Telstra Corporation Limited v Cessnock City Council [2012] NSWLEC 1307

Land and Environment Court New South Wales

Medium Neutral Citation: Telstra Corporation Limited v Cessnock City Council [2012] NSWLEC 1307 Hearing dates: 9 October 2012 Decision date: 09 October 2012 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is upheld. 2. Development Application 8/2011/815/1 for the erection of a telecommunications base station facility (mobile phone tower) and associated infrastructure at 40 Francis Street, Cessnock (Lot 1 DP 1164334) is approved and development consent is granted, subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits A, B and C. Catchwords: CONSENT ORDERS: telecommunication tower - resident concerns over visual impact, health impacts and lack of consideration of alternate sites Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Infrastructure) 2007 Texts Cited: New South Wales Telecommunication Facilities Guidelines Including Broadband July 2010 Category: Principal judgment Parties: Telstra Corporation Limited (Applicant) Cessnock City Council (Respondent) Representation: Ms S Duggan SC Limited (Applicant) Mrs L Finn, solicitor (Respondent) Solicitors King and Wood Mallesons (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10787 of 2012

Judgment 1COMMISSIONER: This appeal relates to the refusal of Development Application No. 8/2011/815/1 by Cessnock City Council (the council) for the construction of a telecommunications tower and associated base station at 40 Francis Street, Cessnock (the site). 2The proposal comprises the following elements, * new 30 m high monopole; * initial installation of three new panel antennas, each measuring 2.6 m in length and mounted at RL 30 on the new monopole; and * construction of a 3 m x 2.5 m equipment shelter near the base of the monopole to be enclosed by security fencing. 3The site is an irregular shape lot with a frontage of 20 m to Francis Street and an overall site area of 99.84 ha. The location of the proposed tower is to the rear of the existing water reservoir and the residential property known as 61 Keelendi Road. The site is currently vacant. 4The surrounding properties are characterised by dwelling houses in an urban setting to the north and west of the proposed tower location while land to the east and south of the site has previously been used for mining purposes and has a rural zoning. The closest residential property is approximately 40 m to the west of the site and is separated by tall significant vegetation. 5The legal assessment framework is set out in considerable detail in the council officers in a report of 2 May 2012 and it is unnecessary to repeat the details beyond stating that the application is permissible by way of State Environmental Planning Policy (Infrastructure) 2007 and the application is required to consider the New South Wales Telecommunication Facilities Guidelines Including Broadband (July 2010). 6Prior to the hearing the council decided to enter into Consent Orders. In this regard the Court's Practice Note Class 1 Development Appeals (the Practice Note) relevantly provides [at 46]: 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 7In summary, the Practice Note requires: * evidence to show that approval is lawful and appropriate including whether any statutory provisions have been complied with; * whether any objection has properly been taken into account; and * whether reasonable notice has been given to all persons who objected to the proposal, the date of the hearing and the opportunity to be heard at the hearing. 8In this case, the council officers report of 2 May 2012 comprehensively addresses the statutory assessment framework. The report also addresses the concerns of local residents who provided submissions on the application. I note that the council officers report recommended approval of the application however the refusal of the application was made by the elected members of the council. 9I am satisfied that, based on the council officers report, that the approval is lawful and appropriate. The documentation tendered to the Court (Exhibit 1) provided details on the notification to the objectors of the Consent Order hearing and provided an invitation to be heard at the hearing. The notification was dated 18 September 2012 and also contained the terms of the Consent Orders. 10The opportunity to be heard at the hearing was taken up by Mr Colin Steele, a local resident. Mr Steele provided oral evidence by way of telephone at the hearing. His concerns can be summarised as opposing the application for the following main reasons: * potential health hazards through electromagnetic radiation; * the unsightliness of the structure in a residential area; and * lack of consideration of alternate sites. 11Of the matters raised by Mr Steele, I note that these matters are fully addressed in the council officers report and I concur with conclusions reached in that report. Additional evidence was also provided by the applicant from Mr Brett Brown, a town planner, and Mr Ivan D'Amico, a Radio Frequency Design and Optimisation Engineer with Telstra. 12Relevantly Mr Brown states in his report (Exhibit D): 6.1. The proposal is essential infrastructure that cannot be suitably sited in an alternate location. 6.2. The facility is well removed from existing dwellings and is screened by existing vegetation in views from these dwellings. This will be supplemented by further planting around the perimeter of the facility. 6.3. As can be seen on the Photomontages the proposed tower is not highly visible from the public areas near the site. It is screened by existing development and vegetation in these views and can simply be seen as another piece of essential infrastructure found in this urban setting including electricity wires, poles and very high televisions aerials." 13Relevantly Mr D'Amico states in his affidavit (Exhibit E): 23. The site selection process and review of potential sites confirm there is no alternative to installing a facility at the proposed site that will achieve Telstra's RF coverage for the Target Area." . 31. Based on the Environmental EME Assessment Report for the facility the maximum EME level at 1.5 m above ground is estimated to be 0.11% of the exposure limits for the general public specified in the ARPANSA standard. 14The undisputed evidence of Mr Brown and Mr D'Amico support the conclusion of the council officers report and consequently there is no basis to make the Consent Orders.