Telstra Corporation Limited v Hornsby Shire Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C(1), s 82A, s 97(1) Land and Environment Court Rules 1996 Pt 16 r 4(2)

ACM Landmark Pty Ltd v Cessnock City Council [2006] NSWLEC 256 (26 April 2006); Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006); CASES CITED: Manly Warringah Rugby Leagues Club Pty Ltd v Warringah Council [2006] NSWLEC 88 (1 March 2006); Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 (24 March 2006); Vigor Master Pty Limited v Warringah Council [2006] NSWLEC 140 (29 March 2006)

APPLICANT Mr M Henry (barrister) SOLICITORS Malleson Stephen Jaques LEGAL REPRESENTATIVES:

RESPONDENT Mr A Galasso (barrister) SOLICITORS Storey & Gough

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

TELSTRA CORPORATION LIMITED V HORNSBY SHIRE COUNCIL

1 HIS HONOUR: The applicant, Telstra Corporation Limited, has been successful in its Class 1 appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act") against the refusal of the respondent, Hornsby Shire Council ("the Council"), of the applicant's development application for the installation of a mobile phone base station. 2 The Court determined to uphold the appeal and grant development consent to the proposed development: Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 (24 March 2006) ("the judgment"). The facts are set out fully in the judgment. 3 The applicant now seeks, by notice of motion dated 31 March 2006, an order that the respondent pay its costs of the proceedings. The respondent contests the motion. Approach to costs in Class 1 proceedings 4 The usual approach of the Court to costs in Class 1 proceedings, is that an order for costs will not be made unless the Court considers the making of a costs order is, in the circumstances of a particular case, fair and reasonable: Pt 16 r 4(2) of the Land and Environment Court Rules 1996. 5 Circumstances where it might be fair and reasonable for the Court to make an order for costs include those set out in Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) at [15] and Manly Warringah Rugby Leagues Club Pty Ltd v Warringah Council [2006] NSWLEC 88 (1 March 2006) at [13]. Applicant's submissions 6 The applicant submitted that this case fell within at least two of the circumstances where it has been held that it would be fair and reasonable to order costs, namely:

(a) the defence of the appeal was continued in circumstances where the respondent, properly advised, should have known that it had no or very poor prospects of success: Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) at [15(f)]; and

(b) the respondent defended the appeal against its decision not to grant consent in dereliction of duty or not on a rational basis: Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) at [15(g)]. 7 The applicant submitted that the principal issue on which the Council relied in maintaining its opposition to the appeal was the alleged adverse health effects that may be caused by radiofrequency electromagnetic energy ("RF EME") emitted from the proposed mobile phone base station. 8 However, that issue was agitated by the respondent in a context in which, initially, the estimated maximum RF EME emissions from the proposed base station would be no greater than 5.51% of the maximum level prescribed by the relevant standard, Australia Standard RPS3. In fact, the estimated level of emissions was only 2.39% of the maximum level prescribed by the Standard, but this was not known by the respondent until after the appeal had been lodged. Even on the higher percentage, this was but a fraction of the maximum level prescribed. 9 The context in which the respondent raised the issue was also one in which there was a considerable body of case law that established the following propositions:

(a) it is not for a court to set aside or disregard such an authoritative and scientifically credible standard as the Australian Standard RPS3: see [98] of the judgment and cases therein cited;

(b) it is not appropriate for a court to pioneer standards of its own: see [99] of the judgment and cases therein cited;

(c) a court should accept and apply the Australian Standard RPS3: see [100] of the judgment and cases therein cited;

(d) the Australian Standard RPS3 embraces a precautionary approach. The exposure limits set are conservative relative to scientific evidence on the biological effects of exposure to RF EME fields. There are margins for safety in the basic restrictions and associated reference levels. The reference levels are based on worst case assumptions: see [101] of the judgment and cases therein cited; and

(e) it is a precondition to the application of the precautionary principle that there be a threat of serious or irreversible environmental damage: see [185] of the judgment and cases therein cited. 10 This case law was in existence at all material times, including when the respondent initially refused to grant consent, when the respondent determined the applicant's application under s 82A of the EPA Act for review, and during the proceedings. In view of the case law, the respondent should have granted consent to the development application. 11 The respondent was put on notice of these matters by the applicant's letter requesting a review under s 82A of the EPA Act, dated 31 May 2005. In that letter the applicant stated that the latest scientific evidence shows that there is no evidence that mobile phone base stations cause any adverse health effects and that case history on the mobile phone base station issue indicates a very high probability of success for the operator. The applicant advised the respondent that it would appeal the respondent's decision to the Land and Environment Court and would be requesting that costs be awarded. 12 The applicant submitted that the respondent, properly advised, should have known that it had no chance or very poor prospects of succeeding on an appeal against its refusal to grant consent. 13 The applicant also submitted that whilst the respondent had an obligation to consider objections to the development application, it had a responsibility to evaluate the reasonableness of the objections by reference to objectively assessable evidence. The respondent failed to do this. 14 The Court held that the adverse effects claimed by the objectors were unsubstantiated and without reasonable evidentiary foundation. The absence of probative evidence must have been known to the respondents. The objectors' concerns related to matters which were capable of measurement and testing against established standards. 15 Thus, the application submitted, the respondent's contesting of the appeal was in dereliction of its duty and/or without a rational basis. 16 The applicant also submitted that the following facts point to it being fair and reasonable that the respondent should pay the applicant's costs of the proceedings:

(a) on two occasions the respondent's Environment Protection Team assessed the applicant's development application and, both times, the Team did not consider that consent should be refused because of possible adverse health effects;

(b) reports provided to the respondent by council officers to assist the respondent in determining the development application and the s 82A review respectively recommended that consent be granted;

(c) in its application for review under s 82A of the EPA Act, the applicant had put the respondent on notice that it would seek costs of any appeal to the Court and that the decided cases suggest that the applicant would have a very high probability of success on the appeal;

(d) both the preliminary and final reports of the court appointed expert, Dr Black, made plain that the proposed base station proposed no serious health risk to persons; and

(e) despite the contents of Dr Black's preliminary report, the respondent declined the applicant's invitation to consider agreeing to consent orders. 17 Notwithstanding all of the above circumstances, the respondent maintained its opposition to the applicant's development application in these proceedings for a hearing that lasted for 2 days. Such conduct, the applicant submitted, should sound in costs. 18 Finally, the applicant submitted that the appeal did not turn on the minor issues agitated by the respondent in the case. The minor issues were readily dismissed by the Court and, the applicant submitted, should not have been pressed. Respondent's submissions 19 The respondent submitted that the mere fact that the applicant was successful in result in the appeal is insufficient by itself to make it fair and reasonable that the applicant be awarded costs. 20 The respondent submitted that the decision of the Court was an authoritative decision with respect to a number of matters:

(a) RF EME in New South Wales, including its health effects;

(b) the approach a consent authority should take to regulatory standards, including in relation to RF EME;

(c) the approach a consent authority should take to residents' perceptions when they are not based on scientific data; and

(d) ecologically sustainable development ("ESD") and the precautionary principle in particular. 21 The respondent submitted that the detailed discussion in the judgment on these matters had not been developed to that degree in previous decisions of the Court or elsewhere. The respondent referred to paragraphs 9, 10 and 127 of the judgment which noted that the case provided the opportunity to provide guidance on a number of matters. Accordingly, the respondent submitted, it was justified in maintaining its opposition to the applicant's appeal. Such opposition afforded the Court the opportunity to address the matters above. The community had benefited from the Court's decision. 22 In response to the applicant's submission that the evidence on RF EME and its health effects was clear cut, the respondent referred to the fact that the applicant elected to call both Mr Bangay and Mr Papadatos to give evidence in relation to these matters, notwithstanding the evidence on the court appointed expert, Dr Black. This conduct of the applicant shows that there was a bona fide issue in relation to RF EME and its health effects, justifying the respondent's continued opposition to the appeal. 23 Further in this regard, the respondent referred to the judgment in Vigor Master Pty Limited v Warringah Council [2006] NSWLEC 140 (29 March 2006), at [50]-[54] where I held that the obtaining of a court appointed expert's evidence does not relieve the Court of its duty to consider all of the evidence in the case. The Court is not bound to accept the evidence of the court appointed expert. 24 Accordingly, the respondent submitted, it was reasonable for the respondent to wish to test the court appointed expert's evidence in cross-examination on the hearing of the appeal and to ask the Court to look at all of the evidence adduced at the hearing before making its decision. 25 In relation to the applicant's submission based on paragraph 15(f) of the decision in Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006), the respondent submitted that what constitutes "success" will be different for an applicant than for a Council. Success for a Council may be having all issues in relation to the applicant's development application fully ventilated and all evidence put before the Court. The respondent's submitted that by its conduct it allowed for the full ventilation of issues and the putting of all evidence before the Court. Applicant's submission in reply 26 The applicant rejected the respondent's submission that previous decisions either of this Court or elsewhere had not dealt with the matters relied upon by the respondent in its submissions. In particular, courts had:

(a) dealt with and applied the appropriate regulatory standards in relation to RF EME: see decisions cited in [98]-[101] of the judgment; (b) determined that the precautionary principle cannot be applied to proposed mobile phone base station antennas which emit RF EME at levels that comply with the appropriate regulatory standards: see decisions cited in [185] of the judgment;

(c) determined that a fear or a concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact under s 79C(1) of the EPA Act: see decisions cited in [195] of the judgment;

(d) determined that the residents' perceptions of an adverse effect on their health and safety which are inconsistent with the objective evidence, should be given little, if any, weight: see decisions cited in [198] of the judgment; and

(e) held that an administrative decision-maker should exercise discretionary powers on the basis of logically probative evidence and by a process of logical reasoning: see decisions cited in [199]-[206] of the judgment. 27 Accordingly, the respondent ought, properly advised, to have known that the Court would determine these matters in accordance with previous decisions and adversely to the respondent. 28 Finally, the applicant submitted that it is not fair and reasonable for Council to have continued it opposition to the appeal at the expense of the applicant. Applicant should be awarded costs in this case 29 This is a case where it is fair and reasonable that there be an order for costs in favour of the applicant. 30 The issues raised by the respondents fell into the following categories: the principal one in relation to the actual or perceived impacts of RF EME emitted from the proposed base station; the need for the development; alternative sites for the development; and issues raised by objectors of visual impacts, heritage impacts and co-location: see [25]-[27] of the judgment. 31 The issues, other than the principal one in relation to the actual or perceived impacts of RF EME, did not occupy any material part of the hearing. The evidence was predominately in the applicant's favour on these issues. On the evidence, these issues were ancillary and could not have founded a refusal of the applicant's development application. These issues, therefore, could not justify the respondent's opposition to the appeal. 32 This leaves the principal issue in relation to the actual or perceived impacts of RF EME. 33 The expert evidence in relation to the actual impacts of RF EME was all one way, namely, that there would be no adverse health or biological effects by exposure to RF EME emitted from the proposed mobile phone base station: at [90] of the judgment. The evidence of the court-appointed expert, Dr Black, was clear and unequivocal, both in his preliminary report and final report and in oral evidence. It was corroborated by the evidence of Mr Bangay and of Mr Papadatos called by the applicant. Such corroboration did not in any way undermine Dr Black's evidence. The respondent could not reasonably conclude otherwise. The respondent did not adduce any expert evidence challenging this evidence. 34 The cross-examination of these experts by the Council did not challenge any material conclusion of the experts. Nor was there any evidentiary foundation for a cross-examination that would have challenged any material conclusion of the experts. 35 Accordingly, there was no reasonable prospect that the oral evidence of the three expert witnesses at the hearing or the cross-examination of those experts would alter the unanimous conclusion that there would be no adverse health or biological effects from exposure to RF EME emitted from the proposed base station. 36 Moreover, there could never had been any reasonable prospect that the Court would have found otherwise than in accordance with the expert evidence. As I found in paragraph 204 of the judgment, there was no probative evidence before the Court upon which the Court could make findings of adverse effects on the amenity of the locality, or the health and safety of persons in the locality, or on the environment. Equally, there was no logical basis upon which the Court could determine to refuse consent where there was no probative evidence of such effect. To do so would be to act arbitrarily. 37 The respondent's conduct in maintaining opposition in the face of this expert evidence was unreasonable: see ACM Landmark Pty Ltd v Cessnock City Council [2006] NSWLEC 256 (26 April 2006) at [93]. 38 That left the respondent's argument that, notwithstanding that all of the expert evidence established that there would be no health or biological effects by exposure to RF EME, nevertheless the residents' fear that there might be an adverse effect on them or their amenity justified refusal of the development application. That argument was also doomed to failure, both because of its irrationality and by reason of authority. The fear was without rational or justified foundation: see [196] and [197] of the judgment. A fear without rational or justified foundation is not a matter which can properly be considered to be an amenity or social impacts: at [195] of the judgment. Little, if any, weight can be given to such fears. This has been the consistent conclusion of courts dealing with like fears: at [198] of the judgment. 39 In these circumstances, the respondent should have foreseen that there was no reasonable prospect that the argument founded on the residents' unjustified fears could succeed in the Court. The respondent's continued opposition to the appeal on the basis of the residents' objections was unreasonable in circumstances where those objections could be seen to have no evidentiary foundation. 40 It is understandable that the respondent, as an elected body, feels a need to give voice to its constituents in an appeal to the Court. However, it must be remembered that a local council has two roles. One is as a democratically elected body which properly can be responsive to its constituents' concerns. However, another is as a repository of statutory power under the EPA Act as a consent authority. It is this latter role that is of importance in this case. 41 The respondent, as the council of the relevant local government area in which the applicant's development application was made, had reposed in it the statutory powers under the EPA Act as a consent authority to consider and determine the applicant's development application. That statutory power had to be exercised in accordance with the EPA Act and principles of public law. These include making a determination on the basis of reason and substantiated evidence: see [199]-[205] of the judgment. 42 This duty of the respondent as a consent authority continued to apply on the appeal by the applicant against the respondent's decision. A consent authority's decision to oppose an appeal by an applicant against the consent authority's determination and the grounds on which to maintain opposition, should be based on probative evidence and on reason. If there is no probative evidence in support of an issue, and a decision to refuse consent to a development application cannot be reached by a process of logical reasoning on probative evidence, the consent authority, as a responsible public body, ought not to raise or maintain such an issue or raise or maintain a position that development consent should be refused by the Court. 43 Accordingly, the democratically elected nature of the respondent and any desire to give voice to its constituents could not justify the respondent raising issues put by constituents which did not have a foundation in probative evidence and which could not logically lead to a refusal of development consent. 44 In relation to the respondent's argument that the respondent's maintenance of opposition to the appeal afforded the Court an opportunity to develop the law in relation to matters concerning regulatory standards, ESD and the precautionary principle, and residents' perceptions on effect of amenity, the answer is that given by the applicant. Previous decisions, whilst not as detailed in their reasoning, nevertheless came to the same conclusions that the Court came to in this case. Those previous decisions were sufficient to put the respondent on notice of the almost inevitable outcome of the Court's decision in relation to the matters raised by the respondent. 45 For all of these reasons, it is fair and reasonable in the circumstances of this particular case, that the respondent pay the applicant's costs of the appeal. 46 As the applicant has also been successful on its motion for costs, it should also be awarded its costs of the motion: Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) at [74]. Orders 47 The Court orders:

1. The respondent is to pay the applicant's costs of the appeal, as agreed or assessed.

2. The respondent is to pay the applicant's costs of the motion for costs dated 31 March 2006, as agreed or assessed.

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