You might recall our recent blog which considered the decision of Telstra Corporation Limited v Coffs Harbour City Council  NSWLEC 1254 regarding the installation and location of telecommunication infrastructure. We concluded that the case highlighted the need for telecommunication companies to consider designs that minimise the visual impact of such infrastructure, and to conduct a thorough due diligence on alternative sites before seeking development consent.
A recent decision handed down by the Land and Environment Court reinforces and emphasises the importance of the visual impact of a telecommunications facility in the overall assessment.
However, the case also highlights the need for telecommunications companies to make a holistic assessment of whether the development fits with overall context. That is, will the development be consistent with:
- the applicable zoning objectives and Guidelines under Infrastructure SEPP
- the ownership, categorisation and use of the land
- other planning requirements such as bushfire protection measures, as well as the visual impact of the development.
What was the appeal?
Telstra Corporation Limited v Port Stephens Council  NSWLEC 1053 involved an appeal by Telstra against the Council’s refusal of a development application (DA) for the construction of a telecommunications facility, equipment shelter and ancillary works on a site in Corlette. The site was owned by the Hunter Water Corporation (HWC) and situated within a Council reserve.
The facility was to include a 30 metre monopole in neutral grey colour with a non-reflective surface able to accommodate three panel antennas.
The location of the facility was predominantly clear of trees. However, the proposed development required the removal of trees to facilitate the construction of the facility and associated access track, and to comply with the recommended 10 metre Asset Protection Zone (APZ) around the proposed monopole and equipment shelter required under the applicable Rural Fire Service Practice Note on Telecommunications Towers in Bushfire Prone Zones. The APZ was to extend out over the proposed site on HWC land onto the Council reserve.
Owners consent from the Council and HWC was provided for the lodgement of the development application.
The following planning instruments applied to the site:
- State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP)
- Port Stephens Local Environmental Plan 2000 (LEP 2000) (which was in force at the time the development application was lodged).
The relevant guidelines and principles required to be considered under the Infrastructure SEPP, are contained in the NSW Telecommunications Facilities Guideline including Broadband (Guideline), and include:
- Principle 1: a telecommunications facility is to be designed and sited to minimise visual impact
- Principle 2: telecommunications facilities should be co-located wherever practical
- Principle 4: minimise disturbance and risk, and maximise compliance.
The development was permissible with consent under these instruments.
As the Council reserve was classified as community land, additional restrictions applied to the site under the Local Government Act 1993 (LG Act) as to the use and management of community land. Under this regime, compliance with the relevant Plan of Management was also required.
Council raised a number of issues with the development including:
- that the development was inconsistent with the zone objectives of the LEP 2000
- the development was an unauthorised use of community land
- the development was not suitable for the site having regard to issues such as the visual impact of the development.
Bushfire protection requirements
The first consideration which confronted Telstra in obtaining consent was the fact that the site was located in a natural bushland context. Telstra sat in a difficult position in relation to this context, as on one hand it needed to comply the bushfire protection requirements under the relevant RFS Practice Note requiring a 10 metre APZ for such infrastructure, needed to meet the requirements of Principle 1 of the Guideline that the facility was to be “designed and sited to minimise visual impact.”
The Court held that the development as proposed would have a visual impact for the users of the adjoining public reserve due to the clearing required for construction of the facility and the maintenance of the APZ. The Court was also concerned that there would be a significant visual impact from the broader locality of the structure as it would “interrupt the natural ridge line” and would be “visually prominent from a number of viewing points,” including both private and public land.
The context of Community Land
The second important consideration facing Telstra in obtaining consent was the fact that the adjoining public reserve was classified community land and the required APZ was to extend over onto the reserve.
Community land is subject to restrictions on leasing and licencing under the LG Act and the Plan of Management. Council argued that it did not have the power under the terms of the LG Act or the Plan of Management to grant a tenure or permission over the land to enable the construction of the proposed development as well as the APZ, as the land was natural bushland. Further, Council argued that it would be “fundamentally inappropriate for an application to rely on the use of land which it does not own and over which it has no tenure in order to provide an APZ to protect its development.” That is, the combined effect of the natural bushland context and the community land context worked against Telstra obtaining approval of the site.
The Court accepted the authority of Botany Bay City Council v Minister for Planning & Infrastructure  NSWLEC 12 as applied by Telstra in arguing that the requirement for it to obtain authorisation or approval required for the use of the community land, was not a relevant consideration to the determination of the Development Application under s 79C of the Environmental Planning and Assessment Act 1979. As there was power for Telstra to obtain the necessary authority under the LG Act, and other means of obtaining access over community land to undertake the works, the Council was unable to demonstrate that the proposed development was incapable of being lawfully carried out.
While the Court accepted this part of Telstra’s argument, it agreed with Council that it would be fundamentally inappropriate for an applicant for development consent to rely upon the use of land which it does not own and over which it has no tenure, in order to provide an APZ to protect its development from fire, having regard to the authority of Scott Revay & Unn v Ku-ring-gai Council  NSWLEC 112.
The objectives of LEP 2000
Telstra was then faced with zone objectives of the LEP 2000, in particular:
- that the land be available for open space recreation
- the aesthetics of the land, which is prominent and visible to the public along foreshore areas, be preserved.
As the development was visible from the foreshore and the maintenance and establishment of the APZ would alter the vegetated area which was used for open space recreation, the Court was not satisfied that the development as proposed by Telstra would be compatible with the objectives of the LEP 2000.
The Court also considered the development in light of the Infrastructure SEPP, having regard to Telstra’s argument that the Infrastructure SEPP was to prevail to the extent of any inconsistency with an environmental planning instrument like the LEP 2000. In particular, while the development was permissible under Infrastructure SEPP, the Court still had to consider the principles in the Guideline, in particular, principles 1, 2 and 4. (The relevant guidelines and principles required to be considered under the Infrastructure SEPP are contained in the NSW Telecommunications Facilities Guideline including Broadband). The Court essentially agreed with Council’s contentions regarding the inconsistency of the development with principles 1 and 4, finding as follows:
- Principle 1: The location of the monopole above the vegetated ridgeline, and its visual prominence from the various viewing locations reflected in the photomontages was not a location where the visual impact of the facility was minimised or one that would minimise or avoid the obstruction of a vista or panorama.
- Principle 4: In the absence of some authorisation from the Council for the work required to be undertaken on the APZ for the facility to be constructed on the reserve community land, the development was not consistent with Principle 4, which required, among other things, that the facility is to be erected wholly within the boundaries of a property where the landowner has agreed to the facility being located on the land.
Council also raised concerns about the suitability of the location of the development given that the slope of the area surrounding the facility would result in an access way with slopes in excess of 30 percent. To address this issue, there would need to be significant upgrade works, including the removal and lopping of trees and the construction of timber retaining walls up to 700mm high. The Court found that these works would represent a departure from the “the existing access track and natural bushland setting presently available to bushwalkers.”
The combination of the visual impacts of the development as contrasted against its natural bushland setting, led the Court to conclude that it was not satisfied that the proposed development should be approved.
The case highlights that where APZs are recommended in natural bushland settings, the creation of such an APZ as it affects a natural bushland setting will be considered by a consent authority. The need for an APZ will not excuse negative visual impacts generated by the creation of these zones.
Utility infrastructure providers, such as Telecommunication companies, also need to, in their due diligence for such proposals, consider the extent to which the proposal relies on other land not owned by it and consider entering into tenure arrangements before applying for development consent.
Todd Neal, Senior Associate and Elizabeth Abbey, Lawyer.