Curl Curl Lagoon Friends Inc.

What was Curl Curl Lagoon Friends' position on Optus's 2020 development application?

Our Association's constitution requires our involvement in " . . matters affecting the welfare and beauty of the lagoon and environs".

 

Installation of telecommunications facilities in John Fisher Park is prohibited under the Warringah Local Environment Plan (2011) (WLEP) and is not an approved use under the John Fisher Park Plan Of Management (2001) (PoM). However, under clause 115 of the State Environmental Planning Policy (Infrastructure) 2007, which prevails over the Warringah LEP, Council can if it so chooses approve a telecommunications proposal such as this.

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The reason why commercial infrastructure on this scale is not permitted in the Park by the WLEP and PoM ought to be obvious to anyone: its presence would be inconsistent with the purpose for which the Park was created in the first place.  The Park is public land reserved for the sporting and recreational pursuits of the community, including the passive enjoyment of nature. A cluster of telecommunications antennas at 25.7m is utterly inconsistent with the proposition of a natural setting. 

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During the public consultation process CCLF raised six objections to the proposal, principally its "adverse visual effect".  We knew the tower, if approved, would become a prominent visual reminder on every Park visit for decades to come of just how inconsiderate the proponent was of the community's feelings about their natural environment.

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With regard to potential health risks related to electromagnetic radiation emissions, provided the proposed facility complies with the relevant Australian technical standards and regulatory arrangements our Association has no objection on those grounds.

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What was the Community's position on the development application?

Of the 390 unique submissions made to Council 376 (96%) were either directly opposed or insisted on a better solution.

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Federal Member for Warringah Ms Zali Steggall wrote a detailed submission urging Council to reject the application.   

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What power, role and responsibilities did Council have in relation to this development application?

The Crown Land Commissioner confirmed to us on 18 Feb 2021 that while the reserve is Crown Land, Council is the designated land manager and as such, has been delegated the responsibility of managing the site in accordance with its legislated role.

 

It is therefore within Council's responsibilities to determine whether the proposed development is an appropriate use of the Crown Land reserve. 

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Council is the consent authority for this development application and therefore - we understand - had the final right of refusal had it felt that was the proper decision. 

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Approval process

1. What were Optus told at the Pre-Lodgement Meeting?

Council's pre-lodgement advice to Optus obtained by Lagoon Friends under FOI included the following statements -

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"The visual prominence of the monopole and antennas at the proposed height is significant and inconsistent with the provisions of these (zonal) objectives specifically the aesthetic value of the public recreation area it is considered that this proposal does not satisfy this merit objective."

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"Overall the development is considered to have such an adverse on the ecological and aesthetic values that the proposal at the current height cannot be supported)."

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"The design of the monopole is critical. It should be designed to be as “slender” as possible and no higher than the existing floodlights (22m). The pole should have a similar appearance to the existing lighting structures within the reserve and the panel antennas should be as discreet in volume as possible to give the appearance of an extension of the pole itself."

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"Consider two (more discreet) locations to get a similar coverage, assuming the antenna fixtures can be made less heavy."

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with the concluding comment being -

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"The proposed development must demonstrate that it will maintain the visual and scenic quality of the locality and avoid visual clutter and proliferation of structures when viewed from surrounding residential development as well as the public domain".

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Optus's DA showed a final tower height of 25.7m, being a reduction of 9% in the pre-lodgement height.  The image above is an actual photograph of the tower as built standing against the pre-existing monopole during construction.

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2. What did Council's internal units think of the proposal?

The notable responses to the development application provided by Council's internal referral bodies were as follows.

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Unit:  Property & Commercial Development

Application supported.  Cautioned that a telecommunications facility like this will likely attract other carriers in future to co-locate on the tower and construct additional ground platforms. Also noted that proposed ground equipment is very close to baseball spectator area.

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Unit:  Urban Design

Application not supported.  Height and bulk of structure is unacceptable.

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3. What did the Assessment Report say?

The assessment report for the 2020 application was prepared by the same independent assessor who prepared the 2017 assessment.

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Most surprisingly, whereas that assessor found the 2017 application was not consistent with either the aims or zone objectives of the WLEP and recommended refusal on the 10 grounds listed above, that same assessor now found there were no longer any grounds for objection with the essentially identical 2020 proposal and recommended approval.

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In doing so the assessor deflected Council's Urban Design recommendation of refusal saying the monopole's additional bulk and 3.7m increase in height for antennas would in their opinion be "of minimal impact".

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Our local federal MP wrote to Council saying they were "shocked and disappointed to see the DA has been recommended for approval" by the assessor.

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4. What was the Determination process? 

The large number of unique objections received for this highly contentious proposal and the fact the subject land is managed by Council together necessitated its referral to the Northern Beaches Local Planning Panel (LPP) for determination. Information on the operation of local planning panels is detailed here on the NSW Dept of Planning and Environment website. 

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The LPP hearing of this application was held in two sessions on 7 October and 14 October 2020. The Panel approved the application for the reason that they ". . . agreed generally with the assessment report."

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In our opinion the conduct of the LPP in respect of this application was unsatisfactory for a number of reasons, including

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• excusal of the designated Community Representative from the Local Planning Panel without giving a substantial reason to the public

• failure to ensure foreseeable conflicts of interest on the part of the designated Community Representative were communicated to the Chair in a timely manner

• decision not to seek an alternate Community Representative for the first hearing

• decided not to use the 7-day window of opportunity available to seek an alternate Community Representative for the second hearing

• the Panel did not ask one question of the community members who participated in the hearings

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We lodged a complaint with Council on 30 November 2020 listing our concerns about the Panel's procedures.  Council took up our complaints with the Panel and responded to us on 12 January 2021. We consider our complaints were not squarely addressed by the Panel Chair and note that where such complaint has not been addressed to the complainant's satisfaction the Department of Planning and Environment will accept a request to review that complaint.

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Details of our concerns with the Panel process and our outstanding questions to the Panel are provided here.

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Importantly, our complaint about the absence of a community representative member on the Panel is not made in the belief the Panel's decision to approve would necessarily have been any different. Neither we nor the Panel can know that. However, we do believe any reasonable community representative member would have voted against the proposal. Their vote - either way - would be on the public record in the Panel meeting minutes. And, if the commmunity representative member's view was a dissenting view, then their view would have been "formally documented and recorded in the panel's reasons for its decision", a requirement explained on the Department's website.  Having access to such facts would demonstrate transparency in the determination process and assist the community to comprehend what presents as an otherwise incomprehensible decision to approve such an application.

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5. How did unapproved modifications almost go under the radar?

In June 2022 it became evident the applicant intended to proceed with the following 3 modifications with no public notification or community consultation:

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• the addition of 4m x 4m compound fence around the monopole that would have completely blocked pedestrian thoroughfare along northern bank of lagoon when fields are in use

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• a doubling in height of the elevated equipment platform

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• the addition of a compound fence around the elevated equipment platform

 

The application for construction certificate contained the above unapproved modifications to the plans as stamped by Council, and a construction certificate was issued by the Private Certifier accordingly. As construction certificates are not posted on Council’s website, the community only learned of this the proposed modifications after seeking a copy of the construction certificate via Freedom of Information request.

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When the community and CCLF took their concerns re the evident modifications to Council, Council management at first claimed such non-compliance was beyond their jurisdiction but eventually obtained the applicant's assurance of compliance. 

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What was CCLF's reaction to the grant of approval?

Our Executive Committee's reaction to the approval of this development proposal could be summarised as -

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• amazed at the about-face and contradiction evident in assessments of 2 essentially identical tower proposals done by the same independent assessor

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• disappointed that Council felt unable to advise Optus at pre-lodgement against proceeding with their application given the weight of logic and strength of public opinion against it - after all, the tower was being built in a public park

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• concerned about the conduct of the Local Planning Panel in relation to this matter

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• unsurprised after hearing in discussions with Council staff prior to commencement of the public consultation period that approval for the proposal was likely to be granted this time.  

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Is this the end of the story?

Two further developments in relation to this matter are foreseeable.

 

• NSW Telecommunications Facilities Guidelines Principle 2 states "Telecommunications facilities should be co-located wherever practical".  Furthermore, the Telecommunications Act (1997) provides for carriers to provide other carriers with access to telecommunications transmission towers, the sites of telecommunications transmission towers and eligible underground facilities.  These facts indicate the new facility may with approval be subject to augmentation by Optus or other carriers in future, as Optus concedes.

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• A precedent for approval of further telecommunications facilities in John Fisher Park similar to this Optus tower has now been established.

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So, Optus claim - and the LPP accepts - that increasing the bulk of the facility through augmentation or co-location will not become an issue in future. Not an issue for Optus, that is. But it will probably become a new issue for the Council and community before long, as Council's referral response warned.

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What are our conclusions from this campaign?

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• It is regrettable Optus, unlike Telstra, has been unable to devise a better solution for delivering mobile phone services than to build a 25.7m tower on the banks of Curl Curl Lagoon.

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• We resent Optus selecting the easy target of a piece of public land on which to situate a commercial business asset and their ultimate disregard for the feelings of the local community about their environment.

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• We wonder why the narrow interests of just Optus mobilenet cutomers have prevailed over those of the broader community.

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• Council campaigns cultivating community values such as “Pride In Our Place” are at odds with Council's failure at pre-lodgement to pressure Optus to abandon the proposal for a tower at Curl Curl Lagoon.  Council were the consent authority for this application.

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• The conduct of Northern Beaches Local Planning Panel in dealing with this highly contentious application was in our opinion most unconvincing when compared – e.g.– with conduct of NBIAP which heard and assessed the previous DA in 2017.

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• There is a serious deficiency in Council’s development compliance practices when the community is told private certifiers have authority to alter stamped plans at will and that it would be necessary for the community to “lodge an FOI request” if they wished to access a construction certificate.

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• The tower is now a permanent feature of the lagoon landscape for decades to come.  Overall, the outcome is most disrespectful to the efforts of community volunteers of yesteryears who put so much effort towards restoring and preserving the natural beauty and amenity of the Lagoon area.

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Acknowledgements

Our Association expresses its gratitude to the following community members and representatives for their special efforts to achieve a better outcome than the erection of this tower and its base station on the banks of Curl Curl Lagoon:

 

Ms Zali Steggall  OAM MP            Cr Kristyn Glanville                  Cr David Walton

Mr James Griffin  MP                   Mr Chris Thomas                    Ms Sophie Stack

Ms Beatrice Player                      Mr Steve Brickwood                Mr Philippe Mady