The case involved an appeal to the NSW Land and Environment Court. Telstra planned to install a mobile phone antenna at the Cheltenham Recreation Club and negotiated an agreement with the club to lease space. The Hornsby Shire Council and concerned Cheltenham residents objected to the proposal and the Council refused the development application. Telstra appealed to the Court to overturn the decision.
The court appointed an expert in radio frequency electromagnetic energy, Dr Black, and Telstra had two other expert engineers to support their case. The council and residents did not contest the experts and did not offer their own.
One of the claims by the residents was concern about RF energy, and that - guess what - the PP should be applied. The claim was that there was a large degree of uncertainty concerning the health risks of RF energy and so installations should be limited. Another claim is that the technology is too new for the effects to be known until much later. Another resident must have googled RFI and claimed twp applications of the PP. The first was that adverse health effects of RF energy were inconclusive, and a considerable body of knowledge suggested a precautionary approach be taken. The second was that the communications industry requires mobile carriers to demonstrate they have taken a precautionary approach.
In reply, the Telstra experts gave an interesting run down on mobile phone technology (ok I'm an engineer so it was interesting to me). They also covered RF energy. Interesting the main source of RF energy is not your mobile phone, but FM radio ( those classic hits stations have more than their playlists to damage your brain!) with 0.005%, AM radio with 0.00135% and then TV 0.0003%.
The Telstra experts were about to show that the RFI emissions were well below applicable standards and "so would not cause any adverse biological or health effect to the General Public".
The judge was not about to take on the appropriateness of "such an authoritative and scientifically credible standard as Australian Standard RPS3". In fact RPS3 requires mobile carriers to take precautionary measures to minimise unnecessary or incidental RF exposure provided this can be done at reasonable expense, which Telstra claimed it would do.
Judge Preston then goes in some depth about the legal application of ESD and the PP, but with remarkable clarity. He discusses the thresholds to the application of the PP: serious or irreversible damage and scientific uncertainty to the damage. He then discusses the shift of the burden of proof once these thresholds are met; the burden is now on the proponent to prove the threat is insignificant.
The judge then applies the precautionary principle to the case, and found no threat of serious or irreversible damage could be satisfied. There was no basis for the PP to apply here. He found that the precautionary approach already taken in the standard RPS3 and the design would prevent any threat.
There were other issues with the visual amenity, hertiage and the safety of RF energy, but the judge was not moved by the residents' claims and ruled for Telstra.
The case is well worth reading as an example of the legal application of the PP.
http://www.lawlink.nsw.gov.au/lecjudgments/2006nswlec.nsf/c45212a2bef99be4ca256736001f37bd/fdf89ace6e00928bca25713800832056?OpenDocument
In reply, the Telstra experts gave an interesting run down on mobile phone technology (ok I'm an engineer so it was interesting to me). They also covered RF energy. Interesting the main source of RF energy is not your mobile phone, but FM radio ( those classic hits stations have more than their playlists to damage your brain!) with 0.005%, AM radio with 0.00135% and then TV 0.0003%.
The Telstra experts were about to show that the RFI emissions were well below applicable standards and "so would not cause any adverse biological or health effect to the General Public".
The judge was not about to take on the appropriateness of "such an authoritative and scientifically credible standard as Australian Standard RPS3". In fact RPS3 requires mobile carriers to take precautionary measures to minimise unnecessary or incidental RF exposure provided this can be done at reasonable expense, which Telstra claimed it would do.
Judge Preston then goes in some depth about the legal application of ESD and the PP, but with remarkable clarity. He discusses the thresholds to the application of the PP: serious or irreversible damage and scientific uncertainty to the damage. He then discusses the shift of the burden of proof once these thresholds are met; the burden is now on the proponent to prove the threat is insignificant.
The judge then applies the precautionary principle to the case, and found no threat of serious or irreversible damage could be satisfied. There was no basis for the PP to apply here. He found that the precautionary approach already taken in the standard RPS3 and the design would prevent any threat.
There were other issues with the visual amenity, hertiage and the safety of RF energy, but the judge was not moved by the residents' claims and ruled for Telstra.
The case is well worth reading as an example of the legal application of the PP.
http://www.lawlink.nsw.gov.au/lecjudgments/2006nswlec.nsf/c45212a2bef99be4ca256736001f37bd/fdf89ace6e00928bca25713800832056?OpenDocument
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