Connell Wagner Pty Ltd v Sutherland Shire Council [2005] NSWLEC 8

Connell Wagner Pty Ltd v Sutherland Shire Council [2005] NSWLEC 8

Although the telecommunications tower was permissible with consent, the proposal did not merit consent because the upper portion of the 30 m tower would protrude about 12 to 15 m above the treed ridgeline, introducing a new obtrusive visual element into the Royal National Park and coastal foreshore setting. The visual impact was inconsistent with the character of the area and with the DCP provisions requiring minimisation of visual impacts. The applicant had not demonstrated sufficient necessity for this facility at this site, and the SEPP 1 objection did not justify setting aside the 9 m height standard because the non-compliance indicated the unsuitability of the site rather than that...

Jurisdiction
Australia
Judgment Date
19 January 2005
Procedural Posture
Development Appeal Against Refusal of Development Application / Judgment After Hearing
Outcome
Appeal dismissed; SEPP 1 objection disallowed; development consent refused.
Legal Topics
['development Application for Telecommunications Tower' 'maximum Height Development Standard' 'sepp 1 Objection' 'visual Impact on Royal National Park Setting' 'heritage Impact' 'public Interest']
['planning and Environment Law' 'development Control' 'telecommunications Infrastructure' 'heritage and Visual Amenity'] ['development Application for Telecommunications Tower' 'maximum Height Development Standard' 'sepp 1 Objection' 'visual Impact on Royal National Park Setting' 'heritage Impact' 'public Interest']

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Procedural Posture

Development Appeal Against Refusal of Development Application / Judgment After Hearing

Legal Issues

  1. 1 ['Whether development consent should be granted for a 30 m telecommunications tower at Deer Park adjacent to the Royal National Park.' "Whether the tower's height and protrusion above the treed ridgeline would cause unacceptable visual impacts." 'Whether heritage impacts on the Chaldercot group warranted refusal or could be addressed by conditions.' 'Whether the SEPP 1 objection to the maximum height development standard in cl 55 of Sutherland Shire Local Environmental Plan 2000 should be upheld.' 'Whether the asserted need for improved mobile telephone coverage justified the visual impacts and non-compliance with the height standard.']

Ratio Decidendi

Although the telecommunications tower was permissible with consent, the proposal did not merit consent because the upper portion of the 30 m tower would protrude about 12 to 15 m above the treed ridgeline, introducing a new obtrusive visual element into the Royal National Park and coastal foreshore setting. The visual impact was inconsistent with the character of the area and with the DCP provisions requiring minimisation of visual impacts. The applicant had not demonstrated sufficient necessity for this facility at this site, and the SEPP 1 objection did not justify setting aside the 9 m height standard because the non-compliance indicated the unsuitability of the site rather than that...

Court Disposition

Appeal dismissed; SEPP 1 objection disallowed; development consent refused.

Orders

  • ['The appeal is dismissed.' 'The SEPP 1 Objection to the maximum height development standard contained in cl 55 of Sutherland Shire LEP 2000 is disallowed.' 'Development consent to DA 03/1380 for a telecommunications tower at Deer Park is refused.' 'The exhibits may be returned except for Exhibits 2, 8, 9, 15, A, B...