Adbooth Pty Ltd v City of Perth
[2007] WASC 218
•29 AUGUST 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ADBOOTH PTY LTD -v- CITY OF PERTH [2007] WASC 218
CORAM: EM HEENAN J
HEARD: 29 AUGUST 2007
DELIVERED : 29 AUGUST 2007
PUBLISHED : 19 SEPTEMBER 2007
FILE NO/S: CIV 1444 of 2007
BETWEEN: ADBOOTH PTY LTD
Appellant
AND
CITY OF PERTH
Respondent
Catchwords:
Leave to appeal - State Administrative Tribunal - Town Planning - Criteria for leave to appeal - Advertising on telephone booths - City of Perth City Planning Scheme No 2 - Telecommunications (Low-impact Facilities) Determination 1997 (Cth) - 'conservation of amentities of the locality' - General commercial advertising - No apparent error - Leave to appeal refused
Legislation:
City of Perth City Planning Scheme No 2
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA)
Telecommunications (Low-impact Facilities) Determination 1997 (Cth)
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr C G Colvin SC
Respondent: Mr G H Murphy SC
Solicitors:
Appellant: Lavan Legal
Respondent: McLeods
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Telstra Corporation Ltd v Worthing (1999) 197 CLR 61
Williams and Western Australian Planning Commission [2005] WASAT 10
EM HEENAN J: This is an application for leave to appeal, made under s 105(5) of the State Administrative Tribunal Act 2004 (WA), from the decision of the State Administrative Tribunal given on 2 April 2007 by which the Tribunal, comprised of a senior member, a member and a senior sessional member, refused an application to review a decision of the City of Perth rejecting a development application for certain sites within the municipality which would have allowed the applicant to install commercial advertising on certain telephone booths and similar facilities which are more fully identified at [210] of the Tribunal's reasons.
The development approval sought was for the placement of 41 general commercial advertisements on public telephone booths and pedestals at 30 separate sites on road reserves in Perth, East Perth and Northbridge. The appellant, Adbooth Pty Ltd (Adbooth), had applied for planning permission to place general commercial advertisements of 1.47 m x 0.7 m in dimension on each of those sites. The application had been rejected by the City of Perth, the local municipality, under the provisions of its relevant town planning scheme, the City of Perth City Planning Scheme (No 2) (Scheme). Adbooth then applied to the State Administrative Tribunal for a review of the decision of the municipality, pursuant to s 252(1) of the Planning and Development Act 2005 (WA). That application was refused for the reasons given by the Tribunal. It is from that refusal that Adbooth now seeks leave to appeal to this court. Adbooth propounds the five amended proposed grounds of appeal which I shall list and address later in these reasons.
The principles upon which a grant of leave to appeal should be given or refused are set out fully in a recent decision of the Court of Appeal in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 and in particular in the reasons for decision of Buss JA at [17] ‑ [18] of that decision. I also draw attention to [53] ‑ [57] which deal with what constitutes a question of law.
For leave to appeal to be granted the proposed appeal must be upon a question of law: State Administrative Tribunal Act, s 105(2). In their written submissions the applicant and the respondent both contend, in my respectful view, correctly, that leave to appeal should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. The Court of Appeal in Paridis v Settlement Agents Supervisory Board confirmed this principle and explained that the importance of the question of law sought to be raised, whether there was sufficient doubt about it to justify leave, and whether it would impose substantial injustice to allow any error to go uncorrected, are all considerations to be addressed when determining whether or not leave to appeal should be granted, although those factors are not rigid or exhaustive.
The respondent submitted, and I accept, that a question of mixed law and fact is not a question of law within s 105(2) of the State Administrative Tribunal Act; that a ground of appeal which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law; and, that an applicant who seeks to challenge a conclusion of the Tribunal because of deficiency of proof said to amount to an error of law must show, if it is to succeed, that there was no material before the Tribunal upon which a conclusion could properly be based. Equally clear, however, is the proposition that a finding of fact in the absence of evidence, or the drawing of an inference from known or found facts when no such inference could reasonably be drawn, are errors of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 ‑ 356, 359 ‑ 360 (Mason CJ). Questions of weight to be given to the evidence are questions of fact: Williams and Western Australian Planning Commission [2005] WASAT 10 [17]. Furthermore, the weight to be given to any particular consideration is for the decision maker to determine, but a failure to give adequate weight to a matter of great importance, or giving substantial weight to a matter of no real importance, may indicate that the decision is so unreasonable that no reasonable person could have made it: Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, 41 (Mason J).
The nature and extent of advertising which may be displayed on structures within the area of operation of the respondent's relevant town planning scheme is, in the present case, controlled not only by State legislation and the relevant town planning scheme, but also by applicable laws of the Commonwealth which, by virtue of s 109 of the Constitution, shall prevail. Any law of the State, to the extent of inconsistency with a law of the Commonwealth, shall be invalid.
Under cl 36 of the Scheme and s 162(1) of the Planning and Development Act, any applicant for a development (which includes advertising and signage) must obtain development approval. However, in relation to telephone services, the Commonwealth has legislated that the Commonwealth can install and maintain telephone facilities which may display advertising for 'standard telephone services' but not other 'commercial advertising', notwithstanding any applicable State planning law. Consequently, the parties submitted, and the Tribunal upheld, that the display of general commercial advertising upon telephone facilities remains subject to State planning control. There was no submission to the Tribunal, or to this court, that Commonwealth law which permitted advertising of standard telephone services on such sites, but not other commercial advertising, constituted an entire displacement of State planning legislation, whether in the particular case or because it 'covered the field': Telstra Corporation Ltd v Worthing (1999) 197 CLR 61; Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595. Accordingly, proceedings in the Tribunal, and on this application, were conducted on the footing that the State planning legislation was not entirely displaced by the Commonwealth provisions relating to the advertising of telephone services on such booths, but that the Commonwealth provisions which permitted advertising of telephone services did, to that extent, render any inconsistent provision in the State planning legislation, or in State planning schemes, invalid.
Both the appellant and the respondent accept that, in its reasons for decision, the Tribunal correctly described the facts giving rise to the application of both Commonwealth and State laws and the provisions of the Commonwealth laws which do apply in this situation. I can, therefore, here, adopt a portion of the reasons for the Tribunal dealing with these issues; namely:
The public telephone booths and pedestals on which the general commercial advertisements are proposed to be displayed are owned by Telstra Limited (Telstra). Telstra is a telecommunications carrier for the purposes of the Telecommunications Act 1997 (Cth) (Telecommunications Act). Under cl 6(1)(b) of Sch 3 of the Telecommunications Act, a carrier may, for the purposes connected with the supply of a carriage service, carry out the installation of a facility if the facility is a low‑impact facility as defined by cl 6(3). Clause 6(3) authorises the Minister for Telecommunications, by written instrument, to determine that a specified facility is a low‑impact facility for the purposes of the clause. By s 3.1 of the Telecommunications (Low‑impact Facilities) Determination 1997 (Cth) (Determination), the Minister determined that a public pay phone, cabinet or booth installed or to be installed in a residential, commercial, industrial or rural area, is a low‑impact facility for the purposes of cl 6 of Sch 3 of the Telecommunications Act, if the facility is:
'(a)used solely for carriage and content services; and
(b)not designed for other uses (for example, as a vending machine); and
(c)not fitted with devices or facilities for other uses; and
(d)not used to display commercial advertising other than advertising related to the supply of standard telephone services.'
Clause 7 of Sch 3 of the Telecommunications Act authorises a carrier to maintain a low‑impact facility. Maintenance includes:
•the provisioning of the original facility with material or with information (whether in electronic form or otherwise);
•ensuring the proper functioning of the original facility; and
•the replacement of the whole or a part of the original facility: Telecommunications Act Sch 3 cl 7(3).
Clause 37 of Sch 3 of the Telecommunications Act provides that a carrier may, among other things, install and maintain a low‑impact facility despite a law of a State about town planning or the use of land.
It is common ground in these proceedings that the provisions of the Telecommunications Act and the Determination referred to above authorised Telstra to place, and from time to time replace, commercial advertisements related to the supply of standard telephone services at each of the sites which are the subject of this review without the need to obtain development approval under s 162(1) of the PD Act [Planning and Development Act] and the City of Perth City Planning Scheme No 2 (CPS2 or Scheme). It is also common ground that standard telephone services include telephone services provided by a carrier which are not available at the site, such as mobile telephone services, and telephone services provided by a carrier other than Telstra, such as Vodafone or Optus [15] ‑ [18].
I had the benefit of very thorough and helpful written submissions from the parties, which I was able to consider before the oral hearing. I also had the advantage of full argument by senior counsel on each side and their submissions at the hearing of the application. These enabled me to reach a clear view that in this case leave to appeal should be refused and, accordingly, I announced my decision in that respect at the completion of the hearing. I then gave brief reasons identifying the factors which led me to that conclusion. I announced that I would give more ample written reasons as soon as possible. These are the more ample reasons, but extend only to matters which were raised at the hearing before me, either in the written or oral submissions. I refused the application for leave to appeal but extended time for any appeal from that decision until after 21 days elapsed from the publication of these more detailed reasons.
The legislation relating to planning considerations relevant to this matter have been described fully by the Tribunal at [31] ‑ [59] of the Tribunal's reasons for decision and need not now be repeated. It is sufficient to refer to cl 43(3) of the Scheme which states that the Council of the respondent may approve or refuse an application for development approval. No person may begin or continue development of any land or building within the scheme area without development approval, accept in certain, presently irrelevant, exempt circumstances. Clause 43(4) states that without limiting the scope of the Council's discretion to determine an application for development approval, the Council is to have regard to considerations including the following:
(a)the provisions of this Scheme and of any other written law applying within the Scheme area including the Metropolitan Regional Scheme;
(b)any relevant planning policy;
(c)any relevant precinct plan;
...
(g)the orderly and proper planning of the locality;
(h)the conservation of the amenities of the locality;
[and]
(j)the cultural heritage significance of any land or building affected by the proposed development ...
The term 'amenities' is defined in the Scheme, depending upon its context, as relevantly meaning:
The expectations of those living and working in an area about the quality of their environment including its pleasantness, character, beauty, harmony in the exterior design of buildings, privacy and security.
I have already made reference to the five proposed amended grounds of appeal which the applicant is seeking to advance. They are:
1.In circumstances where:
1.1the applicant was, by operation of Commonwealth legislation, entitled, without seeking any development approval, to place commercial advertising relating to standard telephone services ('Exempt Advertising') on all the phone booths the subject of the application, Reasons [15] ‑ [18];
1.2the applicant had already done so, or would do so very shortly, Reasons [69];
the Tribunal erred in law in failing to apply the criteria in clause 43(4) of the Scheme by reference to a comparison between the advertising proposed under the application and Exempt Advertising; in particular by failing to apply the criteria in clause 43(4) on that basis.
2.The Tribunal erred in law in that, having identified 4 differences between commercial advertising and Exempt Advertising (Reasons [72] ‑ [80]) it treated the existence of those difference as if that established that commercial advertising on the telephone booths was more detrimental to the amenity of the area than Exempt Advertising, without making any findings to that effect, alternatively without any reasons, and, further or alternatively, when there was no evidence to support such finding or such finding was so unreasonable that no reasonable tribunal could have made it.
3.The Tribunal erred in law in applying planning policies that were only relevant to development applications for signage where there was no existing right to display a sign that was inconsistent with those policies in any event even though the present application was not such a case.
4.The Tribunal found that the approval would be contrary to statements of planning policy and that there was no cogent reason to depart from those policies when such finding was so unreasonable that no reasonable tribunal could have made it in circumstances where Exempt Advertising was permitted which meant there would be an equivalent departure from the policies in any event.
5.The Tribunal erred in law in applying clause 43(4)(h) of the Scheme in that it failed to apply the definition of amenities in the Scheme.
Essentially, the contentions advanced by the appellant are, firstly, that having concluded that there was a difference in amenity, and for that matter in character, between the proposed use of the sites which were the subject of the application and the existing permitted use of these sites, the Tribunal failed to measure or evaluate the extent of that difference and thereby failed to consider whether it was detrimental to the amenity, or for that matter to the character, of the particular areas.
I was taken in the written submissions and in oral submissions to a series of points which were identifiable in the reasons at which this submission was advanced. However, I am satisfied that, read as a whole, the reasons demonstrate that the Tribunal was very much alive to the extent and the effect of the difference in the proposed amenity or character of the area and, having addressed and accepted evidence on the point, concluded that there was a material detrimental effect between the proposed use and the existing character or amenity of the area. For that reason I am satisfied that there is no reasonable prospect of success for the first ground of appeal.
This conclusion also largely determines the second ground of appeal which contends that the Tribunal erred in law in that, having identified four differences between commercial advertising and exempt advertising, it treated the existence of those differences in effect as determinative of the detrimental effect on the amenity without making any findings to that effect, or without reasons, or that there was no evidence to support such a finding, or where such a finding was so unreasonable that no reasonable Tribunal could have reached it. Again, I am of the view that there is no reasonable prospect of success for this ground of appeal because, as I have already indicated, the Tribunal did address the question of whether the differences were detrimental and indicated in the clearest of terms that they were obtrusive or intrusive or otherwise detrimental to the existing character or amenity.
The third ground of appeal proposed is that the Tribunal erred in law in applying planning policies which were only relevant to development applications for signage where there was no existing right to display a sign that was inconsistent with those policies in any event, even though the present application was not such a case.
It is clear that the present situation was, anomalously, that the advertising permitted at these scenes was controlled not merely by policies or plans of the local authority, but by prevailing Commonwealth law which permitted advertising for telecommunications purposes on the proposed sites and that there was, therefore, a measure of inconsistency between a paramount Commonwealth regulation and the State policies. However, I am satisfied that the Tribunal gave full recognition to the wider scope of permitted advertising activity under the Commonwealth regime and approached its determination on the footing that full recognition should be given to that wider permissible scope. Therefore, the premise in the proposed ground of appeal is contradicted by the approach taken by the Tribunal, and I am also satisfied that there remained a significant scope for the application of the State policies once recognition was given to the scope of advertising permitted under the Commonwealth regime. In practical terms this point is effectively resolved by the conclusion of fact reached by the Tribunal that there were significant differences between the proposed scope of advertising and the scope of advertising permitted under the Commonwealth regime when taken at its highest.
In relation to the fourth ground of appeal, the applicant seeks leave by submitting that the Tribunal found that the approval would be contrary to statements of planning policy and that there was no cogent reason to depart from these policies and that such a finding was so unreasonable that no reasonable Tribunal could have made it in circumstances where exempt advertising was permitted, which meant there would be an equivalent departure from the policies in any event.
In my view, this proposed ground of appeal has no reasonable prospects of success for much the same reasons as those which apply to the third ground. Once it has been found, as I am satisfied that it was found by the Tribunal, that there were material differences between the scope of permitted advertising under the Commonwealth regime and that which was proposed by the applicant, and that the proposed advertising advanced by the applicant was detrimental, it seems to me that there remains significant scope for the application of the residual component of the local planning policies, and that there could be no reasonable basis to contend that reliance cannot be placed on that residual component of the local planning policies.
The fifth and final proposed ground of appeal is that the Tribunal erred in law in applying cl 43(4)(h) of the Scheme by failing to apply the definition of 'amenities' in the scheme. This is amplified by proposed particulars which essentially advance the argument that the Tribunal failed to give recognition to the expectation of those living and working in the area about the quality of their environment, only one of which is character, as distinct from concentrating on the existing amenity or character.
During the course of argument I was at first inclined to the view that this might be a tenable argument, but my attention was drawn by counsel for the respondent to passages in the reasons for the decision of the Tribunal, including those at [9], [37], [178] and [179], that the expectation of the effect on the amenity or character of the environment was expressly addressed by the Tribunal. Therefore, I have reached the conclusion that there is no reasonable basis for success for this proposed ground of appeal.
It follows that I am satisfied that, in relation to each of the five proposed grounds of appeal, there is no sufficient prospect of success to warrant the grant of leave to appeal and that this application must, therefore, be refused.
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