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THE
LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
PRESTON CJ
24 MARCH 2006
11097 of 2005
TELSTRA CORPORATION LIMITED V HORNSBY SHIRE COUNCIL
JUDGMENT
1
HIS HONOUR: To the northwest of Sydney lies the suburb of Cheltenham.
It is a suburb with heritage charm, with a number of late 19th and early 20th
century homes and gardens. Remarkably for these days, the suburb is solely
residential, with no commercial or retail activities within the boundaries of
the suburb.
2
At the heart of the suburb is the Cheltenham Recreation Club (the Club). The
Clubs site is large, about 1.7ha, and contains recreational and sporting
facilities including bowling greens, croquet courts and tennis courts. The
park-like grounds are of local heritage significance. The Club has been and
still is a meeting point for members of the community of Cheltenham.
3
However, the suburb of Cheltenham is not isolated from the modern world.
Residents of, visitors to and travellers through
the suburb wish to engage with each other and others outside the suburb
through the marvel of modern telecommunications. Here the problem arises. Cheltenham suffers from inadequate mobile telephone coverage. There
are holes in the extent of the coverage or areas where the coverage is of
inferior quality. The inadequacies are particularly experienced along the
railway line, affecting commuters.
4
The largest of the telecommunications carriers in Australia, Telstra, wishes
to address the inadequate mobile telephone coverage. It identified the Club
site as a suitable location for a mobile telephone base station which could
provide mobile telephone coverage in the suburb of Cheltenham and
particularly along the railway line.
5
Telstra and the Club reached agreement whereby
Telstra could, after obtaining necessary approvals, erect on the roof of the
clubhouse two panel antennas surrounded by a glass plastic shroud
(simulating the appearance of chimneys) and an equipment cabin to the rear of
the clubhouse. Telstra would also construct a small pergola for the benefit
and use of the Club at the rear of the clubhouse and pay the Club an annual
lease rental.
6
This proposal, however, has caused a section of the community of Cheltenham
and Hornsby Shire
Council (the Council) much concern. Perhaps their
greatest concern is the fear that the proposed facility will emit electromagnetic
energy that will harm the health and safety of the residents of Cheltenham.
7
This fear has fuelled opposition to the proposal, both in a section of the
community and by the elected councillors of the
Council. The Council refused the
development application for the proposal.
8
Telstra has appealed to this Court seeking consent for the proposal. The Club
supports Telstras application. The Council and
certain residents contest the appeal, still maintaining their opposition.
9
The case raises questions about fear, rationality and the law. How should a
responsible decision-maker respond to public fear? Responsiveness to public
fear entails a commitment to rational deliberation, in the form of reflection
and reason-giving. An approach with some currency at the moment is the
precautionary principle. What is the precautionary principle and how is it to
be applied when thinking about public health and safety and the environment?
How can it be invoked to respond to public fear?
10
The case provides some guidance in relation to these questions.
11
In the hearing and determination of the appeal I have been assisted by
Commissioner Brown.
Nature
of the appeal
12
The appeal is against the refusal of the Council of the applicants
development application No. 1514/04 for the installation of
telecommunications equipment and alterations and additions to an existing
building at 60-74 The Crescent, Cheltenham (the site).
13
The appeal is brought pursuant to s 97(1) of the Environmental Planning
and Assessment Act 1979 (NSW) (EPA Act). The appeal is within Class 1 of
the Land and Environment Courts jurisdiction: s 17 of the Land and
Environment Court Act 1979 (NSW) (LEC Act). The Court has all of the
functions and discretions which the Council, as the consent authority under
the EPA Act, had in respect of the development application the subject of the
appeal: s 39(2) of the LEC Act.
14
The appeal is by way of rehearing and fresh evidence or evidence in addition
to, or in substitution for, the evidence given on the making of the decision
by the Council, may be given on the appeal: s 39(3) of the LEC Act. The Court
is to have regard to the EPA Act and any other relevant Act, any instrument
made under any such Act, the circumstances of the case and the public interest:
s 39(4) of the LEC Act.
The site
15
The site consists of Lots 1, 2, 3, 4 and 5 in DP 5440, Lot C in DP 306966,
Lot C in DP 328704, Lot 1 in DP 335423, Lot G in DP360935, Lot J in DP 374758
and Lot A in DP 303812. It has a total area of 1.7 hectares with frontages to
The Crescent, The Boulevard and Lyne Road,
Cheltenham.
16
The site accommodates the Cheltenham Recreational Club. The facilities
located on the site include a clubhouse, tennis courts, croquet lawns,
bowling greens and car parking.
17
The surrounding development is predominantly residential with the Cheltenham
railway station located approximately 200 meters to the north. The railway
line linking Strathfield and Hornsby
is located on the opposite side of The Crescent.
The
proposed development
18
The proposal seeks development consent to construct a mobile telephone base
station as a rooftop facility on the existing clubhouse. The proposal also
seeks to construct a pergola off the rear of the existing clubhouse although this
is not associated with the telecommunications base station.
19
The base station equipment comprises:
·
2 tri-band panel antennas located at either end of the clubhouse,
· an equipment cabin located at the rear of a clubhouse, and
· a 450 mm wide cable tray, located between the equipment cabin and the to a
communications pole.
20
The antennas would be enclosed in a shrouding which is moulded
and painted to represent brickwork chimneys of the clubhouse.
The
history of the development application
21
The application was lodged with the Council on 23 August 2004. It was
considered by the Council at its meeting on 17 November 2004 and was
recommended for approval by council officers. The report of the council
officers indicated that 26 submissions were received when the application was
advertised, 23 opposing the application and 3 submissions in support. The Council refused the application on 17 November 2004.
22
A review of the Councils determination of 17 November 2004, pursuant to s 82A
of the EPA Act, was considered by the Council on 17 August 2005. The review
proposed no changes to the application previously considered by the Council
and was again recommended for approval by council officers. The report of the
council officers indicated that 76 submissions were received when the
application was advertised. The submissions consisted of 60 submissions
(including 52 proforma letters) in support of the
proposal and 16 submissions objecting to the proposal. The submissions in
support of the proposal included a petition with 61 signatories. The Council refused the application on 17 August 2005.
Relevant
planning controls
23
The Telecommunications Act 1997 (Cth)
exempts carriers from the requirements of State environmental planning
legislation in certain circumstances, including where a proposed facility is
defined as a low impact facility (Sch 3, Pt 1, Div 3, cl 6(1)(b)). The Minister, pursuant to Sch 3, Pt 1, Div 3, cl 6(3) may
determine what is a low impact facility. The Ministers determination is contained
in the Telecommunications (Low-impact Facilities) Determination 1997.
It relevantly states:
Part
2 Areas
2.5 Area of environmental significance
(7) An area is an area of environmental significance if, under a law of the
Commonwealth, a State or a Territory, it consists of a place, building or
thing that is entered in a register relating to heritage conservation.
Part 3 Low - impact facilities
3.1 Facilities
(2) However, the facility is not a low-impact facility if the area is also an
area of environmental significance.
24
In this case, the telecommunications facility is not defined as a low impact
facility, as it is located within a heritage conservation area and is thus an
area of environmental significance. The proposal is therefore subject to the
provisions of the EPA Act and local planning controls.
25
Under Hornsby Local Environmental Plan
1994 (the LEP), the site is zoned Open Space C (Private
Recreation). The proposed use is permissible with consent within this zone.
The grounds of the Club are listed as a heritage item of local significance
under Schedule D (Heritage Items) of the LEP. A number of dwellings near the
site are identified as items of local significance under Schedule D. The site
is also located within the Beecroft/Cheltenham Heritage Conservation Area
under Schedule E (Heritage Conservation Areas) of the LEP. Clause 18 provides
requirements for development in conservation areas and in the vicinity of
heritage items.
The
issues
The
Council filed a Statement of Issues containing the following issues:
1.
Whether approval should be granted as inadequate assessment has been made of
alternate sites in the vicinity and the potential for co-location on existing
structures.
2.
Whether approval should be granted as inadequate information has been
provided in terms of the existing network in the locality and the need for an
additional facility.
3.
Whether approval should be granted as the
Applicant has not adequately demonstrated that the development will not cause
a level of electromagnetic radiation that will impact on the health of
persons in the locality.
4.
Public Interest:-
a)
Whether consent should be granted in the public interest;
b)
Issues raised by objectors, which include:-
§ Public health impacts;
§ Visual impacts;
§ Heritage impacts; and
§ Co-location.”
26
The Council clarified that the aspects of the public interest in issue 4(a)
relied upon are the matters raised in the other issues 1 to 3 and 4(b).
27
It is logical to address these issues in the following order: the effect of
radiofrequency (RF) electromagnetic energy (EME) including on public health
and safety, the need for the development, alternative sites for the
development and the matters raised by objectors of visual impacts, heritage
impacts and co-location.
The evidence
Expert evidence
28
The parties agreed to the appointment of Dr. David Black as the Court
appointed expert on the effects of RF EME. Dr. Black is eminently qualified
to give such evidence.
29
Dr. Black is a medically qualified specialist in occupational and
environmental medicine and is currently employed as a senior lecturer in
Occupational Medicine in the Department of Medicine, Faculty of Medical and
Health Sciences, at the University of Auckland. He holds the medical degree
of MBChB from the University of Auckland.
30
Dr. Black has had a strong academic interest in the area of radio frequency
safety for over fifteen years. He has worked on committees producing several
national and international standards and has published papers on health and
biological effects of radio frequency energy in the international peer
reviewed scientific literature. He was a named contributor to the current
Australian Standard, namely the Australian Radiation Protection Standard
“Maximum Exposure Levels to Radiofrequency Fields 3kHz to 300 GHz: Radiation
Protection Series No. 3” (Australian Standard RPS3), having been employed by
the Australian Radiation Protection and Nuclear Safety Authority (ARPANSA) as
a consultant to the committee.
31
Dr. Black is a Fellow of the Australasian Faculty of Occupational Medicine,
of the Royal Australian College of Physicians (FAFOM), a Member of the
Australasian Radiation Protection Society (MARPS) and a Member of the Royal
Society of New Zealand (NRSNZ). He is also an active member of the
Bioelectromagnetics Society of the USA (BEMS) and the European
Bioelectromagnetics Association (EBA). He is a consultant member of the
International Commission for Non-Ionizing Radiation Protection (ICNIRP).
32
Dr. Black was an author and co-author of two papers to a special edition of
the authoritative journal Bioelectromagnetics on the topics of the
interaction of RF EME with living tissue and the potential for adverse
effects of RF EME on humans. This special edition was published in
preparation for the release of the 2005 American International Committee on
Electromagnetic Safety (ICES) Standard administered by the Institute of
Electrical and Electronic Engineers (IEEE).
33
Dr. Black also considered for the purpose of giving his evidence the most
recent authorative review of epidemiological and
population studies by the Epidemiology Standing Committee of the
International Commission for Non-Ionizing Radiation Protection (ICNIRP)
published in December 2004.
34
The applicant provided further evidence from Mr. Michael Bangay,
a consultant with experience in radio frequency propagation and measurement,
and Mr. Bill Papadatos, a radio frequency design
engineer.
35
Mr. Bangay has worked for 38 years in the field of
radiofrequency propagation and measurement. For 25 years, he was employed by
ARPANSA, an agency of the Commonwealth Department of Health. He represented
ARPANSA on the Standards Association of Australia technical committee (TE/7)
for setting safe limits of human exposure to RF fields and was a member of
the RF Working Group that produced the Australian Standard RPS3. He currently
chairs the Standards Australia TE7/2 committee which has the responsibility
of producing the RF measurement standard. He has authored and co-authored
numerous scientific papers published in peer-reviewed scientific journals.
Mr. Bangays current position is as principal
consultant with Radhaz Consulting Pty Ltd, a
consultancy company specializing in RF EME management and compliance to
relevant exposure standards.
36
Mr. Papadatos is a radio frequency design engineer
who has worked in the industry for many years and is currently subcontracted to
Telstra to design mobile telephone base stations and other aspects of the
telecommunications network.
37
I will outline their respective evidence later in the judgment. The respondent called no expert evidence. The
respondent did not challenge the expertise of Dr. Black, Mr. Bangay or Mr. Papadatos or,
notwithstanding some cross-examination, their expert testimony.
Non-expert evidence in support of development
38
Evidence in support of the proposed development was provided on site by:
·
Mr. Robert Cole, President of the Club;
· Mr. Brian Sipple of 22A Hull Road, Beecroft; and
· Mr. Spencer Bough of 82 Baronia Place,
Cheltenham.
39
Mr. Robert Cole is the Chairman of the Cheltenham Recreation Club. Mr. Cole
submitted a letter dated 24 January 2006 on behalf of the Club. The letter
stated:
(a)
The Club has given approval for the proposed base station.
(b) The Club, in its negotiations with the applicant, ensured that the
proposed base station in terms of its size and location would not impact on
the heritage listed grounds of the Club or the exterior of the clubhouse.
(c) The Club is reassured by the report of the court appointed expert Dr.
Black that the proposed base station poses no health risk. The Club would not
permit the proposal if there were to be any adverse impacts to the clubhouse,
grounds or users.
(d) The Club has secured the construction of a new pergola as part of the
lease agreement with the applicant, demonstrating also the Clubs commitment
to maintaining the site and its amenity.
40
Mr. Cole also stated orally that:
(a)
The residents’
description of the antennas as “towers”
is inaccurate; they will look more like chimneys (煙突).
(b) The Club acted responsibly, only supporting the proposed base station
after obtaining information from the applicant on:
(i) heritage: a heritage report established there would be
no impact on the Club or grounds; and
(ii)
health: the report by Dr. Black established a “clean bill of health”.
(c) The annual rental income and the construction of a pergola will preserve
the Club for the future.
(d) No other carrier has approached the Club to co-locate a mobile phone base
station at the Club site.
41
Mr. Spencer Bough supported the proposal for the following reasons:
(a)
The proposal has been recommended for approval by council officers on each
occasion.
(b) There have been public meetings to discuss the proposal.
(c) The Parents Association of Cheltenham Girls High School has withdrawn its
objection to the proposal.
(d) Mobile phone base stations and antennas have been approved and installed
at other school sites in the area included Arden School.
42
Mr. Brian Sipple is a member of Cheltenham
Recreation Club. He recently joined the Club to support it. He has been
concerned at the decline in bowling clubs in Sydney, because they serve an
important community function and provide pleasant public open spaces. He
believes that the proposal, by providing much needed annual rental revenue to
the Club, will improve the Clubs long-term viability.
Non-expert
evidence objecting to the development
43
Evidence was provided on site and in Court from the following local
residents:
·
Mr. Daniel Brunelli –
Brondex of 23 Cheltenham Road, Cheltenham;
·
Mr. Jack Ray of 25 Cheltenham Road, Cheltenham;
· Ms. Jolien Deller of 6 Cheltenham Road,
Cheltenham;
· Mr. John Nichols of 1 Lyne Road, Cheltenham;
· Dr. Austin Mack of 78 The Crescent, Cheltenham; and
· Ms. Jillian Brunelli –Brondex
of 23 Cheltenham Road, Cheltenham.
44
Mr. Daniel Brunelli-Brondex objected to the
proposed base station for the following reasons:
(a)
The proposed installation will impact on the visual amenity of the area which
is a heritage conservation area.
(b) The applicant has provided inadequate
information to the community about the
development, the hazards of RF EME from the development and proposed
management practices to restrict access to RF EME hazard areas.
(c) Co-location by other carriers at the Club site might occur in the future.
The proposal would become more comprehensive and critical than it appears
now. The Court should prevent co-location in the future.
(d) The cumulative effect of EME on the neighboring community, especially
around schools, kindergartens and residential areas, should be considered.
(e) The precautionary principle
should be applied.
(f) The applicant has not complied with the ACIF Code for the Deployment of
Radio-communications Infrastructure in making available to the public RF EME
health and safety information.
45
Mr. Jack Ray, who lives 200 meters from
the proposed base station, objected for the following reasons:
(a)
While there exists such a large degree of uncertainty concerning the health
risks associated with mobile phone antennas, these installations should be
limited.
(b) Residents who do not choose to be subjected to RF EME from the proposed
base station, should not be subjected to it.
(c) Good mobile phone reception is not a basic human right. The adverse
health effects outweigh any benefit from improved mobile phone reception.
(d) There is no need for further mobile phone base stations and antennas.
(e) Co-location by other carriers might occur in the future.
46
Ms. Jolien Deller objected to the proposal for the
following reasons:
(a)
There is no established need for the proposal. There are already
telecommunications facilities in the broader area. The extension in the
mobile phone coverage area will be limited. A Councillor
of Hornsby Council and the Councils solicitor were
able to make mobile telephone calls driving and riding on the train
respectively in the area.
(b) There is a potential for co-location by other carriers once the applicant
establishes its “towers” at the Club site. This could lead to a “forest of
towers” such as has occurred at Beecroft.
(c) The applicant has not looked at other sites in Cheltenham except the
railway station.
(d) The antennas will be ugly and attract graffiti.
(e) There were 57 letters of objections of residents from Cheltenham. In
contrast, there were 53 letters in support, but only 7 were from Cheltenham.
(f) The financial benefit to the Club from annual rental payments by the
applicant is not significant.
(g) The suburb of Cheltenham is a heritage area. There are covenants on the
original subdivision precluding noxious and commercial activity. The proposal
would infringe these covenants.
(h) The Cheltenham community has received a lack of information on the
proposal.
(i) Although the RF EME emitted from the proposed
base station may “meet all industry standards regarding emissions, there are
vulnerable groups such as children and the elderly who live in the suburb who
absorb much more electromagnetic radiation (EMR).
(j) Other substances such as asbestos in years gone by met “industry
standards” but today health effects are being experienced by persons who
worked in those industries. The same might occur with RF EME from mobile
phone base stations.
(k) The technology is so new we will not know until much later if there is
harm.
47
Mr. John Nichols lived across the road from the Clubs land at 1 Lyme Road,
Cheltenham. Mr. Nichols opposed the proposed base station for seven reasons:
(a)
The proposal (but principally the antennas which he described as “towers)
would be intrusive visually in an area that is a heritage area.
(b) The health effects of the RF EME give cause for “great apprehension. He
believes there is no definitive and proven long term report on their effects.
Assurances by the applicant to the contrary were speculation.
(c) There is no established need for the proposal. Mr. Nichols and a Councillor of Hornsby Council
were able to make calls on their mobile phone. Mr. Nichols wife is able to make
mobile telephone calls to him on the train between Eastwood and Cheltenham.
(d) Co-location at the Club site may occur with other carriers joining
Telstra.
(e) The information provided by the application and its consultant to Mr.
Nichols has been inadequate and there have been no discussions.
(f) The information provided with the development application and application
for s 82A review is misleading and deceptive.
(g) The engineering prospects of the proposal are second rate.
48
Dr. Austin Mack lives within 100 meters of the
proposed base station. He objects on a number of grounds, but his primary concern is the RF EME that will be emitted.
Dr. Mack says he has undertaken research in the area of electromagnetic
radiation. However, he was not called by the Council as an expert in the
field and Dr. Macks qualifications and expertise
were not revealed. He stated he was not a medical doctor. Dr. Mack provided
no references or scientific literature to corroborate his statements. Dr. Macks concerns included the following:
(a)
The Australian Standard RPS3 is in line with international standards but is
less stringent than those in many countries. It is less stringent than the
previous Australian Standard.
(b) The Australian Standard RPS3 protects human tissue against damage caused
by heating from RF EME but does not protect against damage caused by other reasons.
There may be more health risks at lower powers than at higher powers.
(c) Although proof of adverse health risks from RF EME is not yet conclusive,
there is nevertheless a considerable body of knowledge which suggests the
need for a precautionary approach to be taken.
(d) The applicant has stated to the Council and residents that there is no
evidence that mobile phone base stations cause any adverse health effects,
yet the applicant has also stated in its 2004 Annual Report that insurers
were less prepared to give insurance cover against adverse health risks.
(e) The effects of exposure to “radiation” (Dr. Mack did not distinguish
between ionizing radiation and non-ionizing radiation such as RF EME) are
cumulative.
(f) Exposure to RF EME from mobile phone stations is involuntary.
(g) The ACIF Code for the Deployment of Radio-communications Infrastructure
requires carriers to demonstrate they have applied a precautionary approach.
The applicant has not done this. The applicant has not had regard to the
physical characteristics of the locality including the elevation and terrain
or the location of sensitive community facilities such as schools in siting
the proposed base station.
(h) Children will be more at risk of exposure to RF EME.
(i) The proposal is not essential for the
activities of the Club.
(j) The applicant has not considered alternative sites. There are more
suitable sites in the area.
(k) There is no need for the proposed base station. There are already base
stations in neighboring areas. Coverage is adequate. There is no birth right
to blanket coverage by mobile phone.
(l) The application has provided the Council and the residents with little,
or out-dated, or misleading information.
(m) The Council has rejected the application on three occasions.
49
Mrs. Jillian Brunelli-Brondex objected to the
proposal on the following grounds:
(a)
The Council has refused the application on three occasions.
(b) The applicant has not produced evidence “guaranteeing” the safety of the
antennas.
(c) It is “not prudent” to install “irradiating infrastructure” in a
residential area, especially Cheltenham where 28% of the population are
children.
(d) From reading newspapers and watching news broadcasts whilst living in
Europe and North America, Mr. Brunelli-Brondex has
become conscious of the “growing problems” that this type of infrastructure
causes.
(e) Antennas should not be at the same elevation as residences. Mrs. Brunelli-Brondexs childrens’
bedrooms are at the same elevation as the proposed antennas at the Club site.
(f) The precautionary principle should be applied. It is cited in reports in
various countries and in the ACIF Code.
(g) Communities are not convinced by the latest scientific evidence being
supplied by people who wish to install mobile phone base stations.
(h) The antennas will give the Clubs clubhouse building an industrial
appearance, which is inappropriate in a heritage conversation area.
(i) There is a high probability of co-location by
other carriers. This could lead to multiplication of antennas and a resultant
ugliness.
(j) The health and safety of the local community outweighs the financial gain
to the Club and the applicant.
(k) 56 letters of objection have been written by local residents, but of the
responses supporting the proposal, only 8 were individual letters and the
majority of supporters did not live nearby.
(l) By reason of a covenant on the original subdivision of Cheltenham, no
noxious or commercial activity is permitted in Cheltenham. The proposal would
infringe this covenant. Establishing a noxious, commercial activity in
Cheltenham such as the proposal will set a dangerous precedent.
50
The Court also had the benefit of a bundle of documents containing the
submissions received when the development application and review of the
Councils determination under s 82A were advertised. These have been
considered.
Mobile
telephone technology and RF EME
51
Before discussing the effect of RF EME on the health and safety of humans and
the environment, it is instructive to explain three fundamental matters:
first, the history and development of mobile telephone technology, secondly,
the nature of electromagnetic energy generally and, thirdly, the nature of
radiofrequency electromagnetic energy in particular, being the form emitted
from mobile phone base stations.
52 Some of the concerns raised by residents stem from a
misunderstanding of these fundamental concepts.
53 In his expert report to the Court, Dr. Black provided a helpful
and clear overview of these fundamental concepts. I will set out his overview
on these concepts in its entirety.
Overview of Mobile Telephone Technology
54
Dr. Blacks overview of mobile telephone technology is as follows:
16.
The use of radio based systems for communications dates back to the late 19th
century, beginning after the demonstrations of wireless communication by
Marconi, which he announced in 1896. In the years which followed,
intelligence communication using radio signals was initially achieved by
interrupting the signal and sending pulsed codes using the method which had
been invented a century earlier for wireless telegraphy by Samuel Morse.
17.
This proved highly effective on wire based systems throughout the preceding
century and was adapted to radio simply by interrupting the transmitted
signal, which coded characters by using either an on or off state.
18.
However, the discovery of electronic methods of signal amplification,
particularly the thermionic valve by de Forrest enabled the development of
systems to modulate speech and other sound intelligence onto the radio signal
in an analogue fashion, heralding the beginning of wireless technology.
19.
By the 1920s, this was used widely for both broadcasting and communications,
although Morse code systems remained important for a further eighty years. By
the time of the second world war the use of radio telephone systems was
widespread for both military and civil communications and the direct descendents of these systems remain today, for example in
the facilities used in Australia by taxis and emergency services.
20.
An important characteristic of a radio transmitting and receiving system is
the relationship of stations to each other, whether they are in a one to one
or one to many systems. In broadcasting, one transmitter may serve literally
millions of receivers whereas in a radio telephone system generally one
transmitter and receiver set is communicating with another single transmitter
and receiver set thus creating one circuit of radio telephony communication.
21.
However, in the earlier systems of radio telephones, and some of these or
their modern equivalents are still in use, one central base station would
serve many transceivers on the same frequency and usage of the system
depended on the users having to wait their turn, which is a primitive system
of time division multiple access (TDMA).
22.
It is also possible to create a number of different channels at different
radio frequencies, that is effectively a number of different base transmitter
stations, which is a system of frequency division multiple access (FDMA).
23.
In practice, the two were mixed and so a 1950’s radio telephone system as
operated in Australia by the Post Office, would have, say 10 transmitters on
different frequencies operating from a high point in a city, each of which
might serve, say 100 mobile stations, so 1000 users could benefit from a
service providing they waited their turn for an empty time slot. In general,
these systems used relatively high powers, of the order of hundreds of watts
at the base stations and tens of watts at the mobile stations. They generally
relied on rather bulky equipment with power derived from an external source,
such as a motor vehicle battery.
24.
Whilst the essential technology of radio transmission and reception did not
change markedly in the last quarter of the 20th century, the manner of using
the available spectrum space was radically altered by the development of
cellular telephone technology, the modern derivative of which is used in
today’s mobile telephone systems.
25.
There are a number of important concepts in this, all of which evolve from
the earlier ideas of time and frequency division.
26.
Firstly, the utility of particular frequencies can be greatly altered, if the
frequencies are able to be reused in different geographic locations. At ultra high frequencies, this can be achieved by utilizing
the line of sight properties of high frequency radio signals so that, if
these are effectively obstructed by geographical features, the same channel
can be reused in another location.
27.
If a mobile transmitter can be arranged so that it can be identified wherever
it is, and the base system can be designed so that it keeps track of each
mobile transceiver, then a system of greatly expanded utility can be arranged
by containing each transmission area into “cells”, which are the basis of
modern mobile telephone technology.
28.
Modern systems have gone further than this and divided the area around a base
station into sectors, usually three, which interface with the sectors of the
next adjacent sites forming a honeycomb pattern of cells. That system
provides greatly increased utility of frequency division multiple access.
29.
The most basic use of time division multiple access is achieved by simply
having users queue up and wait for an empty time slot. However, digital
technology has afforded a further refinement of this by transmitting signals
in bursts after momentarily storing and preparing the signal in electronic
memory and then rapidly switching between a number users.
30.
The second generation mobile telephone system used by Telstra and their
competitors, Global System Mobile (GSM) has used this technique since the
early 1980’s and is able to manage eight simultaneous conversations using
switched time slots on a single carrier, thus, there is an added increase in
capacity of the system by combining time division multiple access (TDMA) with
the existing frequency division multiple access (FDMA) afforded by the use of
multiple channels and geographically separated cells.
31.
Such systems are at the current state of the art and because the cells can be
relatively small, and the base stations are all linked by microwave or fibre optic circuits to central exchanges, a high level
of performance and coverage can be relatively easily achieved using small
amounts of transmitted power and relatively small bands of radio frequency
spectrum.
32.
Thus, the first generation of mobile telephone systems in cellular techniques
used only FDMA and cellular techniques for channel reuse. The second
generation has used FDMA and TDMA but now there is a third generation which
is presently being introduced throughout the world.
33.
Third generation mobile telephone technology has evolved to a more sophisticated
system of using signals, which contain special codes so that the receiving
station at the base or mobile end is able to decipher only the part
transmitted signal relevant to the circuit, which has been established for
the particular users, who have established contact with the call. However,
the base station transmits a broadband signal at low level, which on initial
inspection would appear to be little more than noise, but by the use of the
codes and mathematical methods imbedded in the electronics of the base
station and phone to decipher these, the intelligent signal can be extracted.
34.
These systems have proven to be by far the most efficient yet at achieving
useful levels of communication, using small amounts of power and efficient
use of spectrum. FDMA is no longer necessary, for that matter neither is
TDMA, because all of the codes are effectively coexisting in parallel on the
one signal.
35.
This system is known as code division multiple access (CDMA) and this forms
the basis for third generation systems. Telstra in Australia and Telecom in
New Zealand used the CDMAOne system, which is
strictly second generation with some third generation characteristics. Both
second and third generation systems also incorporate power minimizing
technology, known as adaptive power control (APC) in GSM, or in other
technologies by analogous similar names.
36.
APC has the ability at the time of negotiating the original circuit to
establish transmitter power levels at both the base station and mobile, which
are no more powerful than necessary to achieve reliable communications, thus
minimizing the likelihood of interference, as well as increasing the battery
life of the mobile phone. This incidentally has the effect of minimizing the
exposure of radio frequency energy to the user of the mobile phone or to
other electronic equipment or people in the vicinity of the base transmitter,
although by the standard of other RF based equipment, the levels are already
very low in any event. Studies have shown that this exposure minimizing
effect is as effective as a strategy with this as its primary goal.”
Electromagnetic Energy (EME)
55
Dr. Black also provided the Court with an overview of electromagnetic energy
or EME:
“37.
Energy is defined in physics as something which is capable of doing work.
Work may consist of moving, heating, or otherwise altering the physical
characteristics of the environment, or something in the environment. Energy
and work are for practical purposes the same thing and they are expressed as
a total amount accrued over time.
38.
A common example is the use of electrical energy purchased from a supply
company, measured with units of kilowatt hours. Energy at a point in time is
expressed as power (kilowatts), crude work over time is energy (kilowatt
hours), although the correct SI unit for total energy is the joule. Systeme Internationale (SI) is
the agreed international system of units used in science and industry based
on the meter, kilogram and second. The joule is one watt for one second. Energy
involving mechanical force or movement may involve moving objects against
gravity, or imparting heat by conduction, though intermediates (for example
boiling food in water) or conducting heat through gases in the atmosphere.
39.
However, energy can also transmit though space on its own account, without
any intermediate as, for example, the energy from the sun does in transiting
through space to the earth. This happens by means of electromagnetic waves of
which there is a wide spectrum with varying properties.
40.
The behavior of electromagnetic energy (EME) has caused it to be
characterized as waves and it remains most useful to think of the spectrum in
these terms, although it is self evident, since EME
is capable of passing through nothing, it cannot be waves in nothing, and
therefore EME also has the characteristics of particles, which are known as
photons.
41.
The electromagnetic spectrum extends from extremely low frequencies of a few
cycles per second to extremely high frequencies of billons of cycles per
second. Electromagnetic energy travels at more or less a constant speed
depending on the medium in which it is moving. In a vacuum that is
approximately 300 million meters per second (300Mms-1) and the frequency and
wavelength are inversely proportional.
42.
The speed of light and radio waves is generally known as C and is measured in
meters per second (m/s) or ms-1). The frequency of vibration is expressed as
cycles per second which are termed Hertz (Hz) (or multiples of Hertz). The
wavelength is measured in meters or fraction of a meter and is signified by
the Greek letter λ. There is a direct and constant
relationship between the speed, the frequency and the wavelength in which, as
the frequency goes up the wavelength goes down, or conversely, as the
wavelength goes up the frequency goes down. The contract in this relationship
is the speed (C). Thus the formula is C (speed) = Hz (frequency) ×λ
(wavelength).
43.
Another characteristic of electromagnetic waves is the energy contained
within them and this is carried in two importantly different forms. Firstly,
the wave itself has an amplitude and power, which can deliver energy directly
to a receiving object, where the wave lands and stops, or in physical terms
is absorbed. A classical example of this is an
object in the path of sunlight which absorbs the heat of the sun and is
warmed up.
44.
However, there is also another form of energy in the wave, which is the
energy bundled up in the nature of the wave itself, or, if the wave is
thought of as a stream of particles, in the photons. This becomes significant
at frequencies much higher than that of light and enormously higher than the
frequency of radio waves. This is known as “photon energy”. At low
frequencies this is insignificant, but at extremely high frequencies, for
example, those well above light, photon energy becomes much more significant
than the power of the wave, so much so that it dominates the characteristics
of the wave (or stream of photons, whichever way you look at it) and is capable
of causing chemical changes in structures, because the photon energy exceeds
the electrical strength of the bonds, which hold atoms together in molecules.
45.
Thus photon energy is measured in electron volts or thousands of electron
volts (kiloelectron volts, keV)
and this property of knocking atoms off molecules is known as “ionization”.
It is called ionization, because when it breaks up a substance, which has
become electrically neutral, it renders it charged thus creating an ion. The
ionizing properties of electromagnetic waves do not begin until well above
the frequency of visible light, in the upper ultra-violet spectrum, although
the lower ultra violet, which is capable of travelling through the earth’s
atmosphere, is not ionizing.
46.
The human and most animals’ eyes have evolved to react to the narrow band of
frequencies centered around 500 nanometers (that is 500 thousand millionths
of a meter), because this region is a “window” in the earth’s atmosphere,
where electromagnetic energy from the sun is able to transmit relatively
freely.
47.
The frequencies immediately below the lower end of the visible spectrum,
which is red, are known as infrared and are capable of transmitting both heat
energy and can be used for intelligent information, the most commonly
encountered application of which are infrared remote controls, such as are
widely used in television sets and the like. Frequencies below this, in
practice well below, are those used for radio frequency communications.”
Radio Frequency Electromagnetic Energy (RF EME)
56
In his report, Dr. Black then briefly discusses radiofrequency
electromagnetic energy (“RF EME”):
“48.
In general, RF is regarded as the spectrum from 30 kHz to 300 GHz and that is
because these frequencies can be reasonably readily transmitted around the
earth, through the atmosphere and in different regions possess important
characteristics, which can be utilized. For example, lower frequencies in the
short wave band (3 to 30 MHz) can be bounced from the ionosphere and thus
circumnavigate the globe enabling a radio listener in Australia to hear a
broadcast from England.
49.
However, at higher frequencies, the point to point characteristics and lack
of further propagation can be utilized, as it is in mobile telephone technology
and these characteristics are typically found in frequencies of the order of
1 GHz (1 thousand million hertz).
50.
It is around these frequencies that mobile telephone systems operate. Those
currently in use in Australian are confined to the region from 800 MHz to 2.2
GHz. The characteristics of these frequencies are that they are of relatively
short wavelength (between 5 and 15 centimeters), are more or less confined to
point to point transmission, in that they do not bend around solid screening
or absorbing objects very much, although they will bounce off reflecting
surfaces readily, which turns out to be useful in achieving local coverage in
the cells of a mobile telephone system.
51.
Broadcast systems such as television and radio use the bands immediately
below these because, as one of many systems using only frequency division for
multiple users of the spectrum, isolation of signals is not so important, but
the ability for them to bend around to a greater or lesser extent is useful.
So frequencies such as broadcasting band 1 (about 50 MHz), used in Australia
for television channels 0 to 3, can achieve good coverage even to areas which
cannot see the transmitter. This would be an impediment in the design of a
mobile telephone system, but is an advantage in a television system.”
Predicted
RF EME levels
57
Telstra estimated the maximum cumulative RF EME levels from all carriers at
distances between 5 and 500 meters on one of the radiofrequency beams
transmitted by the proposed base station (at a direction of 131.73o). This
was done in accordance with and as required by the relevant industry code
(Australian Communications Industry Forum, “Industry Code – Deployment of
Mobile Phone Network Infrastructure”, 2004). The maximum level, which occurs at an intermediate distance of
83.89 meters, was estimated as equivalent to 2.39% of the Australian
Communications Authority (ACA) mandated exposure limits when these estimates
are made at 1.5m above ground level. The document
referenced in the summary of estimated RF EME levels from Telstra, is the ACA
Mandatory Standard “Radio-communications (electromagnetic radiation – human
exposure) standard 2003”. The ACA Standard fixed as the mandatory EMR
exposure limits from mobile telephone base stations, the exposure limits in
the standard set by ARPANSA, namely the Australian Standard RPS3.
58
The approach taken in Australia to estimating levels for such compliance is
the use of modelling software which is well accepted and reliable. This uses
complex mathematical models to combine the effects of signals at various
frequencies. However, the figure finally arrived at should be considered as a
percentage of the frequency in use which has the most restrictive standard.
The variation in reference levels at various frequencies results from
differences in absorption. The lowest frequency in use, rounded down to the
nearest 100 MHz, is 800 MHz which, using the method in the Australian
Standard RPS3, results in a power density limit of 4 watts per square meter.
59
Accordingly, in this case, the maximum level is 2.39% of 4 watts per square
meter which is less than 10 milliwatts per square
meter or less than 1/40th of the Australia Standard RPS3.
60
Mr. Bangay gave corroborative evidence of the
predicted RF EME levels from the proposed base station.
61
Mr. Bangay measured
the existing RF EME levels (from AM and FM radio, VHF and UHF television, and
mobile phone base signals) at community sensitive locations in Cheltenham in
the vicinity of the proposed base station.
These measurements were expressed as a cumulative RF EME level as a fraction
of the RPS3 General Public Exposure Limit. The results are summarized in
Table 1 below.
|
Measurement Location
|
Measured Cumulative Environmental RF EME Level
as a Fraction of RPS3 GP Limit
|
|
Girls High School
Cnr The Crescent & The Promenade
|
0.0068%
0.0068%
|
|
Pre School – The Promenade
Church car park The Promenade
School Crossing Beecroft Rd
Beecroft Rd opposite The Promenade
|
0.0030%
0.0023%
0.0023%
0.0023%
|
|
Recreational Club
No. 2 The Boulevarde
Railway Station Car park
Cnr The Crescent & Lyne
Rd
|
0.0071%
0.0071%
0.0071%
0.0017%
|
Table
1. Measurements of existing RF EME at specific locations
62 Of the cumulative RF EME level, mobile phone base
signals are an extremely minor component. For example, at the Cheltenham
Girls High School, of the cumulative RF EME total of 0.0068% of the RPS3
General Public Exposure Limit, mobile phone base signals comprise a mere
0.000002%. The largest contributor of RF EME to the cumulative total is
radio, both FM (0.005%) and AM (0.00135%). Television is the next largest
contributor, both UHF TV (0.0003%) and VHF TV (0.0002%).
63
Next, Mr. Bangay used well-accepted and reliable
computer modelling to predict the RF EME levels from the proposed base
station at each of the locations at which Mr. Bangay
had measured the existing cumulative EME levels. These predicted levels were
again expressed as a fraction of the RPS3 General Public Exposure Limit.
Table 2 below summarizes Mr. Bangay’s predictions.
|
Prediction Location
|
Predicted level of RF EME
from proposed Base Station as a Fraction of RPS3 GP Limited
|
|
Girls
High School
Cnr The Crescent & The Promenade
|
0.0406%
0.0763%
|
|
Pre
School – The Promenade
Church car park The Promenade
School Crossing Beecroft Rd
Beecroft Rd opposite The Promenade
|
0.0156%
0.0134%
0.0071%
0.0095%
|
|
Recreational Club
No. 2 The Boulevarde
Railway Station Car park
Cnr The Crescent & Lyne
Rd
|
0.0839%
1.692%
0.3300%
0.6890%
|
Table
2. Predicted level of base station RF EME
＜BEMSJ注：当該のレクレーションクラブの近傍では、基地局の設置によって電波曝露は有意に増加し、総和は基準値の1.6％にまで増加している。＞
64 Mr. Bangay stated that the predicted levels are a worst-case assessment.
Actual levels will be far less. Mr. Bangay gave
four main reasons for predicted levels being in excess of actual levels.
65
First, predictions are made on the basis of all transmitters operating at
full rated power. This seldom, if ever, occurs. Adaptive power control and
phone traffic of less than 100% causes lower transmitting powers. Adaptive
power control minimizes transmitted power to prevent interference with other
base station signals and conserve battery life in the mobile phone: see also Telstra
Corporation Ltd v Moreland City Council [2002] VCAT 1294 (23 October
2002) at [31].
66
Secondly, for prediction purposes, antennas are significantly tilted
downwards in the vertical plane. Although a number of sites, such as tall buildings
and towers, require the downward tilting of antennas, sites on low buildings
and at the bottom of hills do not. The antennas for the proposed base station
will be on a low building and in a topographically lower location and will
not be required to be tilted downwards.
67
Thirdly, transmission losses between transmitters and antennas are not fully
taken into account.
68
Fourthly, radio signals are absorbed and reflected by buildings and trees
that are in the signal path. Mr. Bangay noted that
the majority of the community sensitive locations in the Cheltenham area do
not have direct line of sight transmission paths to the proposed base
station. This will cause a significant reduction in the reported predicted
levels.
69
Mr. Papadatos, a Radio Frequency Design Engineer
sub-contracted to Telstra, also gave evidence that actual emission levels
from the proposed base station will be lower than the estimated levels. He
gave two reasons: first, the estimation makes no allowance for signal
attenuation resulting from buildings, trees and the general environment and,
secondly, cellular networks rarely operate at maximum power.
70
For these reasons given by Mr. Bangay and Mr. Papadatos, the actual RF EME levels radiated from the
proposed base station will be significantly reduced from the predicted RF EME
levels.
71
Mr. Bangay corroborated this evidence by reference
to an audit ARPANSA initiated in 2003 of the actual measured RF EME levels of
60 mobile phone base stations in Australia. Mr. Bangay
was one of the auditors. The work has been published: G I Henderson and M J Bangay (2005), “Survey of RF exposure levels from mobile
telephone base stations in Australia”, 27(1) Bioelectromagnetics 73-76.
72
One of the objectives of the audit was to compare predicted levels, using the
well accepted modelling, with the actual measured levels. The audit showed
that, on average, the measured levels for CDMA signals at the distance from
the base station where the maximum level was predicted to occur was 43,000
times less than the ARPANSA/ACA General Public Exposure Limit. The audit also
showed that the GSM signals were, on average, 4, 500 times less than the
ARPANSA/ACA General Public Exposure Limit.
73
Furthermore, the audit demonstrated that predictions, based on the well
accepted modelling, were conservative. Estimated levels were, on average, 28
times greater than the measured levels for cumulative signals radiated from
co-located sites.
74
As a final step, Mr. Bangay aggregated the existing
cumulative environmental RF EME levels that he had measured at the community
sensitive locations in Cheltenham, with his predicted levels of RF EME from
the proposed base station. Table 3 below summarizes the results of this
aggregation.
|
Location
|
cumulative RF EME Level (proposed base station &
existing environmental) as a Fraction of RPS3 GP Limit
|
|
Girls
High School
Cnr The Crescent & The Promenade
|
0.0474%
0.0831%
|
|
Pre
School – The Promenade
Church car park The Promenade
School Crossing Beecroft Rd
Beecroft Rd opposite The Promenade
|
0.0186%
0.0164%
0.0200%
0.0125%
|
|
Recreational Club
No. 2 The Boulevarde
Railway Station Car park
Cnr The Crescent & Lyne
Rd
|
0.0910%
1.6991%
0.3371%
0.6961%
|
Table
3. Cumulative level of existing environmental and base station RF EME
75 These cumulative totals of RF EME at each location will also represent
worst-case assessments for the reasons given above. The actual levels from
the proposed base station will be significantly less than the predicted
levels. Hence, the cumulative totals shown in Table 3 will in actuality be
significantly less.
76
Mr. Bangay stated that the RF EME levels in Tables
1 to 3 are “well below the ARPANSA General Public Exposure Limit and are not
known to have any adverse health effects”.
77
Mr. Bangay also noted that the greatest
contributors of RF EME to the totals for the cumulative RF EME environmental
levels in Table 3 at the locations of the pre-school and Cheltenham Girls
High School, after commissioning of the proposed base station, will continue
to be broadcast services (TV and radio). This is a consequence of the
proposed base station creating low level RF EME, the significantly higher
elevations at the locations of the pre-school and Cheltenham Girls High
School, and signal path attenuation. Dr. Black corroborated this conclusion.
Health
effects of exposure to RF EME
78
Dr. Black was appointed as a court-appointed expert on the health effects of
exposure to RF EME from the proposed base station.
79
Dr. Black explained that the manner in which RF EME can interact with living
tissue is well understood and documented. There have been extensive
publications on this topic over the last 50 years and a large number of
expert summaries published. The extensive publications were reviewed,
summarized and referenced in the Australian Standard RPS3 (see Schedule 1 in
particular).
80
Dr. Black explained that the Australian Standard RPS3 sets limiting values to
deal with both thermal and athermal effects of RF
EME.
81
Thermal effects involve the heating of living tissue by the absorption of
energy and the dissipation of heat from circulating electric currents in
conductive tissue. This occurs because the external electromagnetic field in
space results in an internal field within the space occupied by the body.
However, the presence of electrical conductors results in this field
resolving to electric currents in the manner of a radio receiving aerial.
82
For this reason, all of the current standards, including the Australian
Standard RPS3, are based on the potential for biological consequences of this
effect to be limited by the specific absorption rate (SAR). This is the rate
at which energy is absorbed into tissue measured in watts per kilogram of
tissue. This parameter forms a basic restriction in the standards.
83
For thermal effects, the basic restriction is whole body average SAR to
prevent whole body heat stress. The mandatory limiting value of exposure
expressed for whole body average SAR closely matches the known biophysical
interaction mechanisms caused by heating. In the case of the Australian
Standard RPS3, the whole body average SAR threshold for general public
exposure to RF in the frequency range of 100 kHz - 6GHz is 0.08 watts for
kilogram. (Table 2 on p.7, Australian Standard RPS3).
84
However, direct measurement of this basic restriction is often impractical.
Therefore, the Australian Standard RPS3 provides a set of indicative levels
called reference levels as an alternative means for determining compliance.
Compliance with the reference levels assumes that SAR thresholds will not be
exceeded.
85
For the basic restriction of whole body average SAR (for frequencies in the
range 100kHz - 6GHz) the corresponding reference levels are time averaged
exposure to rms electrical (E) and magnetic (H) field strengths (Table 1 on
p.6, Australian Standard RPS3). These reference levels vary depending on the
frequency range. The reference levels are lower for general public exposure
than for occupational exposure (Table 7 on p.12, Australian Standard RPS3).
86 Athermal effects are any effects not
related to heating that results from the interaction of RF fields with a
biological system. At frequencies between 10MHz, RF EME has athermal effects. Sensitive tissue such as nerves and
muscles can be electrostimulated at levels below
perceptible heating.
87
Accordingly, at these low frequencies, these athermal
effects form the limiting basic restriction. The basic restriction is the
instantaneously special peak rms current density to prevent
electrostimulation of excitable tissue. The corresponding reference levels to
instantaneous spatial peak rms current density (for the frequency range of
3kHz - 10MHz) are the instantaneous rms electrical (E) and/or magnetic (H)
(3kHz - 10MHz) field strengths and instantaneous contact current (3kHz -
10MHz) (Table 1 on p. 6, Australian Standard RPS3). Satisfaction of the
reference levels for the electric and magnetic field strength instantaneous
reference levels assumes compliance with the basis restriction on
instantaneous spatial peak rms current density.
＜BEMSJ注：高周波は熱作用で説明、低周波は刺激作用であるとして非熱作用であると説明している。これは必ずしも正しくはない。＞
88
The RF EME generated by the proposed base station will comply by significant margins
of safety with the basic restrictions and corresponding reference levels for
general public exposure for thermal and athermal
effects. Such compliance ensures that the general public will not experience
thermal or athermal effects.
89
Dr. Black concluded that the RF EME which would radiate from the proposed
base station “could not conceivably cause any adverse biological or health
effect”. Dr. Black provides reassurance “that a high standard of
environmental and health protection would be maintained if this station is
allowed to be constructed as specified in the proposal from Telstra”.
90 I accept the evidence of Dr. Black and Mr. Bangay
and find that RF EME emitted from the proposed base station will not cause
any adverse biological or health effect to the general public.
Appropriateness
of the Australian Standard RPS3
91
The Australian Standard RPS3 is an authoritative and scientifically credible
standard to protect the health and safety of people and the environment from
the harmful effects of radiofrequency fields in the frequency range of 3kHz
to 300 GHz. The Standard is based on the 1998 ICNIRP Guidelines of the
International Commission on Non-Ionizing Radiation Protection (“ICNIRP
Guidelines”).
92
The Australian Standard RPS3 notes that ICNIRP is an international scientific
body with affiliations to various international standards bodies and
organizations. The ICNIRP rules establish scientific integrity and require
all committee members to be independent experts who are not members of commercial
or industrial organizations. All ICNIRP publications appear in the peer
reviewed scientific journal Health Physics: p. 34 of the Australian
Standard RPS3.
93
The Australian Standard RPS3 has reworked the ICNIRP specifications to
improve technical specifications or complete specifications where incomplete
in the ICNIRP Guidelines. The result is a sturdy and unambiguous technical
framework: pp. 33-34 of Australian Standard RPS3.
94
The Australian Standard RPS3 notes that in the process of settling the
Standard extensive, further research was also carried out:
“In
establishing this Standard, the origins and evolution of relevant
recommendations and publications of the ICNIRP and the American National
Standards Institute (ANSI) were carefully reviewed. Additionally, the
rationale for further development of these documents was examined and
consideration given to whether any published evidence challenges the
integrity of the approaches taken by the current ICNIRP (ICNIRP 1998)
(formerly IRPA/INIRC) approach and the current ANSI/IEEE (IEEE 1999)
approach. In addition to reviews conducted by expert groups or panels, there
is a large body of literature published in peer reviewed journals which has
been relied on. Recent epidemiological studies and laboratory research
reports have been carefully examined for evidence that would establish a need
to modify the basic restrictions or the associated reference levels.
Moreover, relevant spatial and temporal measurement averaging parameters have
been reviewed and where necessary revised, so as to provide an adequate and
unambiguous specification of the limits”: p. 35 of the Australian Standard
RPS3.
95
The purpose of the Australian Standard RPS3 is stated to be “to specify
limits of exposure to electromagnetic fields within radiofrequency range from
3kHz to 300 GHz such that any persons exposed below the limits will be fully
protected against all established adverse health effects”: p. 42 of
Australian Standard RPS3.
96
The Australian Standard RPS3 concludes:
“The
current scientific evidence clearly indicates that there are RF exposure
thresholds for the adverse health effects of heating, electro-stimulation and
auditory response. The basic restrictions of this Standard are derived from
these thresholds and include safety margins.
There
is some debate as to whether RF causes any effects below the threshold of
exposure capable of causing heating and electro-stimulation, and in
particular whether any effects occur at or below the exposure levels of the
limits. If any low-level RF effects occur, they are unable to be reliably
detected by modern scientific methods, but a degree of uncertainty remains.
The data of long term exposure is limited. It was considered that the
evidence for possible low-level effects is so weak and inconsistent, that it
does not provide a reason to alter the level of the limits. The limits
specific in this Standard are designed to protect against known health
effects and may not prevent possible or unknown low-level effects, although
the safety margin within the limit may provide some protection against such
low-level effects.
Furthermore,
the reference levels given in this Standard are based on specific ‘worst
case’ assumptions regarding particular exposure conditions that will lead to
exposure at the level of the basic restrictions. In the majority of exposure
situations, such ‘worst case’ exposure conditions do not apply, and thus the
application of the reference levels will provide additional safety margins”:
p. 42 of Australian Standard RPS3.
97
The Standard envisages and sets basic restrictions to take account of
different groups within the general public, including children. The basic
restrictions in the Standard account for different sizes and tissue
properties of all individuals, including children: pp. 42-43 of Australian
Standard RPS3.
Application
of the Australian Standard RPS3
98 It is not appropriate for a court to set aside or disregard
such an authoritative and scientifically credible standard as the Australian
Standard RPS3: Connell Wagner Pty Ltd v City of Port
Phillip [1998] VCAT 606 (15 January 1999) at
pp. 18, 21 and Heland Pty Ltd & Anor
v Telstra, unreported, VCAT Ref No P 3620/2004 (8 March 2005) at [7].
99
Nor is it appropriate for a court to pioneer standards of its own. The
creation of new standards is the responsibility of other authorities with
special expertise, such as ARPANSA: Hyett
v Corangamite Shire Council & Telstra [1999]
VCAT 794 (30 April 1999) at p. 5; Telstra Corporation Ltd v Pine Rivers
Shire Council [2001] QPELR 350 (9 March 2001) at 364 [61] and 379 [117]; Lucent
Technologies v Maribyrnong City Council & Ors [2001] VCAT 1955 (27 September 2001) at [52] and
[57]; Peasley & Ors
v Frankston City Council [2002] VCAT 642 (25 July 2002); Telstra
Corporation Ltd v Moreland City Council [2002] VCAT 1294 (23 October
2002) at [32]; Optus Mobile Ltd v Whittlesea City Council [2003] VCAT
968 (16 June 2003) at [24]; Optus Pty Ltd v Cardinia
Shire Council [2004] VCAT 581 (2 April 2004) at [17] and [19]; Telstra
Ltd v Mornington Peninsula Shire Council [2005]
VCAT 863 (9 May 2005) at [20]; Hutchison 3G Australia Pty Ltd v Hobsons
Bay City Council [2005] VCAT 1470 (18 July 2005) at [28]-[29].
100
The Court should accept and apply the Australian Standard RPS3: Sinclair v
Loddon Shire Council [1997] VCAT 241 (1
December 1999) at p. 3; Telstra Corporation Ltd v Pine Rivers Shire
Council [2001] QPELR 250 at 364 [61]; Optus Mobile Ltd v Whittlesea
City Council [2003] VCAT 968 (16 June 2003) at [26]; Blake Dawson
Waldron on behalf of Telstra Corporation v West Tamar Council [2004]
TASRMPAT 201 (20 August 2004) at [43]; Hutchison Telecommunication
(Australia) Limited v Ku-ring-gai Municipal Council [2004] NSWLEC 665 (10
November 2004) at [15]; and see also McIntyre v Christchurch City Council [1996]
NZRMA 289 (5 March 1996) New Zealand Environment Court, 295.
101
The Australian Standard RPS3 embraces(包含する) a precautionary approach.
The exposure limits set are conservative relative to the scientific evidence
on biological effects of exposure to RF fields. There are margins for safety in the basic restrictions and
associated reference levels. The reference levels are based on worst case
assumptions: Optus Communications Pty Ltd v Corporation of the City of
Kensington and Norwood [1998] SAERDC 480 (29 May 1998) at p. 6; Shirley
Primary School v Telecom Mobile Communications Limited [1999] NZRMA 66
(14 December 1998) New Zealand Environment Court, 143 [250]; Lucent
Technologies v Maribyrnong City Council & Ors [2001] VCAT 1955 (27 September 2001) at [26]; and
Optus Mobile Ltd v Whittlesea City Council [2003] VCAT 968 (16 June
2003) at [25].
102
Another precautionary approach advocated by the Australian Standard RPS3 is,
in relation to the general public, to adopt the principle of:
“Minimizing,
as appropriate, RF exposure which is unnecessary or incidental to achievement
of service objectives or process requirements, provided this can be readily
achieved at reasonable expense. Any such precautionary measures should follow
good engineering practice and relevant codes of practice. The incorporation
of arbitrary additional safety factors beyond the exposure limits of this
Standard is not supported”: section 5.7(e) of Australian Standard RPS3 at p.
29.
103
This precautionary approach has been adopted by Telstra in its proposal. The
nature and design of the antennas, their tilt and pan, the nature and quality
of the radio equipment comprising the proposed base station and the efficient
use of the equipment including the use of adaptive power control, all operate to minimize RF EME exposure:
see also Connell Wagner Pty Ltd v City of Port Phillip [1998] VCAT 606
(15 January 1999) at p. 13 and V ertical
Telecoms Pty Ltd v Hornsby Shire Council [2000]
NSWLEC 172 (10 August 2000) at [7].
104
No evidence was put forward to suggest that any RF EME exposure from the
proposed base station was unnecessary or incidental to the achievement of
service objectives or process requirements for the proposed base station. Dr.
Black stated there were no other precautionary measures that could be taken
to further minimize RF EME exposure from the proposed base station and
certainly none that could be readily achieved at reasonable expense.
105 Accordingly, the proposed base station meets the precautionary
approach recommended by the Australian Standard RPS3.
106
Indeed, as was concluded in Vertical Telecoms Pty Ltd v Hornsby
Shire Council [2000] NSWLEC 172 (10 August 2000) at [70], “the safeguards
generally adopted, and applied to this proposal, are for more stringent than
any research has shown to be necessary”.
Ecologically
sustainable development
107
The issue of the effect of RF EME emitted from the proposed base station
raises the question of the ecological sustainability of the development, and
in particular the applicability of the precautionary principle to the
development. I will first outline the basic concept of ecologically
sustainable development and then its applicability to the determination of
development applications under the EPA Act. I will next focus on the
precautionary principle and its applicability to the proposed development in
this case.
108
Ecologically sustainable development, in its most basic formulation, is
“development that meets the needs of the present without compromising the
ability of future generations to meet their own needs”: World Commission on
Environment and Development, Our Common Future , 1987 at p. 44 (also
known as the Brundtland Report after the
Chairperson of the Commission, Gro Harlem Brundtland). More particularly, ecologically sustainable
development involves a cluster of elements or principles. Six are worth
highlighting.
109
First, from the very name itself comes the principle of sustainable use - the
aim of exploiting natural resources in a manner which is “sustainable” or
“prudent” or “rational” or “wise” or “appropriate”: P Sands, Principles of
International Environmental Law, 2nd ed,
Cambridge University Press, 2003 at p. 253. The concept of sustainability
applies not merely to development but to the environment. The Australian
National Strategy for Ecologically Sustainable Development makes this
explicit in defining ecologically sustainable development as “development
that improves the total quality of life, both now and in the future, in a way
that maintains the ecological processes on which life depends”: National
Strategy for Ecologically Sustainable Development, Australian Government
Publishing Service, 1992 at p. 8.
110
Secondly, ecologically sustainable development requires the effective
integration of economic and environmental considerations in the
decision-making process: see the chapeau to the definition of ecologically
sustainable development in s 6(2) of the Protection of the Environment
Administration Act 1991 (NSW) adopted by s 4(1) of the EPA Act and
Principle 4 of the Rio Declaration on Environment and Development.
This is the principle of integration it was the philosophical underpinning of
the report Our Common Future. That report recognized that the
ecologically harmful cycle caused by economic development without regard to
and at the cost of the environment could only be broken by integrating
environmental concerns with economic goals.
111
The principle of integration ensures mutual respect and reciprocity between
economic and environmental considerations. The principle recognizes the need
to ensure not only that environmental considerations are integrated into
economic and other development plans, programs and projects but also that
development needs are taken into account in applying environmental
objectives: see P Sands, Principles of International Environmental Law ,
2nd ed, Cambridge University Press, 2003 at p. 253.
112
The principle has been refined in recent times to add social development to
economic development and environmental protection. The Plan of Implementation
of the World Summit on Sustainable Development held in Johannesburg, 2002,
notes that efforts need to be taken to:
“promote
the integration of the three components of sustainable development – economic
development, social development and environmental protection – as
interdependent and mutually reinforcing pillars. Poverty eradication,
changing unsustainable patterns of production and consumption and protecting
and managing the natural resource base of economic and social development are
overarching objectives of, and essential requirements for, sustainable
development”: at paragraph 2.
113
Thirdly, there is the precautionary principle. There are numerous
formulations of the precautionary principle but the most widely employed
formulation adopted in Australia is that stated in s 6(2) (a) of the Protection
of the Environment Administration Act 1991 (NSW). This provides:
“…If
there are threats of serious or irreversible environmental damage, lack of
full scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.
In
the application of the precautionary principle, public and private decisions
should be guided by:
(i) careful evaluation to avoid, wherever practicable,
serious or irreversible damage to the environment, and
(ii)
an assessment of the risk-weighted consequence of various options”.
See
also s 3.5.1 of the Intergovernmental Agreement on the Environment ,
1992.
114
Principle 15 of the Rio Declaration on Environment and Development is
expressed in similar terms.
115
This is the particular principle of ecologically sustainable development
invoked by the Council and the residents in this case in aid of their
opposition to the proposed base station. I will return to it shortly.
116
Fourthly, there are principles of equity. There is a need for
inter-generational equity - the present generation should ensure that the
health, diversity and productivity of the environment are maintained or
enhanced for the benefit of future generations: see s 6(2) (b) of the Protection
of the Environment Administration Act 1991; s 3.5.2 of the Intergovernmental
Agreement on the Environment; and Principle 3 of the Rio Declaration
on Environment and Development.
117
There is also a need for intra-generational equity. This involves
considerations of equity within the present generation, such as use of
natural resources by one nation-state (or sector or class within a
nation-state) needing to take account of the needs of other nation-states (
or sectors or classes within a nation-state): P Sands, Principles of
International Environmental Law , 2nd ed,
Cambridge University Press, 2003 at p. 253 and E Brown Weiss,
“Intergenerational Equity: a legal framework for global environmental change”
in E Brown Weiss (ed), Environmental Change and
International Law: New Challenges and Dimensions , UN University Press,
1992, p. 385 at pp. 397-398. It involves people within the present generation
having equal rights to benefit from the exploitation of resources and from
the enjoyment of a clean and healthy environment: B Boer, “Institutionalising Ecologically Sustainable Development:
The Role of National, State and Local Governments in Translating Grand
Strategy into Action” (1995) 31 Willamette Law Review 307 at 320.
118
Fifthly, there is the principle that conservation of biological diversity and
ecologically integrity should be a fundamental consideration: s 6(2)(c) of
the Protection of the Environment Administration Act 1991; s 3.5.3 of
the Intergovernmental Agreement on the Environment; and Bentley v BGP
Properties Pty Ltd [2006] NSWLEC 34 (6 February 2006) at [58]-[63].
119
Sixthly, ecologically sustainable development involves the internalization of
environmental costs into decision-making for economic and other development
plans, programs and projects likely to affect the environment. This is the
principle of the internalization of environmental costs. The principle
requires accounting for both the short-term and the long-term external
environmental costs. This can be undertaken in a number of ways including:
(a)
environmental factors being included in the valuation of assets and services;
(b) adopting the polluter pays (or user pays) principle, that is to say,
those who generate pollution and waste should bear the costs of containment,
avoidance or abatement;
(c) the users of goods and services paying prices based on the full life
cycle of the costs of providing goods and services, including the use of
natural resources and assets and the ultimate disposal of any waste; and
(d) environmental goals, having been established, being pursued in the most
cost effective way, by establishing incentive structures, including market
mechanisms, that enable those best placed to maximize benefits or minimize
costs to develop their own solutions and responses to environmental problems:
see s 6(2)(d) of the Protection of the Environment Administration Act 1991
and s 3.5.4 of the Intergovernmental Agreement on the Environment 1992.
120
These principles do not exhaustively describe the full ambit of the concept
of ecologically sustainable development, but they do afford guidance in most
situations. These principles, if adequately implemented, may ultimately
realize a paradigm shift from a world in which the development of the
environment takes place without regard to environmental consequences, to one
where a culture of sustainability extends to institutions, private
development interests, communities and individuals: B Boer, “The
Globalization of Environmental Law” (1995) 20 Melbourne University Law
Review 101 at 111.
121
The principles of ecologically sustainable development are to be applied when
decisions are being made under any legislative enactment or instrument which
adopts the principles: Murrumbidgee
Ground-Water Preservation Association v Minister for Natural Resources [2004]
NSWLEC 122 (7 April 2004) at [178]; and Bentley v BGP Properties Pty Ltd [2006]
NSWLEC 34 (6 February 2006) at [57].
122
The EPA Act is one such legislative enactment. It expressly states that one
of the objects of the EPA Act is to encourage ecologically sustainable development:
s 5(a) (vii). The Act defines ecologically sustainable development as having
the same meaning as it has in s 6(2) of the Protection of the Environment
Administration Act 1991.
123
Section 79C(1) of the EPA Act, which sets out the relevant matters which a
consent authority must take into consideration, does not expressly refer to
ecologically sustainable development. Nevertheless, it does require a consent
authority to take into account “the public interest” in s 79C (1)(e). The
consideration of the public interest is ample enough, having regard to the
subject matter, scope and purpose of the EPA Act, to embrace ecologically
sustainable development.
124
Accordingly, by requiring a consent authority (or on a merits review appeal
the Court) to have regard to the public interest, s 79C(1)(e) of the EPA Act
obliges the consent authority to have regard to the principles of
ecologically sustainable development in cases where issues relevant to those
principles arise: Carstens v Pittwater
Council (1999) 111 LGERA 1 at 25; BGP Properties Pty Ltd v Lake
Macquarie City Council (2004) 138 LGERA 237 at 262 [113]; and Port
Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005]
NSWLEC 426 (15 August 2005) at [54].
The
precautionary principle
The
precautionary principle explored
125
I have set out in the preceding section on ecologically sustainable
development, the formulation of the precautionary principle in s 6(2) of the Protection
of the Environment Administration Act 1991 which is adopted by s 4(1) of
the EPA Act: see paragraph 112 above.
126
A number of decisions in this Court have established that the precautionary
principle is to be considered in making determinations of development
applications under the EPA Act: Carstens
v Pittwater Council (1999) 111 LGERA 1 at 25; Hutchison
Telecommunications (Australia) Pty Ltd v Baulkham Hills Shire Council [2004]
NSWLEC 104 (26 March 2004), [26]; BGP Properties Pty Ltd v Lake Macquarie
City Council (2004) 138 LGERA 237 at 262 [113]-[114]; B T Goldsmith
Planning Services Pty Ltd v Blacktown City Council [2005]
NSWLEC 210 (1 July 2005) at [73]; Port Stephens Pearls Pty Ltd v Minister
for Infrastructure and Planning [2005] NSWLEC 426 (15 August 2005) at
[54]; Providence Projects Pty Ltd v Gosford City Council [2006] NSWLEC
52 (17 February 2006) at [68], [76] and [108]; and Gales Holdings Pty Ltd
v Tweed Shire Council [2006] NSWLEC 85 (27 February 2006) at [56]-[61].
127
However, there has not yet been, in the decisions of this Court, a detailed
explanation of the precautionary principle or the procedure for application
of it. Hence, it is necessary to refer to other sources of information on the
precautionary principle, including judicial decisions of other jurisdictions
and the academic literature on the precautionary principle. Drawing on these
sources, the following guidance can be offered on the concept of the
precautionary principle and its application.
Conditions
precedent or thresholds to application of the precautionary principle
128
The application of the precautionary principle and the concomitant need to
take precautionary measures is triggered by the satisfaction of two
conditions precedent or thresholds: a threat of serious or irreversible
environmental damage and scientific uncertainty as to the environmental
damage. These conditions or thresholds are cumulative. Once both of these
conditions or thresholds are satisfied, a precautionary measure may be taken
to avert the anticipated threat of environmental damage, but it should be
proportionate: N de Sadeleer, Environmental
Principles: From Political Slogans to Legal Rules , Oxford University
Press, 2005 at p. 155.
Threat
of serious or irreversible damage
129
Two points need to be noted about the first condition precedent that there be
a threat of serious or irreversible environmental damage. First, it is not
necessary that serious or irreversible environmental damage has actually
occurred – it is the threat of such damage that is required. Secondly,
the environmental damage threatened must attain the threshold of being serious
or irreversible.
130
Threats to the environment that should be addressed include direct and
indirect threats, secondary and long-term threats and the incremental or
cumulative impacts of multiple or repeated actions or decisions. Where
threats may interact or be interrelated (for example where action against one
threat may exacerbate another threat) they should not be addressed in
isolation: see “Guidelines for applying the precautionary principle to
biodiversity conservation and natural resource management”, R Cooney and B
Dickson (eds) Biodiversity and the Precautionary
Principle, Risk and Uncertainty in Conservation and Sustainable Use, Earthscan, 2005 at p. 302, Guideline 6.
131
Assessing the seriousness or irreversibility of environmental damage involves
consideration of many factors: see, for example, the suggested process of
analysis in A Deville and R Harding, Applying the Precautionary Principle ,
Federation Press, 1997 at pp. 25-31; and the discussion in N de Sadeleer, Environmental Principles: From Political
Slogans to Legal Rules , Oxford University Press, 2005 at pp. 163-165.
The factors might include:
(a)
the spatial scale of the threat (eg local,
regional, statewide, national, international);
(b) the magnitude of possible impacts, on both natural and human systems;
(c) the perceived value of the threatened environment;
(d) the temporal scale of possible impacts, in terms of both the timing and
the longevity (or persistence) of the impacts;
(e) the complexity and connectivity of the possible impacts;
(f) the manageability of possible impacts, having regard to the availability
of means and the acceptability of means;
(g) the level of public concern, and the rationality of and scientific or other
evidentiary basis for the public concern; and
(h) the reversibility of the possible impacts and, if reversible, the time
frame for reversing the impacts, and the difficulty and expense of reversing
the impacts.
132
The assessment of whether the threats are serious or irreversible will be
enhanced by broadening the range of professional expertise consulted and
seeking and taking into account the views of relevant stakeholders and
right-holders. The former is important because of the inter-disciplinary
nature of the questions involved. The latter is important because different
judgments, values and cultural perceptions of risk, threat and required
action play a role in the assessment process: see “Guidelines for applying
the precautionary principle to biodiversity conservation and natural resource
management” in Appendix A to R Cooney and B Dickson (eds)
Biodiversity and the Precautionary Principle, Risk and Uncertainty in
Conservation and Sustainable Use, Earthscan,
2005 at p. 301, Guideline 4; and A Deville and R Harding, Applying the
precautionary principle , Federation Press, 1997 at p. 26.
133
The assessment involves ascertaining whether scientifically reasonable (that
is, based on scientifically plausible reasoning) scenarios or models of
possible harm that may result have been formulated: World Commission on the
Ethics of Scientific Knowledge and Technology, The Precautionary Principle
, UNESCO, Paris, 2005 at p. 31.
134
The threat of environmental damage must be adequately sustained by scientific
evidence. As was held in Monsanto Agricoltura
Italia v Presidenza del Consiglio
dei Ministri ,
European Court of Justice, Case C-236/0 (13 March 2003) at [138]:
“not
every claim or scientifically unfounded presumption of potential risk to
human health or the environment can justify the adoption of national
protective measures. Rather, the risk must be adequately substantiated by
scientific evidence”.
135
In Daubert v Merrell Dow Pharmaceuticals 509
US 579 (1993) at 589-590; 125 L Ed 2d 469 (1993) at 481, the United States
Supreme Court held that in a case involving scientific evidence, the evidence
must pertain to scientific knowledge. The adjective “scientific” implies a
grounding in the methods and procedures of science and the word “knowledge”
connotes more that subjective belief or unsupported speculation. The
requirement that expert evidence pertain to scientific knowledge establishes
a standard of evidentiary reliability.
136
In Gabcikovo-Nagymaros (Hungary v
Slovakia) [1997] ICJ Rep 7, the International Court of Justice held that
Hungary had not established that there existed a state of necessity
justifying the suspension of its treaty obligations with the former Czechoslovakia.
A state of necessity has to be occasioned by an essential interest of the
State and the interest must have been threatened by a grave and imminent
peril (a concept equivalent to a threat). The International Court of Justice
did not accept that Hungary had established the objective existence of a
grave and imminent peril and hence a component element of a state of
necessity was absent. The Court noted:
“The
word ‘peril’ certainly evokes the idea of ‘risk’; that is precisely what
distinguishes ‘peril’ from material damage. But a state of necessity could
not exist without a ‘peril’ duly established at the relevant point in time;
the mere apprehension of a possible ‘peril’ could not suffice in that
respect”: at [54].
137
Determining the existence of a threat of serious or irreversible
environmental damage does not involve, at the stage of assessing the first
condition precedent, any evaluation of the scientific uncertainty of the
threat. That evaluation comes in the following steps of analysis.
138
If there is not a threat of serious or irreversible environmental damage,
there is no basis upon which the precautionary principle can operate. The
precautionary principle does not apply, and precautionary measures cannot be
taken, to regulate a threat of negligible environmental damage: N de Sadeleer, Environmental Principles: From Political
Slogans to Legal Rules, Oxford University Press, 2005 at p. 163.
139
This was the conclusion in Alumino (Aust) Pty Ltd v Minister administering the Environmental
Planning and Assessment Act 1979 (NSW) [1996] NSWLEC 102 (29 March 1996)
where the evidence established that the development could be operated in a
way which would not have any significant environmental consequence: at pp.
15-16. So too in Hutchison Telecommunications (Australia) Pty Limited v
Baulkham Hills Shire Council [2004] NSWLEC 104 (26 March 2004), where
compliance of a development with the relevant standard for the protection of
public health and safety by a significant margin meant that there was no threat
of serious or irreversible damage to public health and safety from the
development, and hence no basis on which to apply the precautionary
principle: at [27].
Scientific
uncertainty
140
The second condition precedent required to trigger the application of the
precautionary principle and the necessity to take precautionary measures is
that there be “a lack of full scientific certainty”. The uncertainty is as to
the nature and scope of the threat of environmental damage: Leatch v National Parks and Wildlife Services (1993)
81 LGERA 270 at 282.
141
Assessing the degree of scientific uncertainty also involves a process of
analysis of many factors: see A Deville and R Harding, Applying the
Precautionary Principle, Federation Press, 1997 at pp. 31-37. The assessment
of the degree of uncertainty might include consideration of the following
factors:
(a)
the sufficiency of the evidence that there might be serious or irreversible
environmental harm caused by the development plan, program or project;
(b) the level of uncertainty, including the kind of uncertainty (such as
technical, methodological or epistemological uncertainty); and
(c) the potential to reduce uncertainty having regard to what is possible in
principle, economically and within a reasonable time frame.
142
One issue that the formulation of the precautionary principle raises is how
much scientific uncertainty must exist. On a literal reading, the threshold
is crossed whenever there is a lack of “full” scientific certainty. Yet, such
a literal interpretation of the principle would render this condition
meaningless.
143
Certainly, “full” scientific certainty as to the threat of environmental
damage would be an unattainable goal: Nicholls v Director-General of
National Parks and Wildlife (1994) 84 LGERA 397 at 419. It is impossible
to be completely certain about the threats of environmental damage: C Barton,
“The status of the precautionary principle in Australia: Its emergence in
legislation and as a common law doctrine” (1998) 22 Harvard Environmental
Law Review 509 at 518.
144
It cannot be unequivocally stated that a particular phenomenon will never
cause adverse effects. This is because a null hypothesis can never be proven
through processes of inductive logic. Indeed, this point is made in the
Australian Standard RPS3 at p. 41. Karl Popper, the eminent scientific
philosopher, has also explained why it is impossible to prove, with certainty
and finality, a scientific theory. No matter how many positive instances of a
generalization are observed, it is still possible that the next instance will
falsify it. However, a sound and reliable scientific theory will be one
which, while being capable of being falsified, has been put to the test and
has resisted falsification whenever it is put to the test: see K Popper, Conjectures
and Reputations , 5th ed, Routledge, London,
1989, p 37 and Daubert v Merrell Dow
Pharmaceuticals 509 US 579 (1993) at 593; 125 L Ed 2d 469 (1993) at
482-483. See also B J Preston, “Science and the Law: Evaluating evidentiary
reliability” (2003) 23 Australian Bar Review 263 at 271, 280-282 and
287.
145
Once it is accepted that the threshold is something less than full scientific
certainty, the question becomes how much less? Or turning the question
around, how much scientific uncertainty need there be as to the threat of
environmental damage before the second condition precedent to trigger
application of the precautionary principle is fulfilled?
146
Cordonier Segger and Khalfan suggest that the magnitude of environmental
damage is usually inversely proportionate to the likelihood of risk in order
for precaution to be triggered. That is to say, where the relevant degree or
magnitude of potential environmental damage is greater, the degree of
certainty about the threat is lower. They suggest that for a formulation of
the precautionary principle which uses the threshold of “serious or
irreversible” environmental damage, the correlative degree of certainty about
the threat is “highly uncertain of threat”. This would contrast with a formulation
of the precautionary principle which sets a lower degree of potential harm
such as “potential adverse effects”, where the correlative degree of
certainty about the threat would be higher, namely “highly certain of
threat”: M-C Cordonier Segger
and A Khalfan, Sustainable Development Law:
Principles, Practices and Prospects , Oxford University Press, 2004 at
pp. 145-146.
147
The World Commission on the Ethics of Scientific Knowledge and Technology, in
its 2005 report on the precautionary principle, postulated that one of the
conditions that must be present for the precautionary principle to apply is
that “considerable scientific uncertainty must exist”: World Commission on
the Ethics of Scientific Knowledge and Technology, The Precautionary
Principle, UNESCO, Paris, 2005 at p. 31.
148
de Sadeleer posits a threshold test of “reasonable
scientific plausibility,” or where a threat or risk of environmental damage
is considered scientifically likely. de Sadeleer
explains his test of reasonable scientific plausibility as follows:
“That
condition would be fulfilled when empirical scientific data (as opposed to
simple hypothesis, speculation, or intuition) make it reasonable to envisage
a scenario, even it if does not enjoy unanimous scientific support.
When
is there ‘reasonable scientific plausibility’? When risk begins to represent
a minimum degree of certainty, supported by repeated experience. But a purely
theoretical risk may also satisfy this condition, as soon as it becomes
scientifically credible: that is, it arises from a hypothesis formulated with
methodological rigour and wins the support of part
of the scientific community, albeit a minority.
The
principle may consequently apply to all post-industrial risks for which a
cause-and-effect relationship is not clearly established but where there is a
‘reasonable scientific plausibility’ that this relationship exists. This
would be particularly appropriate for delayed pollution, which does not
become apparent for some time and for which full scientific proof is
difficult to assemble”: N de Sadeleer, Environmental
Principles: From Political Slogans to Legal Rules , Oxford University
Press, 2005 at p. 160.
See
also A Deville and R Harding, Applying the Precautionary Principle ,
Federation Press, 1997 at p. 33.
149
If there is no, or not considerable, scientific uncertainty (the second
condition precedent is not satisfied), but there is a threat of serious or
irreversible environmental damage (the first condition precedent is
satisfied), the precautionary principle will not apply. The threat of serious
irreversible environmental damage can be classified as relatively certain
because it is possible to establish a causal link between an action or event
and environmental damage, to calculate the probability of their occurrence,
and to insure against them. Measures will still need to be taken but these
will be preventative measures to control or regulate the relatively
certain threat of serious or irreversible environmental damage, rather than
precautionary measures which are appropriate in relation to uncertain
threats: A Deville and R Harding, Applying the Precautionary Principle ,
Federation Press, 1997 at p. 31 and 34; J Cameron, “The precautionary
principle: Core meaning, constitutional framework and procedures for
implementation” in R Harding and E Fisher (eds), Perspectives
on the Precautionary Principle , Federation Press, 1999, p. 29 at p. 37;
and N de Sadeleer, Environmental Principles:
From Political Slogans to Legal Rules , Oxford University Press, 2005 at
pp. 74-75 and 158.
Shifting
of the burden of proof
150
If each of the two conditions precedent or thresholds are satisfied – that
is, there is a threat of serious or irreversible environmental damage and
there is the requisite degree of scientific uncertainty – the precautionary
principle will be activated. At this point, there is a shifting of an
evidentiary burden of proof. A decision-maker must assume that the threat of
serious or irreversible environmental damage is no longer uncertain but is a
reality. The burden of showing that this threat does not in fact exist or is
negligible effectively reverts to the proponent of the economic or other
development plan, program or project.
151
The rationale for requiring this shift of the burden of proof is to ensure
preventative anticipation; to act before scientific certainty of cause and
effect is established. It may be too late, or too difficult and costly, to
change a course of action once it is proven to be harmful. The preference is
to prevent environmental damage, rather than remediate it. The benefit of the
doubt is given to environmental protection when there is scientific
uncertainty. To avoid environmental harm, it is better to err on the side of
caution.
152
The function of the precautionary principle is, therefore, to require the
decision-maker to assume that there is, or will be, a serious or irreversible
threat of environmental damage and to take this into account, notwithstanding
that there is a degree of scientific uncertainty about whether the threat
really exists: see J Cameron and J Aboucher, “The
Precautionary Principle: A Fundamental Principle of Law and Policy for the
Protection of the Global Environment” (1991) 14 Boston College International
and Comparative Law Review 1 at 22; B Boer, “Implementing Sustainability”
(1992) 14 Delhi Law Review 1 at 17; B A Weintraub, “Science,
International Environmental Regulation, and the Precautionary Principle:
Setting Standards and Defining Terms” (1992) 1 NYU Environmental Law
Journal 173 at 204-207; W Gullett,
“Environmental Protection and the ‘Precautionary Principle’: A Response to
Scientific Uncertainty in Environmental Management” (1997) 14 Environmental
Planning Law Journal 52 at 59-60; C Barton, “The status of the
precautionary principle in Australia: Its emergence in legislation and as a
common law doctrine” (1998) 22 Harvard Environmental Law Review 509 at
519 and 549-551; D Farrier, “Factoring biodiversity conservation into
decision-making processes: The role of the precautionary principle” in R
Harding and E Fisher (eds), Perspectives on the
Precautionary Principle , Federation Press, 1999, p. 99 at pp. 107-110; Conservation
Council of South Australia v Development Assessment Committee and Tuna Boat
Owners Association (No. 2) [1999] SAERDC 86 (16 December 1999) at
[24]-[25]; M Parnell, “Southern Bluefin Tuna Feedlotting:
ESD, the Precautionary Principle and Burden of Proof” (1999) 9 Journal of
International Wildlife Law and Policy 334; Tuna Boat Owners
Association of SA Inc v Development Assessment
Commission (2000) 110 LGERA 1 at 6[27]-7[30]; Vellore Citizens Welfare
Forum v Union of India AIR 1996 SC 2715 at 2720 [11] – 2721; AP
Pollution Control Board v Prof. M V Bayadu AIR
1999 SC 812 at 821 [27]-[39]; Narmada Bachao Andolan v Union of India AIR 2000 SC 3751 at
3803[15]-3804; and M-C Cordonier Segger and A Khalfan, Sustainable
Development Law: Principles, Practices and Prospects , Oxford University
Press, 2004 at pp. 144 and 150.
153
An illustration of this function of the precautionary principle can be found
in Providence Projects Pty Ltd v Gosford City Council [2006] NSWLEC 52
(17 February 2006) in which there was scientific uncertainty as to whether a
proposed development would cause serious or irreversible environmental damage
to a threatened ecological community, the Umina
Coastal Sandplain Woodland (UCSW). This scientific uncertainty stemmed from
uncertainty as to whether the threatened ecological community was widely
distributed over the site. The function of the precautionary principle was to
shift the burden of proof in relation to this question. Bignold
J held:
“The
application of the precautionary principle in the present case justifies an
approach which avoids the risk of serious or irreversible environmental
damage by assuming the existence of the wide distribution of UCSW over the
development site”: at [77].
154
It should be recognized that the shifting of the evidentiary burden of proof
operates in relation to only one input of the decision-making process – the
question of environmental damage. If a proponent of a plan, program or
project fails to discharge the burden to prove that there is no threat of
serious or irreversible environmental damage, this does not necessarily mean
that the plan, program or project must be refused. It simply means that, in
making the final decision, the decision-maker must assume that there will be
serious or irreversible environmental damage. This assumed factor must be
taken into account in the calculus which decision-makers are instructed to
apply under environmental legislation (such as s 79 C (1) of the EPA Act).
There is nothing in the formulation of the precautionary principle which
requires decision-makers to give the assumed factor (the serious or
irreversible environmental damage) overriding weight compared to the other
factors required to be considered, such as social and economic factors, when
deciding how to proceed: D Farrier, “Factoring biodiversity conservation into
decision-making processes: The role of the precautionary principle” in R
Harding and E Fisher, Perspectives on the Precautionary Principle ,
Federation Press, 1999 at p. 108.
155
This was the conclusion in Greenpeace Australia Ltd v Redbank
Power Company Pty Ltd and Singleton Council (1994) 86 LGERA 143 where
Pearlman J held at 154 that:
“The
application of the precautionary principle dictates that a cautious approach
should be adopted in evaluating the various relevant factors in determining
whether or not to grant consent; it does not require that the greenhouse
issue should outweigh all other issues”.
Precautionary principle invokes preventative anticipation
156
The precautionary principle permits the taking of preventative measures without
having to wait until the reality and seriousness of the threats become fully
known: Pfizer Animal Health SA v Council of the European Union [2002]
ECR II–3305 (11 September 2002), European Court of First Instance (11
September 2002) at [139]; 15 Journal of Environmental Law 372 at 378; Monsanto
Agricoltura Italia v Presidenza
dei Consiglio dei Ministri , European
Court of Justice, Case C-236/01 (13 March 2003) at [111]. This is the concept
of preventative anticipation: T O’ Riordan and J Cameron, “The History and
Contemporary Significance of the Precautionary Principle” in T O’Riordan and J Cameron (eds), Interpreting
the Precautionary Principle , Earthscan
Publications, 1994, p. 12 at p. 17; and P Sands, Principles of
International Environmental Law , 2nd ed,
Cambridge University Press, 2003 at p. 269.
Zero
risk precautionary standard inappropriate
157 The precautionary principle should not be used to try to avoid
all risks. As the United States Supreme Court
said in Industrial Union Department, AFL-C10 v American Petroleum
Institute 448 US 607 (1980) at 656 (1980); 65 L Ed 2d 1010 (1980) at
1064:
“Some
risks are plainly acceptable and others are plainly unacceptable”.
158
A zero risk precautionary standard is inappropriate: see Analysis on Pfizer
Animal Health SA v Council of the European Union by W Th
Douma (2003) 15 Journal of Environmental Law 394
at 401. The Advocate General, in his opinion in National Farmers’ Union v
Secretary Central of the French Government , European Court of Justice, Case
C-241/01 (2 July 2002) at [76] stated:
“the
precautionary principle has a future only to the extent that, far from
opening the door wide to irrationality, it establishes itself as an aspect of
the rational management of risks, designed not to achieve a zero risk, which
everything suggests does not exist, but to limit the risks to which citizens
are exposed to the lowest level reasonably imaginable”.
See also EFTA Surveillance Authority v Norway, European Free Trade
Association (EFTA) Court, Case E-3/00 (5 April 2001) at [32].
159
Rationality dictates that the precautionary principle
and any preventative measure cannot be based on a purely hypothetical
approach to the risk, founded on mere conjecture which has not been
scientifically verified: Pfizer Animal Health SA v
Council of the European Union [2002] ECR II–3305 European Court of First
Instance (11 September 2002) at [145]; (2003) 15 Journal of Environmental
Law 372 at 378 and EFTA Surveillance Authority v Norway , European
Free Trade Association (EFTA) Court, Case E-3/00 (5 April 2001) at [29].
Rather, a preventative measure may be taken only if the risk, although the
reality and extent of the risk have not been “fully” demonstrated by
conclusive scientific evidence, appears nevertheless to be adequately backed
up by the scientific data available at the time when the measure was taken: Pfizer
Animal Health SA v Council of the European Union [2002] ECR II–3305,
European Court of First Instance (11 September 2002) at [145]; (2003) 15 Journal
of Environmental Law 372 at 379; and Monsanto Agricoltura
Italia v Presidenza de Consiglio
dei Ministri ,
European Court of Justice, Case C236/01 (9 September 2003) at [113].
160
de Sadeleer expresses this approach in the
following passage:
“Adherence
to the adage ‘when in doubt, do nothing’ should not overshadow the
complementary wisdom that ‘there’s such a thing as being too careful’. To
avoid having the best become the enemy of the good, the [precautionary]
principle’s field of application must exclude those risks characterized as
residual, that is, hypothetical risks resting on purely speculative
considerations without any scientific foundation. Speculation, conjecture,
intuition, warnings, denunciations, or implications should not suffice in and
of themselves to justify an attitude of precaution”: N de Sadeleer,
Environmental Principles: From Political Slogans to Legal Rules,
Oxford University Press, 2005 at p. 158.
Degree
of precaution required
161
The type and level of precautionary measures that will be appropriate will
depend on the combined effect of the degree of seriousness and
irreversibility of the threat and the degree of uncertainty. This involves
assessment of risk in its usual formulation, namely the probability of the
event occurring and the seriousness of the consequences should it occur. The
more significant and the more uncertain the threat, the greater the degree of
precaution required: A Deville and R Harding, Applying the Precautionary
Principle, Federation Press, 1997 at p. 37; and J Cameron, “The
precautionary principle: Core meaning, constitutional framework and
procedures for implementation” in R Harding and E Fisher, Perspectives on
the Precautionary Principle , Federation Press, 1999, p. 29 at pp. 37-38;
and Commission on Environmental Law of IUCN (the World Conservation Union), Draft
International Covenant on Environment and Development , 3rd ed.,
Environmental Policy & Law Paper No. 31, Rev. 2, 2004 at p. 45.
162
Prudence would also suggest that some margin for error should be retained
until all the consequences of the decision to proceed with the development
plan, program or project are known. This allows for potential errors in risk
assessment and cost-benefit analysis. Potential errors are weighted in favor
of environmental protection. Weighting the risk of error in favor of the
environment is to safeguard ecological space or environmental room for manoeuvre: T O’Riordan and J
Cameron, “The History and Contemporary Significance of the Precautionary
Principle” in T O’ Riordan and J Cameron (eds), Interpreting
the Precautionary Principle , Earthscan
Publications, 1994, p. 12 at p. 17; and C Barton, “The status of the
precautionary principle in Australia: Its emergence in legislation and as a
common law doctrine” (1998) 22 Harvard Environmental Law Review 509 at
520.
163
One means of retaining a margin for error is to implement a step-wise or
adaptive management approach, whereby uncertainties are acknowledged and the
area affected by the development plan, program or project is expanded as the
extent of uncertainty is reduced: M D Young, “The precautionary principle as
a key element of ecologically sustainable development” in R Harding and E
Fisher, Perspectives on the Precautionary Principle, Federation Press,
1999, 127 at 140.
164
An adaptive management approach might involve the following core elements:
“
monitoring of impacts of management or decisions based on agreed indicators;
promoting
research, to reduce key uncertainties;
ensuring
periodic evaluation of the outcomes of implementation, drawing of lessons,
and review of adjustment, as necessary of the measures or decisions adopted;
and
establishing
an efficient and effective compliance system”: see “Guidelines for applying
the precautionary principle to biodiversity conservation and natural resource
management” in Appendix A to R Cooney and B Dickson (eds),
Biodiversity and the Precautionary Principle, Risk and Uncertainty in
Conservation and Sustainable Use , Earthscan,
2005 p. 304, Guideline 12.
165 An adaptive management approach
was required in Port Stephens Pearls Pty Ltd v Minister for Infrastructure
and Planning [2005] NSWLEC 426 (15 August 2005). Talbot J held that
application of the precautionary principle required that consent should only
be granted if there was a monitoring regime that would detect emerging
adverse impacts and enable the appropriate regulatory authority to require
them to be addressed if and when they emerged: at [58]. See also Tuna Boat
Owners Association of SA Inc v Development
Assessment Commission (2000) 110 LGERA 1 at 8[35].
Proportionality
of response
166
The precautionary principle embraces the concept of proportionality. The
concept of proportionality is that measures should not go beyond what is
appropriate and necessary in order to achieve the objectives in question.
Where there is a choice between several appropriate measures, recourse should
be had to the least onerous measure and the disadvantages caused should not
be disproportionate to the aims pursued.
167
In applying the precautionary principle, measures should be adopted that are
proportionate to the potential threats. A reasonable balance must be struck
between the stringency of the precautionary measures, which may have
associated costs, such as financial, livelihood and opportunity costs, and
the seriousness and irreversibility of the potential threat: see “Guidelines
for applying the precautionary principle to biodiversity conservation and
natural resource management” in Appendix A to R Cooney and B Dickson (eds), Biodiversity and the Precautionary Principle,
Risk and Uncertainty in Conservation and Sustainable Use, Earthscan, 2005 at p. 304, Guideline 10.
168
The European Commission states in its Communication on the Precautionary
Principle :
“Measures
based on the precautionary principle must not be disproportionate to the
desired level of protection and must not aim at zero risk, something which rarely
exists”: European Commission, Communication from the Commission on the
Precautionary Principle, 2000, part 6.3.1.
169
Considerations of practicability need to be taken into account: see the
definition of the precautionary principle which requires “careful evaluation
to avoid, wherever practicable, serious or irreversible damage to the
environment” in s 6(2) (a)(i) of the Protection
of the Environment Administration Act 1991. One consideration of
practicability is the cost of precautionary measures.
170
There must be proportionality of response or cost effectiveness of margins of
error to show that the selected precautionary measure is not unduly costly: T
O’Riordan and J Cameron, “The History and
Contemporary Significance of the Precautionary Principle” in T O’ Riordan and
J Cameron, Interpreting the Precautionary Principal, Earthscan Publications, 1994, p. 12 at p. 17; and National
Farmers Union v Secretary General of the French Government, European
Court of Justice, Case C-241/01, (Opinion of the Advocate General) at [78].
171
The cost consequences of increasing levels of precaution must be evaluated.
As O’Riordan notes:
“There
are some dangers with getting too carried away with the application of
precaution at any cost. In the absence of comparative risk assessment, the
consequences of curtailing potentially beneficial activity and creating
another set of unforeseeable risks for an unprepared society could be greater
than proceeding step by step with prudent precaution”: T O’Riordan
“The Precaution Principle in Environmental Management” in R Ayres and U E Simonis (eds), Industrial
Metabolism: restructuring for sustainable development, UN University
Press, 1994.
See also A Deville and R Harding, Applying the Precautionary Principle ,
Federation Press, 1997 at pp. 43-44; and J Cameron “The precautionary
principle: Core meaning, constitutional framework and procedures for
implementation” in R Harding and E Fisher (eds), Perspectives
on the Precautionary Principle , Federation Press, 1999, p. 29 at p. 42.
172
The selection of the appropriate precautionary measures to regulate the
identified threat of serious or irreversible environmental damage with its
identified uncertainty, requires assessment of the risk-weighted consequences
of various options: see the definition of the precautionary principle in s
6(2) (a)(ii) of the Protection of the Environment Administration Act 1991.
The available options to address the threat should be identified and the
likely consequences of these options and of inaction should be assessed: see
“Guidelines for applying the precautionary principle to biodiversity
conservation and natural resource management” in Appendix A to R Cooney and B
Dickson (eds), Biodiversity and the
Precautionary Principle: Risk and Uncertainty in Conservation and Sustainable
Use, Earthscan, 2005 at p. 303.
173
The process of assessment of the risk-weighted consequences of options for
precautionary measures has been suggested to involve a form of cost-benefit
analysis with risk aversion assumed: see generally, R Posner, Catastrophe:
Risk and Response , Oxford University Press, 2004; C Gollier,
B Jullien, N Treich,
“Scientific progress and irreversibility: an economic interpretation of the
‘Precautionary Principle’”(2000) 75 Journal of Public Economics 229;
and R v Secretary of State for Trade and Industry; Ex Parte Duddridge, UK Queens Bench Division, Farquharson LJ
and Smith J (4 October 1994); (1995) 7 Journal of Environmental Law 224
at 230; [1995] Env LR 151.
174
However, there are difficulties in the application of the traditional form of
cost-benefit analysis used in economics. First, traditional cost-benefit
analysis tends to squeeze out qualitative soft values in favor of
quantifiable hard values: see L Tribe, “Ways not to think about Plastic
Trees: New Foundations for Environmental Law” (1974) 83 Yale Law Journal 1315;
and N de Sadeleer, Environmental Principles:
From Political Slogans to Legal Rules , Oxford University Press, 2005 at
p. 199. This is what occurred in Leatch v
National Parks and Wildlife Service (1993) 81 LGERA 270 at 286, where
environmental factors were not included in the cost-benefit analysis.
175
Secondly, traditional cost-benefit analysis has difficulty in correctly internalizing
all externalities in the context of uncertainty. There are no simple or
comprehensive rules in economic analysis for integrating risk and uncertainty
into decision-making: see D Pearce, “The Precautionay
Principle and Economic Analysis” in T O’Riordan and
J Cameron (eds), Interpreting the Precautionary
Principle, Earthscan Publications, 1994 at p.
140; and N de Sadeleer, Environmental
Principles: From Political Slogans to Legal Rules, Oxford University
Press, 2005 at p. 170. There is a difficulty in translating risks into
monetary equivalents: C R Sunstein, “Cost-Benefit
Analysis and the Environment” (2005) 115 Ethics 351 at 369 and 384;
and C R Sunstein, Laws of Fear: Beyond the
Precautionary Principle, Cambridge University Press, 2005, pp.7 and 131.
176
One solution suggested is to combine economic and non-economic measures by
way of multi-criteria analysis. Multi-criteria analysis is a tool for
integrating different types of monetary and non-monetary decision criteria.
It deals with situations where decisions must be made taking into account
multiple objectives, which cannot be reduced to a single dimension. Usually,
multi-criteria analysis is clustered into three dimensions: the ecological,
the economic and the social. Within each of these dimensions certain criteria
are set so that decision-makers can weigh the importance of one element in
association with other elements. Monetary values and cost-benefit analysis
measures can be incorporated as one of the criteria to be considered, and weighted
against the other criteria in decision-making: L Emerton, M Greig-Gran, M Kallesoe and J
MacGregor, “Economics, the Precautionary Principles and Natural Resource
Management: Key Issues, Tools and Practices” in R Cooney and B Dickson (eds), Biodiversity and the Precautionary Principle:
Risk and Uncertainty in Conservation and Sustainable Use , Earthscan, 2005, p. 253 at p. 265.
177
The selection of the appropriate precautionary measures must involve
examining both sides of the ledger: the costs associated with the project,
process or product (which tends to increase the degree of precaution) as well
as the benefits of the project, process or product (which tends to decrease
the degree of precaution commensurate with realizing the benefit). As Sunstein notes:
“Advocates
of precaution often emphasize the costs associated with a product or process,
without seeing that it may have benefits as well; and sometimes those
benefits involve the environment itself. Why should regulators examine only
one side of the ledger?” C R Sunstein, “Cost -
Benefit Analysis and the Environment”, (2005) 115 Ethics 351 at 366.
See generally C R Sunstein, Laws of Fear: Beyond
the Precautionary Principle, Cambridge University Press, 2005.
178
In assessing the proportionality of a precautionary measure, consideration
needs to be given to non-targeted risks that might arise. Efforts to
eliminate all of the targeted risks might cause other adverse consequences.
One adverse consequence may be that in addressing ever smaller target risks,
the importance of countervailing risks relative to the target risks is likely
to grow: F B Cross, “Paradoxical Perils of the Precautionary Principle”
(1996) 53 Washington and Lee Law Review 851 at 860, 898, 906, and 924;
and N de Sadeleer, Environmental Principles:
From Political Slogans to Legal Rules, Oxford University Press, 2005 at
pp. 171-172.
Precautionary principle does not necessarily prohibit development
179
The precautionary principle, where triggered, does not necessarily prohibit
the carrying out of a development plan, program or project until full
scientific certainty is attained: P Stein, “A cautious application of the
precautionary principle” (2002) 2 Environmental Law Review 1 at 10; Vertical
Telecoms Pty Ltd v Hornsby Shire Council [2002]
NSWLEC 172 (10 August 2000) at [68]; Telstra Corporation Limited v Pine
Rivers Shire Council & Ors [2001] QPELR 350
at 380-381 [119]; BGP Properties Pty Ltd v Lake Macquarie City Council (2004)
138 LGERA 237 at 262 [114]; A Deville and R Harding, Applying the
Precautionary Principle , Federation Press, 1997 at 44; and M D Young
“The precautionary principle as a key element of ecologically sustainable
development” in R Harding and E Fisher, Perspectives on the Precautionary
Principle , Federation Press, 1999, p. 127 at p. 138. See also Greenpeace
Australia Ltd v Redbank Power Company Pty Ltd and
Singleton Council (1994) 86 LGERA 143 at 154-155; and Port Stephens
Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC
426 (15 August 2005) at [56].
180
If the precautionary principle were to be interpreted in this way, it would
result in a paralyzing bias in favor of the status quo and against taking
precautions against risk. The precautionary principle so construed would ban
“the very steps that it requires”: C R Sunstein, Laws
of Fear: Beyond the Precautionary Principle, Cambridge University Press,
2005 at pp. 4, 14 and 26. It must be recognized that “precautions against
some risks almost always create other risks”: C R Sunstein,
supra at p. 53.
181
The solution is to assess the risk-weighted consequences of various options
and select the option that affords the appropriate degree of precaution for
the set of risks associated with the option.
Precautionary
principle in context of other ESD principles
182
The precautionary principle is but one of the set of principles of
ecologically sustainable development (highlighted earlier in the judgment).
It should not be viewed in isolation, but rather as part of the package. This
means that the precautionary measures that should be selected must not only
be appropriate having regard to the precautionary principle itself, but also
in the context of the other principles of ecologically sustainable
development including inter-generational and intra-generational equity and
the conservation of biological diversity and ecological integrity: see A
Deville and R Harding, Applying the Precautionary Principle,
Federation Press, 1997 at p. 43. In some circumstances these other principles
may strengthen the case for precautionary action, while in others the
precautionary principle may need to be weighed against the other principles
as well as other human rights such as food, water, health and shelter: see
“Guidelines for applying the precautionary principle to biodiversity
conservation and natural resource management” in Appendix A to R Cooney and B
Dickson (eds), Biodiversity and the
Precautionary Principle: Risk and Uncertainty in Conservation and Sustainable
Use, Earthscan, 2005 at p. 301, Guideline 2.
183
In Northcompass Inc
v Hornsby
Shire Council (1996) 130 LGERA 248, the proposed development was a
bioremediation plant which took green wastes away from diminishing landfill
and provided value added end products. This was consistent with the principle
of sustainable use of resources and the principle of intergenerational
equity. However, the proposed development infringed the precautionary
principle. The Court emphasized the need to consider all of the principles of
ecologically sustainable development: at 246-247.
Application of precautionary principle to this case
184 In this case, the first condition precedent
for the application of precautionary principle, that there be threats of
serious or irreversible environmental damage, is not satisfied. The levels of
RF EME emitted from the proposed base station will easily comply with the
Australian Standard RPS3. Any harm to the health and safety of people or the
environment caused by exposure to such extremely low levels of RF EME is
negligible.
185
Accordingly, there is no basis on which the precautionary principle can be
applied to this development. This is the same conclusion reached by other
courts and tribunals dealing with other proposed mobile phone base stations and
antennas which emitted RF EME that complied with the relevant regulatory
standards: in New South Wales, see Vertical Telecoms Pty Ltd v Hornsby Shire Council [2000] NSWLEC 172 (10 August
2000) at [68]; NTL Australia Ltd v Willoughby Council [2000] NSWLEC
244 (27 November 2000) at [87]; Hutchison Telecommunications (Australia)
Pty Ltd v Baulkham Hills Shire Council [2004] NSWLEC 104 (26 March 2004)
at [27]; and in other states, see: Connell Wagner Pty Ltd v City of Port
Phillip [1998] VCAT 606 (15 January 1999); and Telstra Corporation Ltd
v Pine Rivers Shire Council [2001] QPELR 350 at 381[121].
186
This conclusion does not mean that there has been an avoidance of a
precautionary approach. To the contrary, the conclusion is a direct
consequence of the fact that a precautionary approach has already been
adopted in the standard setting process, the terms of the Australian Standard
RPS3, the design and location of the proposed base station, the equipment to
be provided, the operation of the equipment including adaptive power control,
the application of the Standard to the RF EME generated from the base
station, and the likelihood of actual RF EME being significantly less than
predicted RF EME. The cumulative effect of these precautionary approaches is
to prevent any threat of serious or irreversible environmental damage. Hence,
there is no basis to invoke the precautionary principle so as to take any
further measures to prevent environmental degradation.
187
The circumstances in this case stand in contrast to the situation
that faced the Supreme Court of Pakistan in Zia v WAPDA PLD 1994 SC
693. There, the government agency WAPDA
and the relevant government department undertook the process of planning and
deciding to construct an electricity grid station in a routine manner without
taking into consideration the latest research and planning in the field and
without giving any thought to the potential hazards that the electromagnetic
fields that radiated from the grid station might cause to human health. The Supreme
Court of Pakistan held such an approach offended the precautionary principle:
at [8]. Instead, a method needed to be devised to strike a balance between
economic progress and prosperity and minimizing possible hazards. The Court
held that a policy of sustainable development should be adopted: at [10]. The
appropriate precautionary measure adopted by the Supreme Court was, before
passing any final order, to appoint an expert commissioner to examine and
study the scheme, planning, device and technique employed by WAPDA and report
whether there was any likelihood of any hazard or adverse effects on the
health of the residents of the locality. The commissioner was also to suggest
variation in the plan for minimizing the alleged danger: at [10] and [16].
＜BEMSJ注：このパキスタンの判決文は入手済み＞
188
In the present case, such a precautionary approach has already been
undertaken, first, in the standard-setting process which involved a
comprehensive review of all relevant scientific literature on the potential
biological effects of exposure to RF EME, secondly, in the adoption of the
Australian Standard RPS3 with margins of safety, thirdly, in the requirements
of the relevant industry code to comply with the adopted standard, fourthly,
in the measurement of existing and the estimation of predicted RF EME levels
from the proposed base station, in accordance with the accepted methodology,
fifthly, in the selection of equipment and antennas to be used in the
proposed base station and, finally, in the efficient operation of the equipment
and antennas to minimize RF EME levels generated from the proposed base
station. The carrying out of these precautionary measures implements, and
indeed is likely to go further than, the precautionary approach required by
the Supreme Court of Pakistan in Zia v WAPDA. The present case is,
therefore, consistent with that decision.
Perceptions
of effects on amenity and health
189
In the determination of a development application the consent authority (and
this Court on a merits review appeal) must consider the effect of the
proposed development on the amenity of the locality.
190
The concept of the amenity of the locality is wide and flexible. Some aspects
of amenity are practical and tangible. Examples are traffic generation,
noise, nuisance, appearance and way of life in the neighborhood. Other
aspects of amenity are intangible and subjective. They include the standard
or class of the neighborhood and the reasonable expectations of a
neighborhood: Broad v Brisbane City Council (1986) 59 LGRA 296 at 299.
Amenity may embrace the effect of a place on the senses and the residents’
perception of the locality. Knowing the use to which a particular site is, or
may be, put may affect a person’s perception of amenity: Broad v Brisbane
City Council (1986) 59 LGRA 296 at 305. See also Venus Enterprises Pty
Ltd v Parramatta City Council (1981) 43 LGRA 67 at 69; Novak v
Woodville City Corporation (1990) 70 LGRA 233 at 236-237; and Optus
Communications Pty Ltd v Corporation of the City of Kensington and Norwood [1998]
SAERDC 480 (29 May 1998) at 6.
191
The very wide concept of amenity expounded in cases like Broad v Brisbane
City Council applies with even greater force in a statutory scheme like
the EPA Act which in s 79 C(1) gives effect to the widest conceivable scope
of ‘likely impacts’ of a proposed development, including environmental,
economic and social impact, without employing the term amenity: Perry
Properties Pty Ltd v Ashfield Council (No. 2) (2001)
113 LGERA 301 at 318[64].
192
In determining the nature and scope of amenity and the impact of a proposed
development on it, the consent authority may consider the community responses
to the proposed development as set out in the submissions made to the consent
authority: s 79C(1)(d) and (e) of the EPA Act . The community responses are
aspects of the public interest within the meaning of s 79 C(1)(e) in securing
the advancement of one of the express objects of the Act “to provide
increased opportunity for public involvement and participation in
environmental planning and assessment”: s 5(c) of the EPA Act. See also Kulin Holdings Pty Ltd v Penrith
City Council (1999) 103 LGERA 402 at 415; and New Century Developments
Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at 316[58].
193
However, in considering the community responses, an evaluation must be made
of the reasonableness of the claimed perceptions of adverse effect on the
amenity of the locality. An evaluation of reasonableness involves the
identification of evidence that can be objectively assessed to ascertain
whether it supports a factual finding of an adverse effect on the amenity of
the locality.
194
In Broad v Brisbane City Council (1986) 59 LGERA 296 at 304, de Jersey
J stated:
“In
determining the likely effect on a proposed development on the amenity of a
neighborhood the Local Government Court is clearly entitled to have regard to
the views of residents of the area. The question is whether a resident’s view
should be disregarded where it appears to be purely subjectively based, with no
suggested justification in objective, observable likely consequences of the
establishment of the proposed use.
In
my opinion, such a subjective view need not necessarily be disregarded. Very
often, of course, the evidence of such a view would be accorded little, if
any, weight. In forming his own view on the likely effect of a proposed
development on the amenity of an area a judge would, I think, ordinarily
prefer views from residents which find justification in specific, concrete,
likely effects of the proposed development”:
See also Dixon v Burwood Council (2002) 123 LGERA 253 at 264[53] and New
Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127
LGERA 303 at 316[61] and 317[63].
195
A fear or concern without rational or justified foundation is not a matter
which, by itself, can be considered as an amenity or social impact pursuant
to s 79C(1) of the EPA Act: Newton v Wyong Shire
Council , unreported, LEC No. 40135 of 1982, 6 September 1983, McClelland
J, pp110, 111; Jarasius v Forestry
Commission of New South Wales (1988) 71 LGRA 79 at 92; Perry
Properties Pty Ltd v Ashfield Municipal Council (2000)
110 LGERA 345 at 350 22]; New Century Developments Pty Ltd v Baulkham
Hills Shire Council (2003) 127 LGERA 303 at 316[62]. “Mere local
prejudice” or “the resistance of uninformed opinion to innovation” is not a
basis for rejecting a proposal: Cecec
(No. 8) Pty Ltd v Mosman Municipal Council (1960)
5 LGRA 251 at 263; Foreman v Sutherland Shire Council (1964) 10 LGRA
261 at 269.
196
In this case, the residents’ perceptions of an adverse effect on the health
and safety of residents and on the environment by exposure to RF EME emitted
from the proposed base station are without justification in objective,
observable, likely consequences. The claimed effects are unsubstantiated and
without reasonable evidentiary foundation.
197
The concerns expressed by the residents as to RF EME emitted from the
proposed base station do not relate to intangible（不可解な）
matters. Rather, the concerns relate to matters which are capable of
measurement and testing against established standards to see whether the
concerns are justified or not: Telstra Corporation Ltd v Pine Rivers Shire
Council & Ors [2001] QPELR 350 at 364.
Testing against the relevant Australian Standard RPS3 proves that concerns
are not justified.
198
In these circumstances, little, if any, weight can be given to the residents’
perceptions. This has been the consistent conclusion of other courts and tribunals
which have determined other cases involving unsubstantiated community
perceptions of adverse effects on amenity from exposure to RF EME from a
proposed development: see McIntyre v Christchurch City Council [1996]
NZRMA 289 (5 March 1996), New Zealand Planning Tribunal at 314-315; Optus
Communications Pty Ltd v Corporation of the City of Kensington and Norwood [1998]
SAERDC 480 (29 May 1998) at 6; Shirley Primary School v Telecom Mobile
Communications Limited [1999] NZRMA 66 (14 December 1998), New Zealand
Environment Court, at 140[241]; Hyett v Corangamite Shire Council & Telstra [1999] VCAT
794 (30 April 1999) at 6; Vertical Telecoms Pty Ltd v Hornsby
Shire Council [2000] NSWLEC 172 (10 August 2000) at [69]-[70]; Telstra
Corporation Limited v Pine Rivers Shire Council & Ors
[2001] QPELR 350 at 364[60]; Lucent Technologies v Maribyrnong
City Council & Ors [2001] VCAT 1955 (27
September 2001) at [56]; Blake Dawson Waldron on behalf of Telstra
Corporation v West Tamar Council [2004] TASRMPAT 201 (20 August 2004) at
[46].
199
There is also a broader policy reason for the Court making its determination
on the basis of reason and substantiated evidence. As Galligan
notes:
“A
basic aspect of rational action is that facts on which decisions are founded should
be supported by good evidence.
…unless
there is a substratum of objective evidence for the reasons and policies
acted on, discretionary decisions are liable to the charge of arbitrariness”:
D J Galligan, Discretionary Powers: A Legal
Study of Official Discretion, Clarendon Press, Oxford, 1990 at pp. 314
and 316.
200
This is the foundation for the no evidence ground of judicial review in
administrative law: see generally, M Aronson, B Dyer and and
M Groves, Judicial Review of Administrative Action , 3rd ed, Lawbook Co, 2004 at pp.
193-195 and 239-245. As Diplock CJ said in Regina
v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456
at 488:
“The
requirement that a person exercising quasi-judicial functions must base his
decisions on evidence means no more than it must be based upon material which
tends logically to show the existence or non-existence of facts relevant to
the issue to be determined, or to show the likelihood or unlikelihood of some
future event the occurrence of which would be relevant. It means that he must
not spin a coin or consult an astrologer, but he may take into account any
material which, as a matter of reason, has some probative value in the sense
mentioned above”.
See
also Mahon v Air New Zealand [1984] 1 AC 808 at 820.
201
In Bruce v Cole (1998) 45 NSWLR 163 at 189, Spigelman
CJ held:
“In
my opinion, at common law, a decision-maker who acts without probative
evidence - to which conduct the work ‘perversely’ has appropriately been
attached – does not make a valid decision. It is the equivalent of acting
without evidence”.
202
In Hill v Green (1999) 48 NSWLR 161 at 174[72]-175, Spigelman CJ added:
“In
my opinion, where a statute or regulation makes provision for an
administrative decision in terminology which does not confer an unfettered
discretion on the decision-maker, the courts should approach the construction
of the statute or regulation with a presumption that the parliament or author
of the regulation intended the decision-maker to reach a decision by a
process of logical reasoning and a contrary interpretation would require
clear and unambiguous words”.
203
The EPA Act does not confer an unfettered discretion on the consent authority
(or this Court on a merits review appeal) to determine a development
application. The EPA Act requires the consent authority to take into
consideration the relevant matters, including those in s 79C(1): Weal v
Bathurst City Council (2000) 111 LGERA 181 at 185[9]-[13] and
201[80]-[82]; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at
601[62]-[63] and 602[75]-603[77]; and Kindimindi
Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23 (31 January 2006)
at [74]-[79]. Consideration of the relevant matters must be based on
probative evidence. The decision reached must also involve a process of
logical reasoning.
204
In the present case, there is no probative evidence upon which the Court
could make findings of adverse effects on the amenity of the locality or on
the health and safety of persons in the locality or on the environment.
Equally, there is no logical basis upon which a decision could reasonably be
made to refuse consent to the proposed base station where there is no such
probative evidence of effects. To make such a decision would be to infringe
these principles of proper administrative decision-making. The charge of
arbitrariness would be made out.
205
As Mahoney JA stated in BP Australia Ltd v Campbelltown
City Council (1994) 83 LGERA 274 at 279:
“Ordinarily,
it would not be right for such a [decision-making] body to conclude that the
effect of the relevant considerations is that one thing should be done and
yet, without more, to do another. The grant of a discretion is the grant of
the authority to do what the authority sees as the discretionary considerations
to warrant being done.”
206
To make such an arbitrary decision would cause a greater disservice to the
community than making a rational one. It would raise unnecessarily the fears
of the community. This is the reason for the responsible authority ARPANSA
stating in the Australian Standard RPS3 that incorporation of additional
safety factors beyond the exposure limits of the Standard is not supported: p
i and p 29. Similarly, the World Health
Organization has urged:
“…that
scientific assessments of risk and science-based exposure limits should not
be undermined by the adoption of arbitrary cautionary approaches. That would
occur, for example, if limit values were lowered to levels that bear no
relationship to the established hazards or have inappropriate arbitrary
adjustments to the limit values to account for the extent of scientific
uncertainty”: World Health Organization, “Electromagnetic fields and public
health cautionary policies”, WHO Backgrounder , March 2000 at p. 5.
207
Community concerns are best corrected by proper application of the
authoritative adopted standards, including the Australian Standard RPS3, and
the provision of proper information, not by responding to unsubstantiated and
unreasonable fears: Vertical Telecoms Pty Ltd v Hornsby
Shire Council [2000] NSWLEC 172 (10 August 2000) at [63]; and Telstra
Corporation Ltd v Moreland City Council & Ors [2002]
VCAT 1294 (23 October 2002) at [24].
208
Sunstein makes a similar point when discussing how
democratic government should respond to public fear. Sunstein
argues that well-functioning governments should aspire to be deliberative
democracies. Responsiveness to public fear should be complemented by a
commitment to deliberation in the form of reflection and reason giving. If
the public is fearful about a trivial risk, a deliberative democracy should
not respond by reducing that risk. Rather, it should use its institutions to
dispel public fear that is, by hypothesis, without foundation. In this way,
deliberative democracies avoid the tendency of popularist
systems to fall prey to public fear when it is baseless. They use
institutional safeguards to check public panics: C R Sunstein,
Laws of Fear; Beyond Precautionary Principle, Cambridge University
Press, 2005 at p. 1.
The
need for the facility
209
Mr. Papadatos states that the two principal reasons
for the proposed facility are to improve coverage along the railway corridor
through Cheltenham and particularly into Cheltenham railway station and to improve
the overall quality of Telstra's network performance. Although Cheltenham
does receive some mobile telephone coverage, it is generally coverage from
distant cells that were not designed to serve the Cheltenham area.
Consequently, this results in a weaker than desirable signal strength that
can result in dropped calls or an inability to make or receive calls in
nearby residential dwellings or when using the train.
210
To support the applicant's contention that the coverage is inadequate in the
area, signal strength tests were undertaken along the railway line and
Beecroft Rd. The tests along the railway line generally indicated a signal
strength of –120 to –91dBm. This falls within the lower range of signal
strength. The tests along Beecroft Road provided a greater variation in
signal strength with some readings in the optimal classification of 0 to –82 dBm but the majority in the unacceptable -90 to –93 dBm range.
211
While it was argued that there was no record of complaints about dropped
calls, I accept that the evidence on the signal strength tests should be
preferred over more anecdotal evidence suggested by the Council and the
residents. The signal strength tests clearly indicate an unacceptable level
of coverage within the Cheltenham area. The results are also consistent with
the evidence of Mr. Papadatos that there is
sporadic but not consistent or acceptable levels of coverage in the area.
212
There is some doubt as to whether the need for a proposed development is a
relevant consideration under s 79 C(1) of the EPA Act. Ordinarily, these are
matters to be resolved by market forces: Fabcot
Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 at 379. (This
aspect of the decision was not canvassed in the Court of Appeal’s judgment in
Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205 (27 June
2005)). However, I do not decide this question. A need for the facility is
established in this case.
Alternative
locations
213
Mr. Papadatos states that there are no suitable
existing Telstra facilities or other carrier’s facilities that would redress
the unacceptable coverage at Cheltenham. The coverage hole is too large and
too distant for the optimization or fine-tuning of any existing Telstra base
station facilities. Additionally, modelling of the Optus facility,
approximately one kilometre to the south-west has
shown that co-locating would not adequately address Cheltenham’s coverage
hole.
214
In his assessment, Mr. Papadatos stated that only
the subject site and a site containing an existing monopole at Cheltenham
railway station were potentially deemed to meet the coverage objectives. The
latter site, notwithstanding its greater coverage, was rejected as it would
be necessary to replace the existing monopole structure with a bulkier pole,
some five meters higher than the existing structure. It was also seen to be
unacceptable by Mr. Papadatos because of its highly
visible nature and closer proximity to residences and schools.
215
Even though Mr. Papadatos was cross-examined on his
evidence, no evidence was produced to refute or challenge his conclusions.
Much of the cross-examination centered on the replacement of the existing
monopole at Cheltenham railway station. Notwithstanding that greater coverage
would be achieved in this location and Dr. Black’s evidence that a
replacement monopole would likely satisfy the ARPANSA exposure limit, Mr. Papadatos was not satisfied that this location should be
preferred to the proposed location.
216
On the issue of alternative locations, I accept the conclusions of Mr. Papadatos. Accepting that the replacement of the existing
monopole at Cheltenham railway station is the only viable alternative to the
proposed location and that no specific details were provided on the
replacement of monopole, it is likely that a replacement monopole in this
location would be seen as a generally less desirable location because of its
increased visibility, proximity to additional people using the railway
station and proximity to uses that may be seen to be more sensitive to EME.
Matters
raised by local residents
Heritage
217
The applicant provided an Assessment of Heritage Impact prepared by Ms.
Louise Powell, a heritage consultant. The assessment addressed the
requirements in LEP 1994 in relation to development within a heritage
conservation area and development in the vicinity of heritage items. The
report concluded that "there are no adverse impacts on the heritage
significance of the site and the neighboring LEP heritage listed items from
the proposed development" .
218
The heritage impact of the proposal was also considered by the Council in the
assessment of the application, including a referral to the Council's Heritage
Advisory Committee. The Committee reached a similar conclusion to that
reached by Ms. Powell.
219
With the benefit of the inspection of the site and surrounding areas, I agree
with the conclusions reached by Ms. Powell and the Heritage Advisory
Committee. Consequently, I find that the proposed development satisfies the
objective in cl 18 and has no effect on the heritage conservation area and
any heritage items in the vicinity pursuant to cl 18(5) of the LEP.
Visual
impact
220
The proposed antennas extend to a height of two meters above the existing
roof level of the clubhouse. They are located generally in the center of the
north western and south eastern elevations. The proposal also provides for
shrouding which is moulded and painted to represent
brickwork chimneys.
221
On the site view, an estimation was made of the location and height of the proposed
antennas on the clubhouse and observations made from different locations
within the immediate area of the potential visual impact.
222
With the benefit of this exercise, I accept that the proposed antennas will
have little, if any, visual impact on the immediate area. While visible, the
antennas are relatively small in size and will be generally be seen as part
of the clubhouse over time.
Co-location of facilities
223
The residents argued that the approval of the base station would lead to
other carriers seeking to use the facility. This, they fear, could lead to
greater levels of EME being emitted from the site.
224
The cumulative effect of multiple transmitters has been taken into account in
the assessments that have already been undertaken by Telstra and Mr. Bangay, in accordance with accepted procedure. The issue
of cumulative effect over time is taken into account in the Australian
Standard RP3: see also Hyett v Corangamite Shire Council v Telstra [1999] VCAT 794
(30 April 1999) at 5; and Vertical Telecoms Pty Ltd v Hornsby
Shire Council [2000] NSWLEC 172 (10 August 2000) at [62]-[63].
225
While the potential does exist for the use of the site by other carriers,
there was no evidence produced at the hearing to suggest that this is likely to
occur. Mr. Cole’s evidence was that the Cheltenham Recreation Club has not
been approached by any other carrier wishing to co-locate at the site.
226
In the event that another carrier seeks to use the site, a development
application would be required to be submitted and would be subject to the
same assessment as the current proposal. Any consent granted by the Court
authorizes the erection and use only of the proposed base station and
antennas as currently described and in accordance with the approved plans.
The base station and antennas can neither be used for other purposes without
a fresh consent nor be modified without modification of the existing consent
or the obtaining of a new consent: see similarly Hyett
v Corangamite Shire Council [1999] VCAT 794 (30
April 1999) at 5.
227
Finally, the potential for co-location cannot properly be prevented by the
imposition of conditions on the present consent: Hutchison
Telecommunications (Australia) Pty Ltd v Baulkham Hills Shire Council [2004]
NSWLEC 104 (26 March 2004) at [31]-[33].
228
The potential co-location of facilities is not a matter that would warrant
the refusal of this development application.
Conclusion
229
The proposed development is meritorious
and should be approved. The parties have agreed on conditions
appropriate to be imposed should consent be granted.
Orders
230
The Court orders:
1.
The appeal be upheld.
2. Development consent is
granted to Development Application No 1514/2004 for
installation of telecommunication equipment and alterations and additions to
an existing building in accordance with Drawings No TT26958 Sheets 1 to 15
prepared by TCI, subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit K.
**********
TELSTRA CORPORATION LIMITED V HORNSBY
SHIRE COUNCIL
11097 of 2005
ANNEXURE
A
CONDITIONS OF CONSENT
60-74
The Crescent, Cheltenham NSW 2119
Development Application No 1514/2004 for installation of telecommunication
equipment and alterations & additions to an existing building is approved
in accordance with Drawings No. TT26958 Sheets 1 to 15 prepared by TCI and
subject to the following conditions:-
GENERAL
1. The finished surface materials, including colors and texture of any
building and/or hard paved areas, shall blend with the surrounding
environment and shall be non-glare.
2. The proposed pergola columns are to be deleted and replaced with low brick
piers and timber posts, to achieve a more contemporary design. Details to be
submitted with the Construction Certificate application.
BUILDING SURVEYOR
Site Works
3. No site works, including the removal of vegetation or any demolition
works, shall be commenced prior to:
3.1
A construction certificate being issued.
Construction
Certificate - Building
4. In order to certify that detailed construction plans and specifications
are in accordance with the requirements of the Building Code of Australia,
development consent and relevant Australian Standards, a construction
certificate must be obtained from either Council or an accredited certifier
prior to building works commencing.
Principal Certifying Authority
5. Before any construction works commence, you are required to appoint a
Principal Certifying Authority as required by section 81A of the Environmental
Planning & Assessment Act, 1979. The Principal Certifying Authority is
responsible for ensuring that all the works are carried out in accordance
with the approved plans and specifications.
Notifying Council of Commencement of Works
6. It is a requirement of the Environmental Planning and Assessment Act
section 81 A(2)(c) that you notify Hornsby Council
at least two (2) days prior to the intention to commence works.
Where
works are to be undertaken in a public place, such notice must be accompanied
by evidence of the contractor's Public Liability and Workers’ Compensation
Insurances. The public risk policy shall be such an amount as determined by
Council (not being less than $10,000,000.00) and shall cover the owner and
the Council against any injury, loss or damage sustained by any person, firm
or company.
Building Code of Australia
7. All building work must be carried out in accordance with the requirements
of the Building Code of Australia .
Should
there be any alternative solutions listed as Category 2 Fire Safety
Provisions and outlined in the Environmental Planning and Assessment
Regulation 2000, a fire engineering report should be forwarded to the
Brigades for comment under Clause 144 of the Environmental Planning and
Assessment Regulation 2000.
Engineer’s – certification
8. A chartered professional structural engineer shall inspect the fixing of
the two antennas and certify that they are structurally sound.
Hours of Construction
9. In order to maintain the amenity of adjoining properties, site works shall
be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to
1.00 pm Saturday. No work shall be undertaken on Sundays or public holidays.
Plant, goods or materials shall not be delivered to the site outside the approved
hours of site works unless otherwise approved by Council.
Inspections – Building
10. The building works must be inspected by the Principal Certifying
Authority certifying that the works comply with the development consent and
the approved plans and specifications for the following nominated stages: -
· The building or structure when completed and before occupation or use is
commenced.
It
is the responsibility of the builder/applicant to organize the required
inspections and compliance certificates in accordance with the development
consent. Should Council be nominated as the certifier of works, inspections
can be arranged by contacting Council on 9847 6760 during normal business
hours.
ENVIRONMENTAL HEALTH & PROTECTION
11. Following completion of the works, noise levels generated by the
development must comply with AS2107 - 2000 - Acoustics - Recommended design
sound levels and reverberation times for (residential) building interiors.
12. The addition of the communication infrastructure to the existing building
must be in compliance with:
· ARPANSA, Australian Radiation Protection Standard for Maximum Exposure
Levels to Radiofrequency fields - 3khz to 300GHz, in Radiation Protection
Standard RPS3 2002, ARPANSA: Australian, clause 5.7, pages 28-29, as amended
from time to time; and
· The Australian Communication Industry Forum Code ‘ACIF’ C564:2004 (December
2004).
13.
The applicant is to provide certification of the operation of the
communication facility in accordance with the approved electromagnetic energy
(EME) levels, prior to the commissioning of the facility.
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