Telstra Corporation Limited v Port Stephens Council

Land and Environment Court (NSW)|2014-12-22

Solicitors: Ashurst (Applicant) Local Government Legal (Respondent) File Number(s): 10393 of 2014

Judgment

This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the respondent Council's refusal of development application DA 16-2013-589-1 for construction of a telecommunications facility at 10A Corrie Parade Corlette.
Telstra Corporation Ltd (Telstra) proposes to construct a telecommunications facility comprising:

Installation of a 30m high monopole in neutral grey colour with a non-reflective surface;
Installation of three panel antennas with dimensions of 2630mm x 300mm x 120mm mounted to a spoke head frame at a height of 30m to the centre line, so that the structure will have an overall height of 31.32m;
Structural provision for installation of a further three panel antennas of the same dimensions for future capacity upgrades at a height of 30m;
Construction of an equipment shelter 3.28m long by 2.28m wide by 2.995m high on elevated piers to house electrical and telecommunications equipment associated with the facility;
Installation of feeder cables running internally within the monopole to connect the monopole to the equipment shelter;

Planning controls

Division 21 of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) provides for Telecommunication and other communication facilities. Clause 113 defines "telecommunications facility": telecommunications facility means: (a) any part of the infrastructure of a telecommunications network, or (b) any line, cable, optical fibre, fibre access node, interconnect point, equipment, apparatus, tower, mast, antenna, dish, tunnel, duct, hole, pit, pole or other structure in connection with a telecommunications network, or (c) any other thing used in or in connection with a telecommunications network.
Clause 115 provides: 115 Development permitted with consent (1) Development for the purposes of telecommunications facilities, other than development in clause 114 or development that is exempt development under clause 20 or 116, may be carried out by any person with consent on any land. (2) (Repealed) (3) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines concerning site selection, design, construction or operating principles for telecommunications facilities that are issued by the Director-General for the purposes of this clause and published in the Gazette.
The NSW Department of Planning has issued the NSW Telecommunications Facilities Guideline including Broadband 2010 (the Guideline) which sets out principles for telecommunications facilities in the determination of a development application:

Principle 1: a telecommunications facility is to be designed and sited to minimise visual impact;
Principle 2: telecommunications facilities should be co-located wherever practical;
Principle 3: health standards for exposure to radio emissions will be met; and
Principle 4: Minimise disturbance and risk, and maximise compliance.

The development application was lodged on 18 September 2013. At that time the Port Stephens Local Environmental Plan 2000 (LEP 2000) was in force. Under LEP 2000 both the HWC land and the Council reserve were zoned 6(a) General Recreation "A", and development for the purpose of a telecommunications facility was permissible with consent. Clause 29 of LEP 2000 provided: Zone No 6 (a) - General Recreation "A" Zone (1) Description of the zone The General Recreation "A" Zone contains land that is currently used or is available to be used for both active and passive recreation. The zone generally relates to recreation reserves, foreshores, bushland and other land reserved for the public. It can include a number of recreational developments, such as playing fields, children's playgrounds and bushland parks, and may include services and facilities catering for users of the reserve. (2) Objectives of the zone The objectives of the General Recreation "A" Zone are: (a) to identify publicly owned land and ensure that it is available for open space recreation, and (b) to provide an open space network to serve the present and future recreational needs of residents and visitors, and (c) to permit development associated with, or complementary to, open space, and (d) to allow development on foreshores where that development is water related and enhances the recreational use or natural environment of the foreshore, and (e) to preserve the aesthetics of land which is prominent and visible to the public along foreshore areas, and (f) to reserve privately owned land that is essential for future public open space and to provide for its acquisition by the Council. (3) Development allowed without development consent Exempt development. Works for the purpose of landscaping or gardening. (4) Development allowed only with development consent Development for the purpose of: • advertisements, • agriculture, • aquaculture, • bushfire hazard reduction, • camp or caravan sites, • child care centres, • clearing native vegetation, • clubs, • community facilities, • dams, • earthworks, • educational establishments, • forestry, • helicopter landing sites, • marinas, • places of assembly, • race tracks, • recreation areas, • recreation facilities, • restaurants, • telecommunications facilities, • utility installations. (5) Development which is prohibited Any development not included in Item 3 or 4.
The term "telecommunications facility" was defined in LEP 2000: telecommunications facility means a tower, pole or mast for the purpose of providing communications by means of electromagnetic energy and includes the construction of the facility, the attachment of the facility to any building or structure, or any activity that is ancillary or incidental to the installation of the facility, but does not include an antenna.
Clause 10(2) of LEP 2000 provided that the consent authority must not grant consent to development "unless it is satisfied that the proposed development is consistent with the objectives of the zone in which it is intended to be carried out".
On 22 February 2014 the Port Stephens Local Environmental Plan 2013 (LEP 2013) commenced. Clause 1.8A of LEP 2013 contains a savings and transitional provision, which provides that the development application "must be determined as if this Plan had not commenced".
Under LEP 2013 the HWC land is zoned SP1-Special Activities. Only the purpose shown on the Land Zoning Map is permissible with consent. The Land Zoning Map has the notation "Hunter Water Corporation". The Council reserve is zoned RE1 - Public Recreation. A telecommunications facility is not included as a permissible use in the RE1 zone, and would be prohibited.
The objectives for the SP1 zone are: • To provide for special land uses that are not provided for in other zones. • To provide for sites with special natural characteristics that are not provided for in other zones. • To facilitate development that is in keeping with the special characteristics of the site or its existing or intended special use, and that minimises any adverse impacts on surrounding land. • To ensure the protection of water catchment areas to safeguard the quality and quantity of groundwater and surface water. • To facilitate the provision of infrastructure provided by Hunter Water Corporation.
The objectives for the RE1 zone are: • To enable land to be used for public open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes.
The site is mapped as a bushfire prone area. The Rural Fire Service (RFS) Practice Note 1/11 Telecommunications Towers in Bushfire Prone Areas (RFS PN1/11) requires that a 10m APZ be established and maintained.
The Council reserve is classified as Community Land under Chapter 6 Part 2 Div 1 of the Local Government Act 1993 (the LG Act). Part 2 Div 2 deals with use and management of community land. The reserve is categorised as a "natural area", and further categorised as "bushland" (s 36(4), (5)). The Council has adopted a generic Plan of Management for areas of land subcategorised as Natural Area, which applies to the Council reserve.
A council may not sell, exchange or otherwise dispose of community land (s 45). A council may grant a lease or licence, in accordance with s 46: 46 Leases, licences and other estates in respect of community land - generally (1)A lease, licence or other estate in respect of community land: (a) may be granted for the provision of public utilities and works associated with or ancillary to public utilities, or (a1) may be granted for the purpose of providing pipes, conduits or other connections under the surface of the ground for the connection of premises adjoining the community land to a facility of the council or other public utility provider, or (b) may be granted, in accordance with an express authorisation in the plan of management and such provisions of the plan of management as apply to the granting of the lease, licence or other estate: (i) for a purpose prescribed by subsection (4), or for a purpose prescribed by any of sections 36E to 36N as a core objective of the categorisation of the land concerned, or (ii) for a purpose prescribed by the regulations, if the plan of management applies to several areas of community land, or (iii) for a short-term, casual purpose prescribed by the regulations, or (iv) for a residential purpose in relation to housing owned by the council, or (v) (Repealed) (c) may be granted in order to allow a filming project to be carried out, whether or not the project is in accordance with the plan of management or is consistent with the core objectives of the categorisation of the land concerned, but may not otherwise be granted. (2) Despite subsection (1), a lease, licence or other estate in respect of community land may be granted for a purpose mentioned in subsection (1) (b) only if the purpose for which it is granted is consistent with the core objectives, as prescribed in this Part, of its categorisation. (3) A council must not grant a lease or licence for a period (including any period for which the lease or licence could be renewed by the exercise of an option) exceeding 30 years. (4) The following purposes are prescribed for the purposes of subsection (1) (b) (i): (a)the provision of goods, services and facilities, and the carrying out of activities, appropriate to the current and future needs within the local community and of the wider public in relation to any of the following: (i) public recreation, (ii) the physical, cultural, social and intellectual welfare or development of persons, (b) the provision of public roads. (5) Purposes prescribed by subsection (4) in relation to the matters mentioned in subsection (4) (a) (ii) include, but are not limited to, maternity welfare centres, infant welfare centres, kindergartens, nurseries, child care centres, family day-care centres, surf life saving clubs, restaurants or refreshment kiosks. (5A) A council must grant an application under subsection (1) (c) for a lease, licence or other estate in respect of community land in order to allow a filming project to be carried out on the land unless: (a) the community land is land referred to in section 47AA (1), or (b) the plan of management for the land expressly prohibits use of the land for the purposes of filming projects, or (c) the council is satisfied that there are exceptional circumstances that warrant refusal of the application. (5B) Before refusing an application on a ground referred to in subsection (5A) (c), the council must consider whether any concerns it has could be addressed by imposing conditions on the grant. (5C) If the council refuses an application, it must: (a) inform the applicant in writing of its decision as soon as practicable after it is made, and (b) give the applicant reasons in writing for its decision within 3 business days after it is made. (6) A plan of management is void to the extent that it purports to authorise the grant of a lease, licence or other estate in contravention of this section.
Section 47B of the LG Act applies to a lease or licence of community land that is categorised as a natural area: 47B Lease or licence in respect of natural area (1) A lease, licence or other estate must not be granted, in respect of community land categorised as a natural area: (a) to authorise the erection or use of a building or structure that is not a building or structure of a kind prescribed by this section or the regulations, or (b) to authorise the erection or use of a building or structure that is not for a purpose prescribed by this section or the regulations. (2) A lease, licence or instrument granting any other estate is void to the extent that its provisions are inconsistent with this section. (3) In this section, erection of a building or structure includes rebuilding or replacement of a building or structure. (4) The following buildings and structures are prescribed for the purposes of subsection (1) (a): (a) walkways, (b) pathways, (c) bridges, (d) causeways, (e) observation platforms, (f) signs. (5) The following purposes are prescribed for the purposes of subsection (1) (b): (a) information kiosks, (b) refreshment kiosks (but not restaurants), (c) work sheds or storage sheds required in connection with the maintenance of the land, (d) toilets or rest rooms. (6) Despite subsection (1), a lease, licence or other estate may be granted, in respect of community land categorised as a natural area, to authorise the erection or use of any building or structure necessary to enable a filming project to be carried out, subject to the conditions prescribed by subsection (7) and the regulations. (7) It is a condition of any lease, licence or other estate referred to in subsection (6): (a) that any building or structure so erected must be temporary in nature, and (b) that as soon as practicable after the termination of the lease, licence or other estate: (i) any building or structure erected must be removed, and (ii) any damage to the land caused by the erection or use of a building or structure must be made good, and (iii) the land must be restored as nearly as possible to the condition that it was in at the time the lease, licence or other estate was granted, at the expense of the person to whom the lease, licence or other estate was granted.
Part 4 of the Local Government (General) Regulation 2005 (the LG(G) Regulation) applies to community land. Clause 116 provides: 116 Leases, licences and other estates in respect of community land (1) For the purposes of section 46 (1) (b) (iii) of the Act, the use or occupation of community land for the following events is prescribed as a purpose in respect of which a council may grant a licence in respect of community land on a short-term, casual basis: (a) the playing of a musical instrument, or singing, for fee or reward, (b) engaging in a trade or business, (c) the playing of a lawful game or sport, (d) the delivery of a public address, (e) commercial photographic sessions, (f) picnics and private celebrations such as weddings and family gatherings, (g) filming sessions, (h) the agistment of stock. (2) However, the use or occupation of community land for events listed in subclause (1) is prescribed only if the use or occupation does not involve the erection of any building or structure of a permanent nature. (3) For the purposes of section 46 (1) (b) (iii) of the Act, the use of any existing road or fire trail on community land: (a) to transport building materials and equipment required in relation to building work that is to be, or is being, carried out on land adjoining the community land, or (b) to remove waste that is consequential on such work, is prescribed as a short-term, casual purpose. (4) For the purposes of section 46 (1) (b) (iii) of the Act, the use of any community land that does not have an existing road or fire trail: (a) to transport building materials and equipment required in relation to building work that is to be, or is being, carried out on land adjoining the community land, or (b) to remove waste that is consequential on such work, is prescribed as a short-term, casual purpose if such work is for a purpose referred to in section 46 (4) (a) (ii) of the Act. (5) In this clause, existing road or fire trail means a road or a fire trail that was in existence on 1 January 2001 (the date on which the Local Government (General) Amendment (Community Land) Regulation 2000 commenced).

Issues

In its Statement of Facts and Contentions filed 23 July 2014 (exhibit 5) the Council raised five contentions: inconsistency with the objectives of the 6(a) zone under LEP 2000; inconsistency with the objectives of the SP1 and RE1 zones under LEP 2013; unauthorised use of community land; suitability of the site; and the public interest. During the course of the hearing the Council was granted leave to amend its Contentions (exhibit 17) to include particulars relating to the extent of vegetation removal required for upgrading the accessway and bushfire mitigation, and to add a contention, inconsistency with Principles 1, 2 and 4 of the Guideline. Contention 6, the public interest, was further particularised to include alternative sites.

Evidence

The hearing commenced on site with a view. Evidence was given on site by five objectors, Ms Gretchen Fryar, Mr Michael Allen, Mr Jim Warren, Mr Geoff Scobie and Ms Debbie Dickson. Mr Shane Darcy gave evidence in court on the second day of the hearing. The objectors provided written statements which are exhibits 2, 3, 4, 12, 13 and 14. An additional submission was made during the hearing by Mr Peter O'Carroll, relating to the need for the facility (exhibit 16). Copies of written submissions, which included a petition with 217 signatures, 46 form letters and 23 individual letters, provided to the Council during its consideration of the development application are at tab 8 of exhibit 1.
The submissions of the objectors raised concerns as to visual impact of the monopole in the area including the foreshore, and the fenced compound area for users of the reserve; impacts on the bushland and wildlife; bushfire risk; health concerns; and whether there is a need for increased capacity. Mr Darcy's oral evidence and written statement raised concerns as to the need for the facility, including a survey he had undertaken of coverage based on driving to various locations, getting out of his car and testing data speeds and signal strength using apps on his mobile handset; alternative locations; and visual impact. In relation to the latter, Mr Darcy provided montages of the proposed development, discussed below.
The view included ten locations in the locality which are the subject of photomontages provided with the Supplementary Statement of Environmental Effects dated June 2014 (exhibit C). The view also included two sites identified in the evidence as possible alternative locations, being the Hunter Water Reservoir at Aquatic Close Nelson Bay (Candidate A) and the shopfront at 29 Sandy Point Road Corlette (Candidate D).
Telstra relied on expert evidence from Mr Nick Juradowitch (planning), Mr Daniel Copland (bushfire issues), and Mr Ivan D'Amico (engineering). The Council relied on expert evidence from Mr Kerry Nash (planning), Mr Lee McElroy (arborist), and Mr George Georgevits (engineering). The experts provided individual statements of evidence (exhibits D, E, J, K, 6, 8, 9, and 15), and the planners and engineers provided joint reports (exhibits 10, 18). Mr Jason Linnane, the Council's Group Manager of Facilities and Services, provided a statement of evidence (exhibit 7) and was cross examined.

Consideration

The first issue to be considered before addressing the Council's contentions is identification of the extent of tree and vegetation clearing required for the construction of the facility including the accessway and for an APZ.

Tree and vegetation clearing

The Council submits that a proper understanding of what the development entails, in particular an understanding of the number of trees to be removed, is essential. The Council submits that there is no such certainty, pointing to the statements by Mr Juradowitch in the planners' joint report (exhibit 10) that vegetation to be removed comprises 3-4 small to medium sized trees and some additional shrubs together with pruning of a small number of trees; Mr Copland's Statement of Evidence which states what is required for fuel management, including "mowing or slashing of the entire APZ", and in which he provides a plan for an APZ extending out into Council land and larger in radius with 6 trees, and 5 juvenile trees, to be removed; the September 2013 Planning Report submitted to Council (exhibit A tab 2) which states (p24) that there is to be removal of 5 forest oaks trees to facilitate the construction of the compound, removal of a small patch of regenerating forest consisting of a smooth barked Blackbutt tree and 4 saplings to facilitate the access track, and removal of 4 juvenile trees and clearing of ground fuel in the form of shrubs and dead trees for the APZ, totalling 14 trees for a smaller APZ than that now proposed, and plans showing removal of 5 trees with trimming of trees "where required"; and the Supplementary Statement of Environmental Effects (exhibit C) which refers (at p 1) to removal of one additional tree. The Council submits that Telstra has failed to describe the development in its context which is natural bushland, and that the proposal has aesthetic impacts and visual impacts which cannot be assessed properly until it is known what clearing will be required. The Council submits that Mr Copland's approach of determining what needs to be cleared or pruned once the facility is built is not appropriate.
Telstra submits that it has always been an aspect of the proposed development that there will be removal of a number of trees, and the only change in Mr Copland's position has been his reconfiguration of the APZ to an oval from a circle in order to provide for an APZ extending 10m from the monopole and equipment shed rather than simply the monopole. The development application seeks consent only for the removal of 6 trees, 5 juvenile trees, and trimming, and the only consequence of the amendments to the plans was in relation to the access track, which has the consequence that 10 trees need to be removed.
The RFS PN 1/11 (exhibit 1, tab 22) states that telecommunication towers in bush fire prone areas "are critical infrastructure for fire fighting communications and for providing warnings, information and communication channels for people in bush fire prone areas during bush fire emergencies". The Practice Note states that a 10m APZ "from the tower/buildings/infrastructure associated with the tower" is to be provided; and that the APZ "must be free of surface fuel and elevated fuel and should have minimum canopy". It recommends to the owner of critical infrastructure that "materials be designed to withstand 40kWm2 of radiant heat and to withstand ember penetration into the structure and associated infrastructure". Infrastructure does not include associated fencing.
Mr Copland is a senior bushfire consultant with qualifications in ecology and environmental science and design of bushfire prone areas, and experience which includes assessment of development applications in bush fire prone areas for the RFS. Mr Copland prepared the Bushfire Assessment dated 24 May 2013 provided with the development application (exhibit A tab 2). In that document he noted (at p 9) that while the RFS PN 1/11 requires a 10m APZ, due to the presence of intact forest on steep downslopes located immediately to the north and south, an APZ of 50m would be required to ensure structures are not within the flame zone. Such a large clearing is typically not possible in locations where telecommunications towers are required, and the approach accepted by the RFS is that a 10m APZ is considered an acceptable solution. He recommended a 10m APZ measured from the external built edge of the equipment shelters and monopole.
In his Statement of Evidence (exhibit E) Mr Copland addressed whether the proposal complies with relevant bushfire standards, the implementation of an APZ for the proposed development, and whether additional clearing is required to implement a compliant fire trail from Fame Ave to the site. Mr Copland noted that the relevant standards are those provided in the RFS PN 1/11 and in the Department of Planning Planning for Bushfire Protection (2006) (PBP). Mr Copland noted that all but one component of the proposed development satisfies the Practice Note requirement of being able to withstand 40kW/m2 of radiant heat or being appropriately shielded or encased by a complying material. At paragraph 20 Mr Copland notes that the proposed antennas are comprised of material that cannot comply, and it is not feasible to screen or encase them as that would interfere with their function; the antennas may withstand a lower intensity ground fire particularly as they would be located on the monopole within a 10m APZ.
In relation to the APZ implementation, Mr Copland states: 23.The proposed APZ will require vegetation maintenance to achieve the performance objectives of an Inner Protection Area (IPA) as described by PBP. The following fuel management guidelines are based on the RFS document Standards for Asset Protection Zones and are commonly applied to satisfy the performance requirements. 1. No tree or tree canopy is to occur within 2 metres of future building [or structure] rooflines; 2. The presence of a few trees in the APZ is acceptable provided that they are well spread out and do not form a continuous canopy whereby single trees, or clumps of trees forming one canopy are separated by 2 to 5 metres depending on the canopy size; 3. Shrubs are to be limited and located far enough away from future buildings [or structures] so that they will not ignite the buildings by direct flame contact or radiant heat emission; 4. A minimal ground fuel is to be maintained to include less than 4 tonnes per hectare of fine fuel (fine fuel means ANY dead or living vegetation of <6mm in diameter eg twigs less than a pencil in thickness. 4 t/ha is equivalent to a 1cm thick layer of leaf litter. 24.The APZ is to be managed so as to maintain minimal surface (ground) fuel and elevated fuel by mowing or slashing of the entire APZ. This action will maintain grass cover at minimal heights and prevent the regeneration of shrub or tree species. It is noted that the compound itself will be lined with weed matting topped with gravel mulch which complies with APZ requirements. 25.It is recommended that various shrubs/juvenile trees be removed to achieve the desired canopy separation within the 10 metre APZ. Additionally, grasses and groundcovers should be managed on a regular basis. The amended plan within Attachment C locates the shrubs/trees recommended for removal. 26. The implementation of an APZ, including IPA, may include areas that are completely 'fuel free' such as roads, pathways, and other hard surface. However, it is important to note that an outcome where the landscape is denuded of all vegetation is not required in order to achieve a satisfactory and compliant APZ. Some trees and shrubs are able to be retained provided they do not provide a continuous path of fuel from the hazard to structure in question.
In relation to the access track from Fame Avenue, Mr Copland stated (paragraphs 27-31) that PBP requires a minimum carriageway of 4m with an additional 1m wide strip on each side of the trail; and management of bushes and long grasses within the 1m zone beside the 4m wide trail would be required. The bushfire report identified two trees for removal, however trees may be present within the outer 1m managed area provided the constriction between trunks is not less than 3.5m, based on section 4.1.3(3) of PBP. That would allow fire appliances to access the site and utilise the defendable space for fire fighting operations such as back burning, and the proposed access and layout would allow sufficient turning space to allow smaller fire appliances to perform a three point turn.
In oral evidence Mr Copland stated that ongoing maintenance of the APZ may be less intensive than "mowing/slashing", for example by using a whippersnipper. Some areas of vegetation could be retained so long as they are isolated from other retained areas and not close to the asset. Mr Copland was of the opinion that the APZ would mean a more open canopy around the location of the tower. The trees to be removed are indicated on the plan at Annexure C to his Statement of Evidence; the understorey, such as weeds and dead trees, would be removed, and ground cover material and potentially shrubs would be retained. The change to the access track would be minimal, as it is already largely cleared of shrubs. Maintenance of the APZ should ideally occur before the fire season and high growing season, probably 2 to 3 times per year, and could be done by a crew with a whippersnipper working around the shrubs and understorey. The separation of 2-5m between trees is generally a horizontal separation but can be vertical, depending on the nature of the asset. Mr Copland accepted that there may be trees on the southern side of the APZ in the outer limits of the APZ that are not marked on Annexure C, however the majority of that area is largely cleared of canopy vegetation. In relation to the marking of "juvenile" trees on Annexure C, Mr Copland accepted that he has no formal qualifications to determine the type or age of a tree, and his basis for that designation was the size of the trees. Mr Copland did not accept that all the trees tagged with yellow tags on site would need to be removed. He accepted that there may be a need to prune 3 to 5 extra trees in addition to those shown on Annexure C, and that this would need to be assessed once construction was completed as part of the management of the site.
Mr McElroy is an arborist who has been employed by the Council as Vegetation Management Officer since 1999. In his Statement of Evidence dated 2 September 2014 (exhibit 8) Mr McElroy reported on 12 trees in the vicinity of the proposed development, stating that 9 trees would need to be removed, one would need to be "prune/remove 60%", and a further 2 had been vandalised. In a supplementary Statement of Evidence dated 19 September 2014 (exhibit 9) Mr McElroy stated that based on the plan (exhibit E, Annexure C), and a further site inspection, he counted 21 trees within the APZ that would require removal. In oral evidence Mr McElroy stated that the 21 trees were within the APZ plus the track leading to the compound, as identified by him on site with yellow tagging. Mr McElroy stated that his assessment had been undertaken on the basis of whether the trees would present a hazard to the asset, other than for one tree which would be a climbable object, however in cross examination he conceded that one of the trees identified (tree 12) would not require removal because of its proximity to the tower. Mr McElroy conceded that the yellow tagging was based on the trees within the APZ that he thought would require removal.
It was clear from the site view that some of the trees identified in Mr McElroy's initial Statement of Evidence and in Mr Copland's Annexure C are no longer present. The tagging of trees on the site view provided some assistance, with trees tagged red those identified by Telstra as requiring removal, and yellow tags on the additional trees identified by Mr McElroy, however some of the trees identified by Telstra as needing to be pruned were also tagged yellow. The basis of the assessments by the experts differed, with Mr Copland focussing on the APZ and Mr McElroy on the physical hazard to the facility, a difference in focus attributable to their differing expertise.
In considering the extent of tree removal required for the construction of the facility and the widening of the access track, and for the establishment and maintenance of the APZ, in general I prefer the evidence of Mr Copland to that of Mr McElroy. Mr McElroy accepted that he does not have qualifications in bushfire management, and stated that he would work with Council staff with those qualifications, and he conceded in cross examination that he had not asked for advice from those staff in tagging the additional trees. Cross examination of Mr McElroy revealed some uncertainty and confusion as to which trees he was assessing and reporting on, including a tree (tree 8) which he acknowledged he had confused with another tree directly beside it. While Mr Copland acknowledged a degree of uncertainty as to the precise extent of pruning required until the facility was constructed, the principles he relied upon to determine how the APZ would be implemented and maintained were based on the RFS and PBP guidelines, in particular in achieving both vertical and horizontal separation of canopy. That approach is preferable in my view to Mr McElroy's approach based on tagging all the trees in the 10m APZ area.
Telstra has proposed a condition (exhibit P) which provides a process for identification and management of the APZ based on the standards to be achieved, including a tree survey from an appropriately qualified bushfire consultant prior to issue of a construction certificate, and with ongoing maintenance involving a qualified horticulturist/arborist/restoration practitioner and a qualified bushfire consultant.
Telstra's position is that it is seeking consent only for the removal of the trees identified on Mr Copland's Annexure C, namely 6 trees and 5 juvenile trees, and trimming of the trees shown in green, and that any further tree removal would be the subject of a separate application. That may be so, however approval of this application and construction of the facility would, on the evidence before the Court, require removal or pruning of additional trees and vegetation, at the least in the form of Mr Copland's acknowledgement that there may be trees on the southern side of the APZ not marked on his Annexure C, and in Telstra's proposed APZ Implementation condition (exhibit P) which specifies a process for additional work both in terms of pruning or additional tree removal if required to implement the APZ, and for its ongoing maintenance, including that required for the access track.
I accept that the application presently before the Court does not seek consent for any of that work over and above that encompassed in Mr Copland's Annexure C. While I would not necessarily accept Mr McElroy's assessment that as many as 21 trees would need to be removed, it is clear that approval of this application would, in accordance with the processes contemplated in Telstra's proposed APZ Implementation condition, lead to the removal and/or pruning of more trees than those expressly included in the present application, and ongoing management of grass and understorey. While the precise numbers cannot in my view be quantified on the evidence before the Court, and may be sufficiently confined so as not to give rise to an unacceptable degree of uncertainty, the need for that work to be undertaken on the Council reserve is relevant to consideration of the Council's contentions relating to unauthorised use of Community land, the suitability of the site for the proposed development, and consistency with the Guideline.

Visual impact

The next issue to consider is the visual impact of the proposed development. The Planning Report dated September 2013 provided with the development application (exhibit A, tab 2) included a Visual Impact Statement. That Statement included photomontages of the facility from 9 locations (Appendix 5). Those photomontages are dated 2010 and 2011. The Supplementary Statement of Environmental Effects (exhibit C) provided for the amended plans included 12 photomontages, being the 9 photomontages provided in the Planning Report (amended to accord with the Court's Practice Note on photomontages) and an additional three photomontages (Appendix C).
Mr Darcy was critical of the accuracy of the photomontages, and in his submission (exhibit 14) stated that he had observed on 2 May 2014 that a blimp had been put up on Corlette Hill, but that it was in the wrong location and at the wrong height. Photograph 4 in exhibit 14 is of the location where the balloon was being held, which Mr Darcy states is some 40m from the tower location. He and Peter O'Carroll put up their own balloon on 10 May 2014 at what he considered to be the correct location and height and took their own pictures. Photographs 12, 13 and 14 in exhibit 14 are photographs taken by Mr O'Carroll, with his photomontages. In oral evidence Mr Darcy was asked to compare his photographs 6, 7, 8, and 9 of exhibit 14 with those provided in exhibit C for Viewing Points 1, 2, 4, 6 and 10. Mr Darcy accepted that in some instances the photomontages were similar, while in others he accepted that there were differences in the position from which the photograph was taken.
Exhibit C includes a statement by Pixelwise Pty Ltd as to the photomontage production methodology (Appendix B). That statement notes that the balloon was not stationary due to the wind intensity, and was moving in a radius of approximately 10m, and horizontal and vertical tolerances were applied to the actual facility position and height. The existing vegetation at the location of the proposed compound meant that the balloon could not be safely erected in that location and two alternative locations were selected where the balloon could be safely risen to provide a visual indication of the proposed height. That reference point together with the survey information and design drawings meant that the photomontages "provide an accurate and realistic indication of how the proposed facility will visually appear if constructed".
While Mr Darcy stated in oral evidence that he has some expertise in preparing photomontages, his submissions and photographs in exhibit 14 were not provided as expert evidence. The Council did not challenge the basis on which the photomontages in exhibit C were prepared, in particular in terms of compliance with the Court's practice direction on Use of Photomontages. The planning experts accepted that the photomontages were representative of what would be seen from each viewing location, with Mr Nash noting in oral evidence that the photomontages are in a flat plane. I accept that evidence, and in the absence of expert evidence to the contrary, I am satisfied that the photomontages provided in exhibit C are representative of what would be seen from each viewing location.
The closest viewing points as reflected in photomontages were views 1 and 9, approximately 200m and 220m away from the facility. For some of the viewing points the monopole would be partly screened by vegetation (for example views 1, 6, 10), and from others by buildings (views 9, 11). Mr Nash was of the opinion that for view 4 there would be a higher exposure of the tower depending on the extent of canopy removed, and accepted that from that distance of approximately 430m it would be a slightly longer section of pole that would be seen. Mr Juradowitch stated that there would need to be approximately 7m of the tower visible on any view because otherwise the canopy would start to affect the signal. Mr Nash and Mr Juradowitch agreed that for view 7, the extent of the pole that would be visible would change depending on whether all the trees in the APZ were removed. Some of the viewing points were at a distance, for example view 8 at approximately 700m: at that distance the monopole was approximately 7m above the canopy, and Mr Nash agreed that at that distance the difference made by greater or lesser removal of canopy would be marginal. Mr Juradowitch's evidence was that at distances above 500m a person would really have to look for the monopole in the landscape. At close proximity, for example view 12 taken at the entry to the access track about 50m away, removal of the canopy would influence the view, with Mr Juradowitch agreeing that the canopy mitigates the visual impact.
The assessment undertaken by the expert planners of the impact of the proposed development, on the characteristics of the land on which it is to be located, and from the broader locality, was based on differing assumptions as to the extent of tree removal. In his contribution to the joint report (exhibit 10) Mr Juradowitch noted that vegetation to be removed "comprises shrubs and 3 or 4 juvenile trees" (p 6). In oral evidence Mr Juradowitch clarified that statement to be identifying the trees to be removed that would have some landscape impact on the proposal, and he agreed that based on the plans there were 9 trees within the APZ circle and an additional 2 trees along the access track that would need to be removed. Mr Juradowitch stated that his assessment was undertaken on a worst case basis, assuming that 21 trees would be removed, and that there would be no canopy in the APZ. Mr Nash stated in oral evidence that he had approached his assessment on the assumption that more trees than shown on Annexure C would be removed, somewhere in the order of the 21 estimated by the Council's arborist. He also expressed concern as to assessment of what vegetation needed to be removed once the facility was established. Mr Nash accepted that a condition requiring a further application to be made for removal of trees other than those identified on the plan in Annexure C would remedy his concerns in part, however he was of the opinion that there are basic issues in terms of uncertainty.
Mr Juradowitch was of the opinion that the proposal does not significantly alter the bushland character of the public reserve as a whole. There would be minor and acceptable change to the bushland character immediately adjoining the facility, and in this location the bushland character is relatively disturbed by cleared areas and fire trails. The removal of 3 to 4 small trees, some shrubs, and pruning of a small number of trees within the compound and accessway and adjoining the compound and accessway would have minimal impact on the existing character of the locality or its use as open space. In his opinion the proposal would maintain a substantially continuous tree canopy in the locality. The established tree canopy around the site substantially screens the facility from view from within the public reserve and from neighbouring residential development. The facility would not be readily visible from the foreshore due to the separation distance (agreed to be approximately 1km to the north and 350m to the west) and the screening effect of the existing tree canopy together with existing buildings located between the foreshore and the site. Mr Juradowitch accepted that there are a number of viewpoints, including view 8, where the vegetated ridgeline is visually prominent. He accepted that when viewed from public and private land the natural ridge line would be interrupted by the communication structure. However, in his opinion, the bushland is a modified natural environment, where there has been clearing, and fire trails and walkways.
Mr Nash was of the opinion that the visual and environmental impacts from construction and ongoing maintenance of the facility and access road would be significant and adverse. The extent of tree removal, canopy separation and shrubs/understorey would be visually significant on the prominent ridgeline.
Based on the evidence including the view and the photomontages, I am satisfied that how much of the monopole is likely to be visible above the screening vegetation or buildings would depend on distance, topography, whether the sky is grey or cloudy, and at any particular location, a variation in where the observer is located, as well as on the extent of tree and canopy removal. I accept, based on the evidence of Mr D'Amico, that the top section of the monopole and the antennas need to be above the tree line in order to function, and would thus be visible.
Based on the view, I accept that that part of the reserve in which the facility is proposed to be located can be described in Mr Juradowitch's terms, that is, as a modified natural environment, where there has been some clearing, including for fire trails. However, it was not clear from his contribution to the joint report the extent to which in expressing his opinion on the impact for users of the reserve Mr Juradowitch had taken into consideration clearing for an APZ outside the HWC land (for example, his comment at p 23 that the proposed facility is located wholly within the HWC land). I agree with Mr Nash that the additional planting proposed by Telstra for the reserve would have limited benefit in screening the facility for users of the reserve, as any such planting would need to be outside the APZ, and would also need to respond to any other constraints on planting close to existing residential areas because of clearing required for bushfire purposes.
Whether the extent of tree removal is ultimately limited to the numbers posited by Mr Copland in his Annexure C, or is increased in order to establish the APZ, even if that is not to the extent contemplated by Mr McElroy, I am satisfied that there would be a visual impact for users of the public reserve from the clearing required for construction of the facility and the maintenance of the APZ. I am also satisfied that there would be a further significant visual impact from the broader locality. The viewing points from which the photomontages were prepared include sites to the north, north east, south, and west of the reserve, including a car park on the western foreshore. The photomontages and the view confirm Mr Juradowitch's evidence that the structure would interrupt the natural ridge line, which I am satisfied is visually prominent from a number of those viewing points, from both public and private land.

Unauthorised use of Community Land

The Council contends (contention 3) that the proposed development incorporates works to the accessway and bushfire mitigation works over Council land which is Community land that are not authorised by the LG Act or the Plan of Management, and the need for Telstra to obtain some form of tenure or permission to facilitate the works proposed to be carried out on the Council land is a relevant planning consideration. The Council contends that there is no power to grant the necessary tenure for the accessway and turning area, and that the Court should have regard to the futility of the development application. In respect of the part of the development that relates to the APZ, the Council submits that Telstra would need some form of tenure such as a licence or easement, and that it would be fundamentally inappropriate for an applicant to rely on the use of land which it does not own and over which it has no tenure in order to provide an APZ to protect its development.
There are three aspects of the proposed development that require use of the Council reserve: 1. part of the construction of the accessway, including a turning area outside the boundaries of the rights of carriageway; 2. provision of the required APZ; and 3. provision of services such as installation of electricity and fibre optic cables within the accessway.
Telstra did not submit that the existing easements authorise any or all of these activities, rather its submission was that the requirement that it obtain some authorisation or approval of any or all of these activities on the Council land is not a relevant consideration in determination of this application.
Telstra accepts that the proposed temporary use of land for access and the ongoing use for management of bushfire risk will involve use of the Community land, and that except to the extent that there are existing rights under the easements and the lease with HWC, it will need consent from the Council to do any work on the land. Telstra submits that the Act is not concerned with private relationships between property owners, and all that is required is the giving of consent by the landowner to the lodgement of the development application. If some other approval or consent is required for the consent to be implemented then it must be obtained, however arrangements between property owners is not a relevant consideration under s 79C of the Act. Telstra submits that even if it were relevant to this assessment of the development application, a proper interpretation of the legislative provisions and the Plan of Management do not support the Council's assertion that the works would not be authorised. There is power for Telstra to obtain the necessary authority under the LG Act, and there are alternative means to obtain lawful access over the Community land to undertake the works, including under s 40 of the Land and Environment Court Act 1979 (the Court Act), s 88K of the Conveyancing Act 1919, or under the Access to Neighbouring Land Act 2000.
The parties provided additional written submissions after the hearing concluded on the decision in Botany Bay City Council v Minister for Planning & Infrastructure [2015] NSWLEC 12 (Beech-Jones AJ, delivered 10 February 2015). Botany Bay was a Class 4 challenge to the validity of a Project Approval granted under the former Part 3A of the Act by the Planning Assessment Commission (PAC) for a project which was to be undertaken in two stages. Stage 2 of the Project would require extinguishment of a number of easements, to which the Council had not agreed. The grounds of challenge included that the Project was incapable of being lawfully carried out, and that the fact that the Project was incapable of being lawfully carried out by reason of the existence of the easements was a matter relevant to the decision to approve the Project. Both those claims were rejected. In the course of his reasons, Beech-Jones AJ noted that the granting of an approval under Part 3A of the Act did not affect the proprietary rights of a third party such as the Council (referring to the decision of Craig J in Rothwell Boys Pty Ltd v Coffs Harbour City Council (2012) 186 LGERA 366), and that if the carrying out of development in accordance with an approval involves an interference with any such proprietary rights, then at the point of any such interference the affected party can approach the Supreme Court (at [78]). Beech-Jones AJ observed that the Council had at no stage expressly stated that it would never grant consent to the extinguishment of the easements and nor could it set itself against ever granting approval to relocate the easement (at [79]); and that at most it was only necessary for the PAC and the Court to note the possibility of extinguishment occurring by reason of an order being made under s 89 of the Conveyancing Act, and there was nothing in the Act that justified the Court speculating as to the outcome of such an application (at [80]). His Honour further held that it had not been demonstrated that the alleged legal incapacity to carry out the Project in accordance with the conditions was a mandatory relevant consideration either under the provisions in Part 3A or by implication from the subject-matter, scope and purpose of the Act (at [87]-[92]).
The Council submits that Botany Bay, being judicial review proceedings, is distinguishable from the present proceedings. The Council maintains its submissions that the development involves the use of Community land and that there is no power for Council to grant either a lease, licence or other estate such as an easement to enable the services, access and bushfire mitigation works to be undertaken; and further, that the development is not an authorised use of Community land under the LG Act or the Plan of Management, is a relevant consideration as a circumstance of the case under s 39(4) of the Court Act.
Telstra submits that Botany Bay, while concerned with an application under Part 3A of the Act, supports its position. Telstra submits that while that case does not deal with a Part 4 application, a similar conclusion can be made in respect of a Part 4 application having regard to s 79C of the Act, and to the extent that it is considered, the obtaining of necessary rights over the Community land may or may not occur and the existence of the contingency has no relevance to the validity of any approval. Telstra submits that in any event the factual premise that the proposed development is incapable of being lawfully carried out has not been established.
While Botany Bay was judicial review challenge to a project approval granted under the former Part 3A of the Act, that would not, in my view, provide a basis for distinguishing the decision in its application to a Class 1 appeal in relation to an application under Part 4 of the Act. The decision in Rothwell Boys, to which Beech-Jones AJ referred at [78] in support of his findings on the relationship between an approval and proprietary rights of third parties, was an appeal under s 97 of the Act against the refusal of development consent for a development, part of which passed through land not owned by the applicant. In determining that consent had been given as owner to the lodgement of the development application by the owner of that land, Craig J observed (at [37]) that a development consent to undertake the construction would afford no right for the applicant to enter the land and undertake construction, and (at [38]) that the obligations of the parties under a deed between the applicant and the landowner (under which landowner's consent had been granted) were not matters to be considered by the Court when determining an appeal under s 97. As earlier noted, in this instance the Council has similarly given its consent as owner of the Council reserve land to the lodgement of the development application.
Botany Bay would support the proposition that the fact that Telstra would need some form of authorisation for the three elements of its proposed development that require work on the Council land would not preclude consent being granted. The Council did not point to any specific provision in the Act that would require that such approval be obtained before a consent could be granted, or that would require consideration as part of the assessment process of whether an approval could or would be obtained. The Council accepts that it would be possible for Telstra to obtain an easement by an order under s 40 of the Court Act or from the Supreme Court under s 88K of the Conveyancing Act once development consent is granted. The Council submits, however, that the fact that the development is not an authorised use of the Community land under the LG Act or under the Plan of Management is a relevant circumstance of the case: there being no power in the Court or in another Court to override, alter or amend the Plan of Management.
Evidence as to the Council's approach to applications for use of Community land was provided by Mr Jason Linnane, who is the Council's Group Manager of Facilities and Services, with 16 years' experience in management of community land. In his Statement of Evidence (exhibit 7) Mr Linnane stated that he did not believe that the Plan of Management provides for the granting of a lease, licence or other estate over the Council reserve, or that the proposed use for the upgraded accessway would comply with the core objectives of community land categorised as natural area/bushland. In oral evidence Mr Linnane stated that he thought an application for a lease would be determined by the Council, and that he had not previously considered an application relating to temporary use for construction. He did not think it was Council's practice to allow vegetation removal on community land. He agreed that Council would look at each application on its merits. Based on this evidence, while Mr Linnane would not appear to have given detailed consideration to the provisions of the legislation other than s 46 of the LG Act which might authorise any of the proposed activities, the evidence does not suggest that the Council would do other than consider any application made by Telstra on its merits. That would be consistent with its obligation, as expressed by Beech-Jones AJ in Botany Bay at [79], that it consider any such matter bona fide and not set itself against ever granting approval.
The Council submits, however, that there is no power to grant such an approval. Section 46(1)(a) of the LG Act confers power for a council to grant a lease, licence or other estate in respect of community land "for the provision of public utilities and works associated with or ancillary to public utilities". There is no definition of "public utility" in the LG Act. The Council submits that Telstra is not a public utility, being a corporation listed on the Australian Stock Exchange, owned by its shareholders, and providing services to private subscribers. In reply, Telstra points to four matters which would support its submission that provision of telecommunications facilities by Telstra would be the provision of "public utilities" within the meaning of s 46(1)(a) of the LG Act: 1. Telstra is licensed as a carrier under the Telecommunications Act 1997 (Cth), to supply carriage services to the public, and the lease is required for telecommunications facilities being provided pursuant to the carriers licence; 2. the Roads Act 1993 defines "utility service", for which a consent may be granted for construction in, on or over a public road, to include "any water, sewerage, drainage, gas, electricity, telephone, telecommunication or other like service"; 3. the ordinary usage and definition of "public utility" is that public utilities are organisations performing an essential public service and may be operated and regulated by a company as well as by Government; and 4. s 88A of the Conveyancing Act enables easements in gross to be obtained for the supply of utility services to the public and cl 53 of the Conveyancing (General) Regulation 2008 prescribes Telstra, among other telecommunications carriers, as a corporation providing utility services to the public for the purposes of s 88A.
In my view s 46(1)(a) is concerned with the nature of the services provided, and not necessarily with the provider. The Macquarie Dictionary (online edition) defines "public utility" as "an organisation performing an essential public service, as supplying gas, electricity or transport, and operated or regulated either by a company, the state, or local government". The definition in the Oxford English Dictionary (online edition) is closer to the sense in which the term "public utilities" is used in s 46(1)(a), defining "public utility" to mean "a service or supply regarded as essential to the community, esp. the supply of electricity, gas, and water; (also) a company providing such a service or supply". Having regard to that definition, and having regard to the inclusion of telecommunications services as the kind of service which the Roads Act 1993 would appear to regard as essential community services, I consider that it is at least arguable that the works contemplated by Telstra in the form of the upgraded accessway and the provision of cabling, and possibly the implementation and maintenance of the APZ as a work ancillary to the provision of telecommunication services, would fall within s 46(1)(a) so that a lease or licence could be granted. That would be subject, however, to the provisions of s 47B, which restrict the types of buildings and structures and purposes for which a lease, licence or other estate may be granted in respect of community land categorised as a natural area so as to authorise the erection or use of a building or structure. I note that s 47B(4) would authorise the erection or use of "walkways" or "pathways": whether that would authorise the upgrading of the accessway intended for vehicle access would be the issue.
In the alternative, Telstra submits that the provision of the temporary turning area would be authorised by s 46(1)(b)(iii) of the LG Act and cl 116(3)(a) of the LG(G) Regulation as a short term casual purpose. Whether or not that would be so would depend on whether the lease or licence would be "in accordance with an express authorisation in the plan of management" (s 46(1)(b)). Telstra did not identify in submissions any relevant "express authorisation" in the Plan of Management. It would also need to be "the use of any existing road or fire trail" on community land (cl 116(3)); if not an existing road or fire trail, it would need to be for a purpose referred to in s 46(4)(a)(ii) of the LG Act (cl 116(4)).
I am not persuaded that the need for authorisation of the works proposed for the Council reserve outside the HWC land and the existing easements would be a barrier to the grant of consent. The issue is whether the Court is required to speculate as to the outcome of an application for a lease or licence or some other estate such as an easement, that would permit the works involved in the upgrading of the accessway, cabling, and APZ, and temporary turning area. Botany Bay would suggest that that speculation is not required, and that the need for such an approval should be regarded as a contingency that may or may not be fulfilled. In any event, while any application would require careful consideration of the relevant legislation and the Plan of Management, I am not persuaded that it has been demonstrated that the proposed development is incapable of being lawfully carried out, and in that circumstance it cannot be said that a grant of development consent would be a futility.
The Council seeks the imposition of deferred commencement conditions requiring Telstra to obtain a licence or easement authorising the use of Community land for the construction and use of the accessway and the maintenance of an APZ and an easement for services so as to allow the installation of the services proposed for the accessway. Telstra opposes the imposition of deferred commencement conditions, relying on Botany Bay. However, imposition of the proposed deferred commencement condition in Botany Bay would have precluded Stage 1 of the Project going ahead, with Stage 2, which was the part of the project that required the extinguishment of the easements, not contemplated for many years. In contrast, for this application, the authorisation for the upgrading of accessway including provision of the turning area and cabling would be required from the outset, and provision of the APZ would be required for the facility to operate safely. In those circumstances, had it been appropriate for development consent to be granted I agree with the Council that the consent should not become operative until any lease, licence or easement was granted either by consent or by a Court.
The Council submits that in any event, it is fundamentally inappropriate for an applicant for development consent to rely upon the use of land which it does not own and over which it has no tenure in order to provide an APZ to protect its development from fire. The Council relies in making that submission on the decision of Talbot J in Scott Revay & Unn v Ku-ring-gai Council [1994] NSWLEC 112 where an applicant for consent to subdivide land to provide six dwellings proposed that there be a fire protection zone 35-50m wide, and a 20m fuel reduced zone outside the site within adjoining Crown land. Talbot J framed the issue as being whether it was appropriate to allow development to occur in circumstances where essential elements of the bushfire hazard reduction program would be situated off the site. His Honour concluded that as a matter of principle, where essential works are required in regard to a development it is imperative except where the most exceptional circumstances apply that the site for those works be provided within the subject land; it may be acceptable for land outside the site to be utilised where properly documented and permanent propriety rights are created pursuant to an easement or some other form of right of entry.
Telstra submits that Scott Revay is distinguishable, involving different bushfire protection guidelines, and protection of proposed dwellings rather than the present circumstance of enabling the facility to continue to be used in emergency situations. I do not agree. While the applicable guidelines may be different, their purpose is the same, namely to protect physical assets in case of fire; and that purpose is served whether the asset protected is a residential premises or a telecommunications facility.
In Scott Revay the conclusion was that the site could not accommodate the density of development proposed. In this instance the HWC land, as the site on which the facility is to be located, is, as Mr Juradowitch conceded in cross examination, very constrained in size, and cannot accommodate the APZ required to meet the recommendations of the RFS PN 1/11. That in my view is relevant to consideration of the objectives of LEP 2000, in particular objective (a) of the 6(a) General Recreation "A" zone, and to the Guideline, and to the general consideration of likely impacts of the development on the natural environment (s 79C(1)(b)) and the suitability of the site for the development (s 79C(1)(c)). There is nothing in Botany Bay to suggest that that would be an irrelevant consideration, in the sense of a matter to which regard could not lawfully be had.

Objectives of LEP 2000

The Council contends (contention 1) that the proposed development is not consistent with objectives (a), (c) and (e) of the 6(a) zone under LEP 2000. Telstra submits that those objectives are either inapplicable, or the development is appropriate. Telstra submits that objective (a) does not apply as the land is not publicly owned; objective (e) is inapplicable as the land is not "prominent and visible to the public along foreshore areas" and even if it were, the visual impact is appropriate to retain whatever values the land has; and in relation to objective (c), the Council has identified what types of uses other than a recreational use would be appropriate in the zoning table by making some uses permissible, and the use proposed is permissible.
The term "consistent", in the context of zone objectives, is generally interpreted to mean "compatible" or "capable of existing together in harmony", and not confined to the notion of the proposed development not being antipathetic: Dem Gillespies v Warringah Council [2002] NSWLEC224; [2002] NSWLEC 224; [2002] 124 LGERA 147; Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190. Telstra relied on the Court of Appeal decision in Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343 in support of its submission that not all the zone objectives need to be considered as they may be internally inconsistent. However, Abret concerned whether the zone objectives could be used in determining characterisation and permissibility of a use, rather than a provision such as cl 10(2) of LEP 2000. The objectives in cl 10(2) are conjunctive, and there must be a finding of consistency with each of them in order for there to be power to grant consent: Conservation of North Ocean Shores Inc v Byron Shire Council & Ors (2009) 167 LGERA 52.
In considering objective (a), Telstra submits that the nature of the works proposed would not prevent continued use for open space recreation, similar to public use of fire trails and tracks. However, while members of the public could continue to access the area outside the Telstra compound, the establishment and maintenance of the APZ would alter the vegetated nature of the area outside the HWC land, which may not necessarily be consistent with the Council's management of the Community land for open space recreation. Telstra submits that the Council already needs to undertake bushfire management works for example fire trails for the protection of nearby houses, however there is no evidence as to how those works are undertaken, or how they would relate to the work required for Telstra's APZ, or the impact on the values of the area for open space recreation.
A similar issue arises for objective (c). While it is correct that a telecommunications facility is a permissible use in the 6(a) zone, and to that extent, LEP 2000 has identified that use as one of a number of non-recreational uses that could be considered appropriate on the land (BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399), in this instance development for that purpose would require work not only on the HWC land and land subject to the easements, but on other land for the purposes of the APZ. If Telstra's proposed APZ Implementation condition were applied, the process and the intended outcome would be clear, however the evidence does not establish how the outcome of that development would be "associated with, or complementary to" open space.
In relation to objective (e), Telstra submits that whether it is considered from the perspective of land visible from the foreshore, or land along the foreshore, the visual impact and by implication the aesthetics of the land are appropriate to retain whatever values the land has. I do not accept that submission. The photomontages confirm that the vegetated ridgeline is visually prominent from the western foreshore, and that the monopole will interrupt that ridgeline. That is not consistent with, in the sense of being compatible with, the aesthetics of that vegetated ridgeline.
I am not satisfied that the proposed development is consistent with objectives (a), (c) or (e) of the 6(a) zone, and applying cl 10(2), the proposed development is not permissible under LEP 2000.
The Council initially contended that if that conclusion were reached, development consent had to be refused. Telstra's submission was that if the development were not capable of approval pursuant to LEP 2000, the development would be permissible with consent pursuant to cl 115 of SEPP Infrastructure.
Telstra's submission is supported by the decision of the Court of Appeal in Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285, which concerned a development application for a seniors living development permissible under State Environment Planning Policy (Seniors Living) 2004 (SEPP(SL)). Clause 5(3) of SEPP(SL) provided that that policy prevails to the extent of any inconsistency with any other environmental planning instrument, and cl 17 provides that Chapter 3 of the SEPP(SL) allows development for seniors living "despite the provisions of any other environmental planning instrument if the development is carried out in accordance with this Policy…". Clause 8(1) of Tweed Local Environmental Plan 2000 (TLEP) provided that consent could be granted to development only if the consent authority was satisfied, among other things, that the development "is consistent with the primary objective of the zone within which it is located", and "would not have an unacceptable cumulative impact on the community, locality or catchment that will be affected…". At first instance Pain J held that there was an inconsistency between cl 8(1) of the TLEP, which could give rise to a refusal of consent, and cl 17 of the SEPP(SL), which permitted the development to occur. On appeal, McColl JA held that where cl 8(1) mandated refusal unless the conditions were satisfied and cl 17 permitted the development, that provision could not operate concurrently with cl 17 and there was an inconsistency between them. Young JA held that the primary judge had been correct to hold that the failure to be satisfied under cl 8(1) could not on its own give rise to a refusal of a development application that was for a development within SEPP(SL). Basten JA, in dissent, held that there was no inconsistency between the requirement of cl 8(1) that the Council be satisfied as to the matters it identified and the terms of the SEPP(SL).
The SEPP Infrastructure prevails to the extent of any inconsistency with any other environmental planning instrument (cl 8(1)), and cl 115(1) provides that development for the purposes of telecommunications facilities "may be carried out by any person with consent on any land". While cl 115(1) is worded differently to cl 17 of the SEPP(SL) as considered in Hastings, it is to the same effect, in making permissible development which would otherwise be prohibited either by operation of cl 10(2) of LEP 2000 or expressly under LEP 2013. Clause 10(2) of LEP 2000 is similar to cl 8(1) of TLEP and mandates that consent be refused unless the consent authority is satisfied as to consistency with the zone objectives. Applying Hastings, there is relevantly an inconsistency for the purposes of s 36 of the Act between LEP 2000 and the SEPP Infrastructure which provides in cl 115(1) that development for the purposes of telecommunication facilities may be carried out with consent. In that circumstance, the SEPP Infrastructure would prevail, and the proposed development would be permissible.
In undertaking an assessment of the proposed development made permissible by the SEPP Infrastructure, the Guideline must be taken into consideration (cl 115(3)), as well as relevant matters in s 79C(1)(b)-(e) of the Act. While there is power to grant consent under cl 115(1) of SEPP Infrastructure, compliance with its provisions does not mandate that the proposed development be granted consent: McColl JA in Hastings at [6].

NSW Telecommunications Facilities Guideline including Broadband

The Council contends (contention 5) that the proposed development is not consistent with the principles set out in the Guideline, particularised as follows: (b)The proposed development is not consistent with Principle 1 in that it does not minimise the visual impact from the facility or respond appropriately to its setting; (c)The proposed development is not consistent with Principle 2 in that it has not been demonstrated that the need for improved coverage in the Corlette area cannot be met by co-location or would not be better served by providing a facility or facilities at an alternative site or sites; (d)The proposed development is not consistent with Principle 4 in that it does not minimise disturbance to flora and fauna and is not able to cater for all aspects of the development on the land on which the development is proposed to be located. Particulars See (e) and (k) of the Guideline.
Clause 115(3) of SEPP Infrastructure requires consideration of the Guideline before determining a development application to which the clause applies. The purpose of the Guideline is provided at section 1.1, which states that Principles for the "design, siting, construction and operation of telecommunications facilities" have been developed and are contained in the Guideline. The purpose of the Principles "is to encourage the provision of telecommunications facilities with minimal impact on the amenity of an area".
Principles 1 and 2 provide: Principle 1: A telecommunications facility is to be designed and site to minimise visual impact. (a) As far as practical, a telecommunications facility that is to be mounted on an existing building or structure should be integrated with the design and appearance of the building or structure. (b) The visual impact of telecommunications facilities should be minimised, visual clutter is to be reduced particularly on tops of buildings, and their physical dimensions (including support mounts) should be sympathetic to the scale and height of the building to which it is to be attached, and sympathetic to adjacent buildings. (c) Where telecommunications facilities protrude from a building or structure and are predominantly backgrounded against the sky, the facility and their support mounts should be either the same as the prevailing colour of the host building or structure, or a neutral colour such as grey should be used. (d) Ancillary facilities associated with the telecommunications facility should be screened or housed, using the same colour as the prevailing background to reduce its visibility, including the use of existing vegetation where available, or new landscaping where possible and practical. (e) A telecommunications facility should be located and designed to respond appropriately to its rural landscape setting. (f) A telecommunications facility located on, or adjacent to, a State or local heritage item or within a heritage conservation area, should be sited and designed with external colours, finishes and scale sympathetic to those of the heritage item or conservation area. (g) A telecommunications facility should be located so as to minimise or avoid the obstruction of a significant view of a heritage item or place, a landmark, a streetscape, vista or a panorama, whether viewed from public or private land. (h) The relevant local government authority must be consulted where the pruning, lopping, or removal of any tree or other vegetation would contravene a Tree Preservation Order applying to the land or where a permit or development consent is required. (i) A telecommunications facility that is no longer required is to be removed and the site restored, to a condition that is similar to its condition before the facility was constructed. (j) The siting and design of telecommunications facilities should be in accordance with any relevant Industry Design Guides. Principle 2: Telecommunications facilities should be co-located wherever practical. (a) Telecommunications lines are to be located, as far as practical, underground or within an existing underground conduit or duct. (b) Overhead lines, antennas and ancillary telecommunications facilities should, where practical, be co-located or attached to existing structures such as buildings, public utility structures, poles, towers or other radiocommunications equipment to minimise the proliferation of telecommunication facilities and unnecessary clutter. (c) Towers may be extended for the purposes of co-location. (d) The extension of an existing tower must be considered as a practical co-location solution prior to building new towers. (e) If a facility is proposed not to be co-located the proponent must demonstrate that co-location is not practicable. (f) If the development is for a co-location purpose, then any new telecommunications facility must be designed, installed and operated so that the resultant cumulative levels of radio frequency emissions of the co-located telecommunications facilities are within the maximum human exposure levels set out in the Radiation Protection Standard. Note: Co-location is 'not practicable' where there is no existing tower or other suitable telecommunications facility that can provide equivalent site technical specifications including meeting requirements for coverage objectives, radio traffic capacity demands and sufficient call quality.
Principle 4 (e) and (k) are: Principle 4: Minimise disturbance and risk, and maximise compliance … (e) The telecommunications facility is to be erected wholly within the boundaries of a property where the landowner has agreed to the facility being located on the land. … (k) Disturbance to flora and fauna should be minimised and the land is to be restored to a condition that is similar to its condition before the work was carried out.
Principle 1 is that a telecommunication facility should be designed and sited to minimise visual impact. Telstra submits that the monopole is slim and the headframe is minimised in size, and that vegetation is retained to provide screening of the monopole at its lower levels. The proposed monopole is to be neutral in colour, consistent with Principle 1(c). Telstra submits that the context of the site is a treed hill, and while the top of the hill is treed it is not a natural escarpment of the type and value that may appear elsewhere, and rather, as it faces Corlette it is a thin strip of treed land to the crest with significant and substantial residential development on it with little vegetative cover.
Based on the view and the photomontages, I would not agree with Telstra that the context is the built form of Corlette with a small strip of trees behind and a treed ridge. The photomontages confirm that from a number of the viewing locations, both relatively close (200m-300m) and further away (500m-700m), and from the north (for example viewing point 6) and the south (for example viewing points 1, 2) of the site, the vegetated ridge is a distinctive element above the residential development. The location of the monopole above the vegetated ridgeline, and its visual prominence from the various viewing locations reflected in the photomontages, is not, in my view a location where the visual impact of the facility is minimised, consistent with Principle 1(b), or one that would minimise or avoid the obstruction of a vista or panorama, consistent with Principle 1(g).
In relation to Principle 2 of the Guideline, Telstra relied on expert evidence from Mr D'Amico, a Radio Frequency (RF) Design and Optimisation Engineer who has been employed by Telstra since 1995 in varying capacities, presently as Area Team Manager. Mr D'Amico's evidence was that mobile coverage and capacity to Corlette is primarily being provided by the Telstra site at Gan Gan lookout, approximately 2.2km east of Corlette. That site has received capacity upgrades, however the growth in traffic means that Gan Gan is approaching its capacity limit. The objectives of the proposed site are to improve depth of coverage in Corlette, specifically indoor coverage; to move traffic off Gan Gan lookout; to have the new site in the "target area" to increase capacity efficiency; and to have the traffic in Corlette equally spread across the three separate groups (or sectors) of antennas. Mr D'Amico considered alternative sites A and D, commenting that site A is too close to the existing site at Gan Gan and would replicate Gan Gan's coverage, while the area that would be served by site D is a known coverage hole which is not one of the objectives of this project as it could not be covered by a site that also fulfilled the other coverage and capacity objectives. Mr D'Amico was of the opinion that the present proposal is the best overall candidate to fill existing coverage holes in the target area and provide capacity relief that is not excluded for non-RF reasons.
Mr Georgevits is an engineer specialising in the fields of communications, electronics and power, and experience that includes work on projects involving various facets of mobile phone networks for various providers. Mr Georgevits agreed that one or more new sites are required in the long term to relieve impending congestion issues associated with the Gan Gan site, and that there are network coverage issues at Corlette. In Mr Georgevits' opinion the proposed development would not solve all existing coverage problems, and the target area leaves substantial parts of Corlette without adequate coverage. He agreed that sites A and D individually have less coverage within the target area than the proposed site due to obstruction by terrain, however the use of two sites has not been investigated: sites A and D when used together might provide better overall coverage for Corlette than the single base proposed. Mr Georgevits noted that his capacity to draw conclusions was hindered by his lack of access to the network-specific input data and the Atoll software tool used by Telstra and that he was reliant on Mr D'Amico to provide information substantiating the proposed network solution.
In the joint report there was agreement that there may be other possible solutions that would fulfil Telstra's coverage and capacity objectives. Mr D'Amico agreed that the present proposal does not totally fulfil the objectives, and does not provide a complete coverage solution. Mr D'Amico maintained that based on the candidates that were investigated and not excluded for other non-RF reasons the present proposal best fulfils the coverage and capacity requirements.
Mr D'Amico and Mr Georgevits agreed that Mr Darcy's survey method would at best have provided a rough indication of outdoor coverage, not indoor coverage which is one of the main objectives of the proposed site; Mr Darcy had not specified what he was measuring, nor the threshold used to differentiate between good and bad coverage, nor which network he was measuring, which frequency, and the time of day as network performance and particularly data speeds vary particularly during peak usage periods.
While Mr Georgevits stated that his ability to form a concluded view was limited by his reliance on information provided by Mr D'Amico and his lack of access to the Atoll software, he was able to reach agreement with Mr D'Amico on most of the central issues. Based on the agreed expert engineering evidence, I accept that the proposed development would not provide a complete coverage solution or meet the identified capacity and coverage objectives, as identified in Annexure B to Mr D'Amico's statement of evidence (exhibit J). I accept that factors other than RF technical issues relevant to determining appropriate locations would include owners consent, visual impact, and financial matters. I also accept that at least one new site is required in the long term to relieve impending congestion issues associated with the existing facility at Gan Gan; that a facility at site A or D would not provide a good solution to mobile phone coverage problems in Corlette; and that two or more sites could potentially provide a better solution for all of Corlette.
Principle 2 of the Guideline requires consideration of whether co-location is practical. What that means is elaborated on in the Note to Principle 2. On the evidence before me there is no existing tower or other suitable facility that could meet the requirements for coverage objectives identified in Mr D'Amico's evidence, as the agreed expert evidence was that an additional facility at Gan Gan would not resolve the coverage issues. Whether or not some alternative solution to construction of a new tower, such as the use of both sites A and D, or some other combination of sites, would achieve the coverage and capacity objectives is beyond the matters required to be considered under Principle 2. Principle 2 does not impose a general obligation to consider alternate sites.
The Council relies on two aspects of Principle 4, (e) and (k). It was not in dispute that there will be disturbance to flora in the form of removal of trees and pruning for the construction of the facility and the implementation and maintenance of the APZ. Telstra's proposed APZ Implementation condition (exhibit P) would seek to contain that disturbance to the extent required to achieve the performance outcomes required of the APZ, with input from both bushfire and arboricultural expertise. Telstra submits that the implementation and maintenance of the APZ is not part of the "telecommunications facility" as defined in cl 113 of SEPP Infrastructure. Whether or not that is so, in addition to the provision of the APZ outside the HWC land, the proposal requires construction of services, including the laying of power and fibre optic cable to service the proposed development, work which would be part of the "telecommunications facility" as defined in cl 113 of the SEPP Infrastructure. In the absence of some authorisation from the Council for that work on the reserve, that would not be consistent with Principle 4(e) that the facility is to be erected wholly within the boundaries of a property where the landowner has agreed to the facility being located on the land.

Suitability of the site

The Council contends (contention 4) that the site is unsuitable for the proposed development, on the basis that it is proposed to be located on a visually prominent ridge line surrounded by steep terrain; it will be observed from the surrounding areas including the foreshore; the slope of the area surrounding the compound will result in an accessway with slopes in excess of 30% and will require significant upgrade works in a Natural area including removal and lopping of trees; and an alternative accessway would need to be constructed if, under the terms of the right of carriageway created by Transfer Q658797 the transferee is required to relinquish the right of carriage way.
The issues of visual impact, and the extent of works required to be undertaken on the Council land rather than on the site leased from HWC, have been addressed above. Telstra submits that there would be no need to relinquish the right of carriageway or construct an alternative accessway, as the upgrade of the access track would assist in the exercise of rights granted under the instrument, and in the absence of evidence to the contrary, I accept that submission. More fundamentally in terms of the Council's contention, the planners agreed that the slope of the area surrounding the Telstra compound will mean that the accessway will have, in part, gradients of 30%; and the work proposed for the accessway will include construction of timber retaining walls up to 700mm high. Based on the view, I agree with Mr Nash that that would represent a departure from the existing access track and natural bushland setting presently available to bushwalkers.

Conclusion

I am not satisfied that the proposed development is consistent with the objectives of LEP 2000, by reason of its impacts on the Council reserve, in terms of vegetation clearing and open space recreation, and its visual impacts, and visual prominence from both the public and private domain. That is not a barrier to the granting of development consent, as the proposal would be permissible under SEPP Infrastructure, however the fact that the proposed development is permissible does not mandate that it be granted consent. In considering whether, in the exercise of discretion, development consent ought to be granted, the relevant matters include the Guideline as specified in cl 115(3) of SEPP Infrastructure, and the matters in s 79C(1)(b)-(e) of the Act: Hastings at [6], [9]. The Guideline provides principles for design and siting and operation of telecommunications facilities, to encourage provision of those facilities "with minimal impact on the amenity of an area". For the reasons outlined above, I am not satisfied that the proposed development has minimal impact on the amenity of the area, as it does not minimise visual impacts, contrary to Principles 1(b) and (g) of the Guideline. Further, it is not confined to the boundaries of the site on which it is to be constructed, contrary to Principle 4(e) of the Guideline, and would require ongoing work for management of the bushfire risk in a natural area. While the Council's contention that improvements to the depth of coverage in Corlette would be better served by providing facilities at alternative site/s A and D is not made out on the expert evidence, that evidence does support the Council's contention that the proposed development would still leave areas of Corlette with deficient coverage, as a matter relevant to the public interest under s 79C(1)(e) of the Act. Having regard to the likely impacts of the proposed development in its context, I am not satisfied that the proposed development should be approved.
The orders of the Court are: 1. The appeal is dismissed. 2. Development application DA 16-2013-589-1 for the construction of a telecommunications facility at 10A Corrie Parade Corlette is refused. 3. The exhibits are returned except for exhibits A, B, G, H, P, 5, 17 and 20. Linda Pearson Commissioner of the Court

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. Decision last updated: 19 March 2015

(2011) 180 LGERA 343

(2002) 124 LGERA 147

(2012) 186 LGERA 366

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