Council fights back as courts back telecom towers

Baulkham Hills Shire Council's recently appointed Mayor, Sonia Phillips, today said that council would impose stricter rules on communications companies wishing to establish facilities in the area.

The council last night voted in favour of imposing development control plans (DCP) over building applications involving telecommunications equipment and infrastructure. The DCP sets out where the towers can be established and under what conditions.

"These companies seem to take no heed on the placement [of equipment] in regards to these particular sites: residences, schools; other areas of high usage by the community [such as] libraries and long day care centres," said Phillips.

The decision comes in the wake of community outrage in the Hills district over a NSW Land and Environment Court (LEC) ruling allowing Hutchison Telecommunications to build a 40-metre telecommunication tower on a drinking water reserve situated adjacent to residential properties at Castle Hill.

The council's elected representatives rejected the original development application in August 2003 citing a "duty of care to residents" and then sought legal advice, anticipating a court challenge by Hutchison.

The legal challenge came in the form of a hearing before the NSW LEC, but two weeks before it reached the court the shire's former mayor, John Griffiths, unilaterally reversed the council's decision, when it delegated authority to him during a 2003 Christmas recess.

"I know the community is very dissatisfied with the decision -- as indeed are some of those board councillors, unfortunately there's only one of us left after the last election," Phillips said.

Phillips said Baulkham Hills community's concern about the towers now ranked equally alongside the constituency's top issue, urban consolidation. According to the new Mayor, the concerns are partly being driven by the aesthetic issues but mainly by anxiety over the towers' possible impact on health.

Phillips said the council needs to exercise caution whilst ever "the jury is still out".

"I think until we get some definitive data then the placement of these has to be well away from residences, schools, baby health centrea and other areas of high public use," she said.

The council still went ahead with the case to attempt to impose limits on radio emissions from towers which face the living and bedroom areas of nearby houses. The case was largely a failure, the court deciding not to deviate from standards already set by Commonwealth authorities.

It's widely understood that amendments to the Telecommunications Act in July 1997 put the law firmly in favour of carriers.

It appears that the council's "best shot" was a legal experiment to test if a recent European study on 3G radio emissions could provide a trigger for NSW environment protection laws.

Six residents living near the tower later gave evidence in the LEC hearing.

The emission limit was recommended by a consultant physician specialising in occupational medicine, Dr Bruce Hocking. Hocking based his recommendation on findings of a research released by the Dutch equivalent of the CSIRO, the TNO Physics and Electronics Laboratory, in September last year.

The TNO found a link between non-specific symptoms of "unwell-being" in individuals exposed to 3G-like emissions statistically significant enough to warrant extra research.

It was an unusual step. At the time the study was released, Dr. Colin Roy, director of the non-ionising radiation branch of Australian Radiation Protection & Nuclear Safety Agency (ARPANSA) said that the study would attract curiosity but was unlikely to influence public health policy.

Still the council asked the court to consider precautionary principles outlined in the NSW Protection of the Environment Administration Act 1991 in light of the research, and pass Hutchison's application only on condition that it guaranteed field strengths near the tower were kept below one volt per metre squared.

While the court agreed that the laws were worth considering, Hutchison successfully fought the obligation to adhere to the 1v/ms standard. The court deferred to Hutchison's argument that the standard was unnecessary as the tower would not generate a field which would reach the level at any of the properties near the tower

However, interestingly, presiding judge, Justice Pain chose not to pursue the legal question of whether the court could set tighter standards than those set by ARPANSA in the Commonwealth Radiocommunications Act.

"The interaction between the Commonwealth legislation dealing with this issue and the New South Wales EP&A Act is unclear," wrote Pain in his judgement later, adding:

"...the Court is not able to reach a conclusion on this legal issue on the basis of the arguments presented by the parties' legal representatives and, because of the way the evidence eventually fell out, it is not necessary that I resolve this difficult issue here".

The court also rejected further conditions that any other carriers wishing to co-locate equipment on the facility be required to provide council with "certain information" about their plans before moving ahead.

"When you're dealing with federal legislation it makes local government -- which has no autonomy -- almost powerless to represent the community, but we certainly gave it our best shot," said Phillips.

The council decision to impose tighter planning controls appears to be an attempt to take the matter back into its own court. However it this stage it is unclear how communications companies will reacts to its development control plan.