Telstra Corporation Limited v Blacktown CIty Council

CASES CITED: Telstra v Hornsby Shire Council, 146 LGERA 10 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399

APPLICANT Ms S. Duggan, solicitor Instructed by Mr M. Jahu of Mallesons Stephen Jaques LEGAL REPRESENTATIVES:

RESPONDENT Mr M. Fraser, solicitor Instructed by Mr P. Kelso of Bartier Perry Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10059 of 2008 Telstra Corporation Limited v Blacktown City Council

JUDGMENT 1 This is an appeal against the refusal by Blacktown City Council (council) of a development application under the Environmental Planning and Assessment Act 1979 for a mobile network base station comprising a 30 m high monopole and an equipment shelter at 1324 Old Windsor Road, Stanhope Gardens (the site).

2 The key contention in dispute between the parties is that the proposal will have an adverse visual impact due to its proximity to a school and residences. Further, that alternative locations have not been given adequate consideration. 3 The site, its context, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by council on 14 February 2008, and the Statement of Facts and Contentions in Reply filed by the applicant on 19 March 2008. The site and its context 4 The site is located on the eastern side of Old Windsor Road. It has an area of 3,790 sqm, a frontage to Old Windsor Road of 36.5 m and a depth of 103.6 m. The front of the site is occupied by the Kellyville Telephone Exchange, the rest of the site is grassed with some trees and parking. John XXIII Church and Catholic School adjoin the site to the north, west and south, which is currently under construction. Further to the north and south is residential development. Land across Windsor Road is within Baulkham Hills Shire Council. The planning controls 5 The site is zoned 5(a) Special Uses - Telecom, under Bankstown Local Environmental Plan 1988 (LEP 1988). Telecommunication facilities are permissible with consent in the zone. 6 Part A and N of Blacktown Development Control Plan 2006 (DCP 2006) are also relevant. Background 7 The application was lodged on 11 January 2006. The application was notified and a number of objections were received. The council officer's report recommended approval. Council refused the application on 25 July 2007. The evidence 8 The Court visited the site and heard evidence from: · Mr J Farrugia, Department of Catholic Education, Diocese of Parramatta; · Father P Ventricinque, parish priest of the church; · Mr A Nicholson, Kellyville Ridge Community Association; · Mrs L Gleeson, parent of a child at the school.

9 The main issue raised by the objectors was a concern about the safety issues of electromagnetic energy (EME) emanating from the monopole. They recognised that the EME levels were well below the relevant standard but considered that a "precautionary" approach was required as current standards may be found to be inadequate as further research is undertaken. They were also concerned that there is a community perception that such facilities pose a risk, which would impact on the "nurturing environment" sought to be provided by the school.

10 Mr Farrugia also expressed concern that the school and church were a significant investment and the proposal would limit their future plans for the site, including consideration of relocating the approved childcare centre closer to the site and the use of the school's outdoor areas for educational purposes. 11 The objectors considered the proposal to be inconsistent with the planning controls and that placing the monopole near the school should be the last resort. They were also concerned about the visual impact of the proposal, particularly that it would compete with the landmark established by the church building. 12 Although raised in the Contentions, council did not press any issues with the safety of the location of the proposal or the level of EME, being only 0.31% of the Radiation Protection Standard mandated by the Australian Communications and Media Authority (ACER). This approach is consistent with the principles adopted by Preston CJ in Telstra v Hornsby Shire Council, 146 LGERA 10.

13 The Court heard evidence from the following experts: 14 For the council · Mr G Apps, town planner, 15 For the applicant · Mr B Papadatos, a radio frequency design engineer, · Mr G Tsakis, Telstra's strategic issues manager, and · Mr N Juradowitch, town planner. 16 Expert reports were also provided for the applicant by Mr N Shepherd in relation to the potential for lightening strikes, and Mr B Banglay in relation to EME. These experts were not required for cross-examination. 17 Mr Apps and Mr Juradowitch agreed that:

The visual impact of the proposal in its context and with a slimline design is satisfactory and that the pole would not dominate the locality nor be an eyesore. 18 Further, the experts agreed that the separation distance from the school and residents is adequate in terms of visual impact and that the site is suitable for the proposed development.

19 Mr Apps's principal concern appears to be that alternative sites have not been adequately investigated, particular the Amber Tiles site on the corner of Windsor Road and Old Windsor Road. 20 In the joint report Mr Apps states that:

… the BDCP Part N is based on the principle of "prudent avoidance". As such, it is not enough to simply put forward that an assessment of alternative sites are irrelevant if the subject land is satisfactory in terms of visual impacts. The BDCP Part N requires an assessment be provided of alternative sites to justify the proposed location. The Respondent's planner considers that the options have not been adequately addressed in order to satisfy Council that the subject land is the better alternative.

The Respondent's planner does not argue that the subject land is suitable, however questions whether other sites are as suitable if not more suitable. The fact that Telstra owns the subject land is not a factor in determining suitability of a site for such a facility. 21 Mr Juradowitch stated that alternate sites had been adequately considered. He said that:

Given that the proposal has minimal environmental impact and alternative sites have a generally similar environmental impact, the issue of alternative sites is not particularly relevant to the case. 22 Further Mr Juradovitch noted that:

The Council's development assessment officer in the assessment report to the Council dated 11 July 2007 advised at point 8 of the summary of the report that "the detailed supporting information submitted by the applicant demonstrates that alternative sites and co-location opportunities have been carefully considered and that the subject site is the only location that will satisfy Telstra's key parameters for the required mobile phone coverage". 23 Under cross-examination Mr Apps stated that there had been inadequate assessment of the alternate sites as no photo montages had been provided. Nonetheless, he was able to assess the likely visual impact. In relation to the Amber Tiles site he accepted that a pole in this location would need to be 35 m high to achieve the same coverage, and to have an acceptable visual impact it would need to be screened by landscaping. He acknowledged that this would potentially impact on the future development potential of the site. Further, the Amber Tiles site is near residences, which look directly onto it. He considered that the visual impact of a monopole on the Amber site is comparable to that of the proposal.

24 Mr Papadatos and Mr Tsakis explained the constraints of the alternative sites examined in the report entitled Stanhope Gardens Alternative Candidate Report (Exhibit K). They stated that if the proposal was not acceptable the next site that was most suitable would be the Amber Tiles site. However, this had constraints including the requirement for a higher pole to achieve similar coverage and that there would be "greater overcoverage". The potential for redevelopment of the site and the lack of security of tenure were also matters of concern. Mr Papadatos and Mr Tsakis considered that the constraints of the other sites in relation to coverage and issues such as flooding, rendered them unsuitable.

Findings 25 The objectives of Part N of DCP 2006 seek to minimise adverse public health effects and preserve visual character. 26 Clause 3.1.4 refers to Site Identification and Visual Aesthetic considerations. It relevantly provides:

(1) The objectives of these considerations are to minimise the visibility and visual impact of antennas and masts (and associated equipment and structures) by making them as unobtrusive as possible and to blend within their locational context by minimising their numbers. This can be achieved by encouraging co-location and restricting the siting of facilities in residential areas, or in areas capable of direct viewing from residential areas, or where a natural landscape vista may be evident.

(3) Siting of facilities shall be investigated giving priority to the following zones in descending order of appropriateness: (a) Industrial . (b) Commercial/Business . (c) Open Space/Corridor Land/Drainage Reserves. (d) Rural. (e) Residential . (f) Special Uses containing sensitive land uses such as schools, child care centres, hospitals, housing for the aged.

(4) A case by case and performance-based approach shall be followed, and consideration of the need to locate facilities as far away as practicable from nominated land uses should be a primary criteria. Some-trade offs may need to be made to achieve a balance between visual and aesthetic considerations and separation from sensitive land uses.

(5) Should a series of suitable alternative sites be identified, siting should give preference to aesthetic considerations and to sharing of facilities. Siting should also take into account likely future adjoining land uses. 27 The parties disagreed as to the applicability of cl 3.1.3 as it refers to zones which do not include special uses 5(a) Telecom.

28 While I accept Ms Duggan's submission, for the applicant, that this subclause does not apply in terms to the application, it is nonetheless necessary to read the clause as a whole and in particular to assess whether the proposal meets the objectives of the clause as stated in subcl (1) and the overall objectives of DCP 2006, to minimise visual impact.

29 Mr Juradowitch and Mr Apps both agreed that regard should be had to community sensitive uses including schools and residences. Mr Juradowitch stated that:

….in a suburban context, the separation distance to residences and school classrooms achieved under the proposal is adequate. Alternative locations in the vicinity might offer some increase in separation distance to the school classrooms but would be a similar distance to the closest dwellings.

….greater weight should only be placed on alternative sites if the chosen site offered minimal service improvement and/or resulted in relatively substantial environmental impacts, relative to other sites. 30 Mr Fraser, for the council, submits that other sites would reduce environmental impacts and still provide similar coverage. This is not demonstrated by the evidence. The planners both agree that the site has an acceptable visual impact and that the most favoured alternative site, the Amber Tiles site, would have a similar visual impact and is also located close to residences. The only difference between the two sites is the distance from the school. Increased separation provides little visual benefit other than to relieve the perception of the monopole as a safety risk by the school community.

31 The distance of the pole to the nearest classroom is about 110 m and about 120 to 150 m to other nearby classrooms. The distance to the nearest house is 70 m and there are two dwellings within 100 m of the monopole. Other dwellings are in excess of 100 m. The site has existing trees which will screen the upper part of the monopole from most directions. Additional shrub landscaping is proposed along the northern boundary to screen the base of the monopole and the new equipment shelter. The school proposes landscaping adjoining the site but the applicant does not rely upon this landscaping to screen the monopole. Although when viewed from the west, due to the change in level, the upper part of the monopole would be visible above the trees from the school grounds, unless screened by the proposed school planting. The planners agreed that this is acceptable. However, the applicant has agreed to a condition to provide landscaping at the western boundary of the site. This will ensure that the monopole is screened from the school without relying on the school landscaping. I consider it is appropriate that this condition be imposed.

32 It is also relevant to note that the proposal is permissible within the zone which should be given weight consistent with the principles established in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399. The proposed use, of some form, is appropriate within the zone. 33 The monopole has no adverse environmental impacts that would warrant its refusal nor has it been demonstrated that any significant environmental benefits would be achieved if the monopole were to be relocated to an alternative site.

34 In relation to the resident's safety concerns the conclusion of Preston CJ in Telstra v Hornsby are applicable, where at para 104 His Honour states that: In the present case there is no probative evidence upon which the court could make findings of adverse effect on the amenity of the locality or on the health and safety of persons in the locality or on the environment. Equally, there is no logical basis upon which a decision could reasonably be made to refuse consent to the proposed base station where there is no probative evidence of effects. To make such a decision would be to infringe these principles of proper administrative decision-making. The charge of arbitrariness would be made out. Orders 35 The orders of the Court are therefore:

1. The appeal is upheld.
2. The development application for a mobile phone network base station comprising a 30 metre high monopole and an equipment shelter at 1324 Old Windsor Road, Stanhope Gardens, is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits 2, 5, F, H and N may be returned.

      Annelise Tuor
      Commissioner of the Court
      ljr

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