Telstra Corporation Limited v City of Ryde Council

CASES CITED: Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154

APPLICANT Ms S Duggan, Barrister instructed by Ms A Segel of Blake Dawson

LEGAL REPRESENTATIVES: RESPONDENT City of Ryde Council Mr A Pickles, Barrister instructed by Mr J Strati of City of Ryde Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10906 of 2008 Telstra Corporation Limited v City of Ryde Council This determination was given extemporaneously and prior to publication it has been edited

JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by City of Ryde Council of a development application for the erection of a telecommunications tower in the park known as Kotara Park, Marsfield.

2 The nearest street frontage to the proposed tower in the park is Abuklea Road and the subject position of the pole is near the tennis court complex located within that park. It is noted that the area generally is in a basin and the location is a low lying point. There is significant grassed lands as well as tennis courts and a children's play area. The general feel of the park is one of openness. There are a number of trees within a native vegetated portion near the Abuklea Road frontage and there is a car park that services the tennis court complex and park with access from this road.

3 The Court met onsite this morning and heard from a number of residents and objectors. Their concerns can be classified as falling within those of the health effects of telecommunication towers and the visual impact of the proposed tower on the adjoining area from within the park and its visibility from surrounding residences.

4 For the record, the Court heard from Mr Malone who expressed concern about the safety of the micro-energy on human tissue and the need in his opinion, for proper examination. He said that there was no conclusive evidence in terms of the impacts, in particular on young brain tissue and that the standards were arbitrary and arbitrary standards do not necessarily make facilities safe.

5 Ms Chandler was also concerned about the health impacts, in particular on children and disabled persons that currently use the park in a variety of ways.

6 Mr Lan also expressed environmental concerns and concern about the fact one would be able to see the tower from a distance.

7 Ms Hanson expressed concern about the use of the park and the fact the telecommunication facility could deter people from using the park by it's presence.

8 Ms Deane also expressed concern about the use of the park and courts and the potential negative impacts from such a facility. The visual impact was also of concern and the landscaping will not screen the proposed tower pole.

9 Ms Chen expressed concern about the health impacts of the proposal, in particular on children.

10 Mr Eldridge who is the manager and coach of the tennis court facility expressed concern about the perceived risk that people would have about the health impacts of the proposal and the loss of patronage and the fact that people may not wish to use the court adjacent to the pole.

11 The Court also heard from the applicant's expert Mr Michael Bangay of Radhaz Consulting. He formerly worked with the Commonwealth Department of Health on electromagnetic transmission emissions and he advised the residents about the standard and the proposed facility would omit 3500 less than that which is considered to be a safe level under the standard. He provided background on how the standard was established in terms of the World Health Organisation and the European standard and said the research is not arbitrary in his opinion and is based on many research projects or research into health. In terms of follow-up testing, he advised that there could be a condition to require post operation testing. He was also questioned on the predicted levels as opposed to the actual level and in his experience the actual levels are lower than the predicted measurements following construction of such facilities. That is predicted levels have been found to be higher than the actual levels following further testing.

12 The applicant has agreed to a condition which would require testing some three to six months after the operation and installation of the facility to determine and demonstrate that the facility is not emitting levels which are above those predicted.

13 The Court has the benefit of a site inspection. The role of the Court in these proceedings is to assess the development application before it.

14 The council provided a statement of contentions and contends the development application should be refused for the reasons: 1. The proposed development poses an unacceptable visual intrusion into the local visual catchment, in particular the development introduces a light pole with a height of twenty metres, that is far in excess of the existing light pole of 8 metres. 2. The proposed development is unacceptable for the impacts on the amenity of the residents of Kotara Park area and users of the park generally due to: a) The health concerns that may potentially arise from a telecommunications facility being located next to a children's playground and tennis courts and b) The negative impact such concerns will have on the use of the tennis courts and children's playgrounds and the park generally, and as a matter of public interest such impact should not be permitted. 15 The Court must assess the appropriateness and whether the proposed development application is satisfactory in its context having regard to the provisions of S.79C of the Act and this includes the planning regime. The subject site is zoned under the Ryde Planning Scheme Ordinance as 6A open space and telecommunication facilities are permissible with consent. Other uses permissible in the 6A zone include: community facilities: recreation areas: buildings for the purposes of landscaping, gardening, bushfire hazard reduction: and telecommunication facilities. As such telecommunication facilities are permissible in open space areas.

16 In assessing this application the Court must have regard to the above statutory planning instrument and this includes: consideration of the need for the proposed development; the impact of the proposed development on the land; and the need to retain the land for its existing or likely future use.

17 The proposed development in my assessment can be integrated into the park without impacting on its recreational use as such and the council has consented to a development application being lodged for the facility within the park.

18 On the site inspection the Court inquired as to whether alternative locations within the park had been considered. The council has indicated that the onus is on the applicant to select the location and while the Court expressed an opinion in terms of an alternative location at the same time my focus is on the development application before the Court now and whether in a visual sense it would have unreasonable impact.

19 Infrastructure is a commonplace element in the context of urban environments and the pole as shown in the development application is about 22.69 metres total height, some 0.67 m in diameter at its base and at the upper portion it is some 0.324 m. The proposed location of the telecommunications pole is in the location of one of night light poles for a tennis court. In its context I am satisfied that this telecommunications facility will not have an adverse visual impact to warrant refusal of the application

20 While the facility may be visible in the area it will not in my assessment have an unreasonable impact in its overall context given its narrow form and the relationship of the park to the topography of the area with the tree canopy in certain locations. I note that it is sited in a relatively open location, however, it is also capable of being seen in the context of a tennis court complex and other urban uses. I also note that as a condition of consent the council requires that the placement of the spotted gums be planted to the satisfaction of council's officer.

21 The purpose of the planting of trees is not to completely screen or obscure the pole. Clearly a pole of this height cannot be completely screened and it is not necessary to be screened in an urban context or in the location that we see in this basin. Nonetheless, the view of the pole from certain locations will be a filtered.

22 In terms of the surrounding residential area the pole may and will be visible from a distance however, having regard to the topography and the slender nature of the pole as I described above it would not in my assessment be a significant impact or an intrusion into the visual landscape that would warrant refusal of the application.

23 I heard the concerns of the residents in terms of the health impacts and in this regard the Court was taken to the decision of his Honour Preston CJ, Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 where the Chief Judge discusses the impacts of a telecommunications facility and the application of the Australian Standard, RPS 3. The judgment states at paragraph 98 - 101 98 It is not appropriate for a Court to set aside or disregard such an authoritative and scientifically credible standard as the Australian Standard RPS3.

99 Nor is it appropriate for a Court to pioneer standards of its own. The creation of new standards is the responsibility of other authorities with special expertise, such as ARPANSA.

101 The Australian Standard RPS3 embraces a precautionary approach, the exposure limits set are conservative relative to the scientific evidence on biological effects of exposure to RF fields. There are Margins for safety in the basic restrictions and associated reference levels. The reference levels are based on worst case assumptions. 24 I appreciate that people do not always embrace change and do not always embrace telecommunication facilities within their local park but there is no evidence to the Court of health impacts from the level of emissions of this facility. The above judgment of the Chief judge also refers to: the need to have regard to standards and not substitute alternatives; and the fact it cannot be unequivocally stated that a particular phenomenon will never cause adverse effects and this is because of a null hypothesis can never be proven through the processes of inductive logic.

25 The Chief Judge further states: 197 The concerns expressed by the residents as to RF EME emitted from the proposed base station do not relate to intangible mattes. Rather, the concerns relate to matter which are capable of measurement and testing against established standard to see whether the concerns are justified or not. 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 authoritative adopted standards, including the Australian Standard RPS3, and the provision of proper information, not by responding to unsubstantiated and unreasonable fears. 26 The judgment also refers to community responses and states that an evaluation must be made on the reasonableness of the perceptions of theadverse effect on the amenity of 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.

27 For the matter before me in terms of the residents perceptions of an adverse effect on the safety of residents and on the environment by exposure to emissions from the proposed base station, these are without justification in objective observable likely consequences. As in the case before the Chief Judge the claimed effects are unsubstantiated and without reasonable evidentiary foundation.

28 The Court was also taken to the judgment of his Honour Lloyd J, in New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154 wherein he refers to a fear or concern at paragraph 62, "rational or justified foundation is not a matter which by itself can be considered as an amenity or social impact pursuant to 79C and where there is no evidence to support a rational fear it would be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear". 29 The relevance of the above paragraph is in respect of the objections that expressed concern that people would not use the facilities of the park and clearly this is not relevant having regard to the standards that are established. It maybe that some people will choose not to but that would not be a justification or reason upon which to refuse the development application.

30 The Court has considered the conditions that have been proposed by the council and the additional condition regarding the testing within three to six months after the commissioning. This should allay fears of those in the community that the facility is not emitting above the levels predicted in the documentation that has been provided by the applicant. This monitoring would be independent.

31 On the basis of the Court's assessment above on the visual impact the proposal is satisfactory. For the issue of health impacts the Court must focus on the established standards in its assessment of the development application and as such on this issue there is no evidence to warrant refusal.

32 Accordingly, on the basis of my assessment the formal orders of the Court are: 1. The appeal in respect of Kotara Park Marsfield is upheld. 2. The development application submitted to City of Ryde Council for a telecommunications facility is determined by the granting of consent subject to the conditions contained in Annexure "A". 3. The exhibits are returned to the parties with the exception of Exhibit 2 and Exhibit A.

      J S Murrell
      Commissioner of the Court
      ljr/ajl

1. Development is to be carried out in accordance with the plans marked DWG No. N27945 comprising 5 sheets marked S0 - S2 dated 28 May 2007 and S1, S3 and G8 dated 9 May 2007 submitted to Council.

2. All building works are required to be carried out in accordance with the provisions of the Building Code of Australia.

3. Compliance with the Building Code of Australia a) All building work (other than work relating to the temporary building) must be carried out in accordance with the requirements of the Building Code of Australia (as in force on the date of the application for the relevant construction certificate or complying development certificate was made)

b) This clause does not apply to the extent to which an exemption is in force under clause 187 or 188, in the Environmental Planning and Assessment Regulations 2000, subject to any terms of any condition or requirement referred to in Clause 187(6) or 188(4).

1. Prior to commencing any construction works, the following provisions of the Environmental Planning and Assessment Amendment Act, 1997 are to be complied with: a) A Construction Certificate is to be obtained in accordance with Section 81A (2)(a) of the Act.

b) A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A (2)(b) of the Act and Form 7 of Schedule 1 to the Regulations. c) Council is to be notified at least two (2) days prior to the intention to commence building works, in accordance with Section 81A (2)(c) of the Act and Form 7 of Schedule 1 to the Regulations. 2. The applicant may apply to the Council or an accredited certifier for the issuing of a Construction Certificate and to Council or an accredited certifier to monitor compliance with the approval and issue any relevant documentary evidence or certificate/s.

Council Officers can provide these services and further information can be obtained from Council by telephoning 9952 8222 (Customer Service).

3. Protection of Public Places a) If the work involved in the erection or demolition of a building is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place.

b) If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

c) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

d) Any such hoarding, fence or awning is to be removed when the work has been completed. PRIOR TO CONSTRUCTION CERTIFICATE

7. A security deposit (category: other buildings with delivery of bricks or concrete or machine excavation) is to be paid to Council (Public Works and Services Group) as well as the Infrastructure Restoration and Administration Fee. Please refer to Council's Management Plan for the current fee amounts.

8. An Enforcement levy is to be paid to Council on lodgement of the Construction Certificate application in accordance with the requirements of Council's Management Plan (scheduled fees).

9. Documentary evidence of payment of the Long Service Levy under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 is to be received prior to the issuing of the Construction Certificate.

10. Documentary evidence of compliance with Conditions 7-9 to the satisfaction of Council or an accredited certifier is to be submitted to the Council prior to the issuing of the Construction Certificate.

The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect any Sydney Water assets, sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. Please refer to the website www.sydneywater.com.au for: - Quick Check agents details - see Building, Developing and Plumbing then Quick Check; and - Guidelines for Building Over/Adjacent to Sydney Water assets - see Building, Development and Plumbing then Building and Renovating. Or telephone 13 20 92.

The consent authority or a private accredited certifier must ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate . 12. The applicant is to submit to and have approved by Council or an accredited certifier engineer's details for all concrete work and structural steelwork prior to the issue of the Construction Certificate.

13. Council's City of Ryde Development Control Plan 2006: Part 7.2- Waste Minimisation & Management sets out your obligations for Waste Management. A Waste Management Plan in accordance with the DCP is to be submitted to and approved by Council or an accredited certifier prior to the issue of the Construction Certificate

The Corymbia maculata (spotted gum) are to be mature well advanced species of at least one hundred (100) litre container size with their precise location approved by Council's Manager Parks. Details to be provided with the Construction Certificate. PRIOR TO COMMENCEMENT

Sediment control works are to be installed and maintained in accordance with Council's DCP 2006, Part 8.1 - "Construction Activities".

Signage is to be provided on the site as follows: a) During the demolition process notices lettered in accordance with AS1319 displaying the words "DANGER - DEMOLITION IN PROGRESS" or a similar message shall be fixed to the security fencing at appropriate places to warn the public.

b) During the entire construction phase signage shall be fixed on site identifying the PCA and principal contractor (the coordinator of the building work), and providing phone numbers.

The occasions on which building work must be inspected are:

a) at the commencement of the building work b) after excavation for, and prior to the placement of, any footings

c) prior to pouring any in-situ reinforced concrete building element

d) prior to covering of the framework for any floor, wall, roof or other building element

e) prior to covering waterproofing in any wet areas

f) prior to covering any stormwater drainage connections

g) after the building work has been completed and prior to any occupation certificate being issued in relation to the building. Documentary evidence of compliance with Council's approval and relevant standards of construction is to be obtained prior to proceeding to the subsequent stages of construction and copies of the documentary evidence are to be maintained by the Principal Certifying Authority and be made available to Council officers upon request.

Prior to occupation of the building, an occupation certificate must be obtained. Prior to the issue of the occupation certificate, the mandatory inspections must be carried out.

In addition to the abovestated inspections, the Principal Certifying Authority is required to ensure that adequate provisions are made for the following measures at each stage of construction, to ensure compliance with the approval and City of Ryde's DCP 2006, Part 8.1 - "Construction Activities": a) Sediment control measures.

d) Materials or waste containers upon the footway or road.

e) PCA and principal contractor (the coordinator of the building work) signage and site toilets. 20. Concrete wastes must be collected, stored and treated in accordance with the Concrete Wastes guide published by the Environment Protection Authority.

Only unpolluted water is to be discharged to Council's stormwater drainage system.

The L10 noise level measured for a period of not less than 15 minutes while demolition and construction work is in progress must not exceed the background noise level by more than 20 dB(A) at the nearest affected residential premises.

All excavated material must be removed from the site. No fill is to be placed above the natural ground level.

All demolition and all construction and associated work is to be restricted to between the hours of 7.00am and 7.00pm Monday to Friday (other than public holidays) and between 8.00am and 4.00pm on Saturday. No work is to be carried out on Sunday or public holidays.

No spoil, stockpiles, building or demolition material is to be placed on any public road, footpath, park or Council owned land.

An Occupation Certificate must be obtained from the Principal Certifying Authority (PCA) and a copy furnished to Council in accordance with Clause 151 of the Environmental Planning and Assessment Regulation 2000 prior to commencement of occupation or use of the whole or any part of a new building, an altered portion of, or an extension to an existing building.

The electromagnetic emissions from the facility shall comply with the Radio communications (Electromagnetic Radiation - Human Exposure) Standard 2003 as prescribed by the Australian Communications and Media Authority.

Within the period of 3-6 months after the date of commissioning the tower, testing shall be carried out at the public boundary of the properties numbered 4, 9, 11 and 28 on the map provided at Attachment B to the report entitled "Summary of Estimated RF EME Levels around the Proposed Mobile Phone Base Station at Abuklea Ave, Marsfield" prepared by Radhaz Consulting Pty Ltd and dated 18 November 2008, to indicate that the actual levels of maximum cumulative radiofrequency electromagnetic energy at those locations as emitted by the subject phone tower is no greater than the predicted levels expressed in Appendix A to the report. A copy of the tests demonstrating that the actual levels are no greater than the predicted levels must be submitted to the Council within 14 days of the date of testing.

J S Murrell Commissioner of the Court ljr

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.