Precautionary principle does not necessarily prohibit development
179 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: P Stein, "A cautious application of the precautionary principle" (2002) 2 Environmental Law Review 1 at 10; Vertical Telecoms Pty Ltd v Hornsby Shire Council [2002] NSWLEC 172 (10 August 2000) at [68]; Telstra Corporation Limited v Pine Rivers Shire Council & Ors [2001] QPELR 350 at 380-381 [119]; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 at 262 [114]; A Deville and R Harding, Applying the Precautionary Principle, Federation Press, 1997 at 44; and M D Young "The precautionary principle as a key element of ecologically sustainable development" in R Harding and E Fisher, Perspectives on the Precautionary Principle, Federation Press, 1999, p. 127 at p. 138. See also Greenpeace Australia Ltd v Redbank Power Company Pty Ltd and Singleton Council (1994) 86 LGERA 143 at 154-155; and Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 (15 August 2005) at [56].
180 If the precautionary principle were to be interpreted in this way, it would result in a paralysing bias in favour of the status quo and against taking precautions against risk. The precautionary principle so construed would ban "the very steps that it requires": C R Sunstein, Laws of Fear: Beyond the Precautionary Principle, Cambridge University Press, 2005 at pp. 4, 14 and 26. It must be recognised that "precautions against some risks almost always create other risks": C R Sunstein, supra at p. 53.
181 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.
Precautionary principle in context of other ESD principles
182 The precautionary principle is but one of the set of principles of ecologically sustainable development (highlighted earlier in the judgment). It should not be viewed in isolation, but rather as part of the package. This means that the precautionary measures that should be selected must not only be appropriate having regard to the precautionary principle itself, but also in the context of the other principles of ecologically sustainable development including inter-generational and intra-generational equity and the conservation of biological diversity and ecological integrity: see A Deville and R Harding, Applying the Precautionary Principle, Federation Press, 1997 at p. 43. In some circumstances these other principles may strengthen the case for precautionary action, while in others the precautionary principle may need to be weighed against the other principles as well as other human rights such as food, water, health and shelter: see "Guidelines for applying the precautionary principle to biodiversity conservation and natural resource management" in Appendix A to R Cooney and B Dickson (eds), Biodiversity and the Precautionary Principle: Risk and Uncertainty in Conservation and Sustainable Use, Earthscan, 2005 at p. 301, Guideline 2.
183 In Northcompass Inc v Hornsby Shire Council (1996) 130 LGERA 248, the proposed development was a bioremediation plant which took green wastes away from diminishing landfill and provided value added end products. This was consistent with the principle of sustainable use of resources and the principle of intergenerational equity. However, the proposed development infringed the precautionary principle. The Court emphasised the need to consider all of the principles of ecologically sustainable development: at 246-247.
Application of precautionary principle to this case
184 In this case, the first condition precedent for the application of precautionary principle, that there be threats of serious or irreversible environmental damage, is not satisfied. The levels of RF EME emitted from the proposed base station will easily comply with the Australian Standard RPS3. Any harm to the health and safety of people or the environment caused by exposure to such extremely low levels of RF EME is negligible.
185 Accordingly, there is no basis on which the precautionary principle can be applied to this development. This is the same conclusion reached by other courts and tribunals dealing with other proposed mobile phone base stations and antennas which emitted RF EME that complied with the relevant regulatory standards: in New South Wales, see Vertical Telecoms Pty Ltd v Hornsby Shire Council [2000] NSWLEC 172 (10 August 2000) at [68]; NTL Australia Ltd v Willoughby Council [2000] NSWLEC 244 (27 November 2000) at [87]; Hutchison Telecommunications (Australia) Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 104 (26 March 2004) at [27]; and in other states, see: Connell Wagner Pty Ltd v City of Port Phillip [1998] VCAT 606 (15 January 1999); and Telstra Corporation Ltd v Pine Rivers Shire Council [2001] QPELR 350 at 381[121].
186 This conclusion does not mean that there has been an avoidance of a precautionary approach. To the contrary, the conclusion is a direct consequence of the fact that a precautionary approach has already been adopted in the standard setting process, the terms of the Australian Standard RPS3, the design and location of the proposed base station, the equipment to be provided, the operation of the equipment including adaptive power control, the application of the Standard to the RF EME generated from the base station, and the likelihood of actual RF EME being significantly less than predicted RF EME. The cumulative effect of these precautionary approaches is to prevent any threat of serious or irreversible environmental damage. Hence, there is no basis to invoke the precautionary principle so as to take any further measures to prevent environmental degradation.
187 The circumstances in this case stand in contrast to the situation that faced the Supreme Court of Pakistan in Zia v WAPDA PLD 1994 SC 693. There, the government agency WAPDA and the relevant government department undertook the process of planning and deciding to construct an electricity grid station in a routine manner without taking into consideration the latest research and planning in the field and without giving any thought to the potential hazards that the electromagnetic fields that radiated from the grid station might cause to human health. The Supreme Court of Pakistan held such an approach offended the precautionary principle: at [8]. Instead, a method needed to be devised to strike a balance between economic progress and prosperity and minimising possible hazards. The Court held that a policy of sustainable development should be adopted: at [10]. The appropriate precautionary measure adopted by the Supreme Court was, before passing any final order, to appoint an expert commissioner to examine and study the scheme, planning, device and technique employed by WAPDA and report whether there was any likelihood of any hazard or adverse effects on the health of the residents of the locality. The commissioner was also to suggest variation in the plan for minimising the alleged danger: at [10] and [16].
188 In the present case, such a precautionary approach has already been undertaken, first, in the standard-setting process which involved a comprehensive review of all relevant scientific literature on the potential biological effects of exposure to RF EME, secondly, in the adoption of the Australian Standard RPS3 with margins of safety, thirdly, in the requirements of the relevant industry code to comply with the adopted standard, fourthly, in the measurement of existing and the estimation of predicted RF EME levels from the proposed base station, in accordance with the accepted methodology, fifthly, in the selection of equipment and antennas to be used in the proposed base station and, finally, in the efficient operation of the equipment and antennas to minimise RF EME levels generated from the proposed base station. The carrying out of these precautionary measures implements, and indeed is likely to go further than, the precautionary approach required by the Supreme Court of Pakistan in Zia v WAPDA. The present case is, therefore, consistent with that decision.
Perceptions of effects on amenity and health
189 In the determination of a development application the consent authority (and this Court on a merits review appeal) must consider the effect of the proposed development on the amenity of the locality.
190 The concept of the amenity of the locality is wide and flexible. Some aspects of amenity are practical and tangible. Examples are traffic generation, noise, nuisance, appearance and way of life in the neighbourhood. Other aspects of amenity are intangible and subjective. They include the standard or class of the neighbourhood and the reasonable expectations of a neighbourhood: Broad v Brisbane City Council (1986) 59 LGRA 296 at 299. Amenity may embrace the effect of a place on the senses and the residents' perception of the locality. Knowing the use to which a particular site is, or may be, put may affect a person's perception of amenity: Broad v Brisbane City Council (1986) 59 LGRA 296 at 305. See also Venus Enterprises Pty Ltd v Parramatta City Council (1981) 43 LGRA 67 at 69; Novak v Woodville City Corporation (1990) 70 LGRA 233 at 236-237; and Optus Communications Pty Ltd v Corporation of the City of Kensington and Norwood [1998] SAERDC 480 (29 May 1998) at 6.
191 The very wide concept of amenity expounded in cases like Broad v Brisbane City Council applies with even greater force in a statutory scheme like the EPA Act which in s 79C(1) gives effect to the widest conceivable scope of 'likely impacts' of a proposed development, including environmental, economic and social impact, without employing the term amenity: Perry Properties Pty Ltd v Ashfield Council (No. 2) (2001) 113 LGERA 301 at 318[64].
192 In determining the nature and scope of amenity and the impact of a proposed development on it, the consent authority may consider the community responses to the proposed development as set out in the submissions made to the consent authority: s 79C(1)(d) and (e) of the EPA Act. The community responses are aspects of the public interest within the meaning of s 79C(1)(e) in securing the advancement of one of the express objects of the Act "to provide increased opportunity for public involvement and participation in environmental planning and assessment": s 5(c) of the EPA Act. See also Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402 at 415; and New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 316[58].
193 However, in considering the community responses, an evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity of the locality. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity of the locality.
194 In Broad v Brisbane City Council (1986) 59 LGERA 296 at 304, de Jersey J stated:
"In determining the likely effect on a proposed development on the amenity of a neighbourhood the Local Government Court is clearly entitled to have regard to the views of residents of the area. The question is whether a resident's view should be disregarded where it appears to be purely subjectively based, with no suggested justification in objective, observable likely consequences of the establishment of the proposed use.
In my opinion, such a subjective view need not necessarily be disregarded. Very often, of course, the evidence of such a view would be accorded little, if any, weight. In forming his own view on the likely effect of a proposed development on the amenity of an area a judge would, I think, ordinarily prefer views from residents which find justification in specific, concrete, likely effects of the proposed development":