Telstra Corporation Limited v Hornsby Shire Council

Abstract

This case dealt with the application of the precautionary principle in the case of emission of radiofrequency electromagnetic energy. A telecommunications carrier, Telstra, wished to address the inadequate mobile telephone coverage in a community called Cheltenham by building a mobile telephone base station in the community. This proposal, however, caused a section of the community of Cheltenham and Hornsby Shire Council much concern. They were concerned that the proposed facility would emit electromagnetic energy that would harm the health and safety of the residents of Cheltenham. The Council therefore refused the development application for the proposal. Telstra appealed to this Court seeking consent for the proposal. The court noted that it had to address the following questions: 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? The issue of the effect of electromagnetic energy emitted from the proposed base station raised the question of the ecological sustainability of the development, and in particular the applicability of the precautionary principle to the development. The court outlined the basic concept of ecologically sustainable development and its applicability to the determination of development applications. It then focused on the precautionary principle and its applicability to the proposed development in this case. It was of the view that the emission levels complied with the adopted public health and safety standard. The precautionary principle was not applicable where there was no threat of serious or irreversible environmental damage. There was no probative evidence on which the court could find an adverse effect on the amenity of the location or on public health and safety due to the development. The corresponding perception of adverse effects was unsubstantiated and without rational foundation. The court had to make its determination on the basis of reason and substantiated evidence. Therefore there was not basis for a refusal of the proposal. The appeal was upheld and development consent was granted subject to conditions.

References

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