April 2015 – Telstra Corporation Limited v Port Stephens Council

Local Government Legal recently acted for Port Stephens Council in successfully defending a Class 1 Appeal filed by Telstra Corporation Limited, against Council’s refusal of a development application for the construction of telecommunications facility at Corlette.

The proposal involved a proposed installation of a 30 metre high monopole with 3 panel antennae (and provision for a further 3 panel antennae), together with the construction of an equipment shelter, cabling and elevated access platform. The proposal also required the running of power and fibre optic cabling from the public road to the facility, and the upgrade and widening of an existing accessway from the street to the facility, which involved reconstruction of the access track across a Council public reserve which was classified as Community Land involving cut and fill, installation of hardwood sleepers and the construction of a timber retaining wall up to 700mm high.

The land on which the facility was to be located was owned by the Hunter Water Corporation (HWC) and leased to Telstra. The land was surrounded by a Council public reserve. Although Telstra had the benefit of a right of carriageway over the Council reserve (which had been granted to HWC), and the proposal involved the upgrading of an area of accessway which was outside the right of carriageway. Telstra also did not have an easement for services which would have been required to run the power and fibre optic cabling across the Council reserve.

The majority of the Council reserve was heavily vegetated and the proposed development would have required the removal of a number of trees to facilitate the construction of the compound and access track and to facilitate the recommended 10 metre Asset Protection Zone.

The issues for determination were:

1. Whether the proposed development was consistent with the zone objectives of the Council’s LEP 2000 and LEP 2013.
2. Whether the works to the accessway and bushfire mitigation works over the Council Community Land were authorised by the Local Government Act 1993 or the Council Plan of Management.
3. Whether the proposed development was consistent with the principles of the NSW Telecommunications Facilities Guideline (the Guideline).
4. The suitability of the site.
5. The public interest.

At the time the DA was lodged, Council’s LEP 2000 was in force. Under that LEP the site and the adjoining Council Reserve was zoned General Recreation A. Whilst a telecommunications facility was permissible, under clause 10(2) of LEP 2000 the consent authority had to be satisfied that the proposed development was consistent with the objectives of the zone. Council contended that it was not consistent with objectives (a), (c) or (e) of the Zone, on the following basis:-

1. The proposed development would utilise Council Reserve for its private use.
2. The visual impact of the proposed development.
3. The use of the Council land and the associated impact on vegetation was not complimentary to the open space use.

Whilst there was a dispute over the exact amount of vegetation which would require removal for the proposed bushfire mitigation works, it was clear from the evidence that it involved more trees than was originally identified in the application. The removal of these trees reduced the screening of the monopole, and the Commissioner found that the location of the monopole, above the vegetated ridgeline, and its visual prominence from the various viewing locations, meant that the visual impact of the facility was not minimised. This was inconsistent with both the Zone objective and principles 1(b) and 1(g) of the Guideline.

The Commissioner also found that the removal of trees from the Council reserve and the future maintenance of this Asset Protection Zone on the reserve, was contrary to the Zone objectives of LEP 2000 and principle 4(k) of the Guideline. Commissioner Pearson also found that the reliance on the area of Council reserve for an Asset Protection Zone and for bushfire mitigation works was contrary to principle 4(e) of the Guideline and the principle laid down in the decision of Scott Revay & Unn v Ku-ring-gai Council [1994] NSWLEC 112, where the Court found as a matter of principle that where essential works are required in regard to a development it is imperative, except where the most exceptional circumstances apply that the site for those works be provided within the subject land.

At the time of determination of the DA, the Council’s LEP 2013 had come into force. Under that LEP the site was zoned SP1 and the Council reserve was zoned RE1. Under both of those zones, telecommunications facilities were prohibited. Notwithstanding that fact, the proposed development was made permissible by virtue of clause 115(1) of the SEPP Infrastructure. Clause 115(3) of SEPP Infrastructure also required consideration to be given to the Guideline. As mentioned above, the Commissioner found that the proposed development was contrary to some parts of principles 1 and 4 of the Guideline.

In relation to the use of Council Community Land, the Council had argued that the Council’s Plan of Management did not authorise use of the Council Community Land for the proposed development. They also argued that the use was not authorised by the Local Government Act and that the Court should have regard to the futility of the development application. On the other hand, Telstra argued that the requirement that it obtain some authorisation or approval for use of the Council Community Land was not a relevant planning consideration in the determination of the development application.

The Commissioner noted that a development consent to carry out works would not afford any right upon Telstra to enter the Council land and undertake the required works without obtaining some form of tenure over the land. She noted the recent decision in Botany Bay City Council v Minister for Planning & Infrastructure [2015] NSWLEC 12, in finding that the need for authorisation of the works proposed for the Council Reserve would not be a barrier to the grant of consent. She noted that all the Court needed to be satisfied with was that it may be possible for easements to be obtained if necessary, and it was not appropriate for the Court to speculate as to the outcome of an application for a lease or licence or some other estate in the future. She noted that it could be possible for Telstra to obtain such easements either by negotiation or by making application to the Court which was consistent with the approach set out in Botany Bay. However, in making this finding the Commissioner did note that if consent was to have been granted that she would have imposed the deferred commencement conditions suggested by the Council, that such easements be obtained prior to the consent becoming operative.

In refusing the development, the Commissioner noted that she was not satisfied that the proposed development was consistent with the objectives of LEP 2000 by reason of its impacts on the Council Reserve, in terms of vegetation clearing and open space recreation, and its visual impacts, and visual prominence from both the public and private domain. Whilst she noted that this was not barrier to the granting of development consent, as the proposal was permissible under SEPP Infrastructure, she noted that the fact that the proposed development was permissible does not mandate that it be granted consent. She noted that in considering whether, in the exercise of discretion, development consent ought to be granted, the relevant matters included the Guideline and the matters in section 79C(1)(b) – (e) of the EPA Act.

The Council had also argued that the improvements to the depth of coverage in Corlette would be better served by providing facilities at alternative sites. Whilst the Commissioner indicated that this contention was not made out on the expert evidence, the evidence did support the Council’s contention that the proposed development would still leave areas of Corlette with deficient coverage. She did note that this was a matter relevant to the public interest under section 79C(1)(e) of the EPA Act.

The development application was the subject of significant resident objection in the Corlette area. So the Court’s decision was well received by the resident objectors. Whilst the objectors were not opposed to Telstra improving the depth of coverage in the area, they were opposed to a solution being provided on a prominent tower erected on the ridgeline that required tree removal and impact on vegetation in the Council reserve. Many of the residents had suggested to Telstra that a better solution was more than one facility of a lower scale in less prominent positions in the Corlette area.

Note: This information is not to be relied upon as legal advice.