Telstra Corporation Limited (ACN 051 775 556) v Newcastle City Council [2007] NSWLEC 371

Land and Environment Court of New South Wales

CITATION : Telstra Corporation Limited (ACN 051 775 556) v Newcastle City Council [2007] NSWLEC 371

APPLICANT: PARTIES : Telstra Corporation Limited (ACN 051 775 556) RESPONDENT: Newcastle City Council

FILE NUMBER(S) : 10124 of 2007

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Location of a telecommunications tower Impact on the amenity of the public park

Newcastle Local Environmental Plan 2003, (NLEP) LEGISLATION CITED: Hunter Regional Environmental Plan 1989, (HREP) Newcastle Development Control Plan 2005, (NDCP) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 18/06/2007

DATE OF JUDGMENT: 21 June 2007

APPLICANT: Mr A E Galasso, SC, instructed by Ms A L Walker, solicitor SOLICITORS: LEGAL REPRESENTATIVES: Blake, Dawson Waldron RESPONDENT: Ms N L Simmons, solicitor SOLICITORS: Sparke Helmore

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

21 June 2007

10124 of 2007 - Telstra Corporation Limited (ACN 051 775 556) v Newcastle City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Newcastle City Council (the council) to refuse a development application to erect a telecommunications facility at Lot 3173, DP 755247, being No 51 Karoola Road, Lambton, NSW. The council now seeks a consent award. 2 I have concluded that the consent orders sought by the parties may be endorsed, and I grant consent subject to conditions. The land 3 The land that is owned by the State government under auspices of the Lands Department of NSW is situated on the western side of Karoola Road, and is leased by the Crown to the Lambton Bowling Club. The land is irregular in plan shape with a frontage to Karoola Road of 37.3m, and depth of 131.49m giving an area of some 9,611m2 with the area of development being only 40.68m2. 4 There is a car park on the land that falls from the Karoola Road frontage towards the rear. The actual site of the proposal would be in the northwestern corner of the land in an area that is relatively flat. 5 Lambton Park extends to the north and west of the subject land and there is a concrete stormwater channel immediately adjacent to the west. Lambton Pool adjoins to the south and there are residential properties located to the east on the opposite side of Karoola Road. Relevant planning controls Newcastle Local Environmental Plan 2003, (NLEP) 6 Under the provisions of the NLEP the land is zoned 6(a) Open Space and Recreation and the proposal as a 'utility undertaking' is permissible with consent. Hunter Regional Environmental Plan 1989, (HREP) 7 The HREP applies to the land. Newcastle Development Control Plan 2005, (NDCP) 8 The NDCP applies to the land. The proposal and its history 9 Development application No 05/0559 was lodged by Telstra, with the respondent council on 8 April 2005 to erect a freestanding telecommunications facility on the land including: · the erection of a 23.5 metre high slimline steel pole with six panel antennas; and · the construction of a steel 'Colourbond' equipment shelter to house electrical equipment associated with the facility, [Note: Exhibit B, Tab 1]. 10 Six Telstra 'Argus' antennas would be collar mounted in two groups of three panels. The base of the lower and upper groups of antennas would be 20.31m and 22.905m respectively. Each antennae would be 370mm wide and 2095mm high. The equipment hut would be 3.28m x 2.28m in plan and 2.8m high and would be finished in 'Colourbond' 'Wilderness Green' to complement the predominant colours of the landscape and the bowling club structures. Security fences would surround the Telstra compound that would be adjacent to the bowling club's water tank. The sunshade pole support for Bowling Green No 2 would be located outside the compound. 11 The Department of Lands issued owner's consent by letter dated 21 March 2005 for the installation of telecommunications equipment on the land, [Note: Exhibit B, Tab 1]. Notification 12 The application was publicly notified in accordance with the Council's Public Notification policy from 27 April 2005 to 11 May 2005 and the council received twenty-seven (27) proforma letters, as well as a submission from the New Lambton Residents Association and two petitions with a total of 50 signatories (one petition from the Lambton Seniors Association). A Public Voice Session was also held. 13 Concerns raised by objectors included the following: · the need for the facility; · development at Lambton Park should be limited; · heritage issues; · visual impact; · suitability of the site; · impact of the proposal on future park improvements and the existing recreational uses off the park; · clarification of construction period and access; · alternative locations; · health effects, EME and radiation; · graffiti; · recent court cases; · property values; · potential for expansion; and · public notification. 14 The development application was forwarded to the Department of Infrastructure, Planning and Natural Resources on 28 April 2005, and the department advised the council that the development did not require a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948. 15 The Development Application was forwarded to the Department of Lands on 10 May 2005 seeking comment and the council did not receive a response. 16 The council's planning officers recommended approval of the development application in a report dated 21 February 2006. However the council refused the application by notice dated 28 February 2006. 17 The applicant submitted an application for a s 82A review on 5 April 2005 and this was further notified and the council received 10 submissions and 131 proforma style letters raising the following issues: · visual impact; · permissibility; · justification for the proposal; · review of the decision; · health issues; · park values; · impact on park improvements; · impact on property values; · land and environment court proceedings; · existing mobile phone facilities should be improved rather than constructing new facilities. 18 In a letter to the council dated 16 May 2005 the NSW Department of Commerce noting that the land is of local heritage significance. The department commented that the statement of heritage significance provided with the application is adequate to assess the application, and considered that the siting of the proposed pole structure near and amongst existing 12m high lighting poles "…mitigates the impact, …the height of the structure will have a visual impact wherever it is sited." The department specified colours for the tank and the building. 19 In a report dated 20 May 2005, Ms G Schofield, environmental protection officer of the council on behalf of the ESU (Electromagnetic Survey Unit) raised no objection to the 2G-system proposal on environmental grounds. The maximum predicted ground level radiofrequency EME of 0.7% of the ACA mandated exposure level would be likely to occur 104m from the proposal. At the nearest residence in Howe Street the predicted EME level would be 0.215% of the ACA mandated exposure limit. At the nearest residence in Karoola Road 149m from the proposal the maximum predicted EME level would be 0.395% of the ACA mandated exposure level. The unit concluded that this 2G-system proposal would readily comply with the ACA mandated exposure limits for EME and standard and a non-standard conditions were recommended be applied to any consent. These conditions were incorporated in the draft conditions and the non-standard condition, Condition 1.2, was further amended during the hearing. 20 In accordance with the Court's directions of 12 April 2007, the council further notified amendments to the application, made after commencement of these proceedings and further submissions were received. The council's decision 21 When the appeal was filed on 16 February 2007, the council had not determined the application. However, by notice dated 28 February 2006 the council formally refused the application for two reasons. 22 In respect of the s 82A review the council resolved to confirm its original decision to refuse the development application and be letter dated 2 June 2006 the applicant was notified of the reasons for refusal: 1. The location, within open space zoned land is not suitable for the erection of a telecommunications tower. 2. The impact on the amenity of the public park, which is used by a large number of local residents and visitors. The hearing 23 The appeal was filed on 16 February 2007. 24 At the hearing the court heard evidence on behalf of the respondent council from: · Mr G R Taylor, resident of No 13 Fitzroy Road, Lambton; · Ms L Alexander, resident of No 58 Karoola Road, Lambton; · Ms D Orlandi, resident of No 52 Karoola Road, Lambton.