New Zealand Associanon of Radio Transmitters Inc., v The Wellington City Company

 
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[2012] NZEnvC 8

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge C J Thompson

Environment Commissioner W R Howie

Environment Commissioner J R Mills

ENV-2010-WLG-000068

In the Matter of an appeal under CI 14 of Schedule 1 to the Resource Management Act 1991

BETWEEN
New Zealand Association of Radio Transmitters Inc, Wellington Amateur Radio Club, Wellington Vhf Group Inc
Appellants
and
The Wellington City Council
Respondent
Counsel:

M D Newman for NZ Association of Radio Transmitters Inc

J Andrews for Wellington Amateur Radio Club & Wellington VHF Group Inc

A M White for the Wellington City Council

Appeal from decisions made by Council relating to proposed plan change “PC” with regard to telecommunications structures — appellant “As” were organisations of people with an interest in amateur radio — PC restricted antenna height to building height as permitted activity — otherwise to be dealt with as restricted discretionary activity — restriction would mean in many cases radios used by amateurs would be unable to function properly and would cause increased interference with neighbouring televisions etc — district plan definition of height excluded measurement of height other types of aerials, chimneys, spires and flagpoles not exceeding one meter in any horizontal direction — whether the separate treatment of amateur radio masts should be removed from PC 74.

Costs are reserved

At issue was whether the separate treatment of amateur radio masts should be removed from PC 74.

Held: Because of the timing of the notification of the Plan Change, the law to be applied was the Resource Management Act 1991 before the 2009 Amendment Act came into force. Decision makers had to have particular regard to (1) the maintenance and enhancement of amenity values (s7(c) RMA, other matters); and (2) maintenance and enhancement of the quality of the environment (s7(f) RMA).

The As' option meant that on occasion there might be an intrusion into the views and visual amenity of the locality. However the installations would work and there would not be the time and costs associated with gaining a consent. The Council's option would mean that as a permitted activity, installations would likely not work as efficiently, or at all and would likely cause interference to other electronic equipment. Consent would have to be sought for new installations that would work efficiently and be assessed as not having significant effects on the visual amenity enjoyed from other buildings. An operator seeking this consent would incur significant costs of not less than $5,000.

There was no evidence of any history of complaints about existing radio antenna/aerials (that had so far been exempt from height restrictions). The definition of “height” in the Operative District Plan contained an exception that aerials, chimneys, flues, ventilation shafts, flagpoles and other decorative features not exceeding one meter in any horizontal direction were excluded from the measurement of height. A number of other territorial authorities allowed lattice or other masts well in excess of 102mm diameter and to greater heights than that proposed in PC 74. It would be inconsistent to treat amateur radio aerials differently from aerials used for some other purpose which would remain exempt from the height restriction.

Interim ruling that appeal allowed, pending explanation from the Council as to reasons for different treatment of aerials.

INTERIM DECISION ON APPEAL
Introduction and background
1

The appellants, as their names plainly suggest, are organisations of people who have an interest in amateur radio. They were submitters on the Wellington City Council's Proposed Plan Change 74 (PC 74), relating to telecommunications structures, and were dissatisfied with the decisions on that Plan Change made by the Council on 18 May 2010. This appeal followed.

2

At the core of the appeal are the decisions version provisions of Rule 23.1.18, specifically aimed at amateur radio structures:

23.1.18 Amateur radio configurations are a Permitted Activity provide they comply with the following conditions

23.1.18.1 No limit to the number of supporting structures less than 100mm in diameter. Where guy wires are used, these must not exceed 10mm in diameter.

23.1.18.2 A maximum of one supporting structure greater than 100mm. The maximum height of the supporting structure shall be the relevant Building Height. The maximum horizontal diameter of the pole or supporting structure is 800mm. The minimum setback from any boundary is 1.5m. Any guys used to support the pole must not exceed 10mm in diameter.

23.1.18.3 Antennas located less than 5m above ground have a maximum horizontal diameter of 4m and a minimum boundary setback of lm. Antennas situated more than 5m above ground have a maximum diameter of 1.2m.

23.1.18.4 The maximum height of antennas mounted on buildings using a supporting structure less than 100mm diameter shall be 18m in the Residential Area, and 18m or the relevant permitted or actual Building Height plus 5m (which ever is greatest) in all other Areas.

23.1.18.5 All antennas must be designed and operated in compliance with New Zealand Standard NZS 2772: Part 1: 1999 Radiofrequency Fields Part 1 — Maximum Exposure Levels —3 kHz to 300 GHz (or subsequent amendments) at all times and in all places to which the public has access.

23.1.18.6 No amateur radio configuration may be located on a site that is, or contains, a listed heritage item. In respect of listed heritage areas, no amateur radio configuration shall be located on a site with a heritage area or any area of legal road within that heritage area.

Licensed amateur radio operators have an important role in civil defence activities in the city. The rules recognise this by permitting certain amateur radio configurations for use by licensed amateur radio operators. Antennas and supporting structures that cannot meet the fitted standards are assessed as discretionary activities.

3

As a general comment it seems true, as the appellants note, that the provisions relating to amateur radio equipment got away to a somewhat unsatisfactory start because they were originally grouped with utilities structures — ie structures and equipment being parts of networks operated by commercial entities, The underlying intent there was to amend the provisions about telecommunication structures to align them with the National Environmental Standard for Telecommunication Facilities. The appellants argued that amateur equipment should be treated differently and, to some degree, the Council has accepted that proposition.

4

As a result of submissions on the point, the Council made a number of modifications to the Plan change, including introducing 23.1.18, set out at para [2] above. As will be noted, that provision makes amateur radio configurations a permitted activity provided they comply with the standards and conditions set out. Those not complying with the standards and conditions are to be considered as restricted discretionary activities. The Council's discretion is limited to a consideration of… the visual amenity effects and siting of support structures, antennas and other attachments.

Agreed issues
5

In two principal respects, the Council has come to agree with the amendments sought by the appellants. The reference to a diameter of 100mm in 23.1.18.1 (and, we assume, 23.1.18.4) can be replaced with a diameter of 102mm, and the references to Antennas in 23.1.18.3 should be replaced with references to Dish Antennas.

Issue to be resolved
6

The point of relief remaining in contention relates to 23.1.18.2. The appellants seek that it be amended to provide for a permitted maximum height of 18m for one support structure exceeding 102mm diameter, rather than the … relevant Building Height (ie the permitted maximum for any structure in the zone in question) and they propose that the supporting structure should have staggered widths — they being 800mm up to 8 m height, 50mm up to 14m height, and 450mm up to 18m. The minimum setback from any boundary should be 1.5m. Any guy wires used to support the structure must not exceed m in diameter.

7

To put figures to the concept of relevant Building Heights, the city has a number of character areas and other exceptions to the general height rules, but the tenor of the rules can be gained by examples: for Inner Residential — the inner suburbs — the maximum height is 10m. For Outer Residential it is 8m. The CBD is separated into Low City, where heights vary between 10,2m and 43.8m and the High City, where they can be much higher.

The appellants' position
8

The three radio organisations advance the view that restricting the antenna of the radios used by amateurs to the … relevant Building Height will, in many cases, mean that the equipment will be unable to function properly, or at all. It is their view, supported by perfectly credible evidence, that radio...

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