optus submitted that if I were to reach such a conclusion, I should provide an opportunity for it to deal with that issue. Had the issue of impact on fauna, including whether any disturbance has been minimised or avoided, been determinative, it may have been appropriate to consider whether to permit further evidence from the ecologists to assist in understanding whether the provision of bat boxes of the type, number and location proposed would provide appropriate mitigation, and whether the proposed conditions relating to monitoring should be required as part of an adaptive management approach. However, given the conclusion I have reached on the application of cl 8(1)(c) of the LEP on the issue of visual impact at [58]-[59] above, resolution of this issue would not assist in determination of the appeal.

Conclusion 109For the reasons given, I conclude that in circumstances where I am not satisfied that the proposed development would not have an unacceptable cumulative impact on the locality, cl 8(1)(c) of the LEP requires that development consent must be refused. It is not necessary to express a concluded view on the other contentions raised by the Council.

Orders 110The orders of the Court are:

The appeal is dismissed.
Development application DA 10/0295 for a telecommunications facility on Lot 7306 DP 1132011, 37 Boxsell Road Limpinwood, is refused. 3.The exhibits are returned except for exhibits A and 1. Linda Pearson Commissioner of the Court 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. Decision last updated: 16 July 2012

(2003) 129 LGERA 195

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