Land and Environment Court New South Wales Medium Neutral Citation: Telstra Corporation Limited v Lismore City Council [2024] NSWLEC 1143 Hearing dates: Conciliation conference held on 7 March 2024 Date of orders: 26 March 2024 Decision date: 26 March 2024 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application No 5.2020.78.1 (as amended) for the construction of a new Telstra mobile telecommunications facility comprising a monopole, antennas, ancillary equipment and an equipment shelter at Lot 471 DP 755718 known at 30 Crawford Road, East Lismore and adjacent Crown Road, subject to the conditions of consent at Annexure A. (3) The Respondent is directed to register the development consent on the NSW Planning Portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders. Catchwords: DEVELOPMENT APPLICATION – telecommunications facility – amendment to the proposed location – additional information – agreement between the parties – orders made. Legislation Cited: Biodiversity Conservation Act 2016, ss 7.2, 7.3, 7.7 Crown Land Management Act 2016 Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.20, 4.46, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Roads Act 1993, s 138 Civil Aviation Safety Regulations 1998, reg 139.370 Environmental Planning and Assessment Regulation 2000, cl 49 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 4, s 4.16 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.143 Lismore Local Environmental Plan 2012, cll 2.3, 6.2, 6.5, 6.9 State Environmental Planning Policy (Koala Habitat Protection) 2019 State Environmental Planning Policy (Koala Habitat Protection) 2021, cl 18 Cases Cited: TPG Telecom Limited v Inner West Council [2023] NSWLEC 1778 Texts Cited: Department of Planning and Environment, NSW Telecommunications Facilities Guideline Including Broadband, July 2010 Department of Planning and Environment, NSW Telecommunications Facilities Guideline Including Broadband, October 2022 Lismore City Council Community Engagement Strategy 2019 Lismore City Council Comprehensive Koala Plan of Management for South-East Lismore 2013 NSW Rural Fire Service, Planning for Bush Fire Protection, November 2019 Category: Principal judgment Parties: Telstra Corporation Limited (Applicant) Lismore City Council (Respondent) Representation: Counsel: H Irish (Applicant) A Seton (Solicitor) (Respondent) Solicitors: King & Wood Mallesons (Applicant) Marsden Law Group (Respondent) File Number(s): 2022/306967 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is an appeal brought by Telstra Corporation Limited (Applicant) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the actual refusal of their development application (DA 5.2020.78.1). As lodged, the development application seeks consent for tree removal and the construction of a mobile phone base station (telecommunications facility) comprising a 35m high monopole with an associated equipment shelter and access track. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on and terminated on 27 March 2023. 3. On 6 July 2023, the development application was amended by Notice of Motion. The parties have continued without prejudice discussions and have reached an agreement as to the resolution of the contentions in the proceeding. The parties' agreement is for the grant of consent to the application, as amended, subject to conditions. 4. The amended development application incorporates the following changes to the development: 1. the proposed telecommunications facility was relocated to a lower elevation entirely within the MU1 Mixed Use zone (formerly B4 Mixed Use) of the Lismore Local Environmental Plan 2012 (LEP 2012); 2. as a consequence of the revised location, no koala feed trees were proposed to be removed and accordingly no compensatory planting was required or proposed; 3. the height of the monopole was increased to account for the lower elevation and to achieve the radiofrequency requirements that will service the target area; 4. the proposed access track to the telecommunications facility from Crawford Road was relocated from the existing access track (that traversed Crown land over which an Aboriginal land claim had been lodged) to be via the unformed Crown road to the west of the site; and 5. associated works for the proposed access track, including the removal of 14 trees in the unformed Crown road (9 Camphor Laurels and 5 Norfolk Island Pine trees). 1. A further conciliation conference was arranged on 7 March 2024. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that: 1. As the development application was lodged on 17 March 2020 the Environmental Planning and Assessment Regulation 2000 (EPA Reg) still applies. The owner of the land has provided consent to the lodgement of the development application: cl 49 of the EPA Reg. 2. The development application was notified in accordance with Lismore City Council's Community Engagement Strategy 2019 from 20 March to 6 May 2020. Thirty-eight submissions and one petition were received in objection to the application. The amended development application was renotified by the Respondent. I am satisfied that the submissions received have been considered in the determination of the development application by either amendment to the application or in the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act. 3. The development application is integrated development pursuant to s 4.46 of the EPA Act as consent is required under s 138 of the Roads Act 1993 for the carrying out of works within an unformed Crown Road to the west of the Site. On the 22 August 2023 the Minister administering the Crown Land Management Act 2016 issued the General Terms of Approval, which are included in the annexed conditions of consent. 4. The site is mapped as being partly bush fire prone land. Pursuant to s 4.14 of the EPA Act development consent cannot be granted on bush fire prone land unless the consent authority: … (a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or (b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements. 1. Section 8.3.7 of Planning for Planning for Bush Fire Protection provides that: 1. essential telecommunication infrastructure should be designed in such a way as to minimise the impact of bush fires and ensure that communications capabilities are not compromised during bush fire emergencies; 2. bushfire protection measures should be commensurate with the bush fire risk and criticality of the infrastructure; 3. there should be a minimum Asset Protection Zone (APZ) around the tower; and 4. telecommunication towers should be constructed from non-combustible materials and designed to mitigate the risk of flame damage, ember attack and radiant heat. 1. The development application confirms that an APZ is proposed, and that the telecommunications facility will itself not increase risk of bushfire given that it will not emit undue heat, sparks or open flame and will be made of concrete and has been designed to be impervious to fire damage and will retain its structural integrity during a bushfire event. 2. In accordance with s 4.14(1)(a) of the EPA Act, the parties agree, and I accept, that I can be satisfied that the development conforms to the relevant specifications and requirements and that an appropriate condition would be imposed on the grant of development consent (condition 5) to ensure compliance with this section. 3. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) came into force on 1 March 2022 and applies to the development. Clause 2.143(1) of the SEPP TI provides that development for the purposes of a telecommunications facilities (with specified exceptions) may be carried out by any person with consent on any land. That is, the SEPP TI allows 'telecommunication facilities' to be undertaken irrespective of whether this form of development is permissible in the relevant zone. 4. Pursuant to cl 2.143(2) of SEPP TI 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. Those guidelines are the NSW Telecommunications Facilities Guideline Including Broadband dated July 2010 (the 2010 Guidelines) and the NSW Telecommunications Facilities Guideline Including Broadband dated October 2022 (the 2022 Guidelines). Despite the 2022 Guidelines not being published in the Gazette, applying the reasoning in TPG Telecom Limited v Inner West Council [2023] NSWLEC 1778 at [36] the Guidelines are a consideration under s 4.15(1) of the EPA Act but that consideration is focussed on the site proposed by the development application. The Statement of Environmental Effects, which forms part of the development application, includes an assessment against the principles in the 2010 and 2022 Guidelines. In determining the development application, I have taken into consideration the 2010 and 2022 Guidelines as required by SEPP TI. 5. Pursuant to LEP 2012 the site is zoned MU1 Mixed Use and C3 Environmental Management. As required by cl 2.3(2) of LEP 2012, in determining the development I have given consideration to the zone objectives, as extracted below: Zone MU1 Mixed Use 1 Objectives of zone • To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities. • To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To encourage business, retail, community and other non-residential land uses on the ground floor of buildings. • To encourage a range of housing within a vibrant mixed use environment that is accessible to community facilities, commercial services and transport. Zone C3 Environmental Management 1 Objectives of zone • To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. • To provide for a limited range of development that does not have an adverse effect on those values. • To encourage the retention of wildlife habitats and associated vegetation and wildlife corridors. 1. Clause 6.2 'Earthworks' in LEP 2012 requires the consent authority to have regard to matter listed at subcl (3). Having considered those matters I accept the agreement of parties that none warrant the refusal of the application or that the approval of the development application would have a detrimental impact on those matters. 2. Clause 6.5 'Airspace Operations' requires that if the proposed development will penetrate the Limitation or Operations Surface for Lismore Airport, consultation is required with the Civil Aviation Safety Authority (CASA) prior to determination. On 26 February 2024, CASA wrote to the parties advising that the Amended Development Application has been determined to not be a hazardous object to aircraft operations under the reg 139.370(1) of the Civil Aviation Safety Regulations 1998. Accordingly, no marking or lighting requirements are required for the Proposed development. I am satisfied the airspace operations requirements under cl 6.5 of LEP 2012 are met. 3. Clause 6.9 'Essential Services' of LEP 2012 provides that development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required: (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access. 1. The parties agree, and I accept, that only the supply of electricity is essential to the development. Power is proposed to be supplied to the site via an underground route from the nearby electricity substation. I am satisfied the essential services requirements under cl 6.9 of LEP 2012 are met. 2. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), a consent authority must not grant consent to a development unless it has considered whether the Site is contaminated, and if the land is contaminated, is satisfied that the site is suitable (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. The Statement of Environmental Effects addresses the history and risk of contamination of the site. The parties agree, and I accept that the site has a low risk of contamination and is suitable for the proposed development. 3. Section 7.7(2) of the Biodiversity Conservation Act 2016 (BC Act) requires a biodiversity development assessment report (BDAR) to accompany an application for development consent if the proposed development is likely to significantly affect threatened species. The test for determining whether proposed development or activity is likely to significantly affect threatened species or ecological communities, or their habitats, is set out in ss 7.2 and 7.3 of the BC Act. 4. An Ecological Assessment Report has been prepared by Travers Bushfire & Ecology dated 29 June 2023. This report concludes that a BDAR and associated biodiversity offsetting is not required on three grounds. Firstly, the proposed development and access road is not located on lands mapped as Biodiversity Values Land. Secondly, the proposed clearing of 0.17ha of planted native vegetation does not trigger the biodiversity offset scheme and finally, a significant impact will not be caused by the proposed facility. The parties agree, and I accept, that a BDAR is not required. 5. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) came into force on 1 March 2022. Chapter 2 of SEPP BC applies as the Site is situated within an MU1 Mixed Use zone under LEP 2012. The development application seeks consent for the clearing of 0.17ha planted native vegetation, comprising 14 trees consisting of 9 Camphor Laurels and 5 Norfolk Island Pines. The parties agree, and I accept, that the development application is consistent with the aims and requirements of SEPP BC. 6. The State Environmental Planning Policy (Koala Habitat Protection) 2019 (Koala SEPP 2019) commenced on 1 March 2020. The State Environmental Planning Policy (Koala Habitat Protection) 2020 (Koala SEPP 2020) commenced on 30 November 2020, after the date of lodgement of the development application. 7. Koala SEPP 2020 applies to the Site given it repealed the Koala SEPP 2019 and did not contain any savings and transitional provisions regarding existing development applications lodged prior to its commencement. 8. The Koala SEPP 2020 was repealed by the State Environmental Planning Policy (Koala Habitat Protection) 2021 (Koala SEPP 2021) which is now Ch 4 of SEPP BC. However, both the Koala SEPP 2021 and Ch 4 of SEPP BC include savings and transitional provisions regarding existing development applications lodged but not finally determined prior to their commencement (cl 18 and s 4.16 respectively). As such, the Koala SEPP 2020 continues to apply in respect of the development application. 9. The Koala SEPP 2020 requires that before granting consent to a development application, the council must be satisfied as to: 1. whether or not the land is a potential koala habitat; and 2. if it is, whether or not the land is core koala habitat; and 3. if it is, that there is a plan of management prepared in accordance with Part 3 of that chapter that applies to the land. 1. The Ecological Assessment Report (as referenced in par [5(17)] above) concludes that the land is potential koala habitat and core koala habitat. The parties agree, and I accept, that I can be satisfied that: 1. there is a plan of management prepared in accordance with the Koala SEPP 2020 that applies to the land, namely the Comprehensive Koala Plan of Management for South-East Lismore; and 2. the grant of development consent is not inconsistent with this plan of management. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes the Applicant agrees to pay the Respondent's costs thrown away by the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $11,000 in full and final settlement of costs in the proceedings within 21 days of the date of the following orders. 4. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application No 5.2020.78.1 (as amended) for the construction of a new Telstra mobile telecommunications facility comprising a monopole, antennas, ancillary equipment and an equipment shelter at Lot 471 DP 755718 known at 30 Crawford Road, East Lismore and adjacent Crown Road, subject to the conditions of consent at Annexure A. 3. The Respondent is directed to register the development consent on the NSW Planning Portal in accordance with section 4.20(1) of the Environmental Planning and Assessment Act 1979 within 14 days of the date of these orders. D Dickson Commissioner of the Court 306967.22 Annexure A ********** 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: 26 March 2024