Land and Environment Court New South Wales Medium Neutral Citation: Telstra Corporation Limited v Coffs Harbour City Council [2014] NSWLEC 1254 Hearing dates: 18,19,20 November 2014 Decision date: 09 December 2014 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed. 2. Development Application 176/14 for construction of a mobile telecommunications base station including a monopole and six panel antenna at 41 Moonee Street Coffs Harbour is refused. 3. The exhibits, with the exception of exhibit 4 are returned. Catchwords: DEVELOPMENT APPLICATION: construction of a new mobile telecommunications base station including a monopole and six panel antenna - whether application must be refused as a masterplan has not been prepared and approved - unacceptable visual and streetscape impacts - unacceptable Electromagnetic Radiation and Electromagnetic Interference impacts - inadequate consideration of alternate sites Legislation Cited: Coffs Harbour City Centre Local Environmental Plan 2011 Coffs Harbour Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Telstra Corporation Limited (Applicant) Coffs Harbour City Council (Respondent) Representation: Ms S Duggan SC (Applicant) Mr R O'Gorman-Hughes, Barrister (Respondent) King & Wood Mallesons (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10300 of 2014 Publication restriction: No Judgment 1COMMISSIONER: This is an appeal against the refusal of Development Application 176/14 for construction of a new mobile telecommunications base station comprising a 30 m monopole accommodating six panel antennas giving a total height of 37.40 m. Provision is made for three future panel antennas to be mounted at a height of 30 m although consent is not sought for these panel antenna. Additional facilities for the tower and antenna are to be located within the existing Telstra building on site. 2The location for the tower and antenna is Lot 1 in DP 786867, being 41 Moonee Street Coffs Harbour. The property is owned by the applicant and is used for telecommunications activities (the Telstra site). The Telstra site has two road frontages comprising Moonee Street and Grafton Street (Pacific Highway) and has a total site area of 1326 sq m. Access to the site is from Moonee Street. The land is level and includes an existing three storey brick building and associated car parking. A single storey brick building used for the sale of tyres adjoins the site on the southern boundary. 3The predominant built form character within the area is commercial with a general height of around two storeys, however there are a limited number of multi-storey buildings within the area, including an eight storey commercial building around 45 m from the Telstra site. Relevant planning documents 4The site is currently within Zone B3 Commercial Core under Coffs Harbour Local Environmental Plan 2013 (LEP 2013) which was gazetted on 27 September 2013. A telecommunications facility is a permissible use with consent in this zone. 5Clause 1.8A of LEP 2013 is relevant and states: 1.8A Savings provision relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. 6The development application was lodged around 29 August 2013 and determined by refusal on 12 November 2013 and as such, had not been "finally determined" at the coming into effect of LEP 2013 on 27 September 2013. Consequently, cl 1.8A applies. 7The environmental planning instrument in existence prior to the coming into effect of LEP 2013 was Coffs Harbour City Centre Local Environmental Plan 2011 (LEP 2011) where the site was zoned B3 Commercial Core. A telecommunications facility is a permissible use with consent in this zone. 8Clause 2.3(2) states: (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. 9The objectives of the zone are: · To provide a wide range of retail, business, office, entertainment, community and other suitable land uses that serve the needs of the local and wider community. · To encourage appropriate employment opportunities in accessible locations. · To maximise public transport patronage and encourage walking and cycling. · To ensure that the scale and nature of future development reinforces the role of the Coffs Harbour Central Business District as the primary commercial, employment and retail centre in the region. · To ensure that the design of new commercial buildings makes a positive contribution to the streetscape, through opportunities for improved pedestrian links, retention and creation of view corridors and the provision of a safe public domain. 10It was generally agreed that the principal environmental planning instrument for the assessment of the development application is LEP 2011. Clause 6.11 addresses Design excellence. While the council originally contended that cl 6.11(4) of LEP 2011 was not satisfied, in that development consent must not be granted because an architectural design competition had not been held, the council accepted that this requirement was now no longer relevant following certification from the Director-General, pursuant to cl 6.11(5) that exempted the proposed development from the requirements of this subclause. Clauses 6.11(2) and 6.11(8) are relevant. The site is part of an area identified as a Key Site on the Key Sites Map for cl 6.11(8). 11Other relevant documents are Coffs Harbour Development Control Plan 2013 (DCP 2013) that became effective on 2 October 2013, particularly Component E3 - Coffs Harbour City Centre and Coffs Harbour City Centre Masterplan 2031 (the 2031 Masterplan). 12State Environmental Planning Policy (Infrastructure) 2007 (the Infrastructure SEPP) applies. Division 21 provides requirements for Telecommunications and other communication facilities. Clause 115 addresses Development permitted with consent. The dispute 13The contentions raised by the council are: * the development application must be refused as the site as a masterplan has not been prepared and approved for the whole site, * the development application has unacceptable visual and streetscape impacts, * the development application has unacceptable Electromagnetic Radiation (EMR) impacts on occupants of future developments near the site, * the development application will create unacceptable Electromagnetic Interference (EMI) on existing and future electronic devises near the site, and * the applicant has not adequately considered alternate sites. 14The applicant maintains that a masterplan, for the purposes of cl 6.11(8), has been prepared and approved. Even if the Court does not accept this conclusion, approval can be granted pursuant to the Infrastructure SEPP. There are no matters relating to EMR, EMI or other suitable sites that would warrant the refusal of the application, based on their expert evidence. Does the proposal display design excellence? 15Clause 6.11(2) provides that: (2) Development consent must not be granted for development to which this clause applies unless the consent authority considers that the development exhibits design excellence. 16Clause 6.11(3) asks how the development addresses a range of matters set out in the subclause. 17Ms Duggan SC, for the applicant, submits that the proposed development has limited opportunity for further refinement in matters such as height, function and materials as these matters are fundamental to its proper operation. 18Mr O'Gorman-Hughes, for the council, submits that there are a number of matters in cl 6.11(3)(e), such as the suitability of the land for development (cl 6.11(3)(e)(i)) and the impact on, and any proposed improvements to, the public domain. (cl 6.11(3)(e)(xi)) that support the councils position. I did not understand Mr O'Gorman-Hughes to suggest that the application should be refused pursuant to cl 6.11(2). The concerns of the council that are similar to those matters in cl 6.11(3)(e) are addressed as part of the consideration of the other contentions. 19Expert evidence on this matter was provided by Dr Richard Lamb, for the council and Mr Nick Juradowitch, for the applicant. Dr Lamb states that the facility is an off the shelf design that is of a kind which would be acceptable in many contexts in which the quality of the built elements of the environment are less relevant, or where other similar linear infrastructure elements are present. In the chosen location, it will appear to be out of place, unattractive and alien. There are no similar structures in the vicinity. Dr Lamb does not consider that there is design merit in the tower and antenna, even taking into account its slim shape and streamlined form. It is a standard monopole with panel mounted antennas. The diameter of the pole depends on the height it needs to reach and stability, not on any architectural concepts. The structure is functional, utilitarian, generic and of not of any architectural merit. 20Mr Juradowitch states that the form and external appearance of the proposed tower and antennas offers the best design outcome for a facility of this type, in terms of visual and streetscape impact, having regard to the service function and its role as an item of essential communications infrastructure. A streamlined architectural form is adopted, using a slimline monopole in a neutral colour and of minimum diameter. A streamlined turret panel mounting form has been selected which minuses the bulk and visibility of the antennas within the urban setting. 21There was no dispute that cl 6.11(2) applies, however those matters in cl 6.11(3)(e) focus generally on design rather than any impacts in a broader context. The words "design excellence" must be considered in the context of the proposed development. It could reasonably be argued that a tower and antenna are a form of structure that fundamentally has little or no opportunity for design excellence. I agree with the evidence of both Dr Lamb and Mr Juradowitch that there is little, if any change that could be made to the design of the pole and antenna to improve its appearance even without contemplating the need to satisfy the coverage and capacity requirements of the applicant. On this basis, I would almost reluctantly conclude that the requirement in cl 6.11(2) is satisfied. Has a masterplan been prepared and approved? 22Clause 6.11(8) provides that: (8) If the proposed development is only for part of a key site identified on the Key Sites Map, development consent must not be granted to the development unless a master plan has been prepared and approved for the whole site. 23There was no dispute that the site is part of a Key Site identified on the Key Sites Map The Key Site is made up of the properties bounded by Moonee Street, the Pacific Highway and West High Street. Clause 11.6(8) places a barrier to the approval of the development unless the requirements in the sub-clause are satisfied. The matter in dispute is whether "a master plan has been prepared and approved for the whole site". I have taken that the words "whole site" to be a reference to the Key Site rather than the site of the development. 24Ms Duggan submits that the term "masterplan" is not defined in LEP 2011, in dictionaries or the Environmental Planning and Assessment Act 1979 (EPA Act). In any event, LEP 2011 is silent on what a masterplan is to achieve. Ms Duggan submits that in the absence of any particular definition of a masterplan, it should be seen as "something that provides a high level of detail". In this context, the 2031 Masterplan satisfies the requirements in cl 6.11(8). Ms Duggan submits that it does not matter whether additional lands are included beyond the site and the relevant Key Site. Alternatively, DCP 2013 could also satisfy cl 6.11(8). 25Mr O'Gorman-Hughes submits that the term "masterplan" in cl 11.6(8) is not satisfied by the 2031 Masterplan as this document does not specifically address the Telstra site but generally focusses on the public domain areas of the Coffs Harbour City Centre. Mr O'Gorman-Hughes further submits that DCP 2013 also does not satisfy cl 6.11(8) as the purpose of a DCP is to give effect to an LEP rather perform the role of a masterplan. On this basis, there is no power for the Court to consider the application under LEP 2011. 26In considering the different submissions, I accept the conclusions of Mr O'Gorman-Hughes for a number of reasons. First, cl 6.11(8) must have a purpose beyond the normal planning controls set out on LEP 2011 and DCP 2013 otherwise the subclause would have no work to do. Second, cl 6.11(8) makes specific reference to Key Sites. While Ms Duggan is correct in that LEP 2011does not provide any meaning for the word "masterplan", some guidance can be found in cl 6.11(4) where Key Sites are referred to as part of the requirements on architectural design. In my view, it can be reasonably argued that the Key Sites identified in LEP 2011 require special attention because of their prominence, visibility or urban design importance for the Coffs Harbour City Centre beyond the normal planning considerations. Third, and given the need for special attention to be given to the Key Sites, it could reasonably be expected that if the 2013 Masterplan and DCP 2013 were expected to fulfill the role expected by cl 11.6(8), then some reference would have been made to this sub-clause in those planning documents. 27It follows that the proposed development must not be granted development consent under LEP 2011 as a master plan has not been prepared and approved for the whole site, pursuant to cl 6.11(8). The Infrastructure SEPP 28Even though the proposed development is not permissible under LEP 2011, it is permissible under the Infrastructure SEPP. Division 21 provides requirements for Telecommunications and other communication facilities. Clause 115 addresses Development permitted with consent. Clause 115(3) states: (3) Before determining a development application for development to which this clause 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 Director-General for the purposes of this clause and published in the Gazette. 29The "guidelines" referred to in cl 115(3) are the NSW Telecommunications Facilities Guideline including Broadband (the Guideline) published by NSW Planning in July 2010. 30Clause 2 of the Guideline provides for Site Selection, Design, Construction and Operation Principles for Telecommunication Facilities. Clause 2.1 describes the role of the principals in cl 2.2 as: The site selection, design, construction and operation of telecommunication facilities in NSW if carried out under clause 114 or 115 of Infrastructure SEPP must be consistent with the principles set out in this Guideline. All people carrying out development for the purpose of a telecommunications facility should take these principles into consideration in order to follow best practice. It is anticipated that through the application of the principles, decisions will be more efficient and consistent 31The relevant principles are: Principle 1: A telecommunications facility is to be designed and sited to minimise visual impact. (a) (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. (c) Where telecommunications facilities protrude from a building or structure and are predominantly backgrounded against the sky, the facility and their support mounts should be either the same as the prevailing colour of the host building or structure, or a neutral colour such as grey should be used (d). (e) (f) (g) A telecommunications facility should be located so as to minimise or avoid the obstruction of a significant view of a heritage item or place, a landmark, a streetscape, vista or a panorama, whether viewed from public or private land Principle 2: Telecommunications facilities should be co-located wherever practical. (a) (b). Overhead lines, antennas and ancillary telecommunications facilities should, where practical, be co-located or attached to existing structures such as buildings, public utility structures, poles, towers or other radio-communications equipment to minimise the proliferation of telecommunication facilities and unnecessary clutter (c) Towers may be extended for the purposes of co-location. (d) The extension of an existing tower must be considered as a practical co-location solution prior to building new towers. (e) If a facility is proposed not to be co-located the proponent must demonstrate that co-location is not practicable (f) Note: Co-location is 'not practicable' where there is no existing tower or other suitable telecommunications facility that can provide equivalent site technical specifications including meeting requirements for coverage objectives, radio traffic capacity demands and sufficient call quality Principle 3: Health standards for exposure to radio emissions will be met. (a) A telecommunications facility must be designed, installed and operated so that the maximum human exposure levels to radiofrequency emissions comply with Radiation Protection Standard Refer also to Appendix D (b) An EME Environmental Report shall be produced by the proponent of development to which the Mobile Phone Network Code applies in terms of design, siting of facilities and notifications The Report is to be in the format required by the Australian Radiation Protection Nuclear Safety Agency It is to show the predicted levels of electromagnetic energy surrounding the development comply with the safety limits imposed by the Australian Communications and Media Authority and the Electromagnetic Radiation Standard, and demonstrate compliance with the Mobile Phone Networks Code Visual impact The evidence 32Expert evidence on visual impact was provided by Dr Lamb, for the council, and Mr Juradowitch, for the applicant. Dr Lamb accepts that the bulk of the pole has been minimised through the current design, and that alternative free standing tower designs could be less desirable, such as a lattice tower. However, in his opinion, both are equally alien to a location that plans to have increased scenic quality and improvements in the public domain through the council's planning controls for the area. Dr Lamb also does not accept that there are no alternative locations for a tower on the Telstra site. 33Dr Lamb states that even if Mr Juradowitch is correct in that the proposed location is the only feasible location in the Telstra site, it is not relevant in terms of visual impacts. The proposed location is most visible from the highest density of users in what is probably the most used road in Coffs Harbour, in an area that is identified as a significant entry point and one that the 2031 Master Plan specifically identifies for future upgrading. The site is constrained by visual impacts issues as a result and therefore greater weight should be given to the visual effects of the tower and antenna. 34To consider that future development on the adjoining site may lead to a reduction in the visibility is an unreasonable response. It is the responsibility of the applicant to minimise the visual impacts, not to hope for others to do the mitigation for it in the future. The tower will be prominent and out of context on that site and it is clearly not the only feasible location for the facility, particularly when the need to minimise its visual impacts is considered. 35Dr Lamb notes that among the alternatives sites, a significantly better outcome would occur if the facility was mounted on the roof of Federation House. While this would entail a height of pole and antennas some 10m above roof level, Dr Lamb states that such a facility would be acceptable on visual impacts grounds. The assessment by Dr Lamb of several other alternative sites is that these other sites are likely to have minor visual impacts. On this basis, he is unable to conclude that the site chosen is either the only feasible location or that visual impacts have been minimised. 36Mr Juradowitch states that the proposed tower, as a free standing communications structure, has been designed as a streamlined slimline structure in a neutral grey colour to minimise visual impact. The overall bulk and height of the facility is at the minimum to fulfill its service function and there is no alternative design that could further reduce visual impact. Based on his instructions, the proposed location of the tower is the only feasible location on the Telstra site. This location optimises setbacks to the street frontages and the likely future redevelopment of the adjoining site will almost certainly entail a taller building. This building would offer a similar or greater screening effect from view from the south, as the Telstra building does with respect to views from the north. 37Mr Juradowitch accepts that the tower is most visible where it extends into the skyline above trees and buildings in the locality. In his opinion, the use of a light neutral colour is appropriate as it will minimise visibility against the skyline. 38While the council experts have stated that there are alternative locations, other than the Telstra site that would result in reduced visual impact, Mr Juradowitch acknowledges that it may be possible to identify alternative sites that offer reduced visibility within the locality and at the southern entry to the CBD. However, alternate locations were identified and assessed and determined by the applicant as not being feasible, either on the basis of inadequate service coverage, inability to obtain landowner agreement, or involve a substantial increase in costs to an extent that would likely render the proposal unviable. 39The option of meeting the applicant's service requirements by locating a communications facility on the nearby Federation House building is not possible due to the adverse impact this would have on the performance of the Optus facility. Mr Juradowitch states that it may be possible to meet the service objectives by installing a new separate pole and antennas on the roof of Federation House, near the northern end of the building. This option would entail a pole and antennas extending to a height of approximately 10m above the roof level. Such a facility would have an overall height of 37.8m above ground level, a similar height to the proposal. 40Mr Juradowitch is of the opinion that having regard to site and building constraints, the chosen location within the Telstra site, minimises visual impact. Also, locating a communications facility within an existing Telstra owned site significantly reduces the cost of providing such a facility by avoiding the need to pay annual rent that is required for leasing a separate site. Overall, consideration of visual impact must be balanced against the need for the communications tower, the orderly and economic provision of this essential service and the benefits provided to the broader community. Findings 41Dr Lamb and Mr Juradowitch agree that the photomontages in Mr Juradowitch's evidence (Exhibit A, Appendix C) reflect an accurate representation of the proposed tower and antenna from various locations around the Telstra site. Mr Juradowitch acknowledges that the proposed tower and antenna has a visual impact on the public domain and streetscape but not such an adverse impact that would require the refusal of the application. Dr Lamb comes to the opposite conclusion. 42With the benefit of the site inspection, the photomontages and the details of the proposed development, I agree with the conclusions of Dr Lamb even accepting that the applicant has made every endeavour to minimise the visual impact of the tower and antenna through the slimline monopole and streamlined turret panel mounting of the antenna. In my view, there are a number of reasons why the visual impact is unacceptable. 43First, the height is excessive. The tower and antenna extend well above the dominant two storey built form of the surrounding and nearby commercial buildings. The photomontages show that the tower and antenna are visually at least double the height and up to around 2.5 times the height of the adjoining and nearby buildings. The unacceptable visual impact is exacerbated by the height above the existing buildings having a backdrop of sky that provides a distinct contrast, rather than some built form that would provide a reduced perception of the structure. Contrary to the evidence of Mr Juradowitch and the comments in Principle 1, I do not accept that the use of a neutral colour on the tower would have any meaningful effect on the unacceptable visual impact, largely because of the height above the two storey built form of the surrounding and nearby commercial buildings 44Second, the tower and antenna are located in a visually prominent location in the Coffs Harbour commercial area. The main entry to Coffs Harbour from the south along the Pacific Highway, has a direct visual connection to the Telstra site where the height of the tower and antenna will be clearly noticeable when contrasted against the backdrop of the sky. Being the principal entry to the commercial centre of Coffs Harbour, the tower and antenna will be seen by a large number of people, including tourists to the area. The prominent location and the clear visibility of the tower and antenna is shown clearly on Photomontage View 4,5,6,7,8 and 9 (Appendix C, Exhibit A). While the tower and antenna can be viewed when travelling from the north in certain locations, the visual impact is less than viewed from the south (Photomontage View 3, Appendix C, Exhibit A). 45Third, I am satisfied that the tower and antenna are inconsistent with the future planning direction for the Coffs Harbour commercial centre as anticipated by LEP 2011, DCP 2013 and the 2031 Masterplan. 46Clauses 6.11(4) and (8) of LEP 2011 are relevant as the Telstra site is part of an area identified as a Key Site on the Key Sites Map. While LEP 2011 does not provide much guidance on the Key Sites, it could reasonably be argued that they are of some importance in urban design terms for the future improvement of the Coffs Harbour commercial centre. Clause 6.11 has the heading "Design excellence". I note that a similar designation does not exist in LEP 2013. 47The proposed development is in conflict with the B3 zone objective that states: · To ensure that the scale and nature of future development reinforces the role of the Coffs Harbour Central Business District as the primary commercial, employment and retail centre in the region. 48The Telstra site is within the City Core Character Precinct in DCP 2013. Clause E3.1.10(iii) and (iv) for this precinct state: iii) This area provides: a core retail precinct with a mixture of specialty shops; professional offices; a meeting place for the community; community and cultural facilities; health and welfare support services; an entertainment precinct; civic offices; and restaurant and dining experiences. iv) The future character of the City Core will be of an attractive retail, employment and residential area catering to locals, visitors and tourists. The new buildings will be of high quality with a mix of uses that would encourage safety and activity during the day and at night. 49The 2031 Masterplan contains city-wide Strategies and place-specific Strategies that seek to provide" the overall framework for improving the urban vitality of the City". The Telstra site and the block in which it is located, form part of the 2031 Masterplan strategies for Street Configuration, including street planting, Bike Plan and the designation of Moonee Street as City Centre Supporting Street. The Telstra site is also located in close proximity to the designated City Centre Main Street, a City Centre Gateway and a City Centre Entry Post. 50The proposed height and prominent location of the tower and antenna will, in my view, be inconsistent with the planned approach of the council to the Coffs Harbour commercial centre. 51Fourth, I do not accept the evidence of Mr Juradowitch that weight should be given to the likely future redevelopment of the adjoining site as it would offer screening of the tower and antenna when travelling from the south. Map 4, Component E3 of DCP 2013 provides for a maximum height of 40 m for the Telstra site (and the block in which it is located). Mr Juradowitch is theoretically correct; however there is no evidence to suggest that the adjoining site is to be redeveloped. Rather, a late objection was provided to the proposed tower and antenna from the owners of this property. While a future building may ultimately screen the tower and antenna, evidence later in the judgment suggests that the tower and antenna would most likely need to be relocated to maintain the necessary capacity and coverage for the applicant, in any event. Also, and given the unacceptable visual impact that the tower and antenna creates it would be unacceptable to rely on a building that may never be constructed. 52Fifth, and accepting that it was not the applicant's principal position; no weight should be given to the fact that there are logistical and financial benefits for the applicant on locating the tower on a site owned by the applicant. The test of suitability should rest solely on any impact rather the ownership of the property for the proposed tower and antenna. 53Sixth, I do not accept that sufficient attention was given to alternate sites. Housing NSW has a building at 51 Moonee Street. It is the regional office for the government authority and residential apartments of some 8 storeys located around 100 m to the north of the Telstra site. Mr Adam Yeomans, a Site Acquisition Officer with the applicant provides a chronology of events with copies of correspondence concerning the potential use of the Housing NSW site. Mr Yeoman's affidavit relevantly states: 21. During the site selection process for this project, Housing NSW were contacted to seek their interest in considering a Telstra installation on the roof. I was informed by Service Stream and verily believe that they had no initial objections to considering a proposal. 22. In connection with these Proceedings, on 3 September 2014, I instructed Service Stream to contact Housing NSW and seek formal written feedback as to whether they would consider a Telstra installation on their property and an expectation of rent. Annexed hereto and marked "J" is a true copy of that letter. 23. In my opinion this option was considered inferior to the proposed site at the Telstra Exchange due to commercial reasons set out below. 54The commercial reasons identified by Mr Yeomans in his affidavit relate to: * the lack of eagerness by Housing NSW to be associated with telecommunication carriers, * the time taken to finalise any agreements, * the absence of staff able to commit to a proposal, and * the likely imposition of commercial rental rates similar to the Optus rate at Federation House. 55The evidence also suggested that Telstra (or its representatives) had first approached Housing NSW in 2012 with a proposal to use the building but had received no response. 56Importantly, the department responsible for the NSW Housing site has not indicated that the use of the building for the proposed development is not acceptable. I do not accept that the absence of a response, a lack of eagerness to discuss the proposal or that commercial rates may be charged is sufficient reason to disregard this building as a potential site for the proposed development, particularly given the potential to reduce the visual impacts compared to the proposed location. 57McLean Oval was also suggested as potential alternate site. It is located about 600 m to the north west of the Telstra site. It was suggested that the applicant could potentially use an existing flood light pole or construct a new pole in the vicinity of the playing fields on the oval. Residential development adjoins McLean Oval. 58I did not understand that this location provided the necessary capacity or coverage for the applicant. Similarly, there was no evidence to suggest that the council, as owners, would consent to the submission of a development application. Also, the proximity of residential development may raise further visual impact issues. 59On the evidence provided at the hearing, I accept that McLean Oval could not reasonably be regarded as a suitable site for the proposed development. 60For the reasons in the preceding paragraphs, I am not satisfied that the proposed tower and antenna comply with Principle 1 of the Guideline in that the tower and antenna are not "sympathetic to adjacent buildings" ((b)) and not" located so as to minimise or avoid the obstruction of a significant view of ... a streetscape, vista or a panorama, whether viewed from public ... land" ((g)). 61I am satisfied that the visual impact of the tower and antenna is so unacceptable that the development application warrants refusal for this reason alone. Co-location The evidence 62Expert evidence on co-location was provided by Mr Ivan D'Amici, for the applicant and Mr Geoffrey Garrett, for the council. The potential co-location site is Federation House at 24 Moonee Street. Federation House is a commercial building of some 8 storeys located around 45 m to the south west of the Telstra site. An Optus antenna is located on the roof of this building. 63During his oral evidence, Mr D'Amici accepted that a location on the roof of the Federation Building could be suitable location however any use of this building would need the cooperation of Optus because of their existing antenna and their lease arrangements with the owner of the building. In his opinion, Optus and Telstra would need to share a single pole to avoid any interference to the Optus signals that could be caused by locating the Telstra antenna elsewhere on the roof or the use of support wires to support any new structures for Telstra. 64Mr Yeomans also provided a chronology of events with copies of correspondence concerning the use of Federation House and the potential co-location with Optus. In relation to the use of Federation House, Mr Yeoman's affidavit relevantly states: 16. On 9 September 2014, Mr Nick Cole, Technical Specialist SAED Compliance of Optus responded to my email at Annexure E. Annexed hereto and marked "F" is a true copy of Mr Cole's email. Considering Optus' statement that they would reject a collocation application as proposed, Telstra cannot proceed with this alternative site. 65The response from the two questions asked by Telstra and the responses from Optus are (Exhibit H, "F"): Q1:Would Optus permit and allow changes to their antenna locations to elsewhere on the rooftop to allow for Telstra antennas? A1: Optus would accept this if there was sufficient scope to maintain our existing service levels in a new position. This is not be the case. Q2. Would Optus be likely to approve or reject a collocation application if submitted as currently proposed? A2: Optus would reject the proposal. 66In my reading of this communication, it would seem that only the proposal suggested by Telstra was not that suggested by Mr D'Amico. The proposal that was responded to by Optus involved three groups, each containing three antennas near the parapet of the building but facing in different directions. Given the evidence of Mr D'Amici that a location on the roof of the Federation Building could provide a suitable location for Telstra, I cannot conclude that the proposed development could not be practically co-located in accordance with Principle 2 of the Guideline given that only one option was canvassed by Telstra with Optus when other options are likely available, particularly the co-location on a single pole that was considered acceptable to Mr D'Amici. 67Mr Yeomans affidavit also addresses the availability of Federation House for Telstra where it states (Exhibit H, pars 17-19): 17. I was informed and verily believe that on 15 September 2014, discussions were held between Mr Troy Mitchell of LJ Hooker Commercial Coffs Harbour and Mr Ben Narramore of Service Stream Mobile Communications. Mr Mitchell advised that he acts as agent for the building owner. Mr Mitchell had some questions regarding Telstra's proposed design. Mr Mitchell commented that following their experience with Optus and all the work the landlord and LJ Hooker had to do as part of the installation the landlord would demand a commencing rental of $25,000. Annexed hereto and marked "G" is a true file note email from Mr Ben Narramore of Service Stream dated 15 September 2014. Mr Narramore confirmed these discussions to pr Mitchell via email on 30 September 2014, annexed hereto and marked "H" is a true copy of this email. 18. I undertook calculations of the total commitment of rent over a 20 year period based on a commencing rental of $25,000 per annum and with 4% annual increases. This equates to a total figure of $744, 451.96. 19. Therefore it is clear that a Telstra installation at 24 Moonee Street would result in a significant financial impact on Telstra to the tune of over $744,000 over the life of the facility 68Based on the affidavit of Mr Yeomans, there is no suggestion that the owner of Federation House is not amenable to the potential co-location with Optus. It would appear that the concern of Mr Yeomans centres largely on the cost of leasing the necessary space on the roof of Federation House. 69While there can be no argument over Telstra seeking to use their own site for the tower and antenna, a realistic assessment of the alternate sites is required by the Guideline. 70Principle 2 of the Guideline states that "co-location is 'not practicable' where there is no existing tower or other suitable telecommunications facility that can provide equivalent site technical specifications including meeting requirements for coverage objectives, radio traffic capacity demands and sufficient call quality". 71In my view, the applicant did not establish that Federation House was not a practical co-location site. Electromagnetic radiation 72Expert evidence on EMR was provided by Mr Michael Bangay, for the applicant and Mr Garrett, for the council. They agreed that the EMR Environmental Report (Principle 3 (b)) was acceptable however Mr Garrett raised concern over potential unacceptable EMR impacts if the adjoining site was redeveloped to the 40 m height requirement in DCP 2013. 73Mr Bangay explained that the report prepared for the applicant (Radio Frequency Hazard Exclusion Zone Drawings Prepared for Telstra Site Coffs Harbour Exchange NSA# 2450034 41 Moonee Street Coffs Harbour NSW 2450 Issue B File #24552) contained diagrams of the required EMR limits that showed that the worst-case calculated exclusion zone extends to a distance of 3.07 m from the antennae which are located between 33 m and 37 m above ground level. While this diagram shows that the plume of EMR will extend horizontally into the adjacent tyre retailing property, the plume is located over the building, which is only single storey. 74Mr Bangay states that the possibility of exposure to levels of EMR greater than the required EMR limits is hypothetical as no building exists or is currently planned to be built in the space (at heights from 33 m to 37 m) where the field levels exceed the required EMR limits. 75Should a tall building be planned to be built on the boundary immediately adjacent to the Telstra pole, it would require Telstra to initiate measures to relocate the antennae that is causing the EMR plume to extend into the space that will be occupied by the building. This measure is standard practice followed by all mobile phone carriers so that they can maintain their service objectives and not have their radio coverage blocked by a building. Mr Bangay states that it is important to understand that the calculated exclusion zones are based on a worst-case maximum scenario. 76As there was general agreement over the extent of the EMR plume that exceeds the required EMR limits and that this plume would only affect a redevelopment of the adjoining property and that no such redevelopment is contemplated, the effect of any EMR from the proposed development would not warrant the refusal of the application. Electromagnetic interference 77Expert evidence on EMI was provided by Dr Paul Kay, for the applicant and Mr Garrett, for the council. The contention states that the proposed development will exceed acceptable limits under Australian Standard/ New Zealand Standard 61000.6.1 - Electromagnetic Compatibility (EMC) (AS/NZS 61000.6.1) for general electronic equipment at certain levels at Federation House. 78Dr Kay maintains that any reference to AS/NZS 61000.6.1, in the context of this contention, is incorrect as there are no applicable limits to the field strengths or emissions produced by radio transmitters in AS/NZS 61000.6.1. Part 6.1 of AS/NZS61000.6.1 relates to standards for specific products, in that it describes tests to be applied to electronic and electrical devices under controlled laboratory conditions. This standard does not specify a limit that forms any restriction to the field strength that a transmitter can produce in a particular setting. The electromagnetic field strength limit of 3 volts/metre (V/m) in the standard is a test level. It refers to the continuous wave calibration requirement of the field that is produced by a test laboratory when preparing to test a product for compliance with AS/NZS 61000.6.1. 79While not resiling from his position that the use of AS/NZS61000.6.1 is not appropriate, Dr Kay responds to the comments of Mr Garrett where he describes the risk of interference to Federation House as "low" because: * the fields are likely to be smaller than his calculated values (which are based on the maximum instantaneous power); * the calculations of Dr Kay and Mr Garrett do not include any allowance for scattering, reflection or attenuation of the fields, and * the 3 V/m limit in AS/NZS 61000.6.1 is a calibration level, and due to the modulation specified in the relevant test method referenced by AS/NZS 61000.6.1, the test item is exposed to a maximum level of 5.4 V/m; this being the level at which interference is more likely to occur. 80Dr. Kay's experience is that interference is not guaranteed at field strengths that exceed 3 V/m. He states that he has observed many consumer and industrial products tolerate higher levels without operational difficulties and similar findings are reported in the literature. While some equipment may malfunction at levels as low as 3 V/m, such equipment is in the minority and is often accompanied by manufacturer's guidance that the specified performance is not guaranteed in the presence of radio transmitters. Furthermore, in such a low field strength, any interference is expected to be easily mitigated by relocation of the victim system or rearrangement of its cables. At worst, Dr. Kay's calculations predict that only the roof and part of the top floor are likely to be exposed to field strengths in excess of 3 V/m ; the majority of the building will see much lower exposure. 81Mr. Garrett contends that there is a significant risk of interference in exceeding the 3 V/m limit of AS/NZS 61000.6.1. The peak value (7.6 V/m peak) and/or the maximum value (5.4 V/m maximum) are irrelevant to use alone when assessing risk of interference, as there are also two other mechanisms (average power and average voltage) for causing interference. Mr. Garrett also states that the building windows do not appear to be tinted. Even if they are, the shielding effect is unknown without performing a test. Furthermore, reflections can superimpose to create larger fields than would be present had there not been any reflection. Hence, in this instance, the risk of interference would be greater. 82In considering the different approaches of Dr Kay and Mr Garrett, I agree with the position of Dr Kay as firstly, I accept that AS/NZS 61000.6.1 does not specifically address field strengths or emissions produced by radio transmitters. My understanding of Mr Garrett's evidence was that this was ultimately accepted by him in a form where he accepted that compliance with that AS/NZS 61000.6.1 was "not mandatory". Secondly, it was agreed that the worst case scenario that only the roof and part of the top floor are likely to be exposed to field strengths in excess of 3 V/m. As a measure of comparative field strength, there was agreement that an operational mobile phone has a field strength of around 3 V/m and that it is common to have operative mobile phones in close proximity of electronic devices, such as computers, without any interference. Orders 83The orders of the Court are: (1)The appeal is dismissed. (2)Development Application 176/14 for construction of a new mobile telecommunications base station comprising a monopole and six panel antenna at 41 Moonee Street Coffs Harbour is refused. (3)The exhibits with the exception of exhibit 4 are returned. ______________ G T Brown Commissioner of the Court 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: 09 December 2014