New Zealand Associanon of Radio Transmitters Inc., v The Wellington City Company
| Jurisdiction | New Zealand |
| Judge | C J Thompson,W R Howie,J R Mills |
| Judgment Date | 27 January 2012 |
| Neutral Citation | [2012] NZEnvC 8 |
| Docket Number | ENV-2010-WLG-000068 |
| Court | Environment Court |
| Date | 27 January 2012 |
In the Matter of an appeal under CI 14 of Schedule 1 to the Resource Management Act 1991
[2012] NZEnvC 8
Environment Judge C J Thompson
Environment Commissioner W R Howie
Environment Commissioner J R Mills
ENV-2010-WLG-000068
BEFORE THE ENVIRONMENT COURT
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.
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
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.
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.
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.
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.
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.
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.
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 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 equipment operating at the high-frequency (HF) used for longer distance communications requires antenna height to efficiently propagate signals through the ionosphere. The point was summarised in one of the documents referred to by Mr Newman in this way:
The ability to communicate over long distances generally requires a low radiation angle, meaning that an antenna must be placed high above the ground in terms of the wavelength of the radio wave being transmitted.
A beam type of antenna at a height of 70 feet [21.3m] or more will provide a greatly superior performance over the same antenna at 35 feet [10.6m], all other factors being equal.
Further, the restriction to relevant Building Height for non-pole structures will mean that in suburbia, where most amateur installations are located, most of the antennas will be surrounded by houses and other buildings, further diminishing their performance. Mr Newman says that it will also mean that electronic and radio devices, such as televisions, telephones and audio equipment, in the locality will be more susceptible to interference created by transmissions, The likelihood of interference...
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