Telstra had sought to build a mobile telephone tower in the Sydney suburb of Cheltenham, which lies in Shire of Hornsby. The residents of Cheltenham objected to this development because they were concerned that the tower would emit dangerous radiation. The Council refused to approve the development. Telstra brought a claim before the Land and Environment Court (NSW) to contest the Council’s refusal.
Chief Justice Preston held that nothing precluded the development. The key issue was whether the tower would impact on residents’ health. His Honour considered at length whether the precautionary principle should apply. A summary of his Honour’s exploration of the precautionary principle is below. His Honour ultimately held that the predicted radiation ‘will easily comply’ with Australian Standards [184] and falls short of risking serious or irreversible damage. Consequently, the health impacts would not be grounds for refusing the development.
The Chief Justice considered five other issues to reach his decision:
Need for the tower. His Honour said that signal strength tests ‘clearly indicate[d] an unacceptable level of coverage’. [211]
Alternative locations. His Honour stated that there was no evidence to show that a viable alternative existed. [213]
Heritage impacts. Preston CJ accepted that there would be ‘no effect on the heritage conservation area’.
Visual impact. The antennae would have ‘little, if any, visual impact on the immediate area’. [220]
Co-location (i.e. other carriers using the tower, leading to increased radiation). There was no evidence that co-location was likely to happen. Even if there were, any future co-location would require a fresh development application. Consequently, the potential for co-location would not be grounds for refusing the application under consideration. [223]
The Court discussed the application of the precautionary principle at length, and attempted to provide a method for using the precautionary principle in decision-making.
The following is a summary of the analysis:
The precautionary principle only applies where there is:
Assessing seriousness or irreversibility requires scientifically plausible reasoning – scientific evidence must substantiate the threat claimed. [133] This assessment involves many factors, such as:
the magnitude of the threat,
its spatial and temporal scales,
the manageability of impacts, and
the level of public concern. [131]
'Full’ scientific certainty is not possible; hence, it is not required. [143] Assessing scientific uncertainty might include some of these factors:
whether there is sufficient evidence supporting the existence of a threat;
the level and kind of scientific uncertainty; and
the potential to reduce uncertainty through further research.
When applied, the precautionary principle has the effect of:
requiring decision-makers to assume that there will be serious or irreversible damage; [152]
compelling the proponent of a development to prove that there is no threat of serious or irreversible damage; and
justifying the taking of preventative measures despite uncertainty as to the reality and seriousness of the threats.[156]
Any preventative measures taken must be proportionate. That is, measures should be ‘appropriate and necessary’ to address the potential threats. [167] A measure that seeks to reduce the threat to zero is not appropriate. [157]
The precautionary principle does not necessarily prohibit development [179]. A decision-maker will not necessarily refuse a development even if the proponent fails to prove that there will be no damage. The decision-maker must only take it into account. [154]