Telstra Corporation Limited v Bathurst Regional Council

Mr P Crennan (Respondent) Solicitors Mallesons Stephen Jaques (Applicant)

Crennan Legal (Respondent) File Number(s): 10691 of 2011

Judgment 1This is a matter that I heard on-site at a regional hearing in Bathurst Court House, Telstra v Bathurst Regional Council . At that time it was adjourned and the parties have since then forwarded the conditions that were discussed during the hearing and I have also received the summary of resident objectors. 2The parties, prior to the hearing, agreed to enter into consent orders and the matter proceeded as a consent orders hearing. 3The Court heard from resident objectors on-site in the presence of both parties where an extensive site inspection was undertaken. The subject property is 9 Illumba Way Kelso, a suburb of Bathurst. This is a predominantly residential area. The subject site is owned by the Baptist Masonic Centre Society and it is also proposed that there be landscaping on the council verge and adjoining Crown land and consent has been given in this regard. 4The proposal is for a monopole telecommunications tower of approximately 20 m in height and 1 m wide at the base and 300 mm wide at the top with a column mounted antenna achieving a total height of 21.3 m. As I stated, it is also proposed that there be some landscaping of non-deciduous trees in the vicinity of the pole and the council verge. 5The Court heard from resident objectors on-site and visited their properties to understand their concerns. The parties have provided notes of their concerns expressed at the site inspection, exhibit 5. In summary, the concerns of the residents go to the visual impact of the proposed development and the health impacts of the proposal on the adjoining residential neighbourhood, and also concern expressed about the need to look at alternative locations. 6The Court made enquiries during the proceedings of the consultant town planner for Telstra who had provided a statement of evidence, Mr Nick Juradowitch. The Court also during the hearing at Bathurst Court House asked Mr Juradowitch a number of questions and he responded to many of the concerns expressed by the objectors. He was asked to address the concerns of the resident objectors in particular those that related to the visual impact and those that related to investigation of alternative locations. He provided extensive evidence in this regard and I am satisfied that alternative locations were considered in the selection of this site and for reasons he identified in terms of the coverage and the policy principle to provide for or minimise visual impact of the proposal I am satisfied and I agree with his assessment. 7Mr Juradowitch informed the Court that the location of telecommunication facilities are looked at in terms of a hierarchy in that first of all one would look to locate in industrial areas and move through the hierarchy to variously zoned land. It is noted that the subject site is zoned Residential 2A under the Bathurst Planning Scheme and therefore lower down the hierarchy. However in Mr Juradowitch's assessment, the circumstances of this case in his opinion the proposal is satisfactory. The council officer's report also recommended approval. I am also satisfied that the site is suitable for the proposal. 8Mr Juradowitch did not provide evidence in terms of the health impacts, as this is outside his area of expertise. That is the electromagnetic emissions from the use of the tower for telecommunications purposes and to improve the coverage of those residing in the area and working within the area. 9The Court has considered seriously the objections of residents. In terms of the visual impact, I am satisfied that having regard to the planning and the context in which I must consider this development application, that the proposal is one that has been looked at in terms of minimising visual impact in the area. That is not to say that one will not see the proposed monopole, but in an urban/suburban environment such as this, even though it is a low density residential area, nonetheless infrastructure required for urban purposes is an accepted part of the built environment development should be minimised in terms of visual intrusion, I am satisfied the proposal will not have an adverse visual impact that would warrant refusal of the development application. The pole will exceed the single storey Masonic Club structure or office structure that is currently erected on the subject land, by some 14 m, the building is 7.3 m. I am satisfied that with the proposed evergreen landscaping to filter views of the tower and will not be visually dominant and of a slender construction. The trees selected are not proposed to achieve the height of the tower as this would then diminish the effective coverage of the tower but rather to punctuate as opposed to block the view. 10I am satisfied that the proposal is acceptable in the residential surrounding area and will not be overpowering or overwhelming in terms of the visibility of the tower. It will be seen as a monopole, its width of being 300 mm at the top with a column mounted antenna will not present as an offensive structure. Therefore in terms of the visual impact I am satisfied the relevant provisions of council's own planning scheme and also the Infrastructure SEPP considerations are appropriately addressed. Furthermore the Department of Planning issued in 2010 New South Wales Telecommunications Facilities Guidelines and one of the objectives here or principles is to minimise visual impact. I am satisfied that the proposed development is consistent with this objective. 11The Court now moves to the health hazards and risk assessment and in this regard the Chief Judge of this Court in Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133 provided a judgment which clearly sets out the Court's role in the assessment process and the Court is not to substitute standards where there are clearly identified scientific standards such as ARPANSA. He stated the Court cannot set aside standards on the basis of concerns that may by articulated and if held even genuinely by the local residents, of these are accepted standards which the Court must be guided by in terms of its determination of development applications. 12In this regard the applicant submitted that the Telstra v Hornsby case provides the authority and I will not try and substitute words as it is best to refer directly to the judgment where the Chief Judge stated: 197 The concerns expressed by the residents as to RF EME emitted from the proposed base station do not relate to intangible matters. Rather, the concerns relate to matters which are capable of measurement and testing against established standards to see whether the concerns are justified or not: Telstra Corporation Ltd v Pine Rivers Shire Council & Ors [2001] QPELR 350 at 364. Testing against the relevant Australian Standard RPS3 proves that concerns are not justified. 198 In these circumstances, little, if any, weight can be given to the residents' perceptions. This has been the consistent conclusion of other courts and tribunals which have determined other cases involving unsubstantiated community perceptions of adverse effects on amenity from exposure to RF EME from a proposed development 206 To make such an arbitrary decision would cause a greater disservice to the community than making a rational one. It would raise unnecessarily the fears of the community. This is the reason for the responsible authority ARPANSA stating in the Australian Standard RPS3 that incorporation of additional safety factors beyond the exposure limits of the Standard is not supported: p i and p 29. Similarly, the World Health Organisation has urged: ...that scientific assessments of risk and science-based exposure limits should not be undermined by the adoption of arbitrary cautionary approaches. That would occur, for example, if limit values were lowered to levels that bear no relationship to the established hazards or have inappropriate arbitrary adjustments to the limit values to account for the extent of scientific uncertainty": World Health Organisation, "Electromagnetic fields and public health cautionary policies", WHO Backgrounder , March 2000 at p. 5. 207 Community concerns are best corrected by proper application of the authority adopted standards including Australian Standard RPS 3 and the provision of proper information not by responding to unsubstantiated and unreasonable fears. 13The judgment of the Chief Judge also refers to community responses and he states: An evaluation must be on the reasonableness of the perception of the adverse effect of the amenity on the locality, recognising that amenity is a very broad and far reaching concept and a fear or concern without rational or justified foundation is not a matter which by itself can be considered as an amenity or social impact, pursuant to s 79C of the Act. 14For the matter before me in terms of the residents' perceptions of an adverse effect on the safety of residents and the environment by exposure to emissions. In this regard I acknowledge that some people do have concerns, but the role of the Court is to assess the development application in terms of the factual evidence and in terms of the appropriate adopted Australian Standards. And it is acknowledged that while some people may not choose to live near a telecommunications tower, that in itself is not reason to refuse the application before me. 15The Court also heard concerns of the residents about the value of their properties and once again in terms of s 79C of the Environmental Planning and Assessment Act 1979 this is not a matter that I can take into consideration. Whilst some may hold these concerns nonetheless it is not relevant to my consideration in terms of the context of the planning regime under which I must consider the application. 16On the basis of all the evidence before me including that of the council officer's report, including the RF EME emissions that are predicted for the proposed telecommunications tower, and I note that the exposure ratings as predicted are well within the limits of the ARPANSA standard. The calculations in terms of the nearest residences to the proposed subject site are many times below the ARPANSA exposure limit, within 1100 to 8000 times less than the exposure limits of ARPANSA. I also note as identified by the Chief Judge in Hornsby v Telstra that in fact: " The ARPANSA standard is very precautionary and as such there is no reasonable basis on which the Court would adopt a more precautionary measure than that contained in ARPANSA ." 17The applicant in these proceedings has agreed to provide follow-up measurements of the EME levels and this is to be done at thirty days after the operation of the tower, and also at a twelve month interval. As such the conditions are amended to reflect the additional requirement for the further testing at twelve months. 18The Court also enquired as to compliance if the ARPANSA or the Australian Standard changes from time to time and given the evidence given. I am also satisfied that if new scientific and corroborated scientific evidence is available, that if the exposure ratings as currently in ARPANSA change and become more restrictive, that this would require the facility to also comply with the new standard. 19The parties have agreed to enter into consent orders and on the basis of the evidence to the Court and my assessment above, I see no reason as to why the consent orders with the conditions should not be agreed to by the Court. 20Accordingly, the formal orders of the Court in this matter are by consent: (1)The appeal is upheld. (2)Development Application DA 2010/0629 for the erection of a telecommunications base station facility (mobile phone tower) and associated infrastructure at 9 Ilumba Way Kelso (Lot 1 DP 620110) is approved and development consent is granted, subject to the conditions in Annexure A. (3)The exhibits are returned. J S Murrell 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: 12 January 2012