TPG Telecom Limited v Inner West Council [2023] NSWLEC 1778 | Case summary

Land and Environment Court (NSW)|2023-09-06

The applicant's position on the heritage impact

TPG's position is instead that the evidence does not demonstrate that the proposed development will have an unacceptable impact on the heritage significance of Callan Park or on Kirkbride Block. TPG submits that any such impact has been minimised by locating the proposed development on the north west corner of the site.
TPG relies on the evidence of Mr Davies, who opines simply that the proposed development minimises impacts on the significant views identified by him, and that those viewpoints from which the proposed development is visible are not significant views. In particular, his evidence is the location and height of the proposed development has avoided and minimised any obstruction of significant views, which he identifies as being views of the buildings of the Kirkbride Block from within Callan Park and the surrounding area, or views to the water from Callan Park. His evidence is that neither of the viewpoints described by Ms Trueman are "significant" views, as they are not those prioritised by the visual analysis in the CMP 2011 and they are highly modified by later development such that they are not "pristine".

Future impact on the trees in Callan Park

In its contention concerning the base station location and coverage maps, the Council raised an issue concerning the impact of the proposed development on the trees that are located in Callan Park. It contends is that these will need to be trimmed at some point in order to allow the proposed development to operate effectively. The Council submits that such trimming would be contrary to the provisions of the Callan Park (Special Provisions) Act 2002.
The Council's position that trees will need to be trimmed either now or into the future is not supported by any evidence. Instead, the evidence of Mr Munro is that the existing trees would only affect the signal for mmWave frequencies, which is not proposed to be used by the proposed development and the site would not meet the business case requirements for the provision of those frequencies for the purpose of fixed wireless access as a result of its distance from residential properties. His evidence is that whilst the vegetation does attenuate the signals, the frequencies to be used by the proposed development have been modelled as providing sufficient coverage and that modelling incorporates the attenuation caused by existing trees. As such his evidence is that there is no need for them to be trimmed at present. No evidence to the contrary was given by Mr Georgevits.
Whilst Mr Georgevits speculates that the trees will increasingly interfere with the operation of the proposed development as they grow, there is no certainty in relation to the timeframe over which that interference will prevent its effective operation or the extent to which trimming will need to occur. The report of Newleaf Arboriculture dated 30 August 2023 makes it clear that there is no certainty that trees will grow beyond their existing height and interfere with the frequencies to be used by the proposed development in a way that would require their trimming. It is common ground that any trimming of the trees would require a separate consent and would be subject to the provisions of the Callan Park (Special Provisions) Act 2002.
As such, I consider that any future impact of the proposed development on the trees located in Callan Park is too remote and speculative to be considered a likely impact of the development within the meaning of s 4.15(1)(b) of the EPA Act.

Visual impact

The Council contends that the proposed development has an adverse visual impact, and is inconsistent with the desired future character and not compatible with the surrounding development. In particular, the Council says that the proposed development would have an adverse impact on the Manning Street streetscape, and does not respond to its setting.
The Council relies on the evidence of Mr Youhanna in support of its contention. Mr Youhanna opines that the proposal has an adverse impact both when viewed from within Callan Park, in the area to the east of the Kirkbride Block, and when viewed from King George Park and its surrounds.
With respect to the view from within Callan Park, the Council points out that the area is one where you can see the Kirkbride Block and appreciate its heritage value. The evidence of Mr Youhanna is that the removal of the power poles will greatly reduce the visual clutter when looking to the north, and will result in the proposed development being more legible and prominent, particularly as it is visible above the line of the horizon.
With respect to the visual setting experienced from King George Park, Mr Youhanna's evidence is that the proposed development dwarfs the surrounding infrastructure on the substation site and the amenities block. His evidence is that the existing sports lighting poles are much slimmer and 2.8m lower in height, and are a characteristic of sporting grounds that do not detract from the park. He contrasts that to the proposed development, in relation to which he says the 30m high reinforced concrete monopole with a large headframe will be incongruous and highly visible from the majority of King George Park as an uncharacteristic, visually intrusive and unsympathetic element in the foreground of Callan Park.
Mr Youhanna also observes that the proposed development will be visible from various locations in Manning Street and Toelle Street, and is out of character in the area, as it does not follow the topography of the area, does not maintain a two-storey scale, and is not complimentary in terms of architectural style, built form or materials.
Further, Mr Youhanna opines that the visual impact of the headframe with antennas and ancillary equipment, when all future antennas have been included, is likely to be "discernably greater than that depicted in the photomontages, due to the additional structures mounted on the headframe creating more visual clutter at the top of the tower" (Ex 6 p 28).
The Council submits that, based on this evidence, the proposed development is not consistent with Principles (1)(b), (1)(e), (1)(f) and (1)(g) of the 2022 Guidelines, which are similar to those in the 2010 Guidelines. Principles (1)(b) and (e), as contained in the 2010 Guidelines, are: "(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. … (e) A telecommunications facility should be located and designed to respond appropriately to its rural landscape setting."
Principles (1)(f) and (g) are set out above at [40].
For the same reasons, the Council submits that the proposed development is inconsistent with the objectives of the LLEP at cl 1.2(2)(d), (l) and (n) (quoted above at [10]), as it does not provide a high standard of urban design and is not compatible with the character and style of surrounding buildings and streetscape. Again, for the same reasons, the Council also says that the proposed development is inconsistent with the aims of the IWLEP as it does not create a high quality urban place and does not prevent adverse environmental impacts on the local character of the Inner West.
In addition, the Council submits that the visual impact of the proposed development is contrary to the planning controls in C2 and C3 of the Iron Cove Parklands Distinctive Neighbourhood in Part C2.2.4.4 of the LDCP, quoted above at [18]. The Council's submissions, and Mr Youhanna's evidence, also refers to planning controls in C1, C8 and C15 concerning the Callan Park Distinctive Neighbourhood, but the site is outside that distinctive neighbourhood. Mr Youhanna's evidence is that, contrary to those controls, the proposed development does not follow the topography of the area, does not maintain a two storey scale, and is not complimentary in terms of architectural system, built form or materials.
In its Amended Statement of Facts and Contentions, the Council also says that the adverse visual impact is contrary to objective O6 within Part C1.0 of the LDCP for the built form to respond to the existing character, and is also contrary to the requirement to prepare a site analysis in control C1 of Part C1.1 of the LDCP.

The applicant's position that there is no adverse visual impact

TPG's position is instead that visibility of the proposed development is not sufficient to create an adverse impact.
In support of its position, it relies on the evidence of Mr Davies that it is "minimal structure" and that its impact is de minimus in the overall setting of the entire Callan Park area, and that views to and from Callan Park could not be considered "pristine".
TPG also relies on the evidence of Mr Haynes, who gives detailed evidence in the joint report about the key compositional elements that already exist in the field of view from the areas that Mr Youhanna identified as being most affected by the visual impact, such that a casual observer would not find the structure uncharacteristic of the established character of the immediate area. Further, Mr Haynes opines that the proposed development minimises its visual impact through its siting and design, such that it minimises the locations from which it will be visible and is visually recessive in each of the affected viewpoints.

The visual impact is acceptable in the context

When the visual impact of the proposed development is considered in each of the viewing contexts identified by Mr Youhanna as being significantly affected, it is clear that the key compositional elements identified by Mr Haynes and the visually recessive presentation of the proposed development renders it acceptable in its context. Contrary to the evidence of Mr Youhanna, a development does not have to be two storeys in height to be compatible with the local character. For the following reasons, I find that the proposed development has an acceptable visual presentation that is compatible with the existing development and landscape character.
Firstly, I accept the evidence of Mr Haynes that there are key compositional elements in each of the local views to the proposed development. They include large established trees, the sports lighting poles distributed within King George Park, street lighting within Callan Park and Manning Street, a weather monitoring station within Callan Park, energy poles within Callan Park, elements of urban infrastructure associated with the substation, and the amenities block for King George Park. The compositional elements in each of the views to the proposed development are as follows.
With respect to the views to the proposed development from within Callan Park, to the east of the Kirkbride Block, I accept Mr Haynes' evidence that the views contain the weather station, tops of established trees, the trees and vegetation within the landscape, and energy poles and wires within Callan Park. Even if the energy poles will be removed and the wires placed underground, the weather monitoring station will remain part of the visual character. I accept Mr Haynes' evidence that the intrusion into this view by the proposed development in this context would be relatively small, limited to the far background with only the top 20% of the structure visible, and would mainly be intrusion into views to the sky. In that context, the proposed development forms part of the backdrop of urban development that can be seen from this viewpoint and is consistent with the existing visual character. This can be seen in Figure 4 above.
In relation to the views to the proposed development from various locations within and around King George Park, including locations on the walkway on the northern periphery, I accept the evidence of Mr Haynes that the sports lighting poles are a visual feature of the park, presenting tall visual elements within the foreground of any views to the proposed development. I accept that because of their presence in the foreground, they will appear higher than the proposed development. This is clearly seen in Figure 3 above, and Figure 6 below. The proposed development is therefore of compatible height with these sports lighting poles, notwithstanding that it is taller, and the casual observer will not perceive the differences in height between the sports lighting poles and the proposed development. In addition, I accept Mr Haynes' evidence that the proposed development is seen within a backdrop of large significant and dense trees, such that the landscape character will remain visually dominant.
In relation to views to the proposed development from various locations along Manning Street and on Toelle Street, I accept the evidence of Mr Haynes that there are a range of urban infrastructure elements within the site and adjoining land that can be viewed from various points, including poles and transformers within the substation, the sports field lighting and the street lighting within the public streets. Additionally, there is a row of large established canopy trees along the eastern edge of King George Park where it adjoins Manning Street, and a row of smaller trees along the northern boundary of the site. These trees limit views towards the proposed structure from the north east, and from the few locations that the structure can be seen it is viewed in a context that contains other urban infrastructure elements and against the background of the hillside and trees to the west, which form a visual background.
Secondly, the height and location of the proposed development is such that in each affected viewpoint it is visually recessive. I accept the evidence of Mr Haynes that its position within a local valley, the large separation distances from the proposed development to existing structures and affected viewpoints, the presence of the hillside immediately adjacent and Callan Park above the site, the large trees within the local context, and the undulating topography in the local area, means that the proposed development is visually recessive and is not obtrusive in any of the affected views. This is the case even with the size of the headframe, as its separation distance from the viewing points and from existing structures attenuates the perception of the size.
Thirdly, its location on the substation site enables it to be co-located with the provision of other utilities, such that the site already contains urban infrastructure and has an established utilitarian function and character. This can be seen in Figure 7.
Fourthly, its location in the local valley and the nature of the surrounding topography has minimised the locations from which the proposed development will be visible. I accept the evidence of Mr Haynes that from both within Callan Park, and outside Callan Park, the proposed development will only be visible intermittently due to the undulating topography, the density, distribution and size of trees in the locality, and the steep hillside to the south west of the site.
Further, the fact that the antennas are all located on a single headframe ensures that visual clutter is minimised. I do not accept the evidence of Mr Youhanna that, without the future AAUs being included in the photomontages, the full extent of the visual impact is not known. The future AAUs are shown in the plans (Ex E) as not extending higher than the panel antennas, and fitting in within the proposed headframe, between the panel antennas located on each corner of the triangular headframe. As such, the future AAUs, which is future development not sought in the proposed development, will sit comfortably within the frame created by the headframe width and the panel antennas. Therefore, any additional visual impact created by the future AAUs would be negligible.
In reaching these conclusions, I do not accept the criticisms advanced by the Council in its written submissions concerning the evidence given by Mr Haynes. His evidence with respect to the existing visual character was detailed and thorough, as was his evidence concerning the features of the proposed development that make it visually recessive in its context. His evidence is entirely consistent with what can be observed in Figures 3, 4, 6 and 7.
For these reasons, the visual impact of the proposed development is acceptable in its context, the proposed development is compatible with the character of the immediate locality, and there is no significant change to the streetscape of Manning Street. From Callan Park, the proposed development is viewed in a context where it is visually recessive when considered against other urban infrastructure that forms part of the visual character. From other areas, the proposed development is viewed in a context in which it is surrounded by the structures of the existing substation and existing lighting poles of similar height, and in which it is visually recessive due to its location in a local valley with a range of other compositional elements in the foreground and with a background of the hillside adjacent and Callan Park above.
For the same reasons, I am satisfied that the proposed development is consistent with Principle (1)(b) of the 2010 Guidelines as it minimises its visual impact and is sympathetic to the adjacent buildings, which are largely substation infrastructure and sports field lighting poles. It also responds appropriately to its setting by being sited in the local valley and maintaining a landscaped backdrop, consistent with Principle (1)(e) (noting that Principle (1)(e) has been replaced in the 2022 Guidelines with a broader principle concerning responding to its setting). Further, also for the same reasons, the proposed development is not antipathetic to any of the objectives of the LLEP, including those at cl 1.2(2)(d), (l) and (n), or to the objectives of the IWLEP. Similarly, I consider that the proposed development does not offend any of the controls in Part C2.2.4.4 of the LDCP. It utilises an existing facility, consistent with control C2, and does not impact the streetscape values of Manning Street, consistent with control C4.

Alternative sites, base station location and network coverage (contentions 3, 6, 7 and 8)

The Council advances a number of contentions concerning the selection of the site for the proposed development, whether alternative sites have been adequately considered, and whether the proposed development meets an identified need for network coverage (contentions 3, 6, 7 and 8). Those contentions assert that the proposed development should be refused because:

It has not been adequately demonstrated that an alternative configuration with a lower monopole and a separate additional facility could not be designed to achieve a comparable level of coverage (contention 3);
It has not been conclusively demonstrated that the proposed development is "the best way to provide mobile phone coverage to TPG's target area" (contention 6);
TPG have not provided relevant simulations or input parameter values that generated the coverage maps, so that the simulated new signal strength figures and coverage "cannot be independently verified" (contention 7); and
TPG has failed to adequately consider alternative sites that could achieve the target coverage (contention 8).

The Council makes lengthy submissions in support of these contentions. It submits that TPG is required to demonstrate that the proposed development is "the optimal design" and that the location is "the best location", and provide modelling of other sites to see whether other sites could achieve the coverage objectives. The Council asserts that there is no documentation or evidence to support Mr Munro's position that each of the alternate sites are unsuitable, and submits that TPG has not met the contention by identifying appropriate alternative sites and ruling them out. This is supported by the evidence of Mr Youhanna, who opines that the alternative sites considered by TPG are not genuine alternatives because they either do not meet coverage objectives or do not have an owner who has provided consent for this use on their land.

The proposed development is in an acceptable location and meets network coverage gaps

For the reasons that follow, none of these contentions form a basis upon which the proposed development should be refused. From the outset, I note that they are advanced without any reference to one of the heads of consideration under s 4.15(1) of the EPA Act. The Council does not identify that any of the principles in the 2010 Guidelines are offended due to the particulars advanced in support of these contentions.
Contrary to the Council's position, for the purpose of the Court's consideration of the development application, TPG is not required to establish that the proposed development is the optimal design or that the location proposed is the best location for achieving coverage objectives. Nor is it required to provide the data for a range of alternative sites so that the Court can perform an evaluative exercise on the best site for meeting coverage objectives. That is not the Court's role, and nothing in the 2010 Guidelines requires the consent authority to have such a role.
Instead, the Court, exercising the functions of the consent authority, is required to take into consideration the 2010 Guidelines concerning site selection, design, construction or operating principles for telecommunications facilities. In doing so, I reach the following conclusions.
Firstly, I am satisfied that TPG has undertaken a site selection process that included consideration of a range of alternative sites, and that process resulted in the proposed development in its current location. That site selection process is summarised in the Candidate Selection Summary dated 30 June 2023 and the TPG report on Mobile Coverage Objectives dated 11 July 2023, which are each annexed to the Addendum Statement of Environmental Effects. Contrary to contention 8, this is sufficient to discharge an obligation for a site selection process.
The Council's criticisms of the alternative sites considered by TPG arise because of the requirements of the 2022 Guidelines, in which the alternative site assessment is required to "only include sites that meet coverage objectives, and that have been confirmed as available, with an owner agreeable to having the facility on their land". However, I accept TPG's submission that the 2022 Guidelines should not be afforded any weight in relation to the site selection process for this proposed development, given that they have not been gazetted and are therefore not a mandatory consideration under the SEPP TI, and were published three years after the site selection process started for this development. In that respect, I accept the evidence of Mr Munro that site selection must take place early in the development planning process, before the site is selected, prior to approaching a landowner, before a design is completed and before development application documents are prepared.
Secondly, there is an agreed demonstrated need for coverage in this area of Rozelle. This is agreed by both Mr Munro and Mr Georgevits. It is of concern that residents of this area of Rozelle currently do not have mobile phone coverage inside their homes from two major carriers. The need for coverage in this area arises from the removal of a previous telecommunications facility on top of the Balmain Leagues Club. Composite coverage plots show the network coverage available at present, when compared with the situation post-development relying on the operation of the proposed development. This is shown in Figure 8 below.
It is clear, therefore, that the proposed development meets a need for coverage in the area. Contrary to contention 7, the information about how these coverage plots were generated has been provided in the evidence of Mr Munro, and without any evidence against their accuracy, there is no need for this data to be further scrutinised. In addition, the evidence is that the proposed height of the development is that which is required to meet this coverage need.
Further, contrary to the Council's position, there is no need to 'go behind' this analysis to enquire about hypothetical alternatives that might also meet the coverage objectives that have less impact. That is what the Council seeks to do in contentions 3 and 6. It is sufficient that this proposed development meets that coverage objective, and its impacts are a matter for separate consideration.
Thirdly, the location of the proposed development is acceptable. For the reasons expressed above in relation to the contentions regarding the heritage and visual impacts, the proposed development does not have an unacceptable impact on the setting of or views to and from the heritage item, and does not have an adverse visual impact. It is appropriately located in a local valley so that the number of vantage points from which it can be seen are minimised, and is co-located with other utilities infrastructure, within an existing large sub-station. From each perspective from which it can be seen, it fits within its visual setting.
For those reasons, none of the matters advanced in contentions 3, 6, 7 or 8 warrant refusal of the development application. Instead, I find that TPG has met its obligation to consider a range of alternative sites and undertake a site selection process, that the location of the proposed development meets an existing need for service coverage, and that the location is acceptable in the circumstances.

Geotechnical issue raised by the Council

The Council made a submission, in its written submissions, that it is not known whether the site is geotechnically suitable for the proposed development. This issue is not raised as a contention in the Amended Statement of Facts and Contentions, no evidence is before the Court that there is some aspect of the site that renders it geotechnically unsuitable, and there is no reliance on any provision requiring mandatory consideration of geotechnical matters with which the Council says TPG has not complied.
Instead, the matters required to be considered by cl 6.2(3) of the LLEP, concerning earthworks, are set out in the Addendum Statement of Environmental Effects dated 30 June 2023. Further, the requirements of cl 6.1 of the LLEP, concerning acid sulfate soils, have been addressed by the report of Martens and Associates dated 1 September 2023. No issues have been raised by the Council in relation to the findings of that report, which considers the sub-surface soil profile and geology.
Accordingly, there is no substance to the Council's submission regarding unknown geotechnical suitability.

Development consent should be granted

The proposed development is permissible on the site pursuant to the provisions of the SEPP TI. For the reasons expressed above, none of the contentions raised by the Council warrant refusal of the development application. The proposed development is appropriately sited so as to have a negligible impact on the setting and views to and from the heritage listed Callan Park, and so as to avoid an unacceptable visual impact from the various viewpoints from which it can be seen. Its height is appropriate to achieve the targeted coverage area, and is in character with the existing urban infrastructure in the immediate vicinity of the site.
In addition, the Council agrees that, based on the evidence of Mr Georgevits, the safety issue identified in contention 5 is appropriately dealt with by way of a condition of consent. This condition of consent is at condition 17 and is agreed to by TPG.
Further, consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Statement of Environmental Effects dated October 2021, there is no reason to suspect there is any contamination on the site of the proposed development.
Given that the proposed development does not offend the planning controls in the LDCP or the principles in Ch 10 of the SEPP B&C, and does not create any unacceptable adverse impacts, there is no basis to refuse the development application and it is granted accordingly, subject to the conditions of consent as agreed between the parties.
The Court orders that: 1. The appeal is upheld. 2. The development application (DA/2021/1143) for the construction of a mobile phone base station within the existing electricity substation facility grounds at Lot 1 DP 814430 Manning Street, Rozelle NSW, is determined by the grant of development consent, subject to the conditions in Annexure A. 3. Exhibits 1-8 and K are returned, the remaining exhibits are retained. ……………………. J Gray Commissioner of the Court Annexure A (347852, pdf)

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: 21 December 2023

The planning framework

The Leichhardt Local Environmental Plan 2013 (LLEP) continues to apply to the proposed development by virtue of the operation of the savings provision in cl 1.8A of the Inner West Local Environmental Plan 2022 (IWLEP). The site is zoned SP2 Infrastructure pursuant to the LLEP. In the SP2 zone, development for the purpose of what is shown on the land zoning map is permissible with development consent, which, for this site, is Electricity Transmission and Distribution. The objectives of the SP2 zone are as follows: • To provide for infrastructure and related uses. • To prevent development that is not compatible with or that may detract from the provision of infrastructure. • To ensure the adequate provision of public, community and social infrastructure.
The LLEP also sets out its aims in cl 1.2, which include an aim to "protect and enhance views and vistas of… Callan Park… from roads and public vantage points". Clause 1.2 also sets out the following aims of the LLEP: (c) to identify, protect, conserve and enhance the environmental and cultural heritage of Leichhardt, (d) to promote a high standard of urban design in the public and private domains, (e) to protect and enhance the amenity, vitality and viability of Leichhardt for existing and future residents, and people who work in and visit Leichhardt, … (l) to ensure that development is compatible with the character, style, orientation and pattern of surrounding buildings, streetscape, works and landscaping and the desired future character of the area, … (n) to protect, conserve and enhance the character and identity of the suburbs, places and landscapes of Leichhardt, including the natural, scientific and cultural attributes of the Sydney Harbour foreshore and its creeks and waterways, and of surface rock, remnant bushland, ridgelines and skylines, (o) to prevent undesirable incremental change, including demolition, that reduces the heritage significance of places, conservation areas and heritage items, …
The proposed development is permissible with development consent pursuant to s 2.143 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI). Although the SEPP TI commenced after the development application was lodged, the provisions in Ch 2 Div 21 are transferred provisions within the meaning of s 30A of the Interpretation Act 1987, and apply to the site in the same way as the State Environmental Planning Policy (Infrastructure) 2007 applied to the site, such that the provisions are "to be construed as if it had not been so transferred".
Section 2.143 of the SEPP TI provides: 2.143 Development permitted with consent (1) Development for the purposes of telecommunications facilities, other than development in section 2.141 or development that is exempt development under section 2.20 or 2.144, may be carried out by any person with consent on any land. (2) Before determining a development application for development to which this section 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 Planning Secretary for the purposes of this section and published in the Gazette.
The guidelines published in the Gazette are the NSW Telecommunications Facilities Guideline, Including Broadband, dated July 2010 (2010 Guidelines). Later guidelines, dated October 2022 (2022 Guidelines), have not been published in the Gazette.
The 2010 Guidelines contain four principles for the site selection, design, construction and operation of telecommunications facilities, which are as follows: "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 Principle 4: Minimise disturbance and risk, and maximise compliance"
The Council considers that the 2022 Guidelines ought be considered in determining the development application, as a matter of public interest. The 2022 Guidelines contain five principles, with the first four similar to the four above. The fifth principle is to "Undertake an alternative site assessment for new mobile phone base stations".
Pursuant to s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), the repealed Ch 10 of the SEPP B&C continues to apply to the proposed development. Although Ch 10 of the SEPP B&C commenced after the development application was made, the provisions in Ch 10 are transferred provisions within the meaning of s 30A of the Interpretation Act 1987, and apply to the site in the same way as the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applied to the site, and the provisions are "to be construed as if it had not been so transferred". Section 10.10 sets out planning principles for land within the Sydney Harbour Catchment. Part 6.3 of the SEPP B&C, which was referred to in the town planning joint report, does not apply to the proposed development pursuant to the savings provision in s 6.65. In considering the effect of a savings provision in another environmental planning instrument that used the words "does not apply", Robson J found, in Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143, that the clear language "does not apply" means that consideration of the instrument is precluded. In the same way, I am precluded from considering Pt 6.3 of the SEPP B&C.
The Leichhardt Development Control Plan 2013 (LDCP) continues to apply to the site, and at C1.0 contains general provisions setting out objectives for "places and spaces". This includes the following objective: "O6 Compatible: places and spaces contain or respond to the essential elements that make up the character of the surrounding area and the desired future character. Building heights, setbacks, landscaping and architectural style respond to the desired future character. Development within Heritage Conservation Areas or to Heritage Items must be responsive to the heritage significance of the item and locality."
The site falls within the Iron Cove Parklands Distinctive Neighbourhood in C2.2.4.4 of the LDCP, and within the subset of that neighbourhood described as the "Leichhardt Park, King George Park and Manning Street Substation". The objective and controls concerning the desired future character of this area are: "Objective O1 To facilitate development that is consistent with the Desired Future Character and Controls for the Distinctive Neighbourhood. Controls C1 The desired future character of the Iron Cove Parklands Distinctive Neighbourhood is for the area to retain its current nature as a recreation precinct, both in terms of active and passive recreation. The area should remain a publicly accessible parkland reserve providing the community with a significant recreation resource of a type and scale not found elsewhere within the local area. C2 Importantly, any new development within this precinct should be restricted only to the improvement of existing facilities and no additional development should be considered. There is scope within the site for some degree of adaptive reuse of the existing buildings; however this should be within the context of a major recreation precinct and should respect the heritage values of those, and the surrounding buildings. C3 The interface between the Iron Cove Parklands area and the adjacent dwellings is significant to the character of these residential streets. This provides important streetscape values to the locality and should be retained. ..."

Objector evidence

The development application was notified between 7 December 2021 and 12 January 2022, and the amended development application was notified for the period 7 July 2023 to 12 August 2023.
There were two submissions received in response to the initial notification. Those submissions raised issues concerning the proposed development being out of character and causing impacts on Callan Park. One submission also raised concerns regarding their sensitivity to Wi-Fi and Bluetooth.
A large number of public submissions are dated in March 2023, a year after the notification of the development application and prior to its amendment, although I have no detail of the notification of the development application that led to those submissions.
One of those submissions of March 2023 was on behalf of the conservation group known as the Friends of Callan Park. The submission raises concerns with respect to the impact of the monopole on views to and from Callan Park, which they say would affect the heritage significance of the Callan Park site.
Following the amendment to the development application which led to the monopole being located where it is currently proposed, the Friends of Callan Park made a subsequent submission dated 28 July 2023, indicating that they no longer oppose the tower and describing the change to its proposed location as "a win for Callan Park".
At the hearing, one resident attended the site inspection to give evidence. Their concern relates to the impacts of electromagnetic energy. However, as discussed by Preston CJ in Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10; (2006) 67 NSWLR 256; [2006] NSWLEC 133, little weight can be given to "unsubstantiated community perceptions of adverse effects on amenity from exposure to RF EME" (at [198]), and compliance with the relevant Australian standards for maximum exposure levels means that any harm to the health and safety of people caused by exposure to radiofrequency electromagnetic energy would be negligible (at [184]).

The role of the Court on the appeal

In considering the appeal, the Court exercises the functions of the consent authority, which is to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. In doing so, the Court is required to consider the matters in s 4.15(1), which includes the suitability of the site for the development and the impacts of the development.
Central to the Council's case is its position that the proposed monopole would have better heritage and visual impact outcomes if it was located elsewhere. However, contrary to this position, the Court's consideration in accordance with s 4.15 does not extend to the question of whether the proposed development would be better located elsewhere, or whether an alternative proposal should be pursued in lieu of the current design. Whilst the consideration in accordance with s 4.15 includes the 2010 Guidelines, pursuant to the SEPP TI, which requires regard to matters of site selection and design, this does not mean that the proposed development and its impacts ought to be assessed against a hypothetical alternative for it to be located elsewhere, or that there is any obligation on the proponent to establish that the proposed location and design is the best outcome. Instead, the role of the Court is to consider the acceptability of the proposed development in its proposed location, in accordance with s 4.15 of the EPA Act and based on the evidence in the proceedings.
The Council also submits that the plans that are before the Court provide insufficient detail of the proposed development to enable a proper assessment of its impacts. There is no substance to this submission, it is not supported by the evidence. Instead, the specifications of each of the antennas are shown on the plans (Ex E Tab 1), and it is clear that there are no AAUs (which relate to 5G) proposed as part of the development application, but their future location is shown as indicative so that the headframe proposed will be sized to accommodate them in the future (Ex E Tab 3). The excavation of soil for the foundation works is expected to be 1.3m (Ex E Tab 2). The height of the proposed monopole is clear, as is the maximum size of the headframe, and details of each of the attachments to the headframe and monopole are given (including the indicative AAUs) (Ex E Tab 1). Further, the parties have agreed on a condition of consent as to the colour that the proposed development will be painted. As such, there can be no doubt as to the detail of the development the subject of the development application.
It is well established that the assessment of the "likely impacts of that development" pursuant to s 4.15(1)(b) includes future impacts of the development, including future development, but those impacts must flow from the development the subject of the development application (Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349) and do not extend to circumstances where there is no immediate necessity for the future development and no inevitability about its detail (see Australian Coal Alliance Incorporated v Wyong Coal Pty Ltd [2019] NSWLEC 31). The proposed future addition of the AAU, which are currently depicted on the plans in broken lines, is future development that would need to be pursued through Part 4 of the EPA Act, and is not sought as part of this development application. Once Mr Munro understood that those AAU did not form part of the proposed development, his evidence is that they are not required for the immediate operation of the proposed development, and that the panel antennas can accommodate both 4G and 5G if required. I consider this in more detail further below, in my consideration of the visual impact of the proposed development.

TPG Telecom Limited v Inner West Council

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Judgment (11 paragraphs)

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Cases Cited (7)

Cited By (2)