Telstra Corporation Limited v Port Stephens Council [2015] NSWLEC 1053

Procedural Posture

Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Determination of Appeal Against Refusal of Development Application DA 16 2013 589 1

Legal Issues

1. 1 ['Whether the extent of tree and vegetation clearing required for construction, access and an asset protection zone was sufficiently identified and acceptable.' 'Whether the proposed telecommunications facility would have unacceptable visual impacts on the reserve, ridgeline, foreshore and surrounding public and private land.' 'Whether works and ongoing bushfire management on Council community land required authorisation and whether any lack of tenure made the development application futile.' 'Whether the proposed development was consistent with the objectives of the 6(a) General Recreation "A" zone under Port Stephens Local Environmental Plan 2000.' 'Whether State Environmental Planning Policy (Infrastructure) 2007 made the development permissible despite inconsistency with Port Stephens Local Environmental Plan 2000.' 'Whether the proposal was consistent with the NSW Telecommunications Facilities Guideline including Broadband, including Principles 1, 2 and 4.' 'Whether the site was suitable for the proposed development having regard to visual prominence, access works, vegetation removal and bushfire requirements.' 'Whether the proposed development should be approved having regard to likely impacts, site suitability and the public interest under s 79C(1)(b)-(e) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Although the telecommunications facility was permissible with consent under State Environmental Planning Policy (Infrastructure) 2007, the Court was not satisfied that consent should be granted. The proposal was not consistent with objectives (a), (c) and (e) of the 6(a) zone under Port Stephens Local Environmental Plan 2000 because of impacts on the Council reserve, vegetation clearing, open space recreation and visual prominence from public and private land. The SEPP overcame that permissibility barrier, but the discretion to approve was not exercised because the facility would not minimise visual impact as required by Principles 1(b) and 1(g) of the Guideline, was not confined to the...

Court Disposition

Appeal dismissed; development application refused.

Orders

• ['The appeal is dismissed.' 'Development application DA 16-2013-589-1 for the construction of a telecommunications facility at 10A Corrie Parade Corlette is refused.' 'The exhibits are returned except for exhibits A, B, G, H, P, 5, 17 and 20.']