Hutchison Telecommunications (Australia) Pty Limited v. Baulkham Hills Shire Council

The Baulkham Hills Shire Council refused to grant a development application without conditions made by Hutchison Telecommunications (Australia) Pty Limited for consent to install telecommunications infrastructure. The applicant initiated proceedings under s 97 of the Environmental Planning and Assessment Act 1979. The Council identified the following problems in connection with the development: • the potential health effects of electromagnetic radiation; • adverse visual impact; and • objectors’ concerns. The residents’ concerns were principally related to the possibility of harm to the health of their families due to emissions of radiation from the tower and possible adverse visual impacts. The Council agreed to grant consent to the development subject to specific conditions, among others: Condition 7: Emission levels - The telecommunications facility is to comply with ... [the] Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) Requirements and the maximum field strength at any residence is not to exceed 1 volt per metre. Condition 9: Report on Emission Levels - A validation report shall be submitted to council within 12 months of the facility commencing operation. This report shall demonstrate emission levels for adjoining areas (…) comply with requirements of Council’s policy ARPANSA requirements and the report shall demonstrate that the maximum field strength at those locations does not exceed 1 volt per metre. The Council stated that conditions 7 and 9 should be imposed because the precautionary principle should be applied given the possibility that fields of 1v/m would be experienced within some residences. The court examined, inter alia, whether it should impose stricter limits than were contained in the ARPANSA standard in the absence of another recognized standard. It analyzed the question whether courts should determine on a case by case basis that stricter limits ought to apply. It quoted another decision saying that “...the Tribunal is obliged to apply the relevant regulatory standards as it finds them and not to pioneer standards of its own. The creation of new standards is a matter for other authorities.” In conclusion, the Court considered that development consent should be granted subject to conditions relating inter alia to the power supply to the antennae, construction materials, noise emissions and the protection of existing vegetation. Care was to be exercised during the construction of the proposed works to ensure natural vegetation and topography on the subject site was not unnecessarily disturbed.