Telstra Corporation Ltd v Leichhardt Municipal Council

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167

APPLICANT Mr A. Galasso, barrister instructed by Mr A. Walker of Blake Dawson Waldron LEGAL REPRESENTATIVES:

RESPONDENT Ms S. Duggan, barrister instructed by Ms J Walsh of Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10125 of 2007 Telstra Corporation Ltd v Leichhardt Municipal Council

JUDGMENT 1 This judgment is for an appeal under s. 97 of the Environmental Planning and Assessment Act 1979 against Leichhardt Municipal Council's refusal of a development application for a telecommunications facility and new greenkeeper's shed to be located on the site known as the Balmain Bowling Club, 156 Darling Street, East Balmain. The subject site is shown in the locality map at Figure 1. Proposal 2 The proposal is for a mobile network base station and works include: o Demolish the existing greenkeeper's shelter; o Remove the existing flagpole; o Install a 24.85 m high tapered nautical flagpole with 3 sectors of Telstra antennas housed internally within the flagpole; o The flagpole will have a minimum diameter of 300 mm at its highest point and maximum visible diameter of 720 mm of the top of the surrounding compound wall. The pole will achieve a maximum diameter of 750 mm at its base within the enclosing compound. o The provision of a new flag measuring 6 m by 3.6m. o Construction of a 3.4 m masonry wall compound enclosing the existing flagpole o Construction of a new equipment shed containing telecommunications equipment and soil storage room. The building will be 8.6 by 4.65 m and 3.5 m in height. A roller door that provides access to the soil storage room is proposed on the boundary with Ewenton Street. The bottom of the proposed flagpole will be located within the equipment shed. 3 Amended plans, as described above and shown in Figure 2, were submitted for a review under s 82A of the Act. These plans have the effect of slightly increasing the height while slightly reducing the diameter of the upper structure. The amended plans are the subject of these proceedings.

Site and environs 4 Ewenton Street runs off Darling Street to the south. The subject site is bounded by streets on three sides. The site is currently occupied by the Balmain Bowling Club. The southern boundary of the bowling club adjoins Charles Street, the eastern boundary is to Ewenton Street and to the north Darling Street adjoins the site. The location of the proposed telecommunications facility on this large site is shown at Figure 1.

5 The site comprises 6 lots with an approximate area of 3400 sq m and a frontage of approximately 93 m to Darling Street and 40 m to Ewenton Street and 82 m to Charles Street. Currently erected on the site there is a part single and part two-storey building, 2 bowling greens, and ancillary storage sheds with an existing flag pole near the eastern boundary of 13 metres.

6 Opposite the subject site in Ewenton Street there is a row of modern two-storey townhouses. Continuing down Ewenton Street there is further residential development and further south there are heritage items. 7 To the north of the site in Darling Street there is a row of single and two-storey dwellings predominantly of timber, sandstone and rendered brick construction. A number of these dwellings are heritage items under the LEP these being Nos 139-143, 147, 149, 151 and 153 Darling Street.

8 Opposite the site in Charles Street, on the southern side there is a row of dwelling known as Nos 2-10, and 2, 4 and 6 are listed as heritage items under the LEP. 9 To the west of the site there is a contemporary residential development comprising five dwellings of two-storey construction of sandstone and rendered brick.

10 Figure 1 shows the location of the telecommunications facility within the bowling club and the adjoining streets with heritage items. Issues 11 The respondent provided a Statement of Issues and the principal issue in the proceedings is the visual impact of the proposed structure in the locality. Council contends that the proposed structure equates to a height of a nine-storey building and that it will be highly visible and a dominant structure in the area. Council further contends that "the visual impact is exacerbated by its adaption to a flagpole…the white metal pole, nautical-themed cross poles and rigging and the 3.6 by 6 m flag atop the pole all serve to increase the visual impact of the structure and its dominance in the immediate and broader vicinity."

12 Council raises the issue of adverse heritage impacts in that the proposal is substantially out of character with the existing setting of the heritage items and will detrimentally effect the significance, character and setting of these buildings. The heritage items in the vicinity of the facility include: 2-4 and 6 Charles Street;139-143, 147, 149,151, 153, 155, and 157 Darling Street. The site is also located in the Balmain Heritage Conservation Area.

Statutory Planning Framework 13 The site is located within the residential zone of the Leichhardt Local Environmental Plan 2000 (LEP). The proposal is for a high-impact telecommunication facility and these are listed in cl 18(3) as being allowed with development consent. The existing Bowling Club enjoys existing use rights as it is not a permissible use in the zone.

14 The general objectives of the LEP are set out at cl 13 and for the built and natural environment amenity cl 13(2) states: 1. To encourage the design of buildings, structures and spaces which are compatible with the character, form and scale of the area; 2. a) protect and enhance the area's natural features, character and appearance; b) protect, conserve and enhance the area's heritage; c) provide an environment meeting of principles of good urban design; d) maintain amenity and contribute to a sense of taste and community.

15 The heritage conservation objectives of cl 15 include: a) to protect, conserve and enhance the cultural heritage…and provide measures for their conservation; b) to protect, conserve and enhance the character and identity of the site of the suburbs, places and landscapes of Leichhardt…

16 Clause 16(7) of the LEP relates to development in the vicinity of a heritage item and this reads as follows:

"Consent must not be granted for development on land in the vicinity of heritage item, unless the consent authority has made an assessment of the affect of carrying out of that development will have on the heritage significance of the heritage item and its setting as well as on any significant views to and from the heritage item." 17 The conservation area provision appears at cl 16(8) and this states: Consent must not be granted for the demolition, reconstruction, adaptation or erection of a building, the carrying out of a work or the subdivision of land within a conservation area unless the consent authority has made an assessment of the extent to which the carrying out of the development would affect the heritage significance of the conservation area with particular regard to: a) the heritage significance of any building, work, relic, tree or place… that would be affected and the contribution it makes to the conservation area, and b) the compatibility of the proposed development with the conservation area including the size, form, scale, orientation, site, material, landscaping and details of the proposed development. 18 Under the Leichhardt Town Plan Development Control Plan (DCP) the subject site falls within the Darling Street distinctive neighbourhood. The description of the existing character includes:

The character of the street is primarily that of a two-storey Victorian high street. However, the sequence of slope, elevation and alignment of the road results in changes of scale and character and land use along its length. Generally, the residential parts are made up of detached and semi-detached buildings set back from the street with intervening trees, and variable in form, scale and material. Generally, the commercial section have continuous street walls, are two and three-storey in scale, with parapet fronts, with balconies, verandas and awnings projecting into the streetspace. 19 Development Control Plan No. 51,-'Telecommunications and Radiocommunications' was adopted by the Council in 2005. The relevant objectives of this DCP include: o to help implement principles of urban design in respect to …infrastructure o to promote good industrial design of infrastructure o to provide infrastructure that is visually compatible with surrounding character and locality/visual context with particular regard to heritage buildings/areas and cultural icons o to assess whether the proposed infrastructure is consistent with the amenity of the area

20 The DCP contains design controls and for visual amenity it includes: o Carriers are to design antennas and supporting infrastructure in such a way as to minimise or reduce the visual and cumulative visual impact from the public domain and adjacent areas; o Within the local context, the infrastructure design must take account of - colour, texture, form, bulk and scale; o Infrastructure must: * be well designed ; * be integrated with the existing building structure unless otherwise justified … * be unobtrusive where possible, and * be consistent with the character of the surrounding area. 21 The Design Controls for heritage and environment include: o The applicant to avoid or minimise the visual impact of any proposed facility on the heritage significance of adjoining/adjacent/surrounding heritage items and conservation areas; ` Evidence 22 The Court met onsite with the parties and also heard from a number of resident objectors. A number gave evidence to the Court including, Mr Peter Horrobin of Ewen Street, who is of the opinion the development is inappropriate because of its size scale and context and the amenity impacts on the historic precinct and the streetscape.

23 Mr Peter Thomas of Wallace Street, is concerned about the sheer size and scale that will dominate the area and its inappropriateness in a heritage area. 24 Ms June Lunsmann, representing the Balmain Association expressed concern about the size of the flagpole in the streetscape and the removal of the greenkeepers shed that in her opinion has heritage value.

25 Ms Kerrie Dickie of Darling Street, is of the opinion that the proposal will impact adversely on the residential vista and that civic events would be attracted to the large flag pole in a narrow street. 26 Ms Christina Bell-Ritchie of Bradford Street, said the concern of residents is that this is a telecommunications tower masquerading as a flag pole and that it would be intrusive and dominate the landscape and streetscape and that it would be out of character with the the heritage area. She also expressed concern about radiation emissions.

27 Mr Frank Hetherton of Edward Street, raised objection to the current light weight flag pole being replaced with a much larger gross structure. He said the reception on mobiles is okay in the area and allowing the structure would be the thin edge of the wedge. 28 Mr Joshua Smith of Ewenton Street, expressed concern about views from his dwelling being adversely impacted by the structure.

29 On behalf of the respondent evidence was given to the Court by Mr Robert Staas, consultant heritage planner and architect, and Ms Elizabeth Westaway, planning assessment officer with Leichhardt Council. For the applicant evidence was given to the Court by Dr Richard Lamb, visual assessment consultant, Ms Pamela Kottaras, heritage planner, and Mr Nick Juradowitch, planning consultant. The above experts conferred and provided a joint report to the Court as well as oral evidence.

30 Mr Anthony Spiclin also gave evidence on behalf of the applicant. He is employed by Telstra Corporation Ltd as a radio frequency design and optimisation manager (RF Engineer). In his statement he provided a series of maps to show the coverage for various forms of technology. For example, indoor voice, video and data coverage, indoor voice and video coverage, and no indoor voice video data coverage. From these it could be seen that the white areas represent the 'holes' where there is no indoor voice, video or data coverage. Although he advised this is based on predictions not actual. He said that the purpose of the proposed facility is to provide stronger coverage for clients although he also indicated there are a number of ways to rectify the service without the pole like structure as high as proposed and that it is not just a matter of signal strength. He identified a combination of things including, number of base stations without dominant signal leads to an increase in interference. He also indicated that additional customers can increase the effect of the 'hole'. 31 On cross-examination Mr Spiclin agreed that micro cells attached to telegraph poles could increase the effect of the hole, as would smaller facilities in and around the hole, however he was not involved in considering alternatives. When questioned as to whether co-location on existing facilities of other carriers would assist, he responded that this would not help and that he knows from experience without surveying other carriers that the coverage would not be as expected in an area some 3 km from town.

32 When Mr Spiclin was questioned about the obligation to co-locate telecommunication facilities on the proposed structure with a flag and cross bars for bowls penants, he stated that co-location would not be precluded, however maintenance would probably preclude same, that is, access to the facility antenna for maintenance. 33 Mr Staas and Dr Lamb for the visual assessment agree that the proposal is not a wall or a building in the usual sense and would be more appropriately described as a structure. They further agree that the proposal substantially exceeds the 10 m maximum wall height provision of the DCP but considered that this height control would not usually be applied to the type of structure proposed. The visual experts further agree that the locality predominantly comprises a single two-storey building form and that the proposed pole would be significantly taller than existing buildings in the locality and on this basis it could be described as being inconsistent with prevailing building heights. The also agree that in the immediate locality the structure would be highly visibly and partly seen from the Anzac Bridge, Pyrmont park, and Parramatta river.

34 Mr Staas considers that the principal visual impact would be unacceptable within the immediate context rather than the wider setting of the site. It was agreed that: the installation would be highly visible in this immediate context…the scale of the proposal and its intended use as a flagpole will create a focal point that will naturally draw the eye to it in this context and detract from the existing streetscapes. It will join other detracting elements such as, the power poles to reduce rather than enhance the unique heritage character of the area in general and the setting of the nearby heritage items in particular. …the flag when flying makes the structure more visible (in the immediate and more distant view) the white colour particularly when viewed from the local area increases the prominence of the structure. 35 On the other hand Dr Lamb considers that "although the structure is inconsistent with prevailing building heights this is not an appropriate ground for refusal." He considers that "there are many examples of infrastructure elements above building heights including power and telecommunication poles, which are acceptable features of the locality".

36 In Mr Staas' opinion, other locations in the surrounding area would have resulted in less impact and that a thorough analysis of such alternative has not been provided and exhausted options not explored. 37 Mr Staas considers that the area affected by this proposal is specifically mapped in the Leichhardt LEP Urban Framework Plans identifying the 'urban character' as "an area to be conserved and enhanced because of the special townscape quality. The aims of the council are to reduce the impact of detracting elements and enhance the setting of the heritage items in the townscape. The proposed installation is not neutral in this situation …and is unwarranted in the light of other possible alternatives not investigated by the applicant."

38 Dr Lamb on the other hand is of the opinion that the flagpole other than in closest views, will not be obtrusive and will not compete with or devalue the existing views. 39 Mr Staas further states that:

"changes to the application suggested in the joint conferencing may overcome some of these impacts from more distant views but there remains the incongruous scale and visual prominence of the pole in the immediate context of the site and in close proximity to the heritage items." 40 The visual experts agreed that "installation of a standard telecommunications pole and headframe would have an unacceptable visual impact." They also agreed that distinguishing the facility as a flagpole resulted in a more acceptable visual impact than the standard telecommunications pole design. However, Mr Staas considers that "the additional elements used create to flagpole analogy have accentuated rather than reduced the visual impact of the proposal but are an improvement over a standard pole and headframe arrangement." He states that:

"It is the scale and colour of the pole together with the additional bulk created by the crossbars and any potential flag that accentuate its incongruous appearance in this relatively small scaled context. These aspects are further exacerbated as a result of the placement of the pole at almost the lowest point in the Darling Street continuum rather than in less conspicuous locations even within the bowling club site, but preferably in other locations in the surrounding area." 41 The heritage experts agreed that the heritage impact primarily relates to the setting and views from Nos 2 to 6 Charles Street and the setting of the heritage listed properties in Darling Street. They agreed that the proposal would not change the significance attributable to those items. They further agreed that scale is the primary issue. Mr Staas comments that:

"A considerable number of heritage items identified in the LEP are located within the immediate visual catchment…many of these are small scaled cottages. The prominent scale of the proposed pole created by its height is overwhelming in this context despite its slender profile. The scale of an appropriate flag to suit a pole of this height would also be visually intrusive…these impacts are accentuated because the installation is located where it is seen to its full extent from base to top accentuating the height….The incongruous scale relationship would detrimentally effect the setting of the items in a manner that the present flagpole on the site does not. 42 On the other hand, the applicant's heritage expert considers that: the slender profile will not reduce the heritage significance of the dwellings in the immediate vicinity of the proposal and notes that the built environment in the immediate surroundings include the bowling club and townhouses…these buildings do not contribute to the heritage character of the overall conservation area whilst other locations in the Balmain peninsula reflect the heritage character more successfully… The proposed pole was designed to have the dual function of telecommunications tower and flagpole in a creative attempt to appeal to the bowls club as well as to provide a telecommunications service to the surrounding area. 43 Amongst other comments, the planning experts agreed that an appropriate balance must be achieved between the benefits of improved mobile phone reception and the environmental impact of such facilities. As such a mobile phone communication facility should wherever possible be sensitively located and designed to minimise visual heritage, health and amenity impacts.

44 The Court has the benefit of an extensive walk of the area along Darling Street, Charles Street, Wallace Street, Adolophous Street and Ewenton Street. I also had the benefit of a balloon and photographs taken at various locations with the surveyed heights of buildings and infrastructure. 45 While on site I requested the experts to comment on an alternative location within the Bowling Club on the south-western side of the site. However, I am fully cognisant this is not the application before the Court and my role in these proceedings is to assess the application as shown in exhibit B. I also note the comments were made without the concurrence of the owner of the site. The experts provided the following comments:

The experts agree that the new proposed location by the garbage shed in the southwest corner of the site would have less visual impact than the current proposal. It appears that with the demolition of the existing shed there could be room for an equipment shed and possibly garbage room. It is assumed that the proposed pole in the southwest corner of the site will not have crossbars, wire flag and will be painted a recessive colour. The experts agree that relocation of the proposed pole as suggested above would enable the existing soil shed in Ewenton Street to remain, hence traffic management conditions would not be relevant. Assessment and Findings 46 On the basis of the site inspection and the evidence of the experts I have concluded that the proposed telecommunications facility should not be approved. In the context of the immediate visual catchment and area it will be a most prominent, dominant and overwhelming element and out of character.

47 Furthermore, the location of the structure at the extremity of the openness of the bowling greens emphasizes the impact of the 25 m structure, even though it is in the form of a relatively slender structure of a flag pole. The proposal is unacceptable in this residential precinct despite the fact it is also located in close proximity to a conservation area and heritage items. These factors only serves to reinforce my conclusion that the proposal is out of character and inconsistent and antipathetic to council's planning regime. I accept the respondent's evidence that the structure will be overwhelming and incongruous. 48 It was submitted on behalf of the applicant "the flag pole design for the facility is a sophisticated creative approach… intertwining technology with the desire to provide improved coverage in the area". It was further submitted that the fact there is currently a 13 metres flag pole on the site means it is not a foreign element now and will not be in the future. In my assessment this does not justify a structure 11metres taller with ancillary features with a much larger flag being erected.

49 It was submitted on behalf of the respondent that the flag does not overcome the unacceptable visual impact and in fact exacerbates same and the proposal is out of character with the area and antipathetic to Council's controls. 50 In my assessment the proposed structure/flag pole will be a much larger and dominating element in the neighbourhood than the current flag pole. The proposal in my opinion is completely out of scale with its surroundings and therefore the adverse impact on the immediate locality means the application fails. The development is simply not suitable for the site in my assessment, whether it is regarded as a flag pole or a telecommunications facility. 51 I agree with the respondent that the structure would be an unreasonable intrusion in the local neighbourhood even though it would not be such a dominant element when viewed in the much wider context. As such, I do not accept Dr Lamb's visual analysis and assessment that leads him to conclude "it could be approved".

52 The proposal is also inconsistent with the council's planning regime. In particular, the general objective in clause 13 of the LEP includes: to encourage the design of buildings, structures and spaces which are compatible with the character, form and scale of the area. The fact that this is a structure and not a building does not excuse the proposal and it is incompatible with the character, form and scale envisaged by the LEP. Similarly, the conservation area provision at clause 16 also requires an assessment to include compatibility with size, form, scale. 53 As required by the Court of Appeal judgment of Zhang v Canterbury City Council [2001] NSWCA 167 I must 'give real genuine and proper consideration' to development control plans. In my assessment the circumstances of this case do not justify a complete departure from the provisions in DCP No 51. The proposal in my assessment is inconsistent with not only the design controls of this DCP as cited above but also the objective "to provide infrastructure that is visually compatible with surrounding character and local/visual context…"

54 Accordingly on the basis of my assessment above the formal orders of the Court are: 1. The appeal in respect of the Balmain Bowling Club at 156 Darling Street, Balmain is dismissed;

2. The development application submitted to Leichhardt Municipal Council is refused:

      J Murrell
      Commissioner of the Court
      A.K/ljr

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