Telstra Corporation Limited v Palerang Council

Zhang v Canterbury City Council [2001] NSWCA 167 CASES CITED: Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 New Century Developments Pty Limited v Baulkham Hills Council 203 NSWLEC 154

DATES OF HEARING: 9 September 2009 11 September 2009

APPLICANT Mr A Galasso (Senior Council) SOLICITOR Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Mr A Bradbury (Solicitor) SOLICITOR Williams Love & Nicol Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

09/10352 TELSTRA CORPORATION LIMITED v PALERANG COUNCIL 09/10384 TELSTRA CORPORATION LIMITED v PALERANG COUNCIL This determination was given extemporaneously and has been edited prior to publication

1 COMMISSIONER: There are two appeals before the Court for telecommunication towers and facilities: Appeal No. 10352 of 2009 is for the property known as No.1418 Captains Flat Road, Carwoola and the Appeal No. 10384 of 2009 is for the property known as Day's Hill, Bungendore. The Court met on site with the parties and heard from resident objectors to the proposals at each location.

2 The brief history of the applications is that the council originally refused development consent, and in respect of one of the applications a s 82A review was carried out. However, the council has now decided that it would not contest the appeals and that it is prepared to enter into consent orders. I also note that the council did not require for cross-examination the experts that provided reports to the proceedings. The experts for the applicant are: Mr Dragovic, a consultant town planner, and Mr Bangay, an expert in RFEME emissions, provided an expert report for both development applications. He was not required for cross-examination and council accept the evidence in Mr Bangay's Statements of Evidence.

3 The property at Carwoola is for the erection of a telecommunications monopole of some twenty-five m plus the antenna to be erected on top of the pole. It has a base of 940 mm diameter and 514 mm girth at the top. It is also proposed that a shed be erected in close proximity with a height of some three m.

4 The Court met on the Carwoola site in this rural residential area zoned 1(d) under the Yarralumla Local Environmental Plan. Mr and Mrs Neumann's property adjoins the subject site, their address is 77 Widgiewa Road, and they moved there for the purpose of enjoying the landscape and views. They are concerned about the monopole and the imposition on their views, and the impact on the land value of their property. They are concerned that if landscaping is planted it would take many years to establish, and they are concerned that the proposed development is contrary to the provisions of the Development Control Plan in terms of setbacks to the property boundary.

5 Mrs Coles of 106 Whiskers Creek Road also gave evidence. She expressed concern about the fact that the telecommunications tower is too close to residences. In particular there are many elderly people in the area, with pacemakers. She is concerned that there is not a more appropriate alternative location away from residences.

6 The Court in the Bungendore appeal heard from Mr and Mrs Holloway who reside at Engelmark, 34 Hyland Drive, Bungendore. They have concerns about the visibility of the proposed telecommunications tower and expressed concern for public perceptions about emissions from towers, and they considered that a site which is not as close to dwelling houses should be selected.

7 Mr Monahan of Kransie Circuit, Nicholls, who owns a block of land at Fawns Place, Bungendore, expressed concern about the health risks and the fact that in his opinion these facilities interfere with medical devices, and that there has been no factual health evidence that makes it safe for residents, and there is a duty of care involved. He also gave evidence in court on the afternoon to reflect his concern about the health impacts of the proposed facilities.

8 I must have regard to the statutory planning framework in assessing the development applications. For the Carwoola development the subject site is zoned 1(d) and telecommunication facilities are permissible with consent. The Court must also have regard to the objectives of the plan before granting development consent. I must be satisfied that the carrying out of development is consistent with the objectives of the plan and the objectives of the zone in which it is located. Before granting consent subcl (2), requires consideration of the present use of the land, the potential use of the land for productive agricultural uses, and, the protection of areas of significance for nature conservation or areas of high scenic or recreational value, and conservation of native flora and fauna. The subject site is not zoned conservation area. However the impact on the Neumann's views is assessed.

9 The relevant provisions of the Yarralumla Development Control Plan DCP for rural zones of 2002 contains provisions regarding setbacks at cl 18, "Building setbacks from side and rear boundaries shall have careful regard to the impact of proposed structures on adjoining landowners and the amenity of the locality. A minimum distance of fifteen m for lots less than four ha, twenty-five m for lots four to eighty ha, and fifty m for lots exceeding eighty ha shall be required from side and rear boundaries."

10 The height provision in the DCP is: "No building shall exceed a maximum height of nine m measured from the lowest natural ground level at the wall of the building excluding chimneys, antenna and plumbing stack work, provided at that all times a line drawn vertically through the building at any point does not intersect more than two floors."

11 The relevant provision for materials and appearance is as follows: "All structures shall be designed to be compatible with the rural character. In this regard, particular attention given to building location, form, colour used in construction, and council may require the use of certain materials compatible with the landscape. Metal clad structures shall not be clad in highly reflective material unless well screened."

12 The Court must direct its attention to the DCP in terms of the authority judgment Zhang v Canterbury City Council [2001] NSWCA 167, in the Court of Appeal. The DCP must be the central focus, that is, I must give the DCP proper consideration and genuine consideration in my assessment of the application. At the same time, the Chief Justice pointed out that development control plans are discretionary and the merits of a development application must be considered in the assessment.

13 It was submitted to the Court that the DCP did not anticipate telecommunications facilities as such. While this may be absent in the Development Control Plan, nonetheless I must give the DCP central consideration.

14 The Court heard evidence from Mr Dragovic that for the Carwoola application the shed as such can be screened by landscaping and appropriate colours and materials used. Furthermore, he is of the opinion that the existing landscaping on the Neumanns property provides an ameliorative effect of the impact of the proposed shed structure. In terms of the location of the pole, in Mr Dragovic's opinion he is of the view that a higher pole would be required for coverage if the numeric setbacks in the DCP were to be imposed without consideration as to the merits of the application. In his opinion, with a setback of some twenty-five m and placing the structure more towards the centre of the subject site that is some six ha, this would have a far greater impact on the view corridors enjoyed from the Neumann residence.

15 The Court had the opportunity of standing outside the Neumanns residence on their property to understand the context of the views. There are significant and substantial views, extensive views, gained from the Neumann residence, and the Court had the opportunity of understanding the location proposed of the telecommunications pole and the associated shed structure. I am satisfied the variation to the setback contained in the DCP is justified in the circumstances of this case and that it would have less visual impact than strict compliance with a 25 m setback.

16 In my assessment I see no reason why the Court should not accept the consent orders with respect to the location of the pole on the property at Captains Flat Road, Carwoola. I agree with Mr Dragovic that the placement of the pole, that for the sake of numeric compliance with the Development Control Plan, would not in my assessment be consistent with the objectives of ensuring that structures, in the words of the Development Control Plan, on adjoining properties have regard to the impact of those structures on adjoining landowners. 17 I have formed this view, giving the DCP central consideration, that the proposed location of the monopole and shed has had regard to the impact on the adjoining landowners. I agree with Mr Dragovic that the pole in the proposed location would be less obvious, it would be peripheral in terms of the view corridor, and it does not interfere with the primary view from the Neumann residence. I also note there are plantings on the Neumann property, which will ameliorate the impact, and the applicant is prepared to provide further plantings in close proximity to the structures to provide further amelioration, in particular for the shed.

18 It is clear that the pole itself, the monopole, whilst it is a slender structure it will be visible from the Neumann's property, but I am of the opinion that it is satisfactory in terms of the height requirement and the setback requirements of the DCP that the proposed development is satisfactory, and it is not inconsistent or antipathetic to the requirements/objectives of the Development Control Plan .

19 The Court in assessing consent orders must be satisfied that whilst the parties agree there are no issues, I must be satisfied in terms of an assessment under s 79C that relevant consideration has been given to the instruments and the development control plans. In this regard I am satisfied the proposal is satisfactory and not inconsistent with the planning controls and guidelines.

20 With respect to the health impacts, I will discuss those matters in terms of the Bungendore application as well, as much of the evidence on this issue can be transported from one appeal to the other. I have given this matter serious consideration in terms of the health impacts having regard to the evidence before the Court. It is important to note that whilst objectors expressed concern or perceived concerns about health impacts, the Court must have regard to the evidence before it, and there is no contrary evidence before the Court submitted on behalf of the council. I will refer to authorities in this Court regarding health impacts and the need to have regard to appropriate standards.

21 For the Bungendore telecommunications tower and associated shed, this is a similar height pole and similar dimensions in terms of the girth at the base and the top as the Carwoola facility. However, the antennas are arranged in a slimline fashion, which are less visible.

22 The Court has regard to the visual impacts and the opportunity of viewing the location of the pole from both objectors' properties, and the Court also notes that as for the previous proposal at Carwoola, there were a number of alternative locations assessed during the process. In terms of the location at Bungendore, I am satisfied that co-location or associating other infrastructure in proximity to the water tower is appropriate.

23 There is some existing vegetation of pine trees on the western side of the water tower and the western side of the subject site, provides an ameliorative impact of the proposed development. These are significant pine trees that have already been established and they clearly provide for a visual screening of the water tower from the western side. The applicant is prepared to provide landscaping which will ameliorate not only the telecommunications facility a nd shed element but also the water tower for the eastern boundary.

24 The question of the location. There were alternative locations considered for this telecommunications tower in Bungendore and many of these were closer to houses and in more open locations. I am satisfied that the location selected is one that is satisfactory and would not warrant refusal of the application. The fact that one will still be able to see a pole in the distance is a factor that must be recognised, but at the same time it is not so visually intrusive to warrant refusal of the application, and the provision of infrastructure must be considered and necessary infrastructure is indeed a general objective of the council's LEP. I am satisfied that a telecommunications tower is such and being able to see such facilities does not warrant refusal of the application, provided they do not unreasonably impact on the amenity of adjoining property owners or those that are in sight of same. 25 With respect to the health impacts of the telecommunications towers, the report submitted with the development application provided by ENE and Health on p 16 of exhibit A for the Carwoola site I quote from the report. "In 2003 ACMA adopted a technical standard, ACMA being Australian Communications and Media Authority, for continuous exposure of the general public to RFEME from mobile based stations. The standard known as the Radio Communications Electromagnetic Radiation Human Exposure Standard 2003 was prepared by the Australian Radiation Protection And Nuclear Safety Agency, ARPANSA, and is the same as that recommended by International Commission for Non-Ionising Radiation Protection, an agency associated with the World Health Organisation. Mobile carriers must comply with the Australian Standard on exposure to EME set by ACMA. The standard operates by placing a limit on the strength of the signal, RFEME, that Telstra can transmit to and from any network base station. The general public health standard is not based on distance limitations. The environmental standard restricts the signal strength to a level low enough to protect everyone at all times. It has a significant safety margin or precautionary approach built into it. In order to demonstrate compliance with the Standard, ARPANSA created a prediction report using a standard methodology to analyse the maximum potential impact of any new telecommunications facility. Carriers are obliged to undertake this analysis for each new facility and make it publicly available. Importantly, the ARPANSA created compliance report demonstrates the maximum signal strength of a proposed facility assuming that it is handling the maximum number of users twenty-four hours a day. Using the ARPANSA standard methodology, a compliance report predicts the maximum levels of radio frequency, EME, from the proposed installation at Carwoola. The maximum environmental level from the site once it is operational has been estimated as being 0.038% of the ACMA mandated exposure limit."

26 An annexure with a summary of the estimated RFEME levels around this proposed facility is 0.038%.

27 At this point I should say during the proceedings the objectors raised concern about other telecommunications carriers co-locating. If there is co-location, the emission standards would still need to be complied with. It was also advised to the objectors that if there is any change in standards, legislation requires that the future operation of facilities comply with standards even if these standards are revised, and as such the health standards must be clearly acknowledged and complied with for future use as well as the proposed present use of the facility.

28 In terms of the application for Bungendore, Appeal No. 10384, Mr Bangay's report provides further material relevant to both facilities. He addresses specific community concerns and some residents here have expressed concerns over possible health effects that may result as a consequence of exposure. I should preface his comments by providing his expertise and experience which he provides in his Statement of Evidence. He has had twenty-five years experience in RF hazard assessment with ARPANSA and produced publications in peer reviewed scientific journals, and is a member of the Standards Australia Technical Expert Committee for RF radiation.

29 I will go back to what he states about the specific community concerns, in particular about health. He states: "A common concern has been the possibility that RFEME may cause cancer. The World Health Organisation fact sheet 304 clearly presents the scientific review and these studies have not provided evidence that RF exposure from the transmitters increases the risk of cancer. One resident cited a paper which puts forward the hypothesis that mobile phones may cause brain cancer. While current scientific opinion is that there is no link, it is important to say that the exposures caused by mobile phones held against the head cannot be compared to the exposure caused by base station antennae some hundred or more metres away. Even under ideal conditions, I estimate that absorption of emissions from base station antennae is more than 100,000 times less than that produced by a phone operating against the head... Concern over the possibility of interference with electronic implants, pacemakers, et cetera, has also been expressed. All of these devices are designed to have a certain interference threshold. The estimated maximum RF field strength level from the proposed base station is far below the interference threshold and not of concern."

30 As I stated, there was no controverted evidence provided by the respondent on Mr Bangay's Statement of Evidence and his conclusions in his reports for both telecommunications facilities at Carwoola and Bungendore.

31 The Court in its assessment for health must have regard to the authority established by the Chief Judge of this Court, his Honour Preston CJ, in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 of March 2006, and I refer to this judgment wherein his Honour refers to the Australian Standards.

32 In particular para 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. 197, the concerns expressed by the residents in that particular case on RFEME 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. 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 RFEME from a proposed development. 199, there is a broader policy reason for the court making its determination on the basis of reason and substantiated evidence. As Galligan notes, "A basic aspect of rational action is that facts on which decisions are founded should be supported by good evidence. Unless there is a substratum of objective evidence for the reasons and policies acted on, discretionary decisions are liable to the charge of arbitrariness." 33 The Chief Judge refers to the fact that to make such an arbitrary decision could cause a greater disservice to the community than making a rational one, and it would raise unnecessarily the fears of communities. He quotes, "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 adjustment to the limit values to account for the extent of scientific uncertainty. World Health Organisation, electromagnetic fields and public health cautionary policies. Community concerns are best corrected by proper application of the authoritative adopted standards including the Australian Standard RPS3." 34 With respect to the issue of perception, the Chief Judge refers to his Honour Justice Lloyd in the judgment of New Century Developments Pty Limited v Baulkham Hills Council 203 NSWLEC 154 at para 62. "Rational or justified foundation is not a matter which by itself can be considered as an amenity or social impact pursuant to s 79C and where there is no evidence to support irrational fear it would be irrelevant that members of the community may have modified their behaviour arising from such an unjustified fear. In that regard, the court and I acknowledge that some people do have concerns and that is clearly established in many cases, but the role of the court is to assess the development application in terms of the factual evidence and in terms of the appropriate standards, and whilst some people may choose not to locate near such facilities, that is clearly a matter of choice, but at the end of the day the court must have regard to the established standards that have been established and not as indicated by the Chief Judge, there should not be an arbitrary approach to such matters and the court should not substitute its own values in that regard."

35 On the basis of all the evidence to the Court, having regard to the site inspection, having regard to the concerns of the residents, I am satisfied there is no reason as to why the Court should not agree to enter into the consent orders that have been handed up by the parties.

36 A number of conditions of consent are proposed for the two developments, and with the amended condition for the Carwoola application that the applicant shall plant pine trees on the western boundary. This condition is to be further amended to ensure that the vegetation is maintained, and in the event of any of the trees dying that they shall be replaced and maintained for the life of the proposed telecommunication facility.

37 The conditions for the Bungendore facility they are as agreed to between the parties with the additional condition about the appropriate species of landscaping for the eastern boundary, and similarly this will be amended to ensure that the vegetation is maintained and replacement plantings are to take place in the event of those trees dying.

38 Accordingly based on my assessment above the formal orders of the Court in the appeal number 10352 of 2009 are: 1. By consent the appeal in respect of the telecommunications facility at Captains Flat Road, Carwoola, is upheld. 2. The development application submitted to Palerang Council is determined by the granting of consent subject to the conditions in annexure A. 3. The exhibits are returned to the parties with the exception of the consent orders handed up. 39 The formal Court orders in appeal number 10384 of 2009 are: 1. By consent the appeal in respect of the telecommunications facility at Day's Hill, Bungendore, is upheld. 2. The development application submitted to Palerang Council is determined by the granting of consent subject to the conditions in annexure A. 3. The exhibits are returned with the exception of the consent orders handed up.

      J Murrell
      Commissioner of the Court
      ajl

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