There are around 12 million users of smartphones in Australia according to the Australia Communications and Media Authority. To support this usage, infrastructure such as telecommunications base stations are required in our regional, rural and city centres.

The installation and location of this infrastructure needs to be balanced against community impacts such as visual amenity, and possible Electromagnetic Radiation (EMR) impacts on people and Electromagnetic Interference (EMI) with existing and future electronic devices.

A decision handed down late last year demonstrates how these tensions are balanced by the Land and Environment Court. The decision highlights the need for telecommunication companies to:

  • consider designs that minimise the visual impact of such infrastructure. Off the shelf designs may need to be reconsidered where the specific location makes these designs unacceptable
  • conduct a thorough due diligence on alternative sites – recognising that when assessing impacts, no weight will be given by the Court to the company’s internal logistical or financial considerations.

What was the appeal?

Telstra Corporation Limited v Coffs Harbour City Council [2014] NSWLEC 1254 involved an appeal by Telstra against Coffs Harbour City Council’s refusal of a development application (DA) for the construction of a new mobile telecommunications base station with a 30 metre monopole able to accommodate six panel antennas. The tower and antenna were to be located on Telstra’s property in Coffs Harbour (Telstra Site).  Additional facilities for the tower and antenna were also to be located within the existing Telstra building on the site.

What were the Council’s objections?

Council objected to the DA on grounds, including that:

  • the development would have unacceptable visual and streetscape impacts
  • the development would have had unacceptable EMR impacts on occupants of future developments near the site
  • the development would have create unacceptable EMI on existing and future electronic devices near the site
  • Telstra has not adequately considered alternate sites.

Instruments controlling the proposal

Two environmental planning instruments were potentially applicable to the assessment of the DA:

  • Coffs Harbour City Centre Local Environmental Plan 2011 (LEP 2011)
  • State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP)
  • under each environmental planning instrument the development was permissible with development consent.

However, as the Telstra Site was listed under the LEP 2011 as a ‘Key Site’ the LEP 2011 required the preparation and approval of a masterplan. Commissioner Brown found that this requirement had not been satisfied and so attention turned to the Infrastructure SEPP.

The Infrastructure SEPP required the Council to consider:

  • guidelines on site selection, design and construction operating principles for telecommunications facilities

issued by the Secretary of the Department of Planning and Infrastructure.

The relevant guidelines and principles, contained in the NSW Telecommunications Facilities Guideline including Broadband (Guideline), were as follows:

  • 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 3: Health standards for exposure to radio emissions will be met.

Principle 1: Visual impact

The Council argued that the visual impact was unacceptable because the design of the facility was ‘alien’ in a location where Council planned to have ‘increased scenic quality’. Telstra argued, among other things, that: ‘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’.

Commissioner Brown held that the visual impact was unacceptable on the following grounds:

  • Excessive height: The facility’s height was well above the two storey forms of the surrounding buildings.
  • Visual prominence of the Telstra Site: The facility would be in a visually prominent place in Coffs Harbour’s commercial area and would be: ‘clearly noticeable when contrasted against the backdrop of the sky’.
  • Inconsistency with future plans: The facility was inconsistent with the future planning direction of the Coffs Harbour commercial area.
  • Irrelevance of shielding from possible future development: No weight was to be given to the possibility that future redevelopment could occur on the adjoining site and ultimately screen the tower and antenna of the facility. It was not certain that such buildings would be constructed.
  • No weight given to applicant’s commercial interests: The test for suitability is based on the impact, not the financial or logistical benefits to the applicant in placing the tower in a specific location.
  • Alternate sites: Telstra had not given enough consideration to alternate sites.

Principle 2: Co-location

Principle 2 of the Guideline states that co-location is ‘not practicable’ if there are no other suitable telecommunications facilities that can provide equivalent site technical specifications. As indicated above, Commissioner Brown decided that there were possible co-location sites that Telstra had not adequately considered.

Principle 3: Health standards

The parties agreed that the EMR plume with EMR that exceeded the acceptable limits would only affect a redevelopment of the adjoining property (which was non-existent). Therefore, the potential EMR levels did not warrant the refusal of the DA.

In respect of EMI, Commissioner Brown found that mobile phones are often operating close to electronic devices like computers without any interference. As a result, the risk of interference was low.

Implications

Councils will no doubt be buoyed by this decision, as it indicates that the installation of base stations is not a foregone conclusion that must be accepted in all cases.  Under the Infrastructure SEPP, appropriate site selection and good visual design are critical to these developments being supported.  Telecommunication companies proposing to install base stations should ensure that their designs are tailored to a site’s dynamics, and that there are no better alternative locations to support the infrastructure – even if the alternative locations may be more costly.