Curl Curl Lagoon Friends Inc.

Optus telecommunications tower installed December 2022 

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How Curl Curl Lagoon became home to a commercial telecommunications facility - 12/2022

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Optus's application to develop a 25.7m telecommunications tower and base station on the banks of Curl Curl Lagoon has been the single most controversial lagoon-related issue that Council, Lagoon Friends and the local community have confronted since the John Fisher Park netball court expansion proposal of 2009. 

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Completed in December 2022, the tower and its ancillary equipment base station stand on a small piece of Crown land now leased to Optus for 99 years. This is the first lease of any portion of John Fisher Park for purely commercial purposes and is in direct contradiction to the uses to which the Park can be put under the Warringah Local Environment Plan (WLEP) (2011). 

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In the following we place on record how Optus’s 2020 development application came to be approved and the efforts our Association and the local community made to force Optus to find a better solution.  

  

Telstra in 2007
In 2007 Telstra commenced a community consultation process to establish a mobile phone tower at the intersection of Abbott and Spring Roads, i.e. close to the site of the new Optus tower .  After listening to arguments from the community Telstra thought better, withdrew their proposal and successfully implemented another technical solution not involving a tower at the lagoon. 

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Optus in 2017

In February 2017 Optus applied to construct a tower and platform in a prominent position on the southern bank of the lagoon. That proposal received overwhelming public opposition, and was rejected on 10 grounds by the independent assessor:

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  1.    Not in public interest (EPA Act 1979)

  2    Unacceptable impacts with regard to natural and built environments and social impacts in locality.(EPA Act 1979)

  3.   Inconsistent with Clause 115(3) of SEPP (Infrastructure) 2007 - (Guidelines)

  4.   Inconsistent with Clause D4 Electromagnetic Radiation of the Warringah Development Control Plan 2011.

  5.   Inconsistent with Clause D7 Views of the Warringah Development Control Plan 2011.

  6.   Inconsistent with the provisions of Clause D9 Building Bulk of Warringah Development Control Plan 2011.

  7.   Inconsistent with Clause E7 Development on Land Adjoining Public Open Space of Warringah Development Control Plan 2011.

  8.   Inconsistent with the provisions of State Environmental Planning Policy No 71 – Coastal Protection.

  9.   Inconsistent with the Aims of the Warringah Local Environmental Plan 2011.

 10.   Inconsistent with the Objectives of the RE1 – Public Recreation zone under the Warringah Local Environmental Plan 2011.

 

Optus in 2020

In June 2020 Optus returned to apply for essentially the same size and type of facility as in 2017 but - this time - on the northern bank of the lagoon, directly opposite and just 225m from the 2017 site.  Minutes of the pre-lodgement meeting between Council and Optus obtained under FOI noted Council's advice that "The proposed development must demonstrate that it will maintain the visual and scenic quality of the locality".

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On both their Development Application form and Telecommunication Facilities Guidelines compliance response form Optus describe their proposed tower as "a replacment of an existing 22m lightpole with 25.7m lightpole with integrated telecommunications facility on top."

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.".  We believe the construction of a commercial telecommunications tower on the banks of a publically owned, natural environmental asset like Curl Curl Lagoon is fundamentally inconsistent with the purpose for which John Fisher Park is reserved, as the authors of the WLEP have also expressly stated.

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During the public consultation process CCLF raised six objections to the proposal, the principal one being the "adverse visual effect" and the consequences flowing from that. Our Association did not object on the grounds of any electromagnetic radiation health risk.

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Community position on Optus's 2020 development application

Of 390 submissions received from the local community and their MP's between July and October 2020, 376 (96%) were either directly opposed or wanted a better solution.

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Assessment and determination - Aspects we consider unsatisfactory

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1. Assessment process

The assessment report was prepared by an independent assessor and published by Council on 30 September 2020.

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Surprisingly, the same assessor who found Optus's 2017 application was not consistent with either the aims or zone objectives of the WLEP and recommended refusal on the 10 grounds listed above, then found there were no such grounds for concern with the essentially identical 2020 proposal and recommended it be approved.   

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2. Determination process 

The large number of unique objections received for this contentious DA 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 held two hearings into this application on 7 October and 14 October 2020. In relation to these hearings we note:

 

• the operational procedures for local planning panels mandate the inclusion of a designated community representative member at a panel hearing however the community representative rostered for the first hearing was excused from the hearing due to a "reasonably perceived" conflict of interest for which no reasons or details were written on their declaration form. The Chair decided insufficient time was available to arrange an alternate unconflicted member for the hearing. 

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• the Chair did not use the seven day interval before the second hearing to appoint an alternate unconflicted community representative as per standard operational procedure to participate in and inform the hearing and, of course, to cast their vote on the matter.  The Department explains the importance of the community representative's role thus:

 

"Is the panel required to take the community representative’s concerns into consideration prior to deciding on a matter?

Yes. The community representative is there to bring local knowledge and experience to the panel. Issues raised by the community representative will be an important consideration for the panel.

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Panel members each have a vote, if a panel member has a dissenting view to the majority this view is to be formally documented and recorded in the panel’s reasons for its decision."

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Lagoon Friends subsequently wrote to Council with our concerns about the conduct of the Panel in respect of this matter. In their response Council explained that the "reasonably perceived conflict of interest" preventing the community representative from doing their job was simply that they "knew a number of the objectors". Surely, it is entirely foreseeable that a community representative could- by definition - happen to have local knowledge of one or more members of the community involved in the hearing? hom whose views uation anyone would imagine was entirely forseeable, and avoidable. 

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At neither hearing did any Panel member ask any question of any community member who addressed the hearing.

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The Panel determined the matter in favour of the applicant, stating simply that "The Panel agrees generally with the assessment report." and offering the community no other reasoning, comment or statement on the matter.

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3. Non compliance with terms of Construction Certificate

When the applicant decided to proceed with a 4m x 4m compound fence around the monopole that would have completely blocked the pedestrian thoroughfare along the northern bank of the lagoon when fields are in use, and a doubling in height of the elevated equipment platform, the applicant did not lodge a modification proposal with Council but had these modifications approved directly by their Private Certifier.

 

The construction certificate displaying these modifications was not posted on Council’s website. The community only learned of these modifications after lodging a Freedom of Information request for copy of the construction certificate. 

 

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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CCLF's reaction to determination

We would summarise our reaction to the determination as being -

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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-logement meeting against proceeding with their second DA given the strength of logic and public opinion against it

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• unsurprised after hearing rumours - prior to commencement of the public consultation process - that approval for the DA was an inevitable outcome  

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Is this the end of the story?

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 tower may with approval be subject to augmentation by Optus or other carriers in future.

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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 find a better solution for delivering mobile phone services than to build a 25m tower on the banks of Curl Curl Lagoon.

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• Council campaigns cultivating community values such as “Pride In Our Place” are at odds with Council's failure to deter construction of a mobile telecommunications facility in this particular place.

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• The conduct of Northern Beaches Local Planning Panel in dealing with this highly contentious development application was observed to be 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 new 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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• If a community member wishes to object to a fundamentally bad development proposal affecting the natural environment of the place they call home, they must be prepared for thorough research and analysis.​

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• Our Association expresses its gratitude to the following community members and their representatives for their efforts to find a better alternative solution 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