City of Mitcham v Hutchison 3G Australia Ltd
[2005] SASC 78
•11 March 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Case Stated)
CITY OF MITCHAM v HUTCHISON 3G AUSTRALIA LTD & ORS
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Bleby and The Honourable Justice Gray)
11 March 2005
ENVIRONMENT AND PLANNING - BUILDING CONTROL
On a special case stated, consideration by the Full Court of questions relating to the erection by a telecommunications carrier, Hutchison 3G Australia Pty Ltd ("Hutchison") of telecommunication facilities known as downlink sites within a local council area - the council issued enforcement notices pursuant to s 35 of the Development Act 1993, claiming that development approval under that Act was required - the facilities were erected upon stobie poles which were also utilised by ETSA, a supplier of electricity licensed under the Electricity Act 1996, as part of its distribution network - in several instances ETSA replaced existing stobie poles with larger poles in order to accommodate the extra load resulting from the installation of the telecommunication facilities - held (by a majority, Bleby J dissenting) that each of the relevant stobie poles was a 'tower' within the meaning of Schedule 3 of the Telecommunications Act 1997 (Cth); that they did not constitute low-impact facilities within the meaning of the Telecommunications (Low-Impact Facilities) Determination 1997; and that the erection of the stobie poles and the installation of the telecommunication facilities constituted development for which approval was required under the Development Act - case stated answered accordingly.
Development Act 1993 (SA) s 33, s 34, s 37 and s 49A; Development Regulations 1993 Schedule 14A; Telecommunications Act 1997 (Cth) Part 3, Div 3 and s 484; Commonwealth Constitution s 109; Judiciary Act 1903 (Cth) s 78B; Electricity Act 1996 (SA) s 4(1), Part 3, s 23(1); Electricity Transmission Code, 1 July 2003 Clause 12.1 and clause 13; Acts Interpretation Act 1901 (Cth) s 15AB, referred to.
Hurstville City Council v Hutchison 3G Australia Pty Ltd (2003) 127 LGERA 95; Telstra Corporation Ltd v City of Onkaparinga [2001] EDLR 263, 13 July 2001, considered.
CITY OF MITCHAM v HUTCHISON 3G AUSTRALIA LTD & ORS
[2005] SASC 78Full Court: Perry, Bleby and Gray JJ
PERRY J. This is a special Case Stated, with the concurrence of the parties, for hearing and determination by the Full Court.[1]
[1] SCR r 72.01.
The plaintiff, the City of Mitcham (“the Council”), is the relevant authority pursuant to s 34 of the Development Act 1993 (“the Development Act”) in respect of development undertaken within the area of the Council.
The first defendant, Hutchison 3G Australia Pty Ltd (“Hutchison”) is a telecommunications carrier licensed pursuant to the provisions of Part 3, Division 3 of the Telecommunications Act1997 (Cth) (“the Telco Act”).
The remaining defendants are a group of companies: CKI Utilities Development Ltd, HEI Utilities Development Ltd, CKI Utilities Holdings Ltd, HEI Utilities Holdings Ltd and CKI/HEI Utilities Distribution Ltd. Those companies together trade as ETSA Utilities. I will refer to them collectively as “ETSA”.
In the proceedings, the Council seeks declarations that the erection by Hutchison of certain telecommunication facilities known as downlink sites constitutes in each case, development which requires development approval pursuant to the provisions of the Development Act. The Council also seeks ancillary orders.
During the course of the hearing of the Case Stated, it appeared to the Court that the contentions of the parties arguably raised an issue as to whether s 49A of the Development Act is invalid by reason of s 109 of the Commonwealth Constitution, to the extent of any inconsistency with the relevant provisions of the Telco Act and a Ministerial determination made pursuant to that Act.
Accordingly, the Court directed that notice of a constitutional matter be given pursuant to s 78B of the Judiciary Act1903 (Cth).
In response to the notice, the Attorney-General for the State of South Australia, represented by the Solicitor-General, Mr Kourakis QC, intervened in the proceedings. Broadly speaking, the argument which he advanced supported the case put by the Council.
During the course of the hearing, the Court expressed concern from time to time as to whether or not the facts as set out in the Case Stated were agreed without qualification by all parties. The Court made it clear that it would not be prepared to answer any of the questions if they were predicated on facts which were not expressed both with precision and with complete agreement of the parties.
The Court’s concern as to this was, if anything, heightened by reason of the fact that during the course of the hearing reference was made by counsel to affidavits which had been placed on file at an earlier stage of the proceedings. The order referring the Case Stated to the Full Court includes a provision expressed in the following terms:
“2.Each party is at liberty to refer to any extract from any affidavit, provided that party attaches a copy of the whole of the affidavit and any relevant exhibit to outline of its submissions.”
No party complied with that provision, in that there were no extracts from any affidavits attached to any of the outlines of submissions.
In the result, the references made by counsel to certain affidavits were permitted by the Court only on the footing that by consent an order was made that the affidavits, or the part of them which was sought to be relied upon, was expressly attached to the Case Stated.
While that procedure did not entirely eliminate the possibility of an element of instability developing with respect to the facts upon which the Case Stated was to be answered, the reasoning by which I have reached my conclusions does not turn in any respect upon facts other than those which appear in the Case Stated and which are, therefore, agreed facts.
Factual Background
The following account of the factual background is extracted from the Case Stated.
During 2002 and early 2003, Hutchison established five downlink sites as part of its mobile telecommunications network, at five locations. For convenience, they may be described as the Colonel Light Gardens site, the Bellevue Heights site, the Torrens Park site, the Kingswood site and the Clarence Gardens site.
All five sites are within the area of the Council, and are within residential areas within the meaning of the Telecommunications (Low-Impact Facilities) Determination 1997 (“the Determination”), to which I will in due course refer.
Hutchison gave to the Council by letter, notice of its intention to establish each site. Each of the letters is in substantially the same terms, differing only as to the particulars of the address at which the facility is to be installed, and as to technical data relating to the proposed facility, including drawings annexed to each letter.
In each letter, Hutchison state:
“The proposed facility falls within the ambit of section 484 of the Telecommunications Act 1997 (Act), and is classified as a Low impact facility, as established by Schedule 3 of the Act and the Telecommunications (Low-Impact Facilities) Determination 1997. Hence no formal development approval is required from Council to install the proposed facility.”
The Council did not accept the assertion that no formal development approval was required. In respect of each downlink site it issued enforcement notices pursuant to s 84 of the Development Act.
In each instance the notices are in similar terms. The notices assert that Hutchison had undertaken development without approval, in breach of s 32 of the Development Act. The manner of the breach was particularised in the notices in the following terms:
“You have undertaken development without the required Development Approval in that you have erected telecommunications facilities on a stobie pole on the above land which constitutes a load bearing structure and as such required development approval.”
After receipt of the enforcement notices, Hutchison filed appeals in the Environment Resources and Development Court. Each notice of appeal asserted one ground only, namely:
“The facility is a low-impact facility for the purposes of the Telecommunications Act 1997 (Cth) which does not require development approval under the Development Act.”
Subsequently, the Council and Hutchison agreed that the appeals in the Environment Resources and Development Court be stayed pending the hearing and determination of the present proceedings. At the same time, the Council agreed with Hutchison to suspend the effect of the notices.
In the result, without objection by the Council, Hutchison completed the establishment of the facilities at each downlink site.
Before establishing the facilities in question, Hutchison had established a procedure for identifying locations for its downlink sites with a view to co-locating with other carriers, or by utilisation of existing public utility infrastructures. No doubt the establishment of that procedure was in part in response to the obligations imposed upon Hutchison pursuant to the Telecommunications Code of Practice 1997. Those obligations include a requirement that the carrier take all reasonable steps to use existing facilities, including facilities of a public utility.
As described in the Case Stated, that procedure is that its marketing personnel identify areas for coverage by the network; its radio frequency engineers nominate sub-areas within the area of the coverage to be served by downlink sites; potential locations are identified for the downlink sites; Hutchison then prepares plans for the site and negotiates with the owner for the installation of the facility.
In April 2001, Hutchison and ETSA entered into an agreement called “The Facilities Access Agreement” (“the Agreement”). The Agreement continues for a term of 20 years from 9 April 2001, unless determined before then in accordance with the Agreement.
The Agreement is confidential. It has been placed in the court file in a sealed envelope which is not to be opened, except by order of a judge of the Court.
However, relevant parts of the Agreement were annexed to the Case Stated.
Clearly, the terms of the Agreement cannot affect the legal position of the parties under the Telco Act and other relevant statutory instruments.
The Agreement enables Hutchison to seek the consent of ETSA to allow Hutchison to have access to ETSA’s facilities for the placement of Hutchison’s telecommunications facilities.
The Agreement defines a phrase used in it - “make ready work” - as any work that is reasonably necessary to be undertaken to allow Hutchison’s equipment to be installed on ETSA’s facilities. “Facilities” is defined to mean “poles, structures, buildings, towers and land owned or leased by ETSA”, and “facility” has a corresponding meaning.
Pursuant to the Agreement, Hutchison may at any time apply in writing to ETSA for access to one of ETSA’s facilities for the purpose of installation of Hutchison’s telecommunications equipment.
ETSA may either accept or reject an application. If it rejects it, it must specify reasons for the rejection, and where reasonably possible offer an alternative facility for Hutchison’s equipment (clause 2.4.2).
Hutchison’s application must specify the make-ready work thought to be necessary for the installation to be effected.
If ETSA accepts the application, it must grant to Hutchison a site licence or site licences for the period or periods over which Hutchison is to have access to the site. ETSA must also either agree to carry out the make-ready work, or in the event that it does not do so, Hutchison may have the make-ready work performed (clause 2.5).
Clause 2.3.2 of the Agreement provides that Hutchison must arrange all necessary meetings, negotiations and site visits with a representative of ETSA to determine, amongst other things:
“(a)the suitability of the facility for telecommunications purposes;
(b)the price;
(c)the make-ready work required;
(d)the amount ETSA would charge if the make-ready work is to be undertaken by ETSA;
(e)the areas of the facility that ETSA would designate as the licensed area, restricted area and unrestricted area respectively;
(f)reasonable conditions that form part of but are not limited to any special access arrangements and the access term …”
I assume from those provisions that the price as defined, is an amount separate from the charge for the make-ready work.
In accordance with its procedures to which I have referred above, Hutchison identified four stobie poles and what is described as a “landing arrangement”, which was a configuration of stobie poles erected by ETSA at its Colonel Light Gardens substation site, for the purposes of installing the five downlink sites in question. Hutchison asked ETSA to permit it to use the stobie poles, including the poles constituting the landing arrangement, for the purposes of the installation of its facility at each site.
ETSA agreed.
ETSA proceeded to undertake a structural analysis of the stobie poles to determine whether they were suitable. The outcome of that structural analysis was a decision by ETSA that each stobie pole, save for the Clarence Gardens stobie pole, needed to be replaced to allow the access requested by Hutchison to proceed.
In consequence of that decision, ETSA replaced three stobie poles; those at the Bellevue Heights site, the Torrens Park site and the Kingswood site, with poles of a kind sufficient to meet the requirements of both Hutchison and ETSA. Each of those poles is the same height as the pole which it replaced, but is larger in cross-section than the original pole.
The Case Stated specifically records that the replacement of the three stobie poles was at the cost of Hutchison.
In the case of the Colonel Light Gardens substation site, two landing poles were replaced, sufficient to meet the requirements of both Hutchison and ETSA, with stobie poles twice as high as the original landing poles.
The measurements relating to each stobie pole and downlink site are set out in an attachment to the Case Stated, as are photographs of each of the sites.
All of the replacement stobie poles are in positions that are necessary for supporting power lines and are appropriate for that purpose, as well as for Hutchison’s purposes.
In the case of the Clarence Gardens site, the existing stobie pole had previously been replaced by ETSA as part of an upgrade program of replacement, and was structurally adequate to accommodate the downlink site.
Hutchison proceeded to erect a downlink site on and in the vicinity of each stobie pole.
The facilities which comprise each downlink site, shortly stated, are three panel antennae, a microwave dish, a mounting pole, and an equipment shelter.
The equipment shelters for the Clarence Gardens and Kingswood sites are located within existing ETSA substations, with the stobie poles located on adjacent road reserves. The entire Colonel Light Gardens site is located within an ETSA substation.
The equipment shelters for the Bellevue Heights site and Torrens Park site are located on land owned by Australian Rail Track Corporation Ltd and TransAdelaide respectively. The stobie poles are located on the adjacent road reserves.
The Case Stated includes the following reference to payments by Hutchison:
“36.Hutchison has incurred the following expenditure in respect of each site:
Clarence Gardens $70,000
Kingswood $181,690
Bellevue Heights $159,000
Torrens Park $146,000
Colonel Light Gardens $174,000
------------
$730,690”
=======It is not clear from the Case Stated whether they are amounts paid to ETSA with respect to what is referred to in the Agreement as “the price”, or ETSA’s charge for “make-ready work”, or a combination of both.
Other facts are set out in the Case Stated, but it is convenient to refer to them as and when the need arises in the course of the remainder of these reasons.
At this stage it is convenient to set out the questions in the Case Stated.
They are as follows:[2]
[2] They appear as sub-clauses to clause 37 of the Case Stated, but for ease of reference I have confined the numbering to that applicable to the sub-clauses.
“1.In the events which have happened except at Clarence Gardens,
1.1 are the stobie poles erected by ETSA when fitted with the facilities placed upon each by Hutchison, a tower within the meaning of clause 6 of Schedule 3 of the Telecommunications Act1997 (Cth)?
1.2 has Hutchison erected low-impact facilities within the meaning of the Telecommunications (Low-Impact Facilities) Determination 1997 having regard to the facts that:
(a)the new or replaced stobie pole together with the facilities installed by Hutchison constitute more than a 25% increase in the apparent volume of the original stobie pole; or
(b)the air conditioning units in the equipment shelters for the facility emit noise; or
(c)the distance from the top of the stobie pole to the top of the panel antennae exceeds 3 metres?
1.3 is either or both Hutchison and ETSA required to obtain development approval from the relevant authority pursuant to the Development Act1993 for the erection of the stobie poles replaced by ETSA and if so by which party?
2.In the events which have happened at the Clarence Gardens site, is the downlink facility established by Hutchison a low-impact facility within the meaning of the Telecommunications (Low-Impact Facilities) Determination 1997 having regard to the facts that:
(a) the air conditioning units in the equipment shelter for the facility emit noise; or
(b) the distance from the top of the stobie pole to the top of the panel antennae exceed 3 metres?
3.Is the Council entitled to a declaration in respect of each site that the replacement of the stobie poles (save for Clarence Gardens) together with the installation of the telecommunications facilities thereon is development which requires development approval pursuant to the Development Act1993?”
In addressing those questions, it is convenient to refer to statutory provisions which inform the answers to each of them.
The main element in the statutory framework relevant to the questions posed in the Case Stated, is the Telco Act.
That Act sets up a system for regulating telecommunications throughout Australia. The telecommunications dealt with in the Act are those effected by utilisation of network units. Network units may take different forms, being either single line links, multiple line links, designated radio communications facilities, or facilities specified for this purpose by ministerial determination.
Utilisation of any network unit is reserved to carriers licensed under the Act. Carrier licences are subject to various conditions designed in the main to ensure attainment of the objects of the Act, which include the long-term interests of end-users of carriage services, and the efficiency of the telecommunications industry (s 3).
In the Telco Act, “facility” is defined to mean:
“(a)any part of the infrastructure of a telecommunications network; or
(b)any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structural thing used or for use in or in connection with a telecommunications network.”
The powers and immunities of carriers are set out in Schedule 3 of the Act (“Schedule 3”), more particularly Schedule 3, Part 1.[3]
[3] Schedule 3 takes effect pursuant to s 484 of the Act.
Pursuant to various provisions to be found in Part 1, a carrier may enter and inspect land to determine whether it is suitable for its purposes (Division 2, clause 5), and enter and occupy any land in order to carry out an authorised activity (Division 3, clause 6(2)).
An authorised activity includes the installation of a facility on any land. Other specific provisions as to the installation of facilities are to be found in Division 3, clause 6.
They include the following:
“6.(1) A carrier may for purposes connected with the supply of a carriage service, carry out the installation of a facility if:
(a)…..
(b)the facility is a low-impact facility (as defined by subclause(3)); or ….”
Clause 6(3) provides:
“The Minister may, by written instrument, determine that a specified facility is a low-impact facility for the purposes of this clause. The Determination has effect accordingly.”
Clause 6, subclauses (5), (6) and (7) are as follows:
“(5)A tower must not be specified in an instrument under subclause (3) unless:
(a) the tower is attached to a building; and
(b) the height of the tower does not exceed five metres.
(6)To avoid doubt, a reference in subclause (5) to a tower does not include a reference to an antenna.
(7)An extension to a tower must not be specified in an instrument under subclause (3) unless:
(a) the height of the extension does not exceed 5 metres; and
(b) there have been no previous extensions to the tower.
For this purpose, tower has the same meaning as in clause 4.”
In clause 4, which deals with extensions to towers, “tower” is defined to mean “a tower, pole or mast”.
The Telecommunications (Low-Impact Facilities) Determination 1997 (“the Determination”) identifies the types of low-impact facility specified by the Minister for the purposes of clause 6(1)(b) of Division 3 of Part 1 of Schedule 3 of the Telco Act, and the areas in which they may be installed.
The preliminary to the Determination (Part 1) provides that a facility cannot be a low-impact facility unless it is specified in the Determination.
Clause 1.3 of the Determination contains two relevant definitions:
“co-located facilities” is defined to include “one or more facilities installed on or within:
(a)….
(b)a public utility structure.”
“tower” is defined to mean “a pole or mast”.
Clause 3.1 of Part 3 of the Determination, which is headed “Low-Impact Facilities”, provides in part:
“3.1(1) A facility described in column 2 of an item in the schedule is a low-impact facility only if it is installed, or to be installed, in an area mentioned in column 3 of the item.”
There are three relevant items in the schedule. Two of them are in Part 1, the other is in Part 7.
They are as follows:
“PART 1 - RADIO FACILITIES
Column 1
Item no
Column 2
FacilityColumn 3
Areas1
1A
2
3
Panel, yagi or other like antenna:
(a) not more than 2.8 metres long; and
(b) if the antenna is attached to a structure - protruding from the structure by not more than 3 metres; and
(c) either:
(i) colour-matched to its background; or
(ii) in a colour agreed in writing between the carrier and the relevant local authority.
Residential
Commercial
Industrial
Rural4
Array of omnidirectional antennas:
(a) not more than 4.5 metres long; and
(b) not more than 5 metres apart; and
(c) if the array is attached to a structure - protruding from the structure by not more than 2 metres
Industrial
RuralPART 7 - CO-LOCATED FACILITIES
Column 1
Item no
Column 2
FacilityColumn 3
Areas1
2
Facility mentioned in:
(a) Part 1, 5 or 6; or
(b) item 3 of Part 4;
installed on or within:
(c) an original facility; or
(d) a public utility structure;
where
(e) the total volume of the co-located facilities is no more than 25 per cent greater than the volume of the original facility or the original infrastructure; and
(f) the levels of noise that are likely to result from the operation of the co-located facilities are less than or equal to the levels of noise that resulted from the operation of the original facility or the public utility structure.
Residential
Commercial”
Clause 37 of Schedule 3 provides an exemption from State and Territory planning laws (expressed in terms which would include the relevant provisions of the Development Act), for activity carried on by a carrier, if the activity is authorised by Divisions 2, 3 or 4.
Against the background of the statutory provisions to which I have so far referred, it is convenient to address question 1.1, namely, the question whether the stobie poles erected by ETSA, other than at Clarence Gardens, “when fitted with the facilities placed upon each by Hutchison, [are] a tower within the meaning of clause 6 of Schedule 3 of the” Telco Act.
Question 1.1
I accept that for a tower to answer the description posed in this question, it must form part of a telecommunications facility.
The stobie poles replaced existing stobie poles, that replacement having been effected at the cost of Hutchison.
It should be made clear at the outset that ETSA was not under an obligation to replace any of its stobie poles. No such obligation arose under any provision of the Electricity Act 1996 (“the Electricity Act”).
Clause 20 of the licence issued to ETSA requires ETSA to comply with the Electricity Transmission Code[4] with respect to telecommunications purposes.
[4] 1 July 2003.
Clause 12 of that Code obliges ETSA to make an offer to a person (in this case Hutchison) requesting rights to use or have access to its distribution system for telecommunications purposes.
The obligation to make an offer did not import an obligation to replace infrastructure to facilitate the installation of equipment by Hutchison.
Pursuant to clause 6 of Schedule 3, a carrier may carry out the installation of a facility if it is one of the kinds of facilities described in clause 6(1). For the purposes of this case, the only relevant kind of facility is a low-impact facility.
Pursuant to clause 6, the only towers which may be specified as a low-impact facility are towers, the height of which does not exceed five metres and which are attached to a building (clause 6(5)). It follows that it would not be open for the Minister to make a determination that specified a tower, other than a tower answering to that description, as a low-impact facility for the purposes of clause 6.
In fact, in his determination, the Minister did not attempt to determine that a tower could be a low-impact facility for that purpose.
Indeed, in the explanatory statement issued by authority of the Minister, relating to the Determination, appears the following passage:
“The Determination contains the list of telecommunications facilities which the Commonwealth will continue to regulate. The ‘low-impact’ list does not include any aerial cabling or telecommunications towers, meaning that installation of these new facilities, which have caused the greatest controversy and concern for local communities, are now governed by State and Territory laws.” (emphasis added)
The replacement stobie poles were, in my view, an integral part of a facility within the meaning of the Telco Act.
I have already quoted the definition of “facility” contained in s 7 of the Act. It includes “(a) any part of the infrastructure of a telecommunications network” or “(b) any … tower, mast, … pole or other structure or thing used, or for use, in or in connection with a telecommunications network”.
In considering the application of that definition in the context of the utilisation by a carrier of a tower which is used or intended to be used by anther entity for a purpose other than a telecommunications network, it is relevant to have regard to the decision of the Court of Appeal of the Supreme Court of New South Wales in Hurstville City Council v Hutchison 3G Australia Pty Ltd.[5]
[5] (2003) 127 LGERA 95.
In that case, the respondent, Hutchison 3G Australia Pty Ltd (“Hutchison”), which was a licensed carrier, notified Hurstville City Council (“Hurstville”) that it proposed to replace a light pole, to which two flood lights were attached, illuminating an oval, being part of a park, with a new pole. Upon the new pole, Hutchison intended to replace the original lighting equipment, but at the same time install a low-impact facility, which included an antenna attached to the top of the pole.
Hurstville objected. Apparently in an endeavour to frustrate the achievement of Hutchison’s aims, Hurstville removed the original pole, intending to replace it with shorter poles. Hutchison then began excavating around the footing where the original pole had stood, claiming that it was entitled to do so pursuant to its power to maintain facilities under Schedule 3, Division 4, clause 7. It claimed that once it had given notice to Hurstville of its intention to replace the pole with another pole to carry its facility, the pole became part of the facility, being a structure “… for use, in or in connection with a telecommunications network”.
The Court of Appeal rejected that argument.
In the course of his judgment, with which Handley and McColl JA concurred, Mason P said:
“[65] … The respondent relies upon that portion of part (b) of the definition which states that facility means any ‘pole or other structure or thing used, or for use, in or in connection with a telecommunications network’. The respondent contends that these words extend to buildings, poles, steeples or other things, so long as they are ‘used, or for use in or in connection with a telecommunications network’. …
[67]…The respondent argues that the words should be construed and applied literally, so that any conceivable structure or thing is a facility so long as it is used or for use, in or in connection with a telecommunications network. At this point, an alternative reading of the definition offers itself. Schedule 3 elsewhere distinguishes between ‘facilities” and the land or structures to which they are fixed (see eg cl 2 (definition of installation, 47). It makes perfect sense to say that the Harbour Bridge remains a bridge and does not itself become a facility even though facilities (low-impact or otherwise) might be installed upon or affixed to it. Likewise with existing buildings erected as residences etc but which have ‘facilities’ attached to their rooftops. The definition of ‘facility’ can operate to its full literal extent in such situations without turning the bridge or building into part of the facility itself. Part (b) of the definition makes perfect sense if construed as being confined to any line, equipment etc or thing that is purpose built or dedicated by its inherent nature for use in or in connection with a telecommunications network or which is actually used accordingly. It is not necessary to treat an existing (non purpose-built) pole, structure or thing upon which a ‘facility’ is placed as the facility itself.
[68]There are additional difficulties with the respondent’s expansive appeal to the maintenance power.
[69]It enables the respondent by indirect means to achieve something directly addressed and prohibited by Div 3, ie the installation of a tower without passing through any of the gateways offered by cl 6(1).”
I accept the decision in Hurstville as authoritative. But in my view, the decision, and in particular the passage which I have just quoted from the judgment of Mason P, should be distinguished for present purposes.
Pursuant to its powers under Schedule 3, a carrier may either utilise an existing structure, or a new structure may be erected in order to accommodate the facility.
If an existing structure is used, such as, for example, the roof of a house, one can readily accept that it is what is attached to the roof of the house which is the facility and the house itself does not become part of the facility.
The distinction seems to be implicit in that part of clause 6 of Division 3 of Schedule 3 which specifically refers to a tower.
Subclause (5) provides:
“A tower must not be specified in an instrument under subclause (3) unless:
(a)the tower is attached to a building;
(b)the height of the tower does not exceed 5 metres.”
What may be “specified in an instrument” pursuant to subclause (3) is a determination “that a specified facility is a low-impact facility for the purposes of this clause”.
Those provisions suggest that if a tower answering to the description referred to in subclause (5) is specified in the Determination as a low-impact facility, it is the tower which is the facility, rather than the building to which it might be attached.
This, however, is not a case where in the relevant sense it can be said that Hutchison’s facility is attached to an existing building or structure.
A new structure altogether was jointly erected by Hutchison and ETSA to accommodate the needs of both entities. As will be seen, in my view, the structure which was created answers to the description of a tower. It is not a tower attached to a building; it is a tower in its own right. It was purpose-built to enable, amongst other things, the installation of Hutchison’s telecommunications equipment.
It would be artificial to suggest that in those circumstances the tower is not part of the facility. In my view, the new tower became part of the facility, albeit a facility shared with ETSA.
As an illustration of the appropriateness of that view, one could have regard to the installation of the Colonel Light Gardens substation site where the existing landing poles were replaced with stobie poles twice as high as the original landing poles. Presumably, that part of the poles which extends above the level at which the distribution power lines operated by ETSA were carried, are surplus to the requirements of ETSA. In those circumstances, to suggest that the poles are not part of the facility would be unreal.
Mr Whitington QC for Hutchison argues that the construction which I have adopted would lead to absurdities. He cites, for example, a situation where ETSA has, as part of its ordinary maintenance program, replaced a pole, but in doing so, bearing in mind the possibility that it might later become the subject of a request that it support a telecommunications facility, it chooses a pole of sufficient strength and dimensions to be suitable for that purpose. In that circumstance, the replacement of the stobie pole would not be the erection of the pole within the meaning of the Telco Act, and for the reasons which I will come to, it would not require development approval.
On the other hand, if the same pole was replaced after an application had been made by a carrier to co-locate on the pole a telecommunications facility, its replacement may well constitute the erection of a pole within the meaning of the Telco Act in circumstances in which the exemption from the requirement to obtain development approval would not apply.
I can only say that anomalous situations such as that are bound to arise on whatever construction of the legislation is adopted.
For example, in the instant case, if Hutchison’s arguments are correct, it can persuade ETSA to double the height of the poles at the Colonel Light Gardens substation site, but maintain that they are not poles the erection of which would require development approval. Furthermore, if the facility installed on top of the new poles was to be a low-impact facility, no such approval would be required with respect to the facility.
On the other hand, if one metre away from the ETSA pole at the Colonel Light Gardens substation site, Hutchison was to erect, solely for its own purposes, a pole of the same dimensions as the replacement pole which ETSA in fact installed, it would undoubtedly be a pole within the meaning of the Telco Act other than of a kind which it was open for the Minister to determine to be a low-impact facility, and would accordingly require approval under the Development Act, absent the grant of a facility installation permit under clause 6(1)(a) of Division 3 of Part 1 of Schedule 3.
To adopt the words used by Mason P in his judgment in the Hurstville case, to enable Hutchison in such circumstances to secure the erection of a pole by ETSA of appropriate dimensions to carry its installation, would enable Hutchison to secure “… the installation of a tower without passing through any of the gateways offered by cl 6(1)”.
The question remains, whether the replacement stobie poles are “towers” for the purposes of the Telco Act and the Determination.
The ordinary, natural meaning of the word “tower” is commonly confined to something more in the nature of a building, as in the case of a church tower, or a more substantial structure than a mere pole.
The Shorter Oxford Dictionary defines a tower as:
“1.A building lofty in proportion to the size of its base, either isolated, or forming part of castle, church, or other edifice, or of the walls of a town.
2.Such a structure used as a stronghold, fortress, or prison, or built primarily for purposes of defence.
…..
4.A lofty pile or material mass.”
The Macquarie Dictionary (2nd revision 1987) defines tower as:
“1.A building or structure high in proportion to its lateral dimensions, either isolated or forming part of any building.
2.Such a structure used as or intended for a stronghold, fortress, prison, etc.
3.Any of various tower-like structures, contrivances or objects.
4.A tall, moveable structure used in ancient and mediaeval warfare and storming a fortified place.”
If the word “tower” was to be given its ordinary meaning, I have some doubt as to whether or not the stobie poles would answer to that description.
Although the definition of “tower” in clause 4 is imported into clause 6 of Schedule 3, it might be thought that it does so only for the purposes of subclause (7), which deals with an extension to a tower.
However, on reflection, I think that would be too narrow a reading of clauses 4 and 6 when read together. I take the view that the definition of a tower, wherever that word appears in clause 6, is the definition contained in clause 4(3), so that for relevant purposes, tower means “a tower, pole or mast”.
In any event, the word “tower” is separately defined in the Determination (clause 1.3) as meaning “a pole or mast”.
The inclusion in the definition of the word “pole”, means that the stobie poles referred to in this question are properly to be regarded as towers within the meaning of clause 6.
In my view, they do not lose their character as such, by reason of the fact that they are also used to carry ETSA’s transmission lines.
For these reasons I would answer question 1.1 “Yes”.
Question 1.2
This question inquires whether Hutchison has erected low-impact facilities at the sites other than Clarence Gardens, by reference to two aspects of the installations at those sites, namely, the increase in apparent volume of the replacement poles over the original poles, and the fact that the air conditioning shelters emit noise.
I mention, in order that the matter is not overlooked, that quite apart from the matters referred to in this question, Mr Hayes QC suggested during the course of argument that the installations in question could not be low-impact facilities answering to the description contained in item 3 of Part 1 of the Schedule to the Determination, in that the item referred to one only antenna and not to an installation involving more than one. He suggested that the installations in question each incorporated three antennae.
None of the questions posed in the Case Stated would allow the Court to address the issue raised by that submission. Furthermore, it might involve a factual inquiry as to whether or not the installations in fact incorporate what should properly be described as three antennae.
Mr Hayes QC’s argument in that respect must, therefore, be put to one side.
My conclusion, already expressed, that each of the stobie poles in question is a tower within the meaning of clause 6, means that the facility, of which the stobie pole is a part, cannot be a low-impact facility within the meaning of clause 6.
The result is that question 1.2 is otiose.
It follows that it is inappropriate to answer that question.
Question 1.3
This leads to a consideration of question 1.3 which addresses the issue whether or not Hutchison and ETSA, or either of them, are required to obtain development approval under the Development Act for the erection of the stobie poles replaced by ETSA, and if so, by which of them.
I have earlier referred to clause 37 of Schedule 3 which provides a carrier with an exemption from compliance with certain State and Territory laws with respect to any activity carried on by a carrier authorised by Divisions 2, 3 or 4.
Specifically, clause 37(2) provides, inter alia:
“The carrier may engage in the activity despite a law of a State or Territory about:
(a)…..
(b)…..
(c)Town planning; or
(d)The planning, design, site in construction, alteration or removal of a structure; or
(e)…..
(f)The use of land; or
(g)…..”
Under the Development Act a building is defined to mean, amongst other things “… a building or structure or a portion of a building or structure” s 4(1)).
“Building work” is defined to include any work or activity in the nature of “the construction, demolition or removal of a building”.
“Development” means, inter alia, “building work” or “a change in the use of land”.
“To undertake development” means “to commence or proceed with development or to cause, suffer or permit development to be commenced or to proceed”.
Pursuant to s 32 of the Development Act “no development may be undertaken unless the development is an approved development”.
Section 33(1) provides that a development is an approved development if, and only if, a relevant authority has assessed the development against stated criteria, and granted a consent. The relevant authority for that purpose in this case is the Council.
The exemption from State and Territory laws which finds expression in clause 37 of Schedule 3 is expressed in terms wide enough to apply to the relevant provisions of the Development Act, insofar as those provisions might otherwise be of application to the removal of the original stobie poles and their replacement by new poles.
Even although ETSA was physically responsible for that activity, it occurred at the behest of Hutchison and at the expense of Hutchison. ETSA and Hutchison jointly carried out the development.
To the extent that it was undertaken by ETSA, ETSA did so solely because Hutchison sought to utilise the infrastructure used by ETSA to transmit power, for Hutchison’s own purposes.
That this was so is clear from paragraph 12 of the Case Stated which reads in part:
“Hutchison asked ETSA to permit it to use those stobie poles. ETSA agreed. ETSA undertook a structural analysis of the stobie poles to determine whether they were suitable. ETSA determined that each stobie pole save for the Clarence Gardens stobie pole needed to be replaced to allow the access requested by Hutchison to proceed.” (emphasis added)
In those circumstances, Hutchison must be regarded, for the purposes of the Development Act, as undertaking development either in the direct sense by commencing or proceeding with development within the meaning of the phrase “to undertake development”, or by causing ETSA to commence or proceed with the development.
The remaining question is whether Hutchison or ETSA can call in aid any exemption which would apply to the development, and which would obviate the need for consent to be given under the Development Act.
In the case of Hutchison, it is not in a position to do so because the activity which it proposes to carry out, being the installation of a facility other than a low-impact facility, is not an activity authorised either by Divisions 2, 3 or 4 of Schedule 3. Accordingly, the exemption afforded by s 37 does not apply.
In the case of ETSA, it does not seek to rely upon any exemption as a carrier within the meaning of the Telco Act. Rather, ETSA relies upon an exemption available under State law in certain circumstances where the purpose of the development is for the provision of electricity infrastructure.
ETSA is the holder of a licence under the Electricity Act, and as such, is a prescribed person for the purposes of s 49A of the Development Act.
Section 49A(1) of the Development Act provides that if a prescribed person proposes to undertake development for the purposes of the provision of electricity infrastructure (within the meaning of the Electricity Act), with certain exceptions which I will come to, the person must lodge an application for approval with the Development Assessment Commission.
Electricity infrastructure is defined in the Electricity Act as meaning various things, including “power lines” and “any wires, equipment or other things … used for or in connection with, the generation, transmission, distribution or supply of electricity”.[6]
[6] Electricity Act 1996, s 4(1).
Exceptions to the obligation to lodge an application for approval under s 49A(1)(a) are set out in s 49A(2) and (3).
The exception in subparagraph (2) is not relevant for present purposes.
The exception in subparagraph (3) is couched in the following terms:
“No application for approval is required (either under this section or any other provision of this Act), and no notice to a council is required under subsection (1), if the development is of a kind excluded from the provisions of this section by regulation.”
Schedule 14A of the Development Regulations1993 provides that various forms of development are excluded from the provisions of s 49A of the Act for the purposes of s 49A(3). Amongst the categories of development which are excluded is “the construction, reconstruction or alteration of a building or equipment used for or associated with the supply, conversion, transformation or control of electricity (other than an electricity generating station or an electricity substation)”.[7]
[7] Development Regulations 1993, Schedule 14A, clause (a)(ii).
As I have said, the development in question was a joint development undertaken by both ETSA and Hutchison. The object of the development was to replace the existing installation, which served ETSA’s purposes only, with a different kind of installation which was capable of serving the requirements of both ETSA and Hutchison.
Hutchison’s purposes were not for the “… supply, conversion, transformation or control of electricity”. It is true that the replacement stobie pole was “used for or associated with” such a purpose, but only in part. ETSA has undertaken the development for a purpose alien to that identified in the regulation defining the scope of the exclusion provided for in s 49A(3).
Mr Walsh QC for ETSA contended that the provision of the pole for the purpose of carrying ETSA’s power lines could be regarded separately and distinctly from the utilisation of the pole by Hutchison for its purposes.
But such a separation would fly in the face of the fact that, after the replacement of the pole with another pole fitted with Hutchison’s equipment, ETSA was no longer using its pole for purposes limited to the supply of electricity. It was using a new pole for the purpose, albeit in part, of supporting Hutchison’s facility, for which ETSA received from Hutchison an annual charge, determined in accordance with the Agreement.
In my view, in such circumstances, the exemption which might otherwise have applied in favour of ETSA by reason of the combined operation of s 49A(3) of the Development Act and Schedule 14A of the Development Regulations did not apply.
It follows that the replacement of the stobie pole in such circumstances amounted to a change of use of the land, which attracted the provisions requiring approval under the Development Act.
I add that in addressing the question of a change of use, there is an obvious distinction to be drawn between the installation of a telecommunications facility on an existing structure and the installation of such a facility on a new structure erected wholly or in part for the purpose of accommodating the facility.
If Hutchison was to install a facility on an existing stobie pole, used by ETSA as part of its electricity distribution network, and the facility was a low-impact facility, there would be no requirement for planning approval to be given for the installation of the facility.
I reach the conclusion as, although the installation of the facility may, in planning terms, be a change in the use of land within the meaning of the definition of development in the Development Act, in such a situation the exemption provided for in clause 37 of Schedule 3 would apply.
Because the carrier would be installing an low-impact facility, it could “engage in the activity” associated with that installation, “despite a law of” the State of South Australia about “the use of land” (clause 37(2)(f)).
It would not matter in such a case that it was ETSA’s use of the land which was being changed. To allow proper scope for the exemption, it would necessarily apply even though the land owner is a person or entity apart from the carrier. I reach that conclusion as a matter of construction of clause 37. It if were otherwise, nothing would be achieved by the exemption, and its practical operation would be nullified.
The same conclusion would be drawn if a low-impact facility was to be installed upon a dwelling house or upon business premises. The change of use of land involved in such a case must necessarily be regarded as within the exemption.
However, the exemption under the Telco Act would not apply if the installation was neither a low-impact facility, nor one of the other categories of installation falling within clause 6(1) of Schedule 3.
In the circumstances of this case, ETSA is entitled to the benefit of the exemption which finds expression in clause 37, if what is being installed is a low-impact facility. But if the installation is other than for a low-impact facility, neither the carrier nor ETSA can avail themselves of the clause 37 exemption.
I have already concluded that each of the installations in question cannot be regarded as the installation of a low-impact facility, in that it involves the installation of a facility, an integral part of which is the erection of a tower other than of a kind described in clause 6(5).
Returning to the question whether ETSA was entitled under s 49A of the Development Act to an exemption from the requirement to obtain development approval, for the reasons which I have already given, that question must be answered in the negative.
It follows that, however the matter is approached, development approval was required.
Insofar as the question asks whether either Hutchison or ETSA or both are required to obtain development approval, the consent for an approval pursuant to s 33 of the Development Act applies to the development, rather than to the person applying. It would not matter, therefore, whether Hutchison or ETSA applied for approval under the Act.
I would answer question 1.3 “Yes, either Hutchison or ETSA are required to obtain such approval”.
Question 2
I turn now to question 2 which focuses on the Clarence Gardens site.
That site differs from the situation with respect to the other sites, in that the existing stobie pole had previously been replaced by ETSA as part of an upgrade program of replacement, and was structurally adequate to accommodate the downlink site.
The installation by Hutchison at the Clarence Garden site was, therefore, effected by installing it on an existing structure.
Against that background, this question raises the issue whether the downlink facility at the Clarence Gardens site is a low-impact facility within the meaning of the Determination, having regard to the facts that:
(a)the air conditioning units in the equipment shelter for the facility emit noise; or
(b)the distance from the top of the stobie pole to the top of the panel antennae exceed three metres.
I will deal with point (b) first.
This part of the question turns on a proper construction of item 3 in Part 1 of the Schedule which includes in the definition of a low-impact facility:
“Panel, yagi or other like antennae:
(a)not more than 2.8 metres long; and
(b)if the antenna is attached to a structure - protruding from the structure by not more than 3 metres.”
Absent any other requirements, an installation answering to that description will be a low-impact facility which may be installed in a residential area.
The antenna in question is a panel antenna. Although the distance from the top of the stobie pole to the top of the panel antenna is greater than 3 metres, the distance from the top of the stobie pole to the base of the panel antenna is less than 3 metres.
It follows that the critical question is whether, for the purposes of item 3 of Part 1 of the Schedule, the word “protruding”, includes or excludes the length of the antenna itself.
A similar question was addressed by the Environment Resources and Development Court in Telstra Corporation Ltd v City of Onkaparinga.[8]
[8] [2001] EDLR 263, 13 July 2001, Judge Trenorden.
In that case the question was whether a proposed installation to be effected by Telstra answered the description of a low-impact facility within the meaning of the Determination.
The proposal was that Telstra attach three panel antennae to the roof of an existing shed. In each case the antenna was to be attached to a mounting pole. It was proposed that the mounting pole be attached at the ridge line of the existing shed, and extend above the shed for a distance of three metres. The panel antenna, 2.67 metres in length, was to sit on top of the mounting pole.
The antenna itself not being more than 2.8 metres long, was clearly within the relevant description in item 3 of Part 1 of the Schedule.
The respondent to the appeal in that case, City of Onkaparinga contended that on a proper construction of item 3, a panel antenna and mounting pole could not together extend beyond the existing structure for a distance greater than three metres. It was argued that if it did, it would be “protruding” from the structure by more than three metres.
On that argument, given that the overall structure would extend 5.8 metres beyond the existing structure, it did not fall within item 3.
Judge Trenorden rejected the argument. In doing so, she had regard to the terms of item 4. Item 4 reads:
“Array of omnidirectional antennas:
(a)not more than 4.5 metres long;
(b)not more than 5 metres apart;
(c)if the array is attached to a structure - protruding from the structure by not more than 2 metres.”
Given that the word “protruding” appeared in both items 3 and 4, Judge Trenorden was of the view that it is preferable that the same words be given the same meaning.
If the word “protruding” in item 4 was to be taken to include the length of the antenna, this would give rise to an absurdity, in that an antenna 4.5 metres long, could not sensibly be mounted so that no more than two metres of it projected from the structure upon which it was attached.
That consideration drove her, in construing item 3, to exclude from the measurement of the protrusion the length of the antenna itself.
The consequence of that construction was that the distance from the top of the antenna to the nearest point of the structure upon which it was attached, could be up to 5.8 metres.
In the course of her reasons for judgment, Judge Trenorden referred to an explanatory statement which accompanied the tabling in both Houses of the Commonwealth Parliament, of an amendment to the Determination in September 1999. She held that she was entitled to have regard to the explanatory statement by reason of s 15AB of the Acts Interpretation Act 1901 (Cth).
The relevant part of the explanatory statement appears from the following passage in her reasons for judgment:
“[17] … In the Explanatory Statement, the following appears under the heading Amendment 6.4 at page 16:
‘For the purposes of Part 1 of the Schedule to the Determination, the words “protrusion” or “protruding” from a structure are intended to mean the lateral, vertical or horizontal distance between the supporting structure and the facility (ie, the length of the mounting brackets). The words are not intended to include the measurement of the low-impact facility attached to the supporting structure.
Additionally, for the purposes of consistency in this Part, the distance a radio-communications dish is permitted to protrude under Item 5 has been described.’
Amendment 6.4 amended Item 4 of Part 1 of the Schedule. The word ‘protruding’ was not newly inserted into the Item by Amendment 6.4; the word was already part of the description of the facility in Item 4. The effect of Amendment 6.5 was to insert an additional description into Item 5 of Part 1 of the Schedule, adding to the description of ‘radio communications dish’. The addition included the words ‘the total protrusion’ as described above. The words ‘protruding’ and ‘protrusion’ do not appear in Part 1 of the Schedule except in Items 3, 4 and 5. Thus, one can only interpret the first paragraph above-quoted, which appeared under the heading Amendment 6.4 in the Explanatory Statement, as being in amplification of the meaning of the word ‘protruding’ (not affected by the amendment), in light of the addition of the passage including the word ‘protrusion’ into Part 1 of the Schedule by Amendment 6.5. The purpose of the explanation provided by the latter paragraph quoted above under the heading Amendment 6.4 is a mystery. Firstly, it has nothing to do with Amendment 6.4 Secondly, it is superfluous having regard to the immediately preceding paragraph.
[18]In the absence of the paragraph in the Explanatory Statement relating to the meaning of the word ‘protrusion’ and ‘protruding’, I would have thought the ordinary meaning of those words embraced the total extent of the projection; thus ‘protruding from the structure by not more than 3 metres’ meant that the maximum distance allowable between the top of the antenna and the existing structure is 3.0 metres. However, it is clear that such a reading of the term results in a nonsense with respect to Item 4 of Part 1 of the Schedule. It is preferable that the same words be given the same meaning within a document, and it would seem appropriate that this principle be adhered to in the Schedule to the Determination. It is not a long document and it would be most confusing if the same words was to be given different meanings in different items of Part 1 of the Schedule. The meaning provided by the Explanatory Statement under the heading Amendment 6.4 in the first paragraph above quoted, when applied to Items 3, 4 and 5 of Part 1 of the Schedule renders a sensible result, in every case. In the circumstances therefore, I am prepared to attach significant weight to the Explanatory Statement, despite its shortcomings, and declare that the words ‘protruding from the structure by not more than 3 metres’ used in Item 3 of Part 1 of the Schedule mean that the distance between the nearest point of the antenna to the existing structure, and the existing structure, should not exceed 3.0 metres.”
In my view, the conclusion reached by Judge Trenorden was correct.
I would in any event reach that conclusion, irrespective of the terms of the explanatory statement. I would do so in view of the fact that the word “protruding” where it appears in items 3 and 4 of the Schedule, ought if possible to be given the same construction, and that the construction contended for by the Council in this case would, in its application to item 4, result in an absurdity.
It follows that if the question whether or not the installation effected by Hutchison at the Clarence Gardens site turned on the question of the length of the antenna and the degree of the protrusion from the stobie pole, it could be characterised as a low-impact facility.
But that is not the only requirement. Despite its compliance with the requirements of item 3 of Part 1 of the Schedule, the installation would nonetheless fail to achieve classification as a low-impact facility if it failed to satisfy the requirements of Part 7 of the Schedule.
I am of that view, despite the contention, implicit in the arguments advanced by Mr Whitington QC, that if the installation complies with the requirements of item 3, one need look no further. To accept that argument would mean that in the case of a co-located facility, the installation would nonetheless be a low-impact facility, no matter how much noise it generated.
In my view, the only sensible construction of the Determination, consistent with its evident purpose, is to regard the requirements set out in the Schedule as cumulative, in the sense that in order to qualify as a low-impact installation, all relevant items in the Schedule must be satisfied.
Part 7 deals with what are described as “co-located facilities”.
In clause 1.3 of the Determination, co-located facilities are defined to include facilities “installed on or within …(b) a public utility structure”.
“Public utility” is defined in the Determination as having the same meaning as in Schedule 3 to the Telco Act.
Relevantly, in Schedule 3 to the Telco Act, “public utility” means:
“… a body that provides to the public:
(a)reticulated products or services, such as electricity, gas, water, sewerage or drainage; or
(b)….”
Relevantly, the words “public utility structure” are defined to mean:
“A structure used, or for use, by a public utility, for the provision to the public of:
(a)reticulated products or services, such as electricity, gas, water, sewerage or drainage; or
(b)…”
On the facts as set out in the Case Stated, ETSA’s stobie pole at the Clarence Gardens site is a public utility structure for the purposes of the Determination, more particularly for the purposes of Part 7 of the Schedule, dealing with “co-located facilities”.
The Council’s case is that the level of noise emitted by the air conditioning units installed in the equipment shelter which is part of Hutchison’s installation at the Clarence Gardens site, leads to the conclusion that Hutchison’s facility installed at that site fails to satisfy the requirements of item 2 of Part 7, in that the level of noise is not “less than or equal to the levels of noise that resulted from the operation of … the public utility structure”.
Before one reaches the point of having to assess whether or not the level of noise precludes the characterisation of Hutchison’s facility as one within item 2 of Part 7, it is necessary to address the question whether or not the facility is one which is “installed on or within … a public utility structure”.
The Case Stated refers to the equipment shelter for the Clarence Gardens site as being located within an existing ETSA substation, with the stobie pole located on the adjacent road reserve. The equipment shelter is said to be situated at ground level. I assume from this that it is mounted on the ground.
This gives rise to the question whether the noise emitted by the air conditioners in the equipment shelter, is noise emitted from the facility installed on or within a public utility structure within the meaning of Part 7.
Obviously, an argument might be that, to the extent that the equipment shed is not mounted on a structure, that part of Hutchison’s facility is not subject to Part 7 of the Schedule.
However, I do not think that that argument can prevail. It involves the notion that Hutchison’s facility may be segregated into different components.
Hutchison’s facility at Clarence Gardens is a combination of the elements mounted on the stobie pole and the equipment shelter containing associated electrical equipment, with whatever interconnection there is between those two elements.
If part of that facility, namely, the antenna, is mounted on the stobie pole, Part 7 applies, and it is relevant to have regard to the level of noise emanating from the equipment shelter in determining whether the facility as a whole satisfies item 2 of Part 7.
It is agreed in the Case Stated that each of the air conditioning units emits noise. Such noise must necessarily be in addition to whatever noise previously resulted from the operation of the public utility structure, that is, the stobie pole.
I realise that the public utility structure may also include whatever structure was erected by ETSA to support the substation. But that consideration does not impact on the conclusion which I reach.
In my view, Hutchison’s installation at the Clarence Gardens site does not satisfy the requirements of item 2 of Part 7 of the Schedule by reason of the emission of noise from the air conditioning units in the equipment shelter.
I would, therefore, answer question 2 as follows:
“It is not a low-impact facility, by reason of the emission of noise.”
Constitutional Issues
These issues may be disposed of shortly.
If there had been a finding that Hutchison had installed a low-impact facility at any of the sites in question, any requirement for approval under the Development Act which otherwise might have been required, would be inconsistent with the exemption afforded by clause 37 of Schedule 3, and would be displaced by it.
However, because, in my view, Hutchison has not installed a low-impact facility at any of the sites, that exemption does not apply, and the obligation to obtain approval under the Development Act remains.
Insofar as an issue is raised as to whether or not s 49A of the Development Act is invalid to the extent of any inconsistency with the relevant provisions of the Telco Act and the Determination, there is no inconsistency relevant to the determination of this case.
Once a position is reached that none of the installations in question are low-impact facilities, State planning laws take effect, together with such exceptions, if any, as may be available under those laws.
The Council’s entitlement to a Declaration
The question is whether the Council is entitled to a declaration which gives expression to the answers to the questions posed in the Cast Stated, more particularly to the effect that the replacement of the stobie poles, with the exception of the pole at the Clarence Gardens site, together with the installation of the telecommunications facilities, constitutes development which requires approval pursuant to the Development Act.
The making of a declaration involves the exercise of a discretion. At least one party, Hutchison, through Mr Whitington QC, put forward a strong plea that the discretion should be exercised against the making of a declaration in favour of the Council.
The Council’s entitlement to a declaration may need to be considered in light of facts other than those set out in the Case Stated which may be the subject of further evidence to be called before the trial judge.
It follows that the points which Mr Whitington QC raises are better dealt with by the judge who has the carriage of the trial of the proceedings. I would therefore hold that the question whether the Council is entitled to a declaration is a matter for the trial judge to determine.
Conclusion
Question
Answer
1.1
Are the stobie poles erected by ETSA when fitted with the facilities placed upon each by Hutchison, a tower within the meaning of clause 6 of Schedule 3 of the Telecommunications Act 1997 (Cth)?
Yes
1.2
Has Hutchison erected low-impact facilities within the meaning of the Telecommunications (Low-Impact Facilities) Determination 1997 having regard to the facts that:
(a) the new or replaced stobie pole together with the facilities installed by Hutchison constitute more than a 25% increase in the apparent volume of the original stobie pole; or
(b) the air conditioning units in the equipment shelters for the facility emit noise; or
(c) the distance from the top of the stobie pole to the top of the panel antennae exceeds 3 metres?
Unnecessary to answer
1.3
Is either or both Hutchison and ETSA required to obtain development approval from the relevant authority pursuant to the Development Act 1993 for the erection of the stobie poles replaced by ETSA and if so by which party?
Either of them is required to obtain development approval.
2
In the events which have happened at the Clarence Gardens site, is the downlink facility established by Hutchison a low-impact facility within the meaning of the Telecommunications (Low-Impact Facilities) Determination 1997 having regard to the facts that:
(a) the air conditioning units in the equipment shelter for the facility emit noise; or
(b) the distance from the top of the stobie pole to the top of the panel antennae exceed 3 metres?
It is not a low-impact facility, by reason of the emission of noise.
3
Is the Council entitled to a declaration in respect of each site that the replacement of the stobie poles (save for Clarence Gardens) together with the installation of the telecommunications facilities thereon is development which requires development approval pursuant to the Development Act 1993?
Not answered. The entitlement, if any, to a declaration is a matter for the trial judge.
BLEBY J:
Introduction
The facts contained in the Case Stated have been adequately summarised by Perry J. I will not repeat them. Nor will I set out again all the relevant legislation, although for the purpose of these reasons it will be necessary to repeat some parts of it. For the sake of convenience I will adopt the same abbreviations as Perry J has done.
In order properly to understand the nature of the rights, duties and obligations of the several parties to this litigation in the circumstances which have happened, it is necessary first to understand the effect of the legislative provisions which govern their relationship and, against that background, to examine the nature and effect of the Facilities Access Agreement entered into between Hutchison and ETSA.
Powers and immunities of carriers under the Telco Act
Hutchison is a telecommunications carrier licensed pursuant to the provisions of Part 3, Division 3 of the Telco Act. Schedule 3 of the Telco Act describes various powers and immunities applicable to carriers. Schedule 3 is given effect by s 484 of the Telco Act.
Under Schedule 3 a carrier is authorised to carry out the installation of a “facility”. By s 7 of the Telco Act “facility” is defined as meaning:
“(a)Any part of the infrastructure of a telecommunications network; or
(b)Any line, equipment, apparatus, tower, mast, antennae, tunnel, duct, hole, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network.”
It is not necessary for present purposes to venture into the statutory definitions of some of the terms used in that definition.
So far as it is relevant, clause 6(1) of Schedule 3 provides:
“(1)A carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if:
(a) the carrier is authorised to do so by a facility installation permit; or
(b) the facility is a low-impact facilty (as defined by subclause (3); …
If a carrier installs a facility in South Australia under either of those conditions, the carrier is relieved from complying with the development approval requirements of the Development Act 1993 (SA). That relief is afforded by the combined operation of clause 37 of Schedule 3 and s 109 of the Constitution.
For present purposes it is sufficient to note that the grant of a facility installation permit is governed by clauses 21 to 35 inclusive of Schedule 3 and requires consideration of an application and the granting of a permit by the Australian Communications Authority constituted under the Telco Act. The process bears some resemblance to a development approval process under State legislation. If the facility is a low-impact facility it does not require a permit and, as mentioned above, the installation is exempt from the operation of State laws such as the Development Act. In other words, for a low-impact facility, no statutory approval is required.
The powers conferred on a carrier by clause 6 of Schedule 3 for the purpose of carrying out the installation of a facility authorised under that clause are, on their face, extremely wide. If a carrier is authorised to carry out the installation of a facility, clause 6(2) of Schedule 3 provides that the carrier may, among other things, for purposes in connection with the carrying out of the activity, enter on and occupy any land and carry out a number of possible activities on that land. Those activities are described in sub-clause (2). They include doing anything necessary or desirable for purposes in connection with the carrying out of the activity, including constructing, erecting and placing any plant, equipment, machinery and goods. Thus, the carrier may enter and carry out such activity on any land whatsoever, whether in public or private ownership.
However, the exercise of those powers is subject to the provisions of Division 5 of Part 1 of Schedule 3. It is not necessary to recite all the conditions which must be observed by a carrier in carrying out the authorised activities. They include compliance with a Code of Practice made by the Minister, authorised under clause 15. There is also an obligation under clause 17 to give notice to the owner and occupier of the land of the carrier’s intention to engage in the activity. That notice must comply with the requirements of clause 17, one of which is that the notice must contain a statement to the effect that, if a person suffers financial loss or damage in relation to property because of anything done by a carrier in engaging in the activity, compensation may be payable under clause 42 of Schedule 3. Clause 42 provides a statutory cause of action for the recovery of compensation for loss and damage in a court of competent jurisdiction.
The Telecommunications Code of Practice 1997 is a Code made by the Minister under clause 15 of Schedule 3. Chapter 4 of the Code deals specifically with what is called a “low-impact facility activity” of a carrier. That is defined as:
“(a) installing a low-impact facility;
(b)carrying out an activity for purposes in connection with the installation of a low-impact facility.”
A low-impact facility is that referred to in clause 6(1) of Schedule 3. I will refer only to those conditions described in Chapter 4 of the Code of Practice which are relevant for present purposes.
Clause 4.13 requires that a carrier take all reasonable steps to find out whether, among other things, a facility of a public utility is available for the activity. “Public utility” is defined as meaning a body that provides to the public, among other things, “reticulated products or services, such as electricity, gas, water, sewerage or drainage”. For present purposes it would include ETSA. Clause 4.13(2) requires that the carrier take all reasonable steps to use such facilities for the activity. In other words, a statutory preference is given for the installation of low-impact facilities on the existing facilities of a public utility. Clause 11 of Schedule 3 of the Telco Act also has some bearing on that requirement. It provides that a carrier must make “reasonable efforts to enter into an agreement with a public utility that makes provision for the manner in which the carrier will engage in” an activity referred to in clause 6 of Schedule 3 and which is likely to affect the operations of the utility. There is a statutory obligation to comply with an agreement in force under that clause.
The Code of Practice imposes some additional notice requirements for the installation of a low-impact facility. Clause 4.27 requires notice to be given to the owner and occupier of details of the actions that the carrier expects to take as part of the low-impact facility activity on the land and to notify them of arrangements under the Code for making objections. Clause 4.28 enables agreement to be reached concerning alternative notification arrangements. In this case such agreement has been reached by means of the Facilities Agreement referred to below.
The owner or occupier may object to the proposed activity but for reasons which are limited. By clause 4.31 of the Code those reasons may relate only to the following matters:
“(a)using the objector’s land to engage in the activity;
(b)the location of a facility on the objector’s land;
(c)the date when the carrier proposes to start the activity, engage in it or stop it;
(d)the likely effect of the activity on the objector’s land;
(e)the carrier’s proposals to minimise detriment and inconvenience, and to do as little damage as practicable, to the objector’s land.”
Under clause 4.34 there is an obligation on the carrier to make reasonable efforts to consult the objector about any objection. If it is not resolved by agreement within twenty business days, the carrier must consider whether to change the low-impact facility activity: clause 4.35(1). However, the carrier is not required to change the activity in a way that:
“(a) is not economically feasible; or
(b) is not technically practicable; or
(c)is likely to have a greater adverse effect on the environment than engaging in the activity as originally proposed; or
(d)is inconsistent with a recognised industry standard or practice relevant to the activity.” (Clause 4.35(2))
Clauses 4.36 – 4.38 provide for unresolved objections to be dealt with by the Telecommunications Industry Ombudsman, who may give a direction to the carrier about the way in which the carrier should engage in the low-impact facility activity. The carrier is required to comply with the direction.
From this brief survey of the relevant requirements of Schedule 3 of the Telco Act and the Code of Practice it can be seen that a carrier has wide powers of entry onto land for the purpose of carrying out an authorised activity, that there is a statutory priority given to the installation of a facility on the facilities of a public utility, and that subject to compliance by the carrier with the several conditions imposed, the land owner is powerless to prevent entry or to prevent the installation of a low-impact facility unless he can overcome the difficult hurdles of objection before the Telecommunications Industry Ombudsman. Given the nature of a low-impact facility, to be discussed below, it is clear that the nature of the activity which a carrier is authorised to carry out on land includes the attachment of low-impact facilities to existing buildings and structures.
The position and powers of ETSA
ETSA holds a licence under Part 3 of the Electricity Act 1996 (SA) to operate a distribution network. Section 23(1) of the Electricity Act provides that the Essential Services Commission must make a licence authorising the operation of a distribution network subject to conditions determined by the Commission. Those mandatory conditions include the following:
“(j)requiring the electricity entity to comply with code provisions as in force from time to time (which the Commission must make under the Essential Services Commission Act 2002) establishing a scheme –
(i) for other bodies to use or have access to the entity’s transmission or distribution network for telecommunications purposes (subject to requirements as to technical feasibility and preservation of visual amenity); and
(ii) for the resolution of disputes in relation to such use or access by a person other than the Commission who is appointed by the Commission.”
Clause 20 of ETSA’s licence provides:
“The Licensee must comply with the requirements of the Electricity Transmissions Code relating to:
(a)other bodies having access to the Licensee’s distribution network for telecommunications purposes; and
(b)concerning the resolution of disputes relating to the access and use of the Licensee’s distribution network referred to in paragraph (a).”
The Electricity Transmission Code is the Code referred to in s 23(1)(j) of the Electricity Act.
Clause 12.1 of the Electricity Transmission Code provides:
“A transmission entity and distributor must make an offer to a person requesting rights to use or have access to its transmission system or distribution system (as the case may be) for telecommunications purposes, having regard to matters including: …”
There follows a list of matters to which the distributor must have regard, including the feasibility of the entity granting access to the distribution system and “whether or not it would be uneconomical for the person requesting access to develop another facility to provide the telecommunication service requested”.
The subsequent paragraphs of the Case Stated describe the location of each of the equipment shelters. At Clarence Gardens and Kingswood, the equipment shelters are “located within existing ETSA substations”. I take that to mean that the shelters are erected at ground level within an area controlled by ETSA and on different parts of which are also erected various ETSA facilities. In those two cases the stobie poles are located on adjacent road reserves. In the case of Colonel Light Gardens, all the facilities are located within the ETSA substation. In the case of Bellevue Heights and Torrens Park, the equipment shelters are located on land owned by Australian Rail Track Corporation Ltd and TransAdelaide respectively, with the stobie poles located on the adjacent road reserves.
It is also necessary to give further consideration to the description of low-impact facilities contained in Part 3 of the Telecommunications (Low-Impact Facilities) Determination 1997. Clause 3.1 of Part 3 of the Determination relevantly provides:
“A facility described in column 2 of an item in the Schedule is a low-impact facility only if it is installed, or to be installed, in an area mentioned in column 3 of the item”.
The point to be noted is that each structure or piece of equipment mentioned in column 2 of an item in the Schedule is itself a “facility” for the purposes of the Determination. The Schedule contains seven parts as follows:
PART 1 – RADIO FACILITIES
PART 2 – UNDERGROUND HOUSING
PART 3 – ABOVE GROUND HOUSING
PART 4 – UNDERGROUND CABLE FACILITIES
PART 5 – PUBLIC PAYPHONES
PART 6 – EMERGENCY FACILITIES
PART 7 – CO-LOCATED FACILITIES
Each of those parts contains a number of items, and opposite each item number is described a “facility”. Part 3 of the Schedule contains five items which include a pillar, a roadside cabinet, a pedestal and the following external equipment shelter (item 5):
Column 1 Column 2 Column 3
Item no. Facility Areas5. External equipment shelter: Residential
(a) used solely to house equipment Commercial
used to assist in providing a Industrial
service by means of a facility Rural
mentioned in Part 1; and
(b) not more than 3 metres high; and
(c) with a base area of not more than
7.5 square metres; and
(d) either:
(i) colour-matched to its
background; or
(ii) in a colour agreed in writing
between the carrier and the
relevant local authority
There is no suggestion that any of the equipment shelters in question did not comply with that description.
There is no definition of “equipment shelter” other than what is implied from the description of the facility itself. However, I consider that it includes the airconditioning units by virtue of clause 3.1(4) of Part 3 of the determination. That paragraph reads:
“(4)A facility that is ancillary to a facility covered by subsection (1) is also a low-impact facility only if it is installed, or to be installed, solely to ensure the protection or safety of:
(a) the low-impact facility; or
(b) persons or property in close proximity to the low-impact facility.”
There is no reference to any noise qualification in respect of an external equipment shelter. If there is a noise qualification, it can only be found in the description of the facility in item 2 of Part 7 of the Third Schedule.
Part 7 of the Schedule deals with co-located facilities. Item 2 is described as follows:
Column 1 Column 2 Column 3
Item no. Facility Areas2. Facility mentioned in: Residential
(a) Part 1, 5 or 6; or Commercial
(b) Item 3 of Part 4;
installed on or within
(c) an original facility; or
(d) a public utility structure;
where:
(e) the total volume of the co-
located facilities is no more than
25 per cent greater than the
volume of the original facility or
the original infrastructure; and
(f) the levels of noise that are likely
to result from the operation of
the co-located facilities are less
than or equal to the levels of
noise that resulted from the
operation of the original facility
or the public utility structure
Those parts of the downlink sites which comprise the antennae, microwave dish, mounting pole and brackets fall within Part 1 of the Schedule described as RADIO FACILITIES. There is no suggestion that they emit noise. It will be noted that none of the facilities mentioned in Part 3 of the Schedule are referred to in item 2 of Part 7.
The term “original facility” used in paragraph (c) of the description of that facility is defined in s 3.1 of the Determination. It is not necessary to reproduce the definition. It is sufficient to note that it can only mean a telecommunications facility. None of the facilities in question here are installed on or within an original facility. “Public utility structure” is defined in a way which would include the stobie poles erected by ETSA, but whatever it means, it must be a “structure”. It would not include an area of land.
The phrase “co-located facilities” used in paragraphs (e) and (f) is defined as meaning –
“one or more facilities installed on or within:
(a)an original facility; or
(b)a public utility structure”.
The equipment shelters are not affected by paragraph (f) of item 2 of Part 7 of the Schedule. That item has application to the radio facilities installed on the public utility structure (the stobie pole) where the noise levels likely to result from the operation of the radio facilities (i.e. the facilities installed on the stobie pole) are less than or equal to the level of noise that resulted from the operation of the public utility structure. That has no reference to any noise generated by another facility, being an associated external equipment shelter. In any event, an external equipment shelter could not form part of “co-located facilities” for the purpose of that description because it is not installed on or within an original facility or on or within a public utility structure. Those equipment shelters which are located within ETSA substations (Clarence Gardens, Kingswood and Colonel Light Gardens) are erected on an area of previously unimproved land. They are not installed on any public utility structure. In the case of the facilities installed at Bellevue Heights and Torrens Park, the equipment shelters are not built on ETSA land. They happen to be built on land owned by bodies, each of which may be inferred to be a “public utility” as defined in clause 2 of Schedule 3, being a body that provides transport services to the public, but the shelters in those cases are also built on areas of unimproved land, with no suggestion that they are built on or attached to structures on that land.
Accordingly, the fact that the airconditioning units in the equipment shelters emit noise does not exclude any of the facilities from the definition of low-impact facilities.
I turn to subparagraph (c) of question 1.2. This raises the same question as is raised in subparagraph (b) of question 2 below. The only difference between the facilities the subject of question 1.2 and those the subject of question 2 is that the stobie pole the subject of question 2 had previously been replaced by ETSA as part of an upgrade program of replacement, and was structurally adequate to accommodate the downlink site. That is not a relevant difference for the purpose of answering subparagraph (c) of question 1.2 and subparagraph (b) of question 2. I agree with Perry J that the answers to both those questions turn on the proper construction of item 3 in Part 1 of the Schedule. In that respect I agree with the conclusion of Perry J and with the reasons that he gives at paragraphs [176] to [195]. I also agree with the reasoning and conclusion of Judge Trenorden in Telstra Corporation Ltd v City of Onkaparinga [2001] EDLR 263. I have nothing to add to the discussion of that case by Perry J.
It follows that, having regard to each of subparagraphs (a), (b) and (c) of question 1.2, Hutchison has erected low-impact facilities at each of the sites in question, and I would answer question 1.2: “Yes”.
Question 1.3
This question is also directed to the sites other than the Clarence Gardens site. It asks, in the events which have happened:
“1.3is either or both Hutchison and ETSA required to obtain development approval from the relevant authority pursuant to the Development Act 1993 for the erection of the stobie poles replaced by ETSA and if so by which party?”
Perry J has referred to the relevant requirements of the Development Act 1993. Those provisions, without the intervention of the Telco Act, would require Hutchison to obtain approval for the installation of the facilities comprising each of the donwlink sites. That is so because what Hutchison carried out was “building work” for the purposes of the Development Act. It also constituted a change in the use of land, in that in each case the land was previously being used for the purposes of the relevant public utility but was now also being used for the purpose of operating a communications facility.
What Hutchison did as a service provider under the Telco Act in the installation of the facilities at each of the downlink sites was exempted from the requirements of the Development Act 1993 by clause 37 of Schedule 3 of the Telco Act.
The stobie poles were installed by ETSA. I have rejected any notion that this was by way of some form of commercial joint venture between ETSA and Hutchison. The decision of ETSA to replace the stobie poles may well have been precipitated by Hutchison’s request to ETSA to permit it to use the existing stobie poles. ETSA agreed to that request, and having undertaken a structural analysis of the poles in question, decided that each stobie pole other than the Clarence Gardens stobie pole needed to be replaced. It decided to undertake the work itself. Under the Agreement, ETSA had the right to choose not to carry out the Make Ready Work. Under the Agreement, if Hutchison had the necessary statutory approvals, it could then have been carried out by Hutchison. It is only in exceptional circumstances as I have previously described that ETSA could have also refused Hutchison’s application for access to one or more of the facilities.
However, in the view I take, it is not necessary to determine whether it was Hutchison that caused the development, in the form of replacement of the stobie poles, to be undertaken. The prohibition in s 32 of the Development Act is not directed to any person or class of persons. It merely provides that “no development may be undertaken (by anyone) unless the development is an approved development”. Section 49A(1) of the Development Act requires certain bodies, of which ETSA is one, to follow a particular process for approval to undertake development for the purposes of the provision of electricity infrastructure, other than development of a kind referred to in subsections (2) or (3). Section 49A(3) provides:
“(3)No application for approval is required (either under this section or any other provision of this Act), and no notice to a council is required under subsection (1), if the development is of a kind excluded from the provisions of this section by regulation.”
The subsection does not say that no application for approval is required if the work is undertaken by ETSA or any other particular person or body. Nor is it dependent upon the purpose of the development, as in the case of subsection (1). It concentrates on the kind of development. If it is development of a particular kind, no matter by whom it is carried out, no application for approval is required.
Regulation 69 of the Development Regulations 1993 provides:
“69.(1) Pursuant to section 49A(3) of the Act (but subject to this regulation) the various forms of development specified in Schedule 14A, when carried on by a prescribed person, are excluded from the provisions of section 49A of the Act.
(2)If a prescribed person proposes to undertake any building work which is within the ambit of Schedule 14A, the person must, before commencing that building work –
(a)give notice of the proposed work to the council for the area in which the building work is to be undertaken; and
(b)furnish the council with –
(i)a description of the nature of the proposed work; and
(ii)so far as may be relevant, details of the location, siting, layout and appearance of the proposed work.
(3) Subregulation (2) does not apply if the building work is within the ambit of Schedule 3, Schedule 3A or Part 2 of Schedule 4.”
It will be noted that the exclusion from the need to obtain approval applies to certain forms of development when “carried on” by a prescribed person. It is at this point that the identity of a person or body becomes relevant. It is the person who “carries on” the development. For the purpose of that regulation ETSA is a prescribed person. The replacement of stobie poles did not come within the ambit of Schedule 3 or Schedule 3A of the Regulations. Schedule 4 could only have application at the stage of compliance with the Building Rules, and is not relevant for present purposes.
Paragraph (f) of Schedule 14A excludes the following form of development from the provisions of s 49A of the Act, if carried on by ETSA:
“(f)The construction, reconstruction or alteration of an electricity power line, other than a transmission line of 33,000 volts or more.”
According to the Case Stated, ETSA is licensed only to operate a distribution network. It does not operate a transmission network. Accordingly, the construction, reconstruction or alteration of an electricity power line, such as the ones in question, if “carried on” by ETSA, is development excluded from the provisions of s 49A of the Development Act, and no application for approval is required.
It seems to me that, whoever may have requested the replacement of the stobie poles and whoever may have paid for it, the work was “carried on” by ETSA. It does not matter that it may have even have been carried on at the behest or for purposes which included the purposes of Hutchison. It also seems that the replacement of a stobie pole is included in the phrase “reconstruction or alteration of an electricity power line”. Electricity power line is not defined for the purposes of the Regulations, but the removal and replacement of the support for a power line must necessarily involve the reconstruction or alteration of the power line. Some support may be gained for that from the definition of power line contained in the Electricity Act. That is defined as meaning:
“(a)a set of cables for the transmission or distribution of electricity and their supporting or protective structures, conduits and equipment; and
(b)associated equipment for the transmission or distribution of electricity,
but does not include a telecommunications cable or associated equipment.” (Section 4(1) Electricity Act 1996).
It is evident that the drafter of the Development Regulations has borrowed concepts and expressions, without necessarily defining them, used in the Electricity Act. The distinction between a transmission network and a distribution network is one that is maintained in that Act and in the associated National Electricity Code.
It follows that, as the work was carried on by ETSA, it falls within the exclusion from the operation of s 49A(3) of the Development Act and no approval was required to be obtained by anyone.
Although it was argued as an alternative, I do not consider that the provisions of paragraph (a) of Schedule 14A of the Development Regulations provides an exclusion from s 49A(3) of the Development Act. That paragraph is prefaced by the requirement that “the work is certified by a private certifier” as complying with the Building Rules or the Building Rules to the extent that it is appropriate in the circumstances after taking into account the requirement of the Building Rules. There is no suggestion that the work was so certified as required by that paragraph. It is no answer to say that certification is not required because the work falls within Part 2 of Schedule 4 of the Regulations, being the construction or alteration of “an electricity powerline or any associated structure” (clause 14(g)). The fact is that both Part 2 of Schedule 4 and paragraph (a) of Schedule 14A are directed to the stage of compliance with Building Rules rather than with provisional development plan consent under the Development Act.
So far I have approached the answer to this question by considering the nature of the building work carried on and by whom it was carried on. It was also argued that ETSA caused or permitted a change of use of the land on which its public utility facilities were constructed by changing the poles to suit the requirements of Hutchison and by permitting Hutchison to erect its facilities. I accept that there was a change of use of the land but not merely by the installation, by ETSA, of the replacement stobie poles. When their work was finished and the power lines connected to the new poles, there had been no change in the use of the land. That only occurred when Hutchison installed its downlink facilities. That was not a change effected by ETSA. It was a change effected by Hutchison. Nor was it a change effected by agreement with ETSA. It was a change brought about by the exercise by Hutchison of its statutory powers. That was a change in use which was exempted from the operation of State laws by the provisions of clause 37 of Schedule 3 of the Telco Act.
Accordingly, in my opinion ETSA was entitled to carry on the work of replacement of the relevant stobie poles without obtaining the necessary consent under the Development Act. The exemption conferred by and under s 49A of the Development Act is not related to the purpose of the work or at whose behest it may have been carried on. It was not necessary for Hutchison to obtain approval.
Accordingly I would answer question 1.3: “Neither Hutchison nor ETSA was required to obtain development approval pursuant to the Development Act 1993 for the erection of the stobie poles replaced by ETSA”.
In view of this conclusion it is not necessary to address the argument as to whether, if, for some reason, ETSA were required to obtain Development Act approval for the replacement of the stobie poles or the installation and use of Hutchison’s facilities, this would give rise to any consistency under s 109 of the Constitution with various provisions of the Telco Act.
Question 2
Question 2 is as follows:
“2.In the events which have happened at the Clarence Gardens site, is the downlink facility established by Hutchison a low-impact facility within the meaning of the Telecommunications (Low-Impact Facilities) Determination 1997 having regard to the facts that:
(a) the air conditioning units in the equipment shelter for the facility emit noise;
or
(b) the distance from the top of the stobie pole to the top of the panel antennae exceed 3 metres?”
It is apparent from what I have already said in considering paragraphs (b) and (c) of question 1.2 that the answer to this question must be “Yes”. Precisely the same considerations apply to the Clarence Gardens site.
Question 3
Question 3 of the Case Stated is as follows:
“3.Is the Council entitled to a declaration in respect of each site that the replacement of the stobie poles (save for Clarence Gardens) together with the installation of the telecommunications facilities thereon is development which requires development approval pursuant to the Development Act 1993?”
In view of my conclusion that neither the work performed by Hutchison nor that performed by ETSA is development which requires development approval pursuant to the Development Act, it follows that the Council is not entitled to the declaration it seeks. Accordingly, my answer to question 3 is “No”.
Conclusion
I would answer the questions as follows:
1.1:Not necessary to answer.
1.2:Yes.
1.3:Neither Hutchison nor ETSA was required to obtain development approval pursuant to the Development Act 1993 for the erection of the stobie poles replaced by ETSA.
2:Yes.
3:No.
GRAY J. I would answer the questions formulated in the case stated as proposed by Perry J. I agree with the reasons of Perry J.
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