Land and Environment Court of New South Wales CITATION : Vodafone Network Pty Limited v Randwick City Council [2008] NSWLEC 1127 APPLICANT Vodafone Network Pty Limited PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 11053 of 2007 CORAM: Hussey C KEY ISSUES: Development Application :- Telecommunication facility, visual amenity, health and safety, public interest LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Randwick Local Environmental Plan 1998 Connell Wagner Pty Ltd v Sutherland Shire Council [2005] NSWLEC 8 CASES CITED: Telstra Corporation Ltd v Leichhardt Municipal Council [2007] NSWLEC 571 Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 DATES OF HEARING: 30/01/2008 DATE OF JUDGMENT: 11 April 2008 APPLICANT Mr P. Clay, barrister instructed by Mr M. Dean of Corrs Chambers Westgarth LEGAL REPRESENTATIVES: RESPONDENT Ms A. Pearman, barrister instructed by Mr C. McFadzean of Shaw Reynolds Bown & Gerathy JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 11 April 2008 11053 of 2007 Vodafone Network Pty Limited v Randwick City Council JUDGMENT Background. 1 Vodafone has appealed against council's refusal of a development application for the construction and operation of a telecommunications facility, incorporating a 19.4m monopole at the south-western corner of Wassell Street and Franklin Street, Matraville. 2 The issues identified for the appeal are: o The height and scale of the development and its compatibility with the surrounding locality. o Visual impacts. o Health and safety impacts. o Amenity. o Public interest. The site. 3 The site is located at 145 – 149S Franklin Street, Matraville and currently contains a 33/11 zone sub-station. It has a total area of 1959 sq m. 4 The site is relatively level, however slopes steeply from the western facing wall of the substation to the western boundary. A cluster of 3 casurina trees, approximately 13m high occupy the Franklin Street frontage. The proposal. 5 The initial proposal for the telecommunications facility comprised a 19.4m monopole supporting 3 panel antennas in the form of a cluster mount (amounting to a total height of 22m including antennas) and installation of 1 equipment cabin and other ancillary works including earthworks, cabling, electrical and air conditioning at the Energy Australia substation. 6 During the appeal, the applicant amended the proposal by reducing the monopole height to 18m. The pole tapers from a 690mm diameter at the base to approximately 500mm at mid-height. The lower 10m of the pole is to be painted grey/green and the upper section light blue/grey. Planning controls. 7 Randwick Local Environmental Plan 1998. Under this LEP the site is zoned No 5 (Special Uses Zone). The proposed activity is defined as a "community facility" and is permissible with consent. 8 Clause 37A deals with development in Special Use Zones as follows: The Council may grant consent to the development of land within Zone No 5 only if it is satisfied proposed development is compatible with the character of the locality and will not adversely affect the amenity of nearby and adjoining development. Purpose: To ensure that consideration is given to the impact of development proposals within the Special Uses Zone on other development and uses in the locality. This clause should reduce the potential for adverse impact on nearby development and on the amenity and character of the locality. 9 Telecommunications and Radiocommunications DCP; This DCP provides controls and guidelines for the siting, design and installation of telecommunications facilities that require development consent. The DCP contains a number of objectives including: o minimise EMR exposure to the public, o ensure that the general public and local communities have access to telecommunications technology. o achieve equity for the various stakeholders by endeavouring to balance their various needs, … 10 The design controls in part 6 deal with minimising visual impacts of the facility in a number of ways, including: o by ensuring that the scale of the facility is in keeping with the locality, bearing in mind that the scale may be affected by the intended coverage of the facility. The Evidence 11 Detailed evidence was given by Mr A Bell, the project manager for this development. He said that the facility was required to provide for upgrading to the 3G network. The facility would provide better coverage to the Matraville area, particularly to 'black spot areas' that currently do not receive satisfactory service. He supported this by reference to the existing network coverage plans in exhibit D. 12 Mr Bell also said that alternative sites in Military Road and the nearby industrial area had been assessed but did not offer the same level of service. Also, that the necessary level of coverage could not be achieved by "boosting" the existing transmitter 9401 and that the required level of coverage could not be achieved utilising telegraph poles because they are too low. 13 A considerable number of objections, both written and oral, were lodged against the proposal. These objections were from residents surrounding the site, who expressed dissatisfaction with the visual amenity of the facility and potential health and safety risks. 14 The varying degrees of visual impact were assessed at the site inspection. This was on the basis of the 19.4m monopole, with a mid-height diameter in the order of 500mm and with the 277 mm wide cluster head mount. The view also took into account the effect of the existing sub-station building, topography of the land and screening effects of mature vegetation in Franklin Street. 15 The objections from the Franklin Street service road residents concerned potential radiation impacts and unsatisfactory visual amenity. However from observations at the view, it is apparent that there is a band of mature vegetation on the northern side of Franklin Street, which substantially screens the facility. The potential view of the facility from these properties is from their front entries and not general living areas. Taking into account the separation distance is approximately 50m, the intervening vegetation and the pole is at an oblique angle, I do not consider the visual impacts on these properties sufficient to warrant refusal of the proposal. 16 Several residents from Blaxland Street expressed similar concerns. These properties are elevated, relative to the sub-station site and front onto the street. As such, their rear yards contain the main outdoor private open space areas and are unlikely to be significantly impacted on by observation of the facility. 17 However, I accept that from many positions in the front setback area of these properties, the pole will be seen. But in my opinion, due consideration should be given to the fact that the pole is at an oblique angle from the front orientation of these properties, whose primary outlook is towards other residential dwellings. If there is a particular view attraction in the direction of the pole, then this is within the backdrop of the significant loading and non-residential structures that are associated with Botany Bay operations. In this context and taking into account the separation distances to the relatively slender pole, I do not consider the view impacts on these properties sufficient to warrant refusal. 18 There are other properties fronting onto Wassell Street that will have a more direct view of the facility. However, these dwellings have their main outdoor areas at the rear, which significantly limits the sighting opportunities of the structure. Also, the front setback areas are landscaped and it appears to me that viewing of the structure from inside the dwellings would be limited. 19 Notwithstanding this, I accept that the structure will readily sighted from outside the front of these properties. But again the direction of view is towards the Botany Bay backdrop, which includes the dominant loading structures in most of the view corridors. Whilst, the facility is closer to these properties, nevertheless it appears connected to the substation and allowing for its slender design and recessive colours, I do not consider the visual impacts sufficient to warrant refusal. 20 The other substantive issue concerned the possibility of health and safety risks from exposure to forms of radiation. These risks are possible from excessive exposure to radiofrequency (RF) electromagnetic energy (EME). 21 However, EMC Technologies independently assessed the initial application in terms of the potential health and safety risks by calculating the EME at 1.5m above the ground. The results were assessed against the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) safety standards. This resulted in the proposed facility having a predicted EME of 0.0482% of the APANSA standard, which readily satisfies the health and safety criteria. 22 Additionally, the Court was informed that this prediction is conservative because the assessment was based on the facility operating at 100%, whereas the actual operation would generally be 40%. Also, the assessment did not include possible radio attenuation from buildings or the topography. 23 I rely on this expert evidence that the predictions for EME are relatively small and demonstrate comfortable compliance with the APANSA health and safety standards. Therefore I do not consider the application should be refused on these grounds. Conclusions 24 Having considered the evidence, the submissions and undertaken a view, I am satisfied this proposal, which has been modified to reduce the height of the monopole to 18m, merits conditional consent. 25 The primary submission for Council is whether the facility needs to be there at all. This is on the basis that coverage is available from other providers. However it seems these other providers are "agents" for the service and this facility is to allow the main carriers Vodafone and Telsta to upgrade telecommunication services to this area, where there are 'black spots' of none or poor service. 26 Accordingly, I am satisfied to rely on Mr Bell's evidence that the proposal enables the expansion and upgrade to the 3G network is a positive public benefit, which achieves the social objective to ensure that the general public and local communities have access to telecommunication technology. 27 The next issue concerns the size of the facility and result in visual amenity impacts on the character of the locality. The locality comprises: o The subject site on the corner of Wassell and Franklin Streets, which contains the existing 'industrial type' substation building. o The area to the east of Wassell Street comprises mainly low density dwellings. o The adjacent area to the west of Wassell Street is mainly open space containing some market gardens. Beyond this are residential properties with the Botany Bay loading structures forming a significant backdrop. 28 In assessing the impact, I taken account that: o The monopole facility will be connected to the existing substation building, which provides some lower-level screening and that it will present as a compatible element. o The pole has a tapered profile varying from 690mm diameter at the base to approximately 500mm diameter at mid-height. o The height of the pole has been reduced to 18m and is to be painted in recessive colours of grey/green for the lower 10m and light blue/grey for the upper section. o There is substantive mature vegetation along Franklin Street, which provides a screen to some of the adjacent properties. o The existing casuarinas also provide screening of the facility from viewing positions to the north. 29 In accordance with my previous assessment of the visual impacts from the various properties inspections, I do not consider the visual impacts on this locality, of such magnitude to warrant refusal. 30 When the facility is viewed from a reasonable distance in an easterly direction, the height of the structure is within the vegetative backdrop and does not penetrate the skyline. Then, where the structure is viewed in a westerly direction it will be predominantly within the backdrop of the visually the dominant Botany Bay loading structures. 31 Accordingly, my assessment is that this relatively slender pole and head facility will blend with the surrounding area, so as to be compatible with the locality where there is a predominance of power poles and other non-residential structures in many of the view corridors. 32 In this regard, I have also considered the assessment report in councils bundle of documents, where the in the assessing planner concluded that: "the proposed monopole would have little, if any, visual impacts on the immediate area. While visible, the measures undertaken by the applicant would minimise visual impacts on the adjoining residential development and the streetscape. In this regard, visual impact of the proposed development is considered acceptable". 33 Insofar as the Court was referred to other similar cases, firstly there is the matter of Connell Wagner Pty Ltd v Sutherland Shire Council [2005] NSWLEC 8, in which I presided. However, the circumstances were quite different with the proposed telecommunications facility proposed to be built in the Royal National Park and penetrating the skyline, resulting in considerable visual intrusion and incompatibility with the character of the park. 34 In the matter of Telstra Corporation Ltd v Leichhardt Municipal Council [2007] NSWLEC 571, Commissioner Murrell refused a development for a telecommunications facility on the various grounds, including inconsistency with council's planning regimes and unreasonable intrusion into the neighbourhood. However, the Randwick DCP acknowledges there will be some visual and amenity impacts from these facilities and provides design controls to balance these impacts, relative to the public benefits derived from provision of telecommunications infrastructure. For the reasons stated, I consider this proposal reasonably satisfies the visual impact controls, particularly ' that the scale of the facility is in keeping with the locality, bearing in mind that the scale may be affected by the intended coverage of the facility'. 35 Submissions were also made regarding Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133, where The Chief Judge at paragraphs 220 -222 dealt with the visual impact of antennas extending above the roof line of a club house. But he concluded they will have little, if any visual impact on the immediate area and will generally be seen as part of the club house over time. I consider a similar acceptance of the proposed relatively slender monopole, attached to the obvious substation building will also occur over time. 36 In the ultimate then, I consider the application reasonably satisfies cl 37A of the LEP and relevant provisions of the DCP to merit consent. 37 Court Orders 1 The appeal is upheld. 2 Development consent is granted to DA /639/2005 for the construction of a telecommunications facility at 145-149S Franklin Street, Matraville, subject to the conditions in annexure A. 3 The exhibits may be returned except for A and 3. ___________________ R Hussey Commissioner of the Court ljr 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.