The 34 telecommunications towers planned for Canberra, mainly on the hills, will now not go ahead without going through full-scale planning procedures, including community consultation and the possibility of ministerial or parliamentary disallowance.
The Minister for Housing and Regional Development, Brian Howe, said yesterday that he had received legal advice through the National Capital Planning Authority that any major expansion of the telecommunications network in the ACT was subject to the National Capital Plan which required a plan to be worked out by the NCPA and ACT Governments in consultation with the telecommunications industry.
The NCPA had advised it would move quickly to do this and that the plan would provide the basis for the consideration of future towers.
Mr Howe’s comments come after widespread concern among Canberra residents about the towers. No building on the hills has been a major feature of Canberra planning since Burley Griffin 1911 plan.
Until now it had been thought that both Optus and Telecom were exempt from planning, environment and heritage procedures and could build their towers wherever they wanted in Australia.
However, the exemption under the Telecommunications National Code and Telecommunications (Exempt Activities) Regulations exempt the bodies only from state and territory planning, heritage and environment law, not Commonwealth law.
The Federal Australian Capital Territory (Planning and Land Management) Act and the National Capital Plan made under it, make it quite plain that no new major telecommunications facilities can be built on Canberra’s hills without a plan. The plan would be devised by the National Capital Planning Authority and the ACT Government.
It also seems that they cannot go ahead without ministerial approval and are subject to the possibility of disallowance by either House of Parliament.
Earlier it was thought that a section in the Act saying that the Commonwealth, the Territory and their authorities could not do anything inconsistent with the plan meant that a private company like Optus was not caught.
However, the legal sources say that this section was only to make it clear that the two governments were bound by the plan and was not meant to exempt private bodies. Private bodies were caught by other sections and parts of the plan.
In particular, Clause 8.5.3 (g) of the plan provides: “”Black Mountain, Mt Taylor, Tuggeranong Hill and Isaacs Ridge will continue to provide locations for current telecommunications facilities, but any major expansion of hill-top use shall be subject to a comprehensive telecommunications plan, developed jointly by the NCPA and the ACT Government in consultation with Telecom Australia and the telecommunications industry.”
(Incidentally when Black Mountain Tower was built in the late 1970s it was confidently predicted that it would satisfy all of Canberra’s telecommunications needs for decades.)
The plan has the force of law.
Changes to the plan have to be approved by the Minister and have to be tabled in Parliament where they are subject to disallowance by either House.
It seems very unlikely that any plan devised under Clause 55 of the National Capital Plan would not permit any unnecessary duplication of telecommunications towers. Further, it is likely the plan would require all viable alternatives to hill-top development to be explored. The leaving of hills in their natural state is one of the fundamental tenets of the Burley Griffin Plan and one that planners are likely to guard jealously.
The plan says, for example, “”It is critical that the hill areas be preserved from urban development and their essential landscape/environmental character be retained and reinforced to provide the unified background and landscape setting for the National Capital. . . . Hills, ridges and buffer spaces are to remain substantially undeveloped in order to protect the symbolic role and Australian landscape character of the hill and ridges.”
It now seems that the planning, heritage and environment exemptions granted to telecommunications bodies in the rest of Australia do not apply in the ACT because ACT planning laws have a Commonwealth statutory base. It is like possible that planning authorities in the states will take umbrage at this and call for telecommunications to be brought under their planning laws as well.