Axicom Pty Ltd v Bonney
[2023] QSC 113
•25 May 2023
SUPREME COURT OF QUEENSLAND
CITATION:
Axicom Pty Ltd v Bonney [2023] QSC 113
PARTIES:
AXICOM PTY LTD
ACN 090 873 019(applicant)
v
JODIE MARIE BONNEY(respondent)
FILE NO:
BS No 8185 of 2022
DIVISION:
Trial Division
PROCEEDING:
Originating Application
ORIGINATING COURT:
Supreme Court at BrisbaneDELIVERED ON:
25 May 2023
DELIVERED AT:
Brisbane
HEARING DATE:
27 April 2023 and 28 April 2023
JUDGE:
Cooper J
ORDERS:
1. Orders in the form set out in the schedule to these reasons.
2. I will hear the parties as to costs.
CATCHWORDS:
REAL PROPERTY – TORRENS TITLE – LEASES – GENERALLY – where the applicant and respondent entered into a lease to permit the applicant to construct and operate a telecommunications tower on the respondent’s premises – where the respondent refused to permit the applicant access to her property pursuant to the lease – where the respondent refused to grant an easement over part of the property which the energy provider has sought – where the applicant seeks specific performance of the lease – whether the applicant is estopped from enforcing the terms of the lease, or is entitled to relief for misleading and deceptive conduct, by reason of representations made which the respondent says induced her to enter into the lease – whether the applicant should be refused relief because it does not hold all environmental approvals which the respondent says are required for the construction of the communications tower and the installation of the underground electrical cabling
Competition and Consumer Act 2010 (Cth), Schedule 2
Electricity Act 1994 (Qld), s 111
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 18, s 18A, s 20A, s 67, s 67A, s 68
Environmental Protection Act 1994 (Qld), s 9, s 14, s 16, s 17, s 18, s 79, s 107, s 426, s 437, s 438
Environmental Protection Regulation 2019 (Qld), Sch 2
Evidence Act 1977 (Qld), s 92(1)(b)
Nature Conservation Act 1992 (Qld), s 14, s 89
Nature Conservations (Plants) Regulation 2020 (Qld), s 47(c)(ii), s 48(b)(ii)Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, cited
Gynch v Polish Club Ltd (2015) 255 CLR 414, citedCOUNSEL:
P Somers for the applicant
R W Tooth for the respondent
SOLICITORS:
K&L Gates for the applicant
KJ Seaniger & Associates for the respondent
Introduction
The respondent has leased part of her property located at 80 Clayton Road, Lammermoor to the applicant. The execution of that lease, and its written terms, are not in contention.
The respondent’s property, more particularly described as Lot 2 on Registered Plan 843157, is a rural lot of approximately 9 hectares. The area leased to the applicant comprises approximately 225m2 (Premises).
The purpose of the lease is to permit the applicant to construct and operate a telecommunications tower on the Premises, approximately 300 metres from the respondent’s house. At the time the lease was executed there was no electricity connection to the Premises. That remains the current position.
The applicant has been unable to undertake works required to construct the communications tower because the respondent has refused to permit access to her property. Further, the applicant has refused to grant an easement over part of her property which the relevant energy provider, Ergon Energy Network (Ergon), has sought from the applicant. That easement covers the proposed route along which underground electrical cables are to be installed on the respondent’s property to provide an electricity connection to the Premises.
By this proceeding, the applicant seeks specific performance of the respondent’s obligations under the lease.
Issues
The issues which were argued at trial fall broadly into the following areas:
(a)whether the respondent is required by the terms of the lease to do the things which are the subject of the relief sought;
(b)whether the applicant is estopped from enforcing the terms of the lease by reason of representations it made which the respondent says induced her to enter into the lease, or whether the respondent is entitled to relief under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) with similar effect based on misleading and deceptive conduct;
(c)whether the applicant should be refused relief because it does not hold all environmental approvals which the respondent says are required for the construction of the communications tower and the installation of the underground electrical cabling.
Relevant terms of the lease
The lease,[1] which commenced on 13 October 2020, defined the Premises by reference to an area hatched on a site plan of the respondent’s property.[2]
[1]Affidavit of Michael Patrick Byrnes filed 12 July 2022 (Court document 2), pages 1 to 25 of exhibit MPB-1.
[2]Ibid, page 20 of exhibit MPB-1, forming part of Annexure B to the lease.
Clause 5 of the lease addresses the use of the Premises. Clause 5.1 provides that the applicant must use the Premises for the purposes of “constructing, maintaining and operating a communications facility and incidental uses.” Clause 5.2 grants the applicant the right to use so much of her property adjoining and adjacent to the Premises “as is reasonably required during the installation, erection, construction, dismantling, repair, replacement, renewal, maintenance and operation of the Premises” for that permitted purpose.
Clause 5.3 then addresses cabling on the respondent’s property in the following terms:
“5.3 Cabling
The Lessor grants to the Lessee, its sub-tenants and licensees the right to install, maintain, repair, replace and use on the Land above or below ground cabling to and from the Premises during the Term … and where necessary to construct supports for such cabling. In exercising its rights under this clause the Lessee must:
(a)provide the Lessor with proposed plans of the location of cabling by way of notice, subject to final approval and requirements of the relevant power authority;
(b)not cause any lasting material damage to the Land or material interference to the Lessor; and
(c)restore the surface of the Land as used as nearly as practicably possible to its state prior to use by the Lessee, its sub-tenants and licensees to the Lessor’s reasonable satisfaction. …”
A second, incorrectly numbered, cl 5.1 then provides that the respondent must sign all documents and do all things reasonably necessary to authorise or assist the applicant in obtaining consent or approval from any government agency to use or develop the Premises for the construction and operation of the communications tower.
By cl 6.1 of the lease, the respondent grants the applicant the right to enter onto and access her property “at any time during the day and night … for the purpose of accessing the Premises and exercising its rights” under the lease.
Clause 9 of the lease addresses the electricity supply to the Premises, in the following terms:
“9 ELECTRICITY SUPPLY
(a)To enable the Lessee to use the Premises for the Permitted Use, the Lessor must at the Lessee’s request and cost:
(1)connect the Premises to an electricity supply (including making provision for and allowing connection to emergency back-up power); and
(2)install on the Land such earthing apparatus as is necessary for the safe continuous use of the Lessee’s Equipment for the Permitted Use.
(b)The Lessor must provide the Lessee with all consents, approvals, rights and easements necessary to enable the Premises to be connected to an electricity supply. …”
Clause 15.2 provides that the applicant may carry out what are called “Lessee’s Works” on the Premises and adjoining land as necessary. The scope of the Lessee’s Works is relevantly described in Annexure C to the lease as follows:
“All of the Lessee’s works to install on the Premises an operational communications facility, including but not limited to the following works:
1the obtaining of any required planning and other consents with respect to the Lessee’s access to, use and occupation of the Premises and Land and any installation on the Premises or Land in that regard;
2the installation on the Land of above or below ground cabling (including fibre optic cabling) to and from the Premises and where necessary the construction of supports for such cabling;
…
4the connection of the Premises to an electricity supply (including making provision for and allowing connection to emergency back-up power); and
5the installation on the Land of such earthing apparatus as is necessary for the safe continuous use of the Lessee’s Equipment for the Permitted Use.”
The applicant relies on those terms of the lease in claiming relief which, in summary, comprises:
(a)orders compelling the respondent to:
(i) grant access to the Premises and so much of her property as is reasonably required to enable the applicant to undertake the work involved in constructing and commissioning the communications tower;
(ii) permit, and not interfere with, the work involved in constructing and commissioning the communications tower;
(b)an order requiring the respondent to deliver signed copies of an easement and a consent to survey plan which, on the applicant’s case, is required to enable the work involved in constructing and commissioning the communications tower to be undertaken;
(c)an order authorising the Registrar of the court to execute the easement and the consent to survey plan in the event that the respondent fails to do so.
After the commencement of the proceeding, the respondent withdrew a consent she had previously executed which concerned the clearing of vegetation from the Premises and the proposed access track and cabling route. There was evidence that, as a consequence of the respondent withdrawing her consent, an officer of the Queensland Department of Resources informed the respondent that he had decided to withdraw a notification concerning the clearing of vegetation on the respondent’s property.[3] The notification in question is an instrument provided to the department by the applicant, not a permit issued by the department. Consequently, the effect of this “withdrawal” is not entirely clear. To remove all doubt, the relief sought by the applicant now also includes an order compelling the respondent to deliver a further signed consent to clearing of vegetation from her property such that a fresh notification of the intent to clear vegetation may be provided to the Department of Resources. The respondent did not object to the applicant seeking that further relief.
[3]Affidavit of Jodie Marie Bonney filed 22 March 2023 (Court document 25), exhibits DN-1 and DN-2.
The respondent’s arguments concerning entitlement under the lease
The respondent’s position is that, even if the terms of the lease are enforceable against her, the applicant is not entitled to the relief it seeks in the circumstances of this case.
There are two bases to that argument. First, the applicant asserts that, contrary to cl 5.3(b) of the lease, the installation of the cabling which the applicant has proposed to connect the Premises to the electricity supply will cause lasting material damage to her property or material interference to her use and enjoyment of the property. Secondly, she argues that, contrary to cl 9(b) of the lease, it is not necessary for cabling to be installed along the route proposed by the applicant in order to enable the Premises to be connected to the electricity supply.
Clause 5.3(b) “lasting material damage” or “material interference”
The proposed route for the laying of underground electrical cabling is shown on an overhead photograph of the respondent’s property and surrounding properties.[4] It commences at the point at which the respondent’s property joins Clayton Road, at the top right hand corner of the photograph, and proceeds in a westerly direction along a narrow strip of land which the respondent referred to in her evidence as the “category A area” and which is used by her as the driveway into her property. The driveway has a short dog-leg to the south before continuing westward towards a property identified on the photograph as Lot 1 on RP843157. At that point it turns south and continues towards the respondent’s house.
[4]Exhibit 2. The proposed route is shown by the orange line referred to as “Easement SP332715”.
The proposed route for the cabling does not follow the driveway as far as the respondent’s house. At a point just south of the southern boundary of Lot 1 on RP843157 it turns in a south-westerly direction and follows what was described in the evidence as an “access track” to the Premises where the communications tower is to be constructed. In part at least, that access track is to follow an existing track which is wide enough to allow a vehicle to travel along it. The respondent gave evidence that she uses that existing track to get to the back of her property.[5]
[5]Transcript 1-80:33-43.
Lasting material damage
The process of installing the electrical cabling will involve the digging of a trench along the proposed route that is approximately 500mm wide and 1000mm deep, into which the applicant will install a PVC pipe conduit for the cabling. The applicant will then backfill the trench and reinstate the surface of the land. The backfilling process involves the installation of a rubber “tracer”, designed to prevent accidental excavation into the conduit, which is to run along the route about 300mm above the conduit. To limit the area affected by the construction works at any one time, the applicant will undertake the process of digging the trench, installing the conduit and the tracer, and backfilling in sections of approximately 10m to 15m.
That work will inevitably involve some damage to the respondent’s property. However, I accept the submission made by Mr Somers, who appeared as counsel for the applicant, that cl 5.3 of the lease contemplates some damage resulting from the installation of below ground cabling. The applicant is not required to install the cabling in a manner which causes no damage at all to the respondent’s property. It is only prohibited from causing damage which satisfies the descriptors “lasting” and “material” within the meaning of cl 5.3(b).
In his closing address, Mr Tooth, who appeared as counsel for the respondent, argued that the proposed electrical cabling met that description because there was no obligation on the applicant to remove the electrical cabling once the lease has expired. This argument relied upon cl 10.3(a) of the lease which limits the applicant’s obligation to remove its equipment to items up to a depth of 500mm below ground.
I am unable to accept that submission. As a matter of construction, the parties’ acceptance that, at the expiry of the lease, the applicant would be free to leave in place any equipment located below the specified depth of 500mm suggests that, considered objectively, the parties did not regard such equipment as causing any lasting impact on the respondent’s property. Even if that were not the case, I accept the evidence of Mr Peter Burke, the applicant’s project director for the construction of the communications tower on the respondent’s property, that, notwithstanding the fact that there is no obligation under the lease, the applicant would remove the electrical cabling upon the expiry of the lease.[6]
[6]Transcript 1-37:1-20.
A further submission directed towards establishing that the proposed work would cause lasting material damage to the respondent’s property, made in the respondent’s written outline of argument,[7] relied on her property having significant environmental value. In his closing address, Mr Tooth did not raise the environmental effect of the proposed works in the context of cl 5.3(b) of the lease, but the submission was not expressly abandoned.
[7]Court document 37, paragraph 39. That written outline was not prepared by counsel who appeared for the respondent at the hearing of the originating application.
The submission relies upon numerous reports created when the respondent undertook searches of her property on a variety of government databases. The relevant reports are described as:
(a)EPBC Act Protected Matters Report created 11 March 2023, obtained from the Commonwealth Department of Climate Change, Energy, the Environment and Water;[8]
(b)Matters of State Environmental Significance Report created 1 March 2023, obtained from the Queensland Department of Environment and Science (QDES);[9]
(c)WildNet Records Conservation Significant Species List created 1 March 2023, obtained from QDES;[10]
(d)WildNet Records Species List created 1 March 2023, obtained from QDES;[11]
(e)Wildlife Online Extract created 9 February 2021, obtained from the Queensland Department of Science, Information Technology and Innovation.[12]
[8]Affidavit of Jodie Marie Bonney filed 22 March 2023 (Court document 25), exhibit CR1. “EPBC Act” refers to the Environmental Protection and Biodiversity Conservation Act 1999 (Cth).
[9]Ibid, exhibit MSES1.
[10]Ibid, exhibit DS1.
[11]Ibid, exhibit DS2.
[12]Ibid, exhibit DS3.
Each of these documents provides information going to the likelihood that flora and fauna covered by relevant environmental legislation would be present on the respondent’s property. For example, the EPBC Act Protected Matters Report identifies plants, animals and birds considered to be endangered, vulnerable or threatened species which “may occur”, which are “likely to occur” and which are “known to occur” within the relevant area.
The applicant objected to the tender of these reports, through the respondent, as hearsay statements relied on as to the truth of their contents concerning the presence of endangered species of plants or animals on the respondent’s property. I accept that the respondent does not have personal knowledge of the information used to create the government databases from which the reports were created. When the objection was raised on the afternoon of the first day of trial, I invited Mr Tooth to consider that question overnight in order to identify any basis upon which the respondent wished to argue that the reports could be admitted under an exception to the rule against hearsay.[13] Ultimately, Mr Tooth did not press any exception to the hearsay rule as a basis for the tender of the reports.[14]
[13]Transcript 1-61:5 to 1-62:11.
[14]Transcript 2-4:1 to 2-5:6.
I reserved my ruling on the admissibility of the reports at that time to consider for myself whether any relevant exception to the hearsay rule might apply. In taking that course, I had in mind s 92(1)(b) of the Evidence Act 1977 (Qld) which permits the admission in certain circumstances of a document which:
“… is or forms part of a record relating to any undertaking and made in the course of that undertaking from information supplied (whether directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information they supplied…”
The term “undertaking” is relevantly defined to include “public administration and any … undertaking” engaged in by the Crown (in right of the State of Queensland or any other right), or by a statutory body.
While the form of the reports themselves might be sufficient to support a finding that they form part of a record relating to an undertaking, no evidence was led about the sources of the information recorded in the government databases from which the reports were created. In those circumstances, I am unable to be satisfied that the reports, and the databases from which they were created, were made from information supplied by persons who had, or may reasonably be supposed to have had, personal knowledge of the presence or otherwise of particular species of flora and fauna on the respondent’s property. For that reason, I uphold the applicant’s objection in respect of the reports referred to in [25] above.
Even if I had admitted those reports, I would not have been satisfied that they support a finding that the environmental impact of the proposed works would be such as to cause lasting material damage within the meaning of cl 5.3(b) of the lease. The reports contain disclaimers as to the accuracy or reliability of the information drawn from the government databases. Both the EPBC Act Protected Matters Report and the Matters of State Environmental Significance Report contain statements to the effect that the information provided in the reports should only be relied upon as a general guide. Further, the Matters of State Environmental Significance Report expressly stated that a field survey may be required to validate the information drawn from the database. Had I concluded that the reports were admissible, I would not have placed significant weight on the general information in those reports, without evidence of the process by which the database was created and the reliability of the information sources used in that process.
In this case there was evidence of a field survey having been undertaken on the respondent’s property. The applicant engaged a company called Eco Logical Australia Pty Ltd (Eco Logical) to prepare an ecological assessment of the impact of the construction of the communications tower and the installation of necessary infrastructure, including the underground electrical cabling.
On 16 and 17 March 2021, Mr Jarman, an ecologist then employed by Eco Logical, attended and inspected the respondent’s property by walking around it for a total of 13 hours, including along the length of the proposed access track from the point where it turned away from the respondent’s driveway to the point where it reached the Premises. This inspection was undertaken for the purpose of:
(a)identifying and quantifying the occurrence of endangered, vulnerable or threatened plant species identified from desktop research as potentially occurring or known to occur within the area;
(b)mapping regulated categories of vegetation and recording the location of mature trees within the area impacted by the construction, including a 10 metre buffer;
(c)recording the presence of animal habitat by reference to habitat preferences of species identified as likely to occur based on desktop research.
The observations which Mr Jarman made during his survey, and the data he collected, were set out in an ecological assessment report issued by Eco Logical on 9 June 2021.[15] Although he was involved in the preparation of that report, Mr Jarman left Eco Logical approximately a month before it was finalised and issued. Nevertheless, Mr Jarman confirmed in his evidence that the report accurately set out the methodology he adopted in inspecting the respondent’s property, his observations from that inspection and the identity, location and extent of the species he observed on the property.
[15]Affidavit of Steven Jarman filed 19 April 2023 (Court document 38), exhibit SJ-1.
Paragraph 4.2.1 of the report records that Mr Jarman observed two endangered species of plant on the property, Cycas ophiolitica and Macrozamia serpentina. The location where each species was observed is recorded in Figure 5. Neither species was observed within the area that will be impacted by the construction work. Nevertheless, the report stated that the work would require a permit to clear regulated vegetation.[16] Table 5 of the report also sets out a suite of mitigation and management measures developed to mitigate the environmental impact of the work.
[16]Ibid, section 3.2.3 at page 15 of the report.
The impact of the construction work is described in section 5 of the report, as follows:
“5.1.1.Clearing and earthworks
5.1.1.1.Flora
Clearing vegetation and subsequent earthworks will be required to allow for the establishment of the project infrastructure, as shown in. Vegetation within and surrounding the impact area has been identified as RE 11.11.15 (least concern) which occurs as both Category B remnant vegetation and Category C regrowth vegetation (see Figure 5). 0.24 ha of proposed clearing will occur within regrowth areas, to allow for construction of the telecom tower. The project impact area covers 0.01 ha of Category A, 0.23 ha Category B vegetation and 0.24 ha of Category C vegetation. There will be no clearing or impact within Category A vegetation as the access track is already established in this area.
As the access track is pre-existing (Figure 12), and any additional clearance required will be limited to the 10 m buffer area to meet the requirements of the [Vegetation Management] Act, impacts to vegetation due to clearance and earthworks for the access tack [sic] will be minimal. The total amount of regulated vegetation required to be cleared for the project is approximately 0.5 ha; there are no habitat trees within the 10 m buffer area; and there will be limited clearing of native trees.
Two significant flora species were identified onsite, Cycas ophiolitica and Macrozamia serpentina; however, direct clearance of these species will not be required. The proposed impact area is however within 100 m of the identified endangered species and therefore, clearing of the impact area is considered an indirect impact on the protected plants under the Nature Conservation (Plants) Regulation 2020: Protected Plants Assessment Guidelines (NC Reg. PPAG). Cycas ophiolitica was found within disturbed (regrowth) vegetation, while Macrozamia serpentina was found within remnant vegetation to the south of the impact area.
Given that the total clearance required for the project will be minimal (approximately 0.5 ha), the impact area is largely already disturbed, and the surrounding remnant vegetation exists as a patch within a highly fragmented landscape, it is unlikely that the vegetation clearance will result in a significant loss or fragmentation of habitat for the protected plants and impact the survival of the protected plants in the area.
5.1.1.2. Fauna
There was a total of eight significant fauna species considered likely or having the potential to occur in the Project Area. A majority of the clearing will occur within disturbed regrowth habitat which is not considered core habitat for the species; and large areas of high value remnant vegetation to the west of the site will be retained, with only minimal clearing for the access track required. Significant impacts to fauna species due to the loss and or fragmentation of habitat as a result of clearing for the project are therefore considered unlikely.
Clearing and construction works pose a direct threat to fauna species present in the impact area due to injury or mortality from vehicle or machinery strike. These impacts will be mitigated and managed as outlined in Section 6.
5.1.2. Habitat degradation or species disturbance
Construction activities can increase access by feral predators (e.g. wild dogs, cats and foxes) to areas of retained vegetation and habitat thereby increasing the level of predation. Additionally, clearing of vegetation may force fauna to move through cleared areas to reach suitable habitat. These altered movement patters may result in increased predation of threatened species by feral predators, causing injury and mortality; however, no pest species have been recorded in the Project Area.
In addition to disturbance caused by vegetation clearing, the construction phase for the Project has the potential to disturb habitat and species through dust emissions, noise and vibration impacts and light emissions.
The hydrology of the site will not be significantly impacted due to construction and given the small impact area and the implementation of mitigation and management measures (Table 5), changes to water quality and sediments loads are not likely to occur due to construction activities.
Inappropriate disposal of liquid and solid waste, including spills and leaks from transfers (fuel, chemicals) and inadequate storage of wastes may result in contamination of surrounding land. Direct impacts may include toxic impacts on vegetation (resulting in degradation or loss of habitats) and direct toxic impact on fauna (from contact, inhalation, or ingestion).
Given the suite of mitigation and management measures being implemented during construction (see Table 5), it is unlikely that any significant impacts to environmental values as a result of habitat degradation or species disturbances are likely to occur.”
I accept that these conclusions, which are based upon Mr Jarman’s detailed field study, accurately describe the environmental impact of the proposed work. I prefer that evidence to the more general statements the respondent made about the impact of the work.[17]
[17]For example, see the affidavit of Jodie Marie Bonney filed 22 March 2023 (Court document 25), paragraph 4.
The environmental mitigation measures identified by Eco Logical were subsequently incorporated in an impact management plan for the construction of the communications tower.[18]
[18]Affidavit of Andrew McLane filed 6 September 2022 (Court document 17), pages 91 to 124 of exhibit AM-1.
The applicant included the impact management plan, along with a protected plant report prepared in August 2021 based on Mr Jarman’s observations, with its application to the QDES for a clearing permit in respect of the proposed works.[19]
[19]Affidavit of Andrew McLane filed 6 September 2022 (Court document 17), pages 41 to 124 of exhibit AM-1.
QDES issued a clearing permit to the applicant on 23 November 2021.[20] That permit approves the clearing of vegetation within the 0.5 hectare area of the respondent’s property referred to in the extract from section 5.1.1.1 of the ecological assessment report set out above. However, the permit prohibits the clearing of the two endangered plant species identified during Mr Jarman’s field study and imposes a condition that the applicant undertake clearing activities in accordance with the procedures and actions outlined in Eco Logical’s impact management plan, including the environmental mitigation and management measures contained in that report.
[20]Affidavit of Andrew McLane filed 6 September 2022 (Court document 17), pages 125 to 128 of exhibit AM-1.
Having regard to the conclusions reached in the ecological assessment report set out above, and the conditions imposed on the clearing permit based upon the results of the field study undertaken by Mr Jarman, I do not accept the submission that the environmental impact of the proposed construction work meets the description of “lasting material damage” to the respondent’s property within the meaning of cl 5.3(b) of the lease.
Material interference
The respondent submitted that “material interference” was established in circumstances where the easement sought by the applicant will prevent her subdividing part of her property near the entrance from Clayton Road into at least four eco-friendly residential allotments.[21]
[21]Affidavit of Jodie Marie Bonney filed 18 August 2022 (Court document 11), paragraph 16.
The respondent’s evidence indicated that her subdivision proposal would create the residential allotments in the “category A area” used by the respondent as the driveway into her property (see [18] above).[22] As the respondent stated in cross-examination,[23] that area has an existing right of way easement over it in favour of Lot 1 on RP843157.[24]
[22]Affidavit of Jodie Marie Bonney filed 24 August 2022 (Court document 13), exhibit ED-1.
[23]Transcript 1-66:1-2.
[24]That right of way easement is recorded as Easement A on Registered Plan 843157. Affidavit of Sui Ann Lim filed 4 August 2022 (Court document 4), pages 23 to 24 of exhibit ASL-1.
Nothing in the evidence explains how the respondent’s proposed subdivision of that area would accommodate the right of way easement in favour of her existing neighbour or her own need for access from Clayton Road. Absent such evidence it is difficult to see how the easement which the applicant seeks for the proposed cabling route, over the same driveway area, creates any greater obstacle to subdivision than the existing right of way easement.
On the evidence, I am not satisfied that the easement sought by the applicant would constitute “material interference” within the meaning of cl 5.3(b).
Clause 9(b): whether the easement sought by the applicant is “necessary”
The respondent’s property is currently connected to the electricity grid through an overhead power line that extends from Clayton Road, across the neighbouring properties to the east of the respondent’s property, before connecting to the respondent’s house.
Mr Farrell, a project manager for the applicant, gave evidence that this existing overhead power line does not have capacity to supply power to the communications tower, even if that line was extended from the respondent’s house to the Premises. I accept that evidence, which was not challenged in cross-examination. It is consistent with a notation on a location plan provided by Bill Limpus of Ergon[25] to Mr Farrell which stated, in reference to the existing overhead power line connecting to the respondent’s house:[26]
“Our Low Voltage calculations fail due to the distance from the Transformer to the proposed Tower Site. Have tried using different conductor types but the LV Drop is still outside stat limits.”
[25]Ergon being the only electricity supplier in the area where the respondent’s property is located.
[26]Affidavit of Paul Farrell filed 4 August 2022 (Court document 3), page 3 of exhibit PF-1.
The applicant applied to Ergon for an electrical connection to the Premises. There was evidence that, following this application, Ergon investigated whether the overhead power line to the respondent’s house could be upgraded to provide the necessary capacity. In an email sent on 15 March 2021,[27] Mr Limpus informed the applicant that the neighbouring property owners, over whose land the power line travelled, had refused to give their consent to the installation of an upgraded power line. Mr Farrell responded to that email on 17 March 2021, asking whether it would be possible for Ergon to provide the upgraded connection through a power line installed along the driveway into the respondent’s property.[28]
[27]Ibid, pages 2 to 3 of exhibit PF-1.
[28]Ibid, page 4 of exhibit PF-1.
On 13 April 2021, Mr Limpus informed Mr Farrell that Ergon had determined that it was possible to provide power to the Premises from a power line installed along the driveway provided the respondent’s consent was obtained.[29]
[29]Ibid, pages 7 to 8 of exhibit PF-1.
In May 2021, Mr Limpus informed Mr Farrell during a telephone conversation that Ergon would proceed to install the upgraded power line along the driveway, subject to Ergon and the applicant entering into Ergon’s standard “Network Connection Contract” and associated documents.[30]
[30]Ibid, paragraph 11.
Ergon provided a copy of the “Network Connection Contract” for the proposed electricity connection to the Premises on 11 June 2021.[31] Clause 6.2(i) of the Negotiated Connection Establishment Contract (Site Specific Terms) provided by Ergon requires that the applicant provide an easement from the respondent in favour of Ergon covering the proposed route for the new underground cable route.[32]
[31]Ibid, pages 11 to 39 of exhibit PF-1.
[32]Ibid, page 35 of exhibit PF-1.
On 14 October 2021, Ergon provided to the applicant a copy of the form of easement it required.[33] It is that form of easement which the applicant now seeks to compel the respondent to provide.
[33]Ibid, pages 40 to 52 of exhibit PF-1.
In written submissions, the respondent argued that these communications are not sufficient to establish that the easement is “necessary” to enable the Premises to be connected to the electricity supply.[34] Two bases were advanced for that argument.
[34]Court document 40, paragraphs 13 to 15. These submissions were prepared by counsel who did not appear at the trial. Mr Tooth did not press this submission in closing address, but did not expressly abandon it.
The first basis concerns the wording of the email from Ergon which attached the form of easement it required. That email, which was sent by a member of Ergon’s property services team, stated: “I am not across this project but I think that you [the applicant] are proposing to register an easement over freehold lands for underground infrastructure.” It was sent in response to an email from Mr Farrell which indicated he had been directed by Mr Limpus to the property services team to assist with the process of obtaining an easement for the new underground power supply.
In my view, the fact that Ergon’s property services team had not, to that point in time, been involved in the project and did not have knowledge of details beyond those provided in Mr Farrell’s email inquiry does not matter. The understanding expressed in the email as to the nature of the proposed easement was correct. Consequently, I am satisfied that the form of easement which was provided to Mr Farrell is a requirement of Ergon before it provides the electrical connection to the Premises.
The second basis arises from the fact that the applicant has not yet signed any contract with Ergon for the establishment of the electrical connection through the proposed underground cabling. In cross-examination, Mr Farrell accepted that it was possible that, in circumstances where Ergon has not yet commenced designing the underground cabling, the plans for that cabling could change in the future.[35] I did not understand that to be a concession that a route other than the one now proposed by the applicant would be chosen for the electrical cabling required to provide the connection to the Premises. On the evidence, there is no other route which could be adopted without the consent of neighbouring landowners and that consent has already been sought and been refused.
[35]Transcript 1-23:5-23.
I am satisfied that the proposed route for the underground cabling along the driveway area of the respondent’s property is the only means of installing an electrical connection to the Premises. I am also satisfied that the easement is necessary to enable the Premises to be connected to an electricity supply, it being a requirement of Ergon before it provides that electrical connection.
Conclusion on the respondent’s obligations under the lease
I do not accept the respondent’s arguments concerning the application of cll 5.3(b) or 9(b) of the lease.
I am satisfied that the respondent is obliged:
(a)by cll 5.2, 5.3, 6.1 and 9(a) of the lease, to grant access to the Premises and so much of her property as is reasonably required to enable the applicant to undertake the work involved in constructing and commissioning the communications tower and to permit, and not interfere with, the work involved in constructing and commissioning the communications tower;
(b)by cl 9(b) of the lease, to deliver signed copies of the easement and the consent to survey plan sought by the applicant to enable the work involved in constructing and commissioning the communications tower to be undertaken;
(c)by the second (incorrectly numbered) cl 5.1 of the lease, to deliver a further signed consent to clearing of vegetation from her property.
By denying the applicant access to her property and refusing to deliver signed copies of the documents referred to above, the respondent has breached her obligations under the lease. As the lease involves a disposition of an interest in the land, the equitable remedy of specific performance is available on the basis that damages alone may be an inadequate remedy. For those reasons, subject to the further matters raised by the respondent considered below, I am satisfied that the applicant is entitled to the relief it seeks.
The alleged representations: estoppel or misleading and deceptive conduct
The respondent’s estoppel argument is based upon a representation[36] she asserts was made to her, prior to the execution of the lease, to the effect that the only power source required for the communications tower would:
(a)be from the power pole adjacent to her house which connects her property to the existing low voltage overhead power lines (see [46] above);
(b)only follow the route identified in pre-lease negotiations; and
(c)come from no other source.
[36]Court document 39, paragraph 5.
The respondent’s evidence
On the respondent’s evidence, the representation was made during a visit to her property by two representatives of the applicant, David Hughes and Peter Burke, on 29 April 2020. The respondent swore two affidavits in which she gave evidence about what occurred during the site visit.
In her first affidavit, sworn on 8 August 2022, the respondent deposed as follows:[37]
“The first site meeting with Axicom was held with the [sic] David Hughes and Peter Burke who appeared to have more technical knowledge than David Hughes. They mentioned to me the Company already had some plans where the site would be and after walking the area it was worked [sic] where the Tower would go. During this discussion I was told it would be a 10 x 10 m square site with a 25 m single poll [sic] and that the power would come from my house. I was concerned and the three of us then walked over to the house and looked at the power there. We had a discussion concerning the route the power line would take. I was told a power Expert from an independent company could come out and do an assessment. I was asked to be home at the time of the proposed visit. …”
[37]Affidavit of Jodie Marie Bonney filed 18 August 2022 (Court document 11), paragraph 4.
The respondent provided a more detailed account of that visit in her second affidavit, sworn on 19 August 2022:[38]
“On the 29 April 2020 there was the first site visit by David Hughes and Peter Bourke. They were looking at the power pole beside the house. Peter Bourke was examining the top of the pole and said to me ‘that is good you have 3 phase power’. I said ‘really I didn’t know that, that’s great’ We chatted about that and he explained amps to me and that this power was sufficient for the type of power required required [sic] by using the words spoke [sic] about the power required for the tower.
The three of us went to view the actual tower site. I said to them ‘how much land do you need to use and how big would the site be’ David Hughes stated ‘it will only be a 10x10 site’ and Peter Bourke agreed by nodding his head and saying ‘yes that [sic] right’. David Hughes said ‘it will be a 25 meter [sic] high single pole tower so not much higher than those tree tops so it’s only a small site’ I said ‘ok, will you have to clear those trees’ and I pointed to a line of maturing native eucalyptus and Norfolk pine trees close to my boundary line about 15 meters [sic] in height.’ I sensed they could see this bothered me and I was scanning the vegetation in the area of the site. They said ‘We don’t know and are not sure’. I then said ‘I don’t think I can do that if they (the trees) had to go because the [sic] they are not in the way. It was clear by the words ‘do that’ I meant allow the tower to be built.
At the same meeting I told them ‘there has been illegal excavation to the front of the property at [sic] front entrance to Clayton Street.’ I asked both of them but mainly directed to Peter Bourke ‘so you wouldn’t need to have anything to do with any other area of my property?’. They both assured me they would not, by saying ‘no We don’t’ and David Hughes said ‘We only need access to get in and out.’
At the same site inspection We discussed the options of the potential power line route (to take power from my House power pole back to the Tower). I asked them again ‘you’re telling me that no other area of my property will be affected apart from the site and needing an access track in somewhere from the house to the back where the site would go?’. They both nodded and agreed saying ‘that’s right’ and David Hughes said ‘yes that is correct and we will maintain the access tracks at our own expense for the term of the lease’. We returned to the power pole beside my house. Peter Bourke said something like, ‘we can use this power from here and run a line to the site’ and mentioned 3 phase power again. Peter Bourke said ‘the power source was good and power won’t be a problem, that’s good’.
At the same meeting David Hughes said to me ‘Pete … knows his stuff and has worked on a lot of different projects and has extensive experience with building tower sites. Peter is the main man on a large number of the [sic] Axicom’s thousands of towers’. I was convinced Peter Bourke was an Expert and from that tome onwards I had no doubt the Power supply was coming from the House power pole. During our discussions Peter Bourke displayed a great deal of knowledge of exactly what would happen. I had confidence in what he said.
… It was said to me by Peter Bourke ‘the power supply was ‘perfect’ at 63 amps 3 phase Low Voltage and that there would be no interruption to my property power supply or any changes to household power supply’. …”
[38]Affidavit of Jodie Marie Bonney filed 24 August 2022 (Court document 13), paragraphs 4 to 9.
The applicant’s evidence
By the time of this proceeding, Mr Hughes no longer had any recollection of the detail of the discussion he and Mr Burke had with the respondent at the site visit. He only recalled having a high level discussion about the respondent’s preferences for the potential location of the proposed tower.[39] In cross-examination, Mr Hughes specifically denied the proposition that he had avoided reference to high voltage power lines in later communications with the respondent because he knew that, prior to entering into the lease, he had agreed with the respondent that the power source for the site would be low voltage.[40] Otherwise, Mr Hughes confirmed in cross-examination that he did not recall the detail of the discussions at the first site visit.[41]
[39]Affidavit of David Hughes filed 6 September 2022 (Court document 15), paragraph 3.
[40]Transcript 1-26:26 to 1-27:24.
[41]Transcript 1-27:26-28; 1-27:42 to 1-28:2; 1-29:1-10.
Mr Burke’s evidence[42] was that, at the time of the first site visit, he was aware that the specific route and specification for the electrical cabling to the proposed tower site would ultimately depend on the requirements of Ergon, the only electricity network owner in the area, and those requirements would only be confirmed as the project progressed. He deposed that, when he visited the respondent’s property with Mr Hughes on 29 April 2020, he did not know if the existing power supply to the respondent’s property would be sufficient for the proposed communications tower.
[42]Affidavit of Peter Burke filed 6 September 2022 (Court document 16), paragraphs 5 to 7.
Mr Burke’s recollection of the first site visit was as follows:[43]
[43]Ibid, paragraphs 8(a) to (h).
(a)he told the respondent that the applicant would pay for its own power and would not be relying upon the respondent’s power supply;
(b)the respondent asked that the applicant adopt a route that did not require clearing, or at least minimised the amount of clearing, and for that purpose they discussed and walked along a number of different potential routes for the power supply to the site before ultimately discussing with the respondent that the route could not be determined during that visit;
(c)the respondent stated that if the applicant was going to do anything to her driveway, which is dirt, that she wanted the applicant to add bitumen to a section of it when performing the make-good, and the applicant agreed to that;
(d)consistently with his general practice, he said to the respondent:
(i) Ergon was the power provider present in the area;
(ii) an application for power supply to the tower site would need to be made through Ergon;
(iii) finalising the route for the electrical cabling and final site design would require some further steps and would have to be determined later;
(e)in response to an indication from the respondent that she would prefer the electrical cabling to run underground, he said to her that the applicant could run the power underground but the exact route it would take was not known at that time and is always noted as “indicative” on the design;
(f)neither he nor Mr Hughes made any statements to the respondent to the effect that the electrical cabling that would ultimately be necessary would be of any particular specification, size or take any particular route;
(g)he did state words to the effect that “we ensure that each operator has a minimum of 63 amp or 3 phase at the site location to operate on its own”.
As to the matters deposed to by the respondent, Mr Burke:[44]
(a)denied that he stated words to the effect that the “power was sufficient for the site”, in circumstances where he did not know Ergon’s network requirements at that time and he knew that site designs are susceptible to change;
(b)denied that the respondent stated that there had been illegal excavation at the front of her property, but recalls that she said words to the effect that she was “in court with a developer over taking soil and dumping soil on her land” and that she had “won that fight in court”;
(c)denied that there was any decision taken or agreement made to take power from the power pole next to the respondent’s house, but recalls stating to the effect that it was good that the respondent had a 3 phase supply running to her house because it meant that there was 3 phase power supply in the area;
(d)denied that the respondent sought confirmation that no area of her property would be affected other than the proposed site and an access track, or that he (or to his recollection, Mr Hughes) provided such confirmation;
(e)denied that he stated word to the effect that “we can use this power from here and run a line to the site”;
(f)denied that he gave any indication to the respondent as to “exactly what would happen”;
(g)recalled telling the respondent that the electrical cables could be installed underground and saying words to the effect that the type of supply the applicant needed to run its equipment is 3 phase supply and that the applicant would not impact her house supply;
(h)did not recall Mr Hughes saying the words attributed to him by the respondent concerning Mr Burke’s knowledge and experience.
[44]Ibid, paragraphs 8(i) to (l); Transcript 1-34:17-18; 1-34:29-42; 1-35:1-27; 1-36:36-39.
Written communications after the site visit
On 1 May 2020, Mr Hughes sent an email to the respondent with various documents attached.[45]
[45]Affidavit of David Hughes filed 6 September 2022 (Court document 15), pages 1 to 8 of exhibit DH-2.
One of the attachments was a photograph showing a route, marked by an orange line, between the power pole near the respondent’s house to the site proposed for the communications tower.[46] In cross-examination, Mr Hughes stated that, although he had not prepared the markings on the photograph (Mr Burke had), his understanding was that the orange line represented “the indicative potential power”.[47] Mr Burke was not shown the marked-up photograph, or asked any questions about it, during his cross-examination.
[46]Ibid, page 6 of exhibit DH-2.
[47]Transcript 1-28:41-44.
On 19 May 2020, Mr Hughes sent a further email to the respondent attaching what he described as “the preliminary design” for her review and approval if satisfactory.[48] The respondent confirmed in cross-examination that she read the email when she received it and carefully reviewed the plans attached to it.[49]
[48]Exhibit 1.
[49]Transcript 1-71:40 to 1-72:3.
That preliminary design consisted of three drawings: a “Draft Site Layout” which provided an overall view of the respondent’s property; a “Draft Site Elevation” which provided a side view of the proposed design of the communications tower and its surrounding infrastructure; and a “Draft Property Layout” which provided a plan view of the proposed tower site itself.
The “Draft Site Layout” contained the following notes:
“1. BASIS OF DESIGN
SITE INSPECTION 29/04/2020
…
9.POWER SUPPLY
PROPOSED 63 AMP 3-PHASE LV SUPPLY TO BE PROVIDED TO SITE (DETAILS TO BE CONFIRMED/ADVISED)”
It also depicted a route for electrical cabling, similar to that shown in the earlier marked up photograph, between the power pole near the respondent’s house and the proposed site for the tower. That route bore the following notation:
“PROPOSED UNDERGROUND ELECTRICAL APPROX 300m (INDICATIVE ONLY) ROUTE (TBC)”
The same notation appeared on the “Draft Property Layout”. The “Draft Site Elevation” referred to the route identified in the preliminary design as “PROPOSED U/G POWER SUPPLY ROUTE (APPROX. 300m – TBC)”.
On 17 June 2020, the respondent sent an email to Mr Hughes which attached a document containing comments from the respondent’s solicitor on a draft lease provided by the applicant.[50] That document included the following comment on cl 5.3 of the draft lease which dealt with electrical cabling:[51]
“Note 5.3 Cables -- plan to be given to Lessor, --- position of Cables --- any Excluded position of cables”
[50]Affidavit of David Hughes filed 6 September 2022 (Court document 15), pages 42 to 49 of exhibit DH-2.
[51]Ibid, page 49 of exhibit DH-2.
On 30 June 2020, Mr Hughes sent an email to the respondent providing the applicant’s response to the matters raised by her solicitor in relation to the draft lease.[52] The solicitor’s comment concerning the cabling was addressed in paragraph 17 of the email as follows:
“Cables – This will be a part of the FC Drawings (for construction) and will be available as Axicom progresses with the power authority etc. Axicom can agree to provide the proposed plans noting location of cables to the Lessor, however, final location will be subject to the relevant power authority’s approval and requirements.
Cables are generally placed to avoid any future interruption (i.e. along building edges and access tracks / fence lines, rather than straight across land).”
[52]Ibid, pages 60 to 62 of exhibit DH-2.
That the respondent accepted the applicant’s position on the issue of the cabling as set out in this exchange of correspondence can be seen in the inclusion of the words “subject to final approval and requirements of the relevant power authority” in the final form of cl 5.3(a) of the lease extracted at [8] above.
Further, a version of the preliminary plan provided to the respondent on 19 May 2020, which retained the notations referred to in [73] to [75], was included as the “Premises Plan” in Annexure B of the lease.[53]
[53]Affidavit of Michael Patrick Byrnes filed 12 July 2022 (Court document 2), pages 20 to 22 of exhibit MPB-1.
Findings as to the making of the representation
On the evidence, it is clear that there was some discussion during the site visit of the existing power supply to the respondent’s property, including the fact that this was a 3 phase supply. I am also satisfied that there was some discussion of a potential route by which power to the tower site could be connected to the grid through the existing power pole near the respondent’s house, as shown in the marked-up photograph and the preliminary design which were sent to the respondent after the site visit. However, I am not satisfied that Mr Burke or Mr Hughes made any representation during the site visit to the effect that the only source of connecting the tower site to the electricity network would be the power pole near the respondent’s house, or that the electrical cabling required to connect the tower site would only follow the route identified in pre-lease negotiations. On those questions, I prefer the evidence of Mr Burke to that given by the respondent as to what was said during the site visit. My reasons for reaching that conclusion are set out below.
First, I accept Mr Burke’s evidence that at the time of the site visit he did not know what Ergon’s requirements for the installation of an electrical connection to the tower site would be and that, in those circumstances, it was not his practice to make definitive statements about such matters at the commencement of a tower construction project. That evidence was not challenged in cross-examination. It would be surprising if a person in Mr Burke’s position did not adopt the practice he described. In circumstances where Ergon’s requirements were not known, it is inherently unlikely that Mr Burke would have made definitive statements of the kind which the respondent attributed to him.
Secondly, the respondent’s account of the discussion at the site visit is inconsistent with the notations on the preliminary design which stated that the electrical cabling route shown on that design was “indicative only” and “to be confirmed”. Those notations reflect the potential for changes as the project progresses and the applicant is informed of Ergon’s requirements for the electrical connection. Likewise, the respondent’s evidence that she was told that an expert from an independent power company would attend her property to perform an assessment of the existing power supply (see [63] above) is not consistent with Mr Burke or Mr Hughes having made the definitive statements she attributes to them.
During cross-examination, the respondent rejected the suggestion that these matters were consistent with the qualified nature of the statements made by Mr Burke and Mr Hughes during the site visit. She asserted that, after the site visit, the applicant, and particularly Mr Hughes, repeatedly confirmed to her that the power to the tower site would come from the power pole near her house.[54]
[54]Transcript 1-68:16-24; 1-68:43 to 1-69:4; 1-73:16-24; 1-89:3-35. At several points during her cross-examination the respondent expressed her evidence differently, saying that after the first site visit up to (as I understood her evidence) her entry into the lease the applicant gave no indication that it might need to connect the tower site to the electrical grid by some means other than the house power pole – see Transcript 1-74:17-18 and 1-75:16-19. Even if that evidence is accepted it falls short of the definitive, positive statement upon which the respondent’s estoppel and misleading and deceptive conduct case was based.
The respondent gave evidence in cross-examination that she had queried Mr Hughes as to why words such as “preliminary” and “indicative” were used on the design provided to her, given what she called the “guarantee”[55] given by the applicant during the site visit. She said Mr Hughes told her this was simply part of the applicant’s process, but that it was always clear that the power to the tower site would be coming from the power pole near her house.[56] I do not accept the respondent’s evidence about these matters. She did not refer in her affidavits to having questioned Mr Hughes about the inclusion of the words “indicative” or “to be confirmed” on the preliminary design, or to Mr Hughes’ response to such queries. Nor were those matters put to Mr Hughes in cross-examination.
[55]Transcript 1-81:7-13.
[56]Transcript 1-71:4-20; 1-76:10-46.
The respondent also gave evidence of her understanding that the descriptors “indicative” and “to be confirmed” on the preliminary design were because the route for the electrical cabling between the house power pole and the tower site had not been confirmed.[57] I do not accept that explanation. It does not take account of the fact that the applicant did not know Ergon’s requirements. I also note that this aspect of the respondent’s evidence appears to be inconsistent with her case, as expressed in the List of Issues, concerning the making of a representation that the electrical cabling would only follow the route identified in pre-lease negotiations.[58]
[57]Transcript 1-72:25-36; 1-81:1-16.
[58]Court document 39, paragraph 5(b).
The respondent’s evidence about having been told that an independent expert would assess the existing power supply to her property and the description of the electrical cabling route on the preliminary design both support Mr Burke’s account of the discussion during the site visit.
Thirdly, the respondent’s conduct in accepting the applicant’s position regarding the wording of what became cl 5.3(a) of the lease (see [77] - [78] above) is not consistent with her account of the discussion during the site visit. There is no evidence that the respondent ever complained, whether directly or through her solicitor, that the position the applicant took in that exchange contradicted any statements Mr Burke or Mr Hughes had previously made to her.[59]
[59]Transcript 1-89:3-29.
The respondent said in cross-examination that Mr Hughes had told her not to worry about this issue and that it was all “just legal jargon”.[60] Again, that evidence was not included in her affidavits, and it was not put to Mr Hughes in cross-examination. I do not accept it.
[60]Transcript 1-90:8-10. See also 1-87:34 to 1-88:15.
The position taken by the applicant in the exchange of correspondence concerning cl 5.3 of the draft lease, and the respondent’s acceptance of that position without complaint, support Mr Burke’s account of the discussion during the site visit.
Fourthly, the respondent agreed after the lease had been executed to change the route for the electrical cabling. That agreement was given after the respondent had walked around the property with a surveyor engaged by the applicant and identified the route which allowed for minimal clearing of vegetation.[61] I note that this agreement preceded the proposal to install underground cabling along the respondent’s driveway. It involved a variation of the route between the house power pole and the tower site. I have already explained why I do not accept the respondent’s explanation that the precise route between the house power pole and the tower site remained subject to confirmation, but the connection to the power supply through the house power pole was a constant. In my view, the respondent’s agreement to vary the electrical cabling route, even though it still involved a connection to the house power pole, reflects the prospect that such details could change over the course of the project and that the respondent was aware of that prospect.
[61]Affidavit of Jodie Marie Bonney filed 22 March 2023 (Court document 25), exhibit PF2; Transcript 1-79:22 to 1-80:43.
Reliance on the alleged representation
My finding that the applicant did not make the representation alleged by the respondent is sufficient to dispose of the respondent’s case that the applicant ought be estopped from relying upon its rights under the lease or that the respondent is entitled to similar relief under the Australian Consumer Law for misleading and deceptive conduct.
Even had I not reached that conclusion, I accept the applicant’s submission that the exchange of correspondence about cl 5.3 in the draft lease in June 2020, before the lease was executed, means that reliance upon any earlier representation concerning the electrical cabling route would not have been reasonable.
The respondent was unwilling or unable to explain what she understood was meant by the statement in paragraph 17 of the applicant’s email of 30 June 2020 that the final location of electrical cabling would be “subject to the relevant power authority’s approval and requirements”.[62]
[62]Transcript 1-88:1-13.
In my view that statement, the substance of which was repeated in cl 5.3(a) of the lease the parties executed, could only be reasonably understood as indicating to the respondent that, regardless of what might have passed between the parties previously, the location of the electrical cabling might change if that was necessary to accommodate Ergon’s requirements. Having been told that prior to executing the lease, and having agreed to it by her entry into the lease containing cl 5.3(a), I would not have accepted the respondent’s evidence that she relied upon the alleged representation even if I was satisfied that the applicant made the representation.
That is a further reason why the respondent’s arguments concerning estoppel and misleading and deceptive conduct do not prevent the applicant from seeking to enforce its rights under the lease.
Environmental approvals
The issues identified for determination in the List of Issues are framed as follows:[63]
[63]Court document 39.
“6.Whether, before the applicant is entitled to the relief sought in the Originating Application, the applicant is required to hold the statutory approvals and permissions that the respondent has contended in sections 13 to 16 of her submissions dated 11 April 2023 are required to construct the Communications Tower and install the Electrical Cabling.
7.Whether the applicant has the statutory approvals and permissions required to undertake the work to construct the Communications Tower and install the Electrical Cabling, or whether the applicant will in constructing the Communications Tower and installing the Electrical Cabling breach:
(a)Environment Protection and Biodiversity Conservation Act 1999 (Cth), sections 18, 18A and 20A;
(b)Nature Conservation Act 1992 (Qld), section 89;
(c)Electricity Act 1994 (Qld), section 111;
(d)Environmental Protection Act 1994 (Qld), sections 426, 437 and 438.”
Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act)
Section 18 of the EPBC Act prohibits a person from taking an action that has had, or will have, or is likely to have, a significant impact on:
(a)a listed threatened species included in one of four specified categories;[64] or
(b)a listed threatened ecological community included in one of two specified categories.[65]
[64]The categories are: “extinct in the wild” under s 18(1); “critically endangered” under s 18(2); “endangered” under s 18(3); and “vulnerable” under s 18(4).
[65]The categories are “critically endangered” under s 18(5) and “endangered” under s 18(6).
Civil penalties are provided for action taken in breach of the prohibition.
Section 18A of the EPBC Act provides that a person commits an offence if the person takes an action that results, or will result, in a significant impact, or is likely to have a significant impact, on a species that is a listed threatened species or an ecological community that is a listed threatened ecological community. Such offences are punishable on conviction by imprisonment, a fine or both.
Section 20A of the EPBC Act provides that a person commits an offence if the person takes an action that results, or will result, in a significant impact, or is likely to have a significant impact, on a species that is a listed migratory species. Again, such offences are punishable on conviction by imprisonment, a fine or both.
None of these sections impose a requirement on a person to obtain an approval. However, the effect of ss 67 and 67A of the EPBC Act is that a person must not take an action prohibited by any of ss 18, 18A or 20A without obtaining an approval.
The respondent relies upon the reports created when she undertook searches of her property on government databases (identified in [25] above) to argue that one or more of ss 18, 18A or 20A prohibit the work required to construct the tower and install the electrical cabling without an approval under the EPBC Act. She further argues that the applicant should be denied the relief it seeks in circumstances where the lease, although lawful according to its own terms, may be performed in a manner prohibited by statute.[66]
[66]Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, 413 [3]; Gynch v Polish Club Ltd (2015) 255 CLR 414, 424-5 [35]. In this regard, the respondent also referred to ss 196 and 196A of the EPBC Act which also create criminal offences.
I have ruled the reports upon which the respondent seeks to rely inadmissible (see [27] to [30] above). The only other evidence led about environmental matters is of a very general nature. For example, the respondent deposed that a number of endangered plant and wildlife species are present on her property, including a large resident colony of echidnas.[67] She also deposed that a number of protected species of plant occur throughout her property and the area that would be affected by the tower project. That evidence does not, however, descend to identifying the location of any of these protected species and so does not, in my view, provide a basis to conclude that the work required to construct the tower and install the electrical cabling will engage the statutory provisions.
[67]Affidavit of Jodie Marie Bonney filed 18 August 2022 (Court document 11), paragraph 3.
Put simply, there is insufficient evidence for me to be satisfied of the matters which would engage the operation of the sections the respondent relies upon under the EPBC Act. That is, there is insufficient evidence for me to conclude that the work involved in constructing the tower and installing the electrical cabling:
(a)will have, or is likely to have, a significant impact on a listed threatened species or a listed threatened ecological community in one of the relevant categories;[68]
(b)will result in, or is likely to have, a significant impact on a species that is a listed threatened species or an ecological community that is a listed threatened ecological community;[69]
(c)will result in, or is likely to have, a significant impact on a species that is a listed migratory species.[70]
[68]EPBC Act s 18.
[69]EPBC Act s 18A.
[70]EPBC Act s 20A.
Then there is evidence suggesting that the work does not engage the provisions of the EPBC Act. The respondent herself deposes to having spent two days with a qualified ecologist employed by the applicant (presumably Mr Jarman) and a surveyor concentrating on “mapping out the particular area to be used for the power line so that there would be minimal disruption to the wildlife and trees…”[71] That occurred after the lease had been executed and, as already referred to in [90] above, resulted in a change in the proposed route for the electrical cabling to follow the existing access track to the back of the respondent’s property. That change, and the evidence of Mr McLane (which I accept) that the work to install the electricity cabling along the driveway from Clayton Road will not result in any clearing of vegetation,[72] suggest that the work is unlikely to engage the provisions of the EPBC Act.
[71]Affidavit of Jodie Marie Bonney filed 18 August 2022 (Court document 11), paragraph 6. See also the affidavit of Jodie Marie Bonney filed 24 August 2022 (Court document 13), paragraph 10.
[72]Transcript 1-40:39-46; 1-41:11-28.
Further, I note that the ecological assessment report issued by Eco Logical on 9 June 2021 stated that, in circumstances where the tower project is unlikely to result in a significant impact to any Matters of National Environmental Significance, it was not considered necessary to refer the proposed work under the EPBC Act.[73]
[73]Affidavit of Steven Jarman filed 19 April 2023 (Court document 38), exhibit SJ-1, section 3.3.1 on page 19 of the report. As to the referral process, see s 68 of the EPBC Act.
Having regard to the available evidence, I am not satisfied that:
(a)the applicant is required to hold an approval under the EPBC Act before it would be entitled to the relief it seeks; or
(b)if it undertakes the work required to construct the tower and install the electrical cabling without an approval under the EPBC Act, the applicant would breach any of the provisions of the EPBC Act identified by the respondent.
Nature Conservation Act 1992 (Qld)
Section 89 of the Nature Conservation Act prohibits a person from taking a protected plant that is in the wild unless the plant is taken under, inter alia, a licence, permit or other authority issued or given under a regulation.
Clearing is not permitted within 100 metres of a protected plant unless a permit is obtained.[74]
[74]Nature Conservations (Plants) Regulation 2020 (Qld), ss 47(c)(ii) and 48(b)(ii).
The field survey undertaken by Mr Jarman identified the presence of two protected plant species within 100 metres of proposed clearing. It was for that reason that the ecological assessment report issued by Eco Logical on 9 June 2021 identified the need for the applicant to apply for a clearing permit from the QDES (see [35] above). As I have already noted (see [40] above), the applicant has obtained that permit.
Having regard to that evidence, I am not satisfied that:
(a)the applicant is required to hold any additional approval or permit under the Nature Conservation Act before it would be entitled to the relief it seeks; or
(b)if it undertakes the work required to construct the tower and install the electrical cabling without any additional approval or permit under the Nature Conservation Act, the applicant would breach any of the provisions of that legislation.
Electricity Act 1994 (Qld)
Section 111(1) of the Electricity Act provides that an electricity entity must not build, replace or alter electric lines or other works in a “protected area” unless the entity acts under a written agreement of the Minister administering the Nature Conservation Act.
The term “protected area” is defined in Schedule 5 of the Electricity Act to mean a protected area under the Nature Conservation Act.
Section 14 of the Nature Conservation Act then lists 10 classes of protected areas to which that Act applies: five classes of national parks; conservation parks; resources reserves; special wildlife reserves; nature reserves; and coordinated conservation areas.
There is no evidence that the respondent’s property falls within one of those classes such that it is a protected area for the purposes of the Nature Conservation Act or the Electricity Act. This was accepted by Mr Tooth in his closing address.[75]
[75]Transcript 2-45:12-24.
Even if I had admitted the reports created when the respondent undertook searches of her property on government databases, the reports created from QDES databases would not have assisted the respondent. Those reports include a locality map identifying the location of protected areas. All the identified areas are outside the boundaries of the respondent’s property.[76] Those reports also include the following in the section titled “Summary Information”:[77]
“Protected Area(s)
No estates or reserves are located within the area of interest [that being a reference to the respondent’s property].”
[76]Affidavit of Jodie Marie Bonney filed 22 March 2023 (Court document 25), exhibit DS-1 at page 2 and exhibit DS-2 at page 2.
[77]Ibid, exhibit DS-1 at page 3 and exhibit DS-2 at page 3.
On that basis, I am not satisfied that:
(a)Ergon is required to obtain a written agreement of the Minister administering the Nature Conservation Act before the applicant would be entitled to the relief it seeks; or
(b)if Ergon installs the underground electrical cabling without obtaining a written agreement of the Minister administering the Nature Conservation Act, it would breach s 111(1) of the Electricity Act.
Environmental Protection Act 1994 (Qld)
The respondent’s written submissions refer to s 426, which provides that a person must not carry out an “environmentally relevant activity” unless the person holds, or is acting under, an environmental authority for the activity.
The term “environmentally relevant activity” is defined in s 18 to include three classes of activity. Two of those classes could not apply to the applicant’s project.[78] The third class is an activity prescribed as an environmentally relevant activity by regulation. The power to prescribe an activity by regulation is conferred by s 19 which requires that:
(a)the release of a contaminant when the activity is carried out will, or may, cause environmental harm; or
(b)the activity will, or may, otherwise adversely affect an environmental value of the marine environment; or
(c)the activity be carried out in a relevant Great Barrier Marine Park area.
[78]The applicant’s project is not an “agricultural ERA” (see ss 18(a) and 79) nor is it a “resource activity” (see ss 18(b) and 107).
The respondent’s written submissions, which were prepared by counsel who did not appear at the trial, do not identify any regulation which has the effect of making the applicant’s tower project an “environmentally relevant activity” for the purpose of s 426 of the Environmental Protection Act. Having reviewed Sch 2 of the Environmental Protection Regulation 2019 (Qld), I am unable to see how the applicant’s tower project could be considered an environmentally relevant activity.
The respondent’s written submissions also address ss 437 and 438 of the Environmental Protection Act. Section 437 makes it an offence for a person to unlawfully cause serious environmental harm. Section 438 makes it an offence for a person to unlawfully cause material environmental harm.
The concept of “environmental harm” is defined broadly in s 14 of the Environmental Protection Act to mean “any adverse effect, or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value”. Section 9 provides that an “environmental value” is “a quality or physical characteristic of the environment that is conducive to ecological health or public amenity or safety”.
“Material environmental harm” is defined in s 16 and “serious environmental harm” is defined s 17. It is not necessary to consider those definitions in detail. The respondent’s written submissions did not address, by reference to any admissible evidence, how the work involved in constructing the tower and installing the electrical cabling came within either definition. During his closing address, Mr Tooth (who did not prepare the written submissions) accepted that the evidence did not support a finding that the work would amount to an offence under the Environmental Protection Act.[79] Having regard to the matters I have discussed at [24] to [41] above, that concession was appropriate.
[79]Transcript 2-46:6-9.
Conclusion on environmental approvals
I am not satisfied that the applicant is required to hold any further statutory approvals to construct the tower and install the electrical cabling, or that such construction and installation would breach the environmental legislation upon which the respondent sought to rely.
Summary and orders
I am not satisfied that any of the matters raised by respondent preclude the grant of the relief sought by the applicant.
I will make orders in the form set out in the schedule to these reasons.
I will hear the parties as to costs.
SCHEDULE
THE ORDER OF THE COURT IS THAT:
The following definitions apply in this order:
(a)Land means Lot 2 on Registered Plan 843157, located at 80 Clayton Road, Lammermoor;
(b)Lease means registered lease number 720638047 dated 13 October 2020 and any extension, renewal or replacement thereof (including any additional or renewed term) in respect of the Premises;
(c)Permitted Use means the use of the Premises for the purpose of constructing, maintaining and operating a communications facility and incidental uses;
(d)Premises means Lease P on SP323626, as described in the Lease;
(e)Works means:
(i) constructing, maintaining and operating a communications facility and incidental uses on the Premises;
(ii) installing, maintaining, repairing and using on the Land, above or below ground, cabling (including any cabling to provide power sufficient to construct, maintain and operate a communications facility and incidental uses on to the Premises) and where necessary to construct supports for such cabling;
(iii) connecting the Premises to any electricity supply sufficient to construct, maintain and operate a communications facility and incidental uses on to the Premises;
(iv) installing, or doing all things necessary to install, on the Land such earthing apparatus as is necessary for the use of any of the applicant’s equipment on the Premises; and
(v) the installation of an access track connecting from the existing tracks or driveway on the Land to the Premises, along the approximate route shown as Easement Q on the Consent to Survey Plan set out in Annexure B to the Originating Application filed 12 July 2022, and works incidental thereto, in so far as it is necessary for the purpose of constructing, maintaining and operating a communications facility and incidental uses on the Premises.
Access and Works
1.From on or before 4.00pm on the day seven clear days of the date of this order and for the duration of the Lease, the respondent is to give the applicant (and any sub-tenants or licensees of, or persons authorised by, or acting for and on behalf of, or engaged by the applicant) free and unfettered access to the Land and the Premises in order to:
(a) undertake the Works; and
(b) access and use the Premises during the Lease for the Permitted Use.
2.The respondent is to permit, and not interfere with, the applicant (and any sub-tenants or licensees of, or persons authorised by, or acting for and on behalf of, or engaged by the applicant) to:
(a) undertake the Works; and
(b) access and use the Premises during the Lease for the Permitted Use.
3.In undertaking the Works, the applicant is to comply with the terms of the Lease, any lawful requirement to obtain and hold any permit or approval from any government authority, including in relation to the clearing of vegetation and protection of the environment, necessary to undertake the Works.
Easement, consents and documents
4.On or before 4.00pm on the day seven clear days of the date of this order, the respondent is to sign and deliver to the applicant (at its solicitors’ office or as otherwise reasonably directed by the applicant) in a form capable of registration:
(a) a Form 9 Easement in the form set out in Annexure A to the Originating Application filed 12 July 2022;
(b) a Form 18A Consent to Survey Plan in the form set out in Annexure B to the Originating Application filed 12 July 2022;
(c) a consent to exempt clearing on the Land under the Vegetation Management Act 1997 (Qld) and Planning Regulation 2017 (Qld), in the form set out in the letter from the applicant’s solicitors to the respondent’s solicitors dated 29 March 2023.
5.Within seven clear days of the applicant requesting, in writing, the respondent to provide the applicant with any other consents, approvals, easements or forms necessary to enable the Premises to be connected to an electricity supply, or to undertake the Works or use the Premises for the Permitted Use, the respondent is to sign and deliver to the applicant (at its solicitor’s office or as otherwise reasonably directed by the applicant), any such consent approval, easements or form duly signed and executed.
6.It is declared that the applicant is irrevocably authorised, under the Lease, to (on behalf of the Respondent) submit any application for consent or approval to any government agency to use or develop the Premises for the Permitted Use.
7.Pursuant to rule 899 of the Uniform Civil Procedure Rules 1999 (Qld) and the court’s inherent jurisdiction, upon the applicant’s solicitors filing a written request or affidavit of the applicant (or its solicitors) in a form acceptable to the Registrar, the Registrar of the Supreme Court is authorised and appointed to execute in place of the respondent:
(a) the Form 9 Easement and Form 18A Consent to Survey Plan referred to in paragraphs 4(a) and 4(b) of this order;
(b) the consent referred to in paragraph 4(c) of this order;
(c) any other consents, approvals, easements or form necessary to enable the premises to be connected to an electricity supply or to undertake the Works.
8.The respondent is prohibited from communicating any revocation or withdrawal of any consent or approval referred to in this order or that the respondent has previously provided in connection with the Lease or Works.
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