Development Assessment Commission v 3GIS Pty Ltd & Anor
[2007] SASC 216
•18 June 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DEVELOPMENT ASSESSMENT COMMISSION v 3GIS PTY LTD & ANOR
[2007] SASC 216
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Sulan)
18 June 2007
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY - CONSIDERATION OF PARTICULAR PLANNING MATTERS
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - INCONSISTENCY OF LAWS (CONSTITUTION, S 109) - PARTICULAR CASES - DISCRIMINATION
Appeal from a decision of the Environment, Resources and Development Court granting an application for development approval for a telecommunications facility – Consideration of the proposed development and the nature of the technology involved – West Torrens (City) Development Plan – Whether assessment of the application requires consideration of the level of demand for the services – Whether demand properly to be balanced against environmental considerations – Proper construction of Development Plan against background of Telecommunications Act 1997 (Cth) – Consideration of requirements to minimise visual impact and relevance of possible alternative sites.
Whether, if demand for services relevant, requirements of Development Plan were invalid – Whether inconsistent with Telecommunications Act 1997 (Cth) – Whether discriminatory contrary to that Act – Appeal dismissed.
Development Act 1993 (SA) ss 22, 23, 25, 26, 27, 29, 30, 32, 33, 34, 49, 49A; Environment, Resources and Development Court Act 1993 (SA) s 30; Telecommunications Act 1997 (Cth) s 3, s 7, s 41, s 61, s 484, Schedule 3; Life Insurance Act 1945 (Cth) s 78; Anti-Discrimination Act 1977 (NSW); Broadcasting and Television Act 1942 (Cth); Local Government Act 1993 (NSW); West Torrens (City) Development Plan; Constitution s 109, referred to.
City of Burnside v City Apartments Pty Ltd [2004] SASC 294, applied.
Hutchison 3G Australia Pty Ltd v City of Mitcham (2005) 141 LGERA 93; Hutchison 3G Australia Pty Ltd v City of Mitcham (2006) 80 ALJR 711; Australian Mutual Provident Society v Goulden & Ors (1986) 160 CLR 330; Commercial Radio Coffs Harbour Ltd v Fuller & Anor (1986) 161 CLR 47; Australian Broadcasting Commission v Industrial Court of South Australia & Anor (1977) 138 CLR 399; Bayside City Council & Ors v Telstra Corporation & Ors (2004) 216 CLR 595, discussed.
City of Mitcham v Hutchison 3G Australia Ltd & Ors (2005) 91 SASR 111, considered.
DEVELOPMENT ASSESSMENT COMMISSION v 3GIS PTY LTD & ANOR
[2007] SASC 216Full Court: Doyle CJ, Bleby and Sulan JJ
DOYLE CJ: I would dismiss the appeal against the decision of the Environment Resources and Development Court. I agree with the reasons given by Bleby J for so deciding.
BLEBY J: An entity described as Hutchison 3G Australia applied pursuant to s 32 of the Development Act 1993 (SA) for development approval for the construction of a proposed telecommunications facility near the southern boundary of the Glenelg golf course adjacent to Bonython Avenue and opposite the northern end of Iluka Street, Novar Gardens. On 10 November 2005 the Development Assessment Commission (“DAC”) refused the application. There is no dispute that the DAC was the relevant planning authority pursuant to s 34(1)(b)(i) of the Development Act.
An entity known as 3GIS appealed against that decision to the Environment Resources and Development Court (“the Environment Court”). On 13 December 2006 the Environment Court allowed the appeal, reversed the decision of the DAC and granted the application subject to three conditions which are not relevant for present purposes.[1]
[1] 3GIS v Development Assessment Commission and Anor [2006] SAERDC 89.
The DAC now appeals to this Court pursuant to s 30 of the Environment Resources and Development Court Act 1993 (SA) on a question of law. To the extent that the appeal is on a question of fact the DAC seeks permission to appeal.[2]
[2] See Environment, Resources and Development Court Act 1993 (SA), s 30(2).
According to the reasons of the Environment Court, the original application was made on behalf of a partnership between Telstra and Hutchison 3G Australia, “now called 3GIS”.[3] The present respondent to the appeal is named as a registered corporation. However, no point has been taken as to the identity of the applicant, the appellant in the Environment Court or the respondent in this Court. It appears to be accepted that the application was made by or on behalf of a carrier or carriers licensed under the Telecommunications Act 1997 (Cth) (“the Telco Act”).
[3] [2006] SAERDC 89 at [1].
Mr Gibbs, the second respondent and a respondent to the appeal in the Environment Court, did not seek to be heard on this appeal.
The nature and location of the proposed development
As amended, the application concerned the installation of a 20 metre high steel monopole with three “tuft 25” panel antennae mounted on top, making a total height of 23.01 metres, together with an associated equipment shelter and landscaping. The purpose of the proposed development was to form part of the latest network of telecommunications facilities, known as 3G facilities, and to overcome a deficiency caused by poor quality coverage in parts of the suburbs of Glenelg North and Novar Gardens and by a lack of signal strength of sufficient level to permit the use of the 3G network indoors in the area.
The land on which the pole was to be erected is within the area of the City of West Torrens. The relevant Development Plan is the Development Plan for West Torrens (City) consolidated as at 11 November 2004. The site of the proposed development is in a Special Uses Zone, being the Glenelg golf course. The area immediately south of Bonython Avenue is zoned Residential.
Nature of the technology
It is important to have some understanding of the nature and evolution of the 3G system. In his written statement of evidence before the Environment Court Mr A.W. Edwards, an engineer employed by Telstra Corporation Ltd, described the nature and development of wireless telecommunications to the present day in the following terms:
5. In 1987, Telecom Australia launched its first cellular network, the analogue Advanced Mobile Phone System (AMPS). This first generation (1G) system, designed to provide voice communication only, was in service for 13 years, finally closing down in December 2000.
6. In April 1993, Telstra launched its initial second generation (2G) network, using the Global System for Communications (GSM) digital standard. This network was designed with voice, messaging and limited data communication capability.
7. The GSM network has since evolved with increased data communications capabilities added on to the underlying GSM system. These add-on features have names such as General Packet Radio System (GPRS), Enhanced Data rates for Global Evolution (EDGE) and Multi Media Service (MMS). These provide efficient ways of transporting data. With data enhancements, the network is often referred to as a 2.5G network, being half-way between a second generation network and a third generation network.
8. In September 1999, Telstra launched its second digital network using Code Division Multiple Access (CDMA) technology. This 2G network has also undergone an evolutionary process with data capability being enhanced through add-on features such as 1xRTT and 1xEVDO and is now also often referred to as a 2.5G network.
9. With the increased demand for data capabilities in mobile devices came the establishment of the 3rd Generation Partnership Project (3GPP) in December 1998, with the intention of producing globally applicable technical specifications for a third generation (3G) mobile communications system. This project has established the standards to be used globally for a Universal Mobile Telephone System (UMTS) with high data speeds to the user equipment of up to 2Mbps. This is the system used by the joint Telstra-Hutchison 3G network.
10. The 3G UMTS 2100MHz cellular network (jointly owned by Hutchison and Telstra through the joint venture partnership company, 3GIS Pty Ltd) allows Telstra and Hutchison to provide 3G services and products to their own customers through the single network. This network was first launched in April 2003 by Hutchison Telecommunications Australia under the ‘3’ brand name. …
11. 3G UMTS as a technology is being deployed to augment today’s existing 2G GSM and 2G CDMA networks by all Australian network operators. Eventually, 3G networks are expected to fully replace existing 2G networks, utilising new and existing underlying site infrastructure as customer demand and coverage expectations dictate.
12. In 1993, the original digital mobile phone networks using GSM 2G technologies only provided voice calls over expensive, bulky phones. Today, tiny UMTS 3G mobile phones weighing as little as 80 grams can be used to make 2-way video calls, and access new enhanced wireless data products which allows people to pay for products and services, access news, sport and entertainment, find a restaurant or doctor, read weather forecasts and see current weather maps and radar images for their local area and much more.
13. With the availability of new computer hardware, such as the NetConnect card that plugs directly into a laptop computer, the 3G UMTS network provides portable/mobile computer access to wireless internet services providing portable access to the entire internet.
14. Extensions to the current 3G UMTS 2100 MHz network’s capabilities, scheduled for 2006/2007, will deliver the new "High Speed Downlink Packet Access" (HSDPA) technologies over the network enabling delivery of Wireless Broadband services comparable in speed to wired ADSL1 services. This will assist with in-fill of so called "Broadband Black-spots" in metropolitan areas.
…
19. The 3GIS UMTS network operates on the 2100-2170MHz frequency band, which is the original international frequency allocation for this particular mobile telephone system. This frequency band is 2.3 times higher in frequency than that used in Australia for the 2G GSM networks.
20. As radio signals experience greater attenuation over distance at the higher frequencies than at the lower frequencies, the area of coverage of a higher frequency radio cell is smaller than that of a lower frequency radio cell. Assuming everything else remains the same, the coverage range of a UMTS 2100MHz network radio cell site is typically 2.3 times less in distance than that of a GSM 900MHz network radio cell site with the same physical characteristics. This implies a requirement to locate UMTS 2100MHz band radio cell sites closer together than 900MHz GSM cell sites to achieve the same degree of coverage. In effect this means more sites are required per square km for a UMTS 2100MHz network than for an equivalent GSM 900MHz network.
21. For this reason, unlike the more typical user experience across most of the existing 2G networks, the 3G UMTS network still has a number of areas where coverage is insufficient to provide adequate indoor service, and in a number of areas, outdoor coverage may not always be available either.
The 3G systems can provide all currently available mobile telecommunication services. Certain mobile services can only be supplied through a 3G system, namely video telephony, video messaging and high-speed packet data, such as access to the internet. The 1G systems can only provide voice telephony and short messaging services. The 2G systems can provide those as well as multimedia messaging such as photographs, sounds and short video clips, low quality video messaging and slow speed packet data.
Most of those services are also available by other means. For example, voice telephony is available through fixed line telephones and voice-over internet protocols; video telephony is available via the internet with appropriate software; text messaging is available via email (but incompatible with short message mobile services); multimedia messaging is available via the internet and email; some limited video messaging is available via the internet; and internet services are available via fixed line and some limited wireless services. However, these alternative provisions require, for the most part, fixed line access and appropriate computer hardware and software.
The density of 3G facilities in an urban area necessary to provide adequate 3G coverage will depend on a number of factors including cell transmitter power capacity, the distance between customers and the transmitter, the number and type of obstructions, the topography of the area and the number of customers using the service at any one time as well as the services they are using.
There is no dispute in this case that in certain identified areas of Glenelg North and Novar Gardens there is poor quality coverage and a lack of signal strength of sufficient level to permit the use of 3G networks indoors in the area. The evidence was that increased demand for mobile services will exacerbate those problems.
The West Torrens (City) Development Plan
As the decision of the Environment Court and the argument in this Court turned primarily on the interpretation of the relevant provisions of the Development Plan, it is necessary to set them out in full. The only provisions relating to telecommunications facilities are contained in the Council Wide section of the Development Plan. The relevant section provides:
TELECOMMUNICATIONS FACILITIES
OBJECTIVES
Objective 87: Telecommunication facilities provided to meet the needs of the community.
Objection 88: Telecommunication facilities located and designed to minimise visual impact on the amenity of the local environment.
Telecommunications facilities are an essential infrastructure required to meet the rapidly increasing community demand for communications technologies. To meet this demand there will be a need for new telecommunications facilities to be constructed.
The Commonwealth Telecommunications Act 1997 is pre-eminent in relation to telecommunications facilities. The Telecommunications (Low-impact Facilities) Determination 1997 identifies a range of facilities that are exempt from State planning legislation. The development of low impact facilities to achieve necessary coverage is encouraged in all circumstances where possible to minimise visual impacts on local environments.
Where required, the construction of new facilities is encouraged in preferred industrial and commercial and appropriate non-residential zones. Recognising that new facility development will be unavoidable in more sensitive areas in order to achieve coverage for users of communications technologies, facility design and location in such circumstances must ensure visual impacts on the amenity of local environments are minimised.
PRINCIPLES OF DEVELOPMENT CONTROL
294 Telecommunication facilities should:
(a)be located and designed to meet the communication needs of the community;
(b)utilise materials and finishes that minimise visual impact;
(c)have antennae located as close as practical to the support structure;
(d)primarily be located in industrial, commercial, business, office, centre, and rural zones;
(e)incorporate landscaping to screen the development, in particular equipment shelters and huts; and
(f)be designed and sited to minimise the visual impact on the character and amenity of the local environment, in particular visually prominent areas, main focal points or significant vistas.
295Where technically feasible, co-location of telecommunications facilities should primarily occur in industrial, commercial, business, office, centre and rural zones.
296Telecommunications facilities in areas of high visitation and community use should utilise, where possible, innovative design techniques, such as sculpture and art, where the facilities would contribute to the character of the area.
297Telecommunications facilities should only be located in residential zones if sited and designed so as to minimise visual impact by:
(a)utilising screening by existing buildings and vegetation;
(b)where possible being incorporated into, and designed to suit the characteristics of an existing structure that may serve another purpose; and
(c)taking into account existing size, scale, context and characteristics of existing structures, land forms and vegetation so as to complement the local environment.
298Telecommunications facilities should not detrimentally affect the character or amenity of Historic Conservation Zones or Policy Areas, Local Heritage Places, State Heritage Places, or State Heritage Areas.
Emphasis is added for purposes that will become apparent in due course.
Also relevant is the portion of that section of the Council Wide provisions of the Development Plan relating to the appearance of land and buildings:
APPEARANCE OF LAND AND BUILDINGS, AND SET-BACKS
OBJECTIVE
Objective 82: The amenity of localities not impaired by the appearance of land, buildings and objects.
PRINCIPLES OF DEVELOPMENT CONTROL
242 The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated.
The Telecommunications Act 1997 (Cth)
It is also necessary to understand the nature and effect of some provisions of the Telco Act. The objects of the Telco Act are set out in s 3. The section relevantly provides:
(1) The main object of this Act, when read together with Parts XIB and XIC of the Trade Practices Act 1974, is to provide a regulatory framework that promotes:
(a)the long-term interests of end-users of carriage services or of services provided by means of carriage services; and
(b)the efficiency and international competitiveness of the Australian telecommunications industry.
(2) The other objects of this Act, when read together with Parts XIB and XIC of the Trade Practices Act 1974, are as follows:
(a)to ensure that standard telephone services, payphones and other carriage services of social importance are:
(i)reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(ii)are supplied as efficiently and economically as practicable; and
(iii)are supplied at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community;
…
(c) to promote the supply of diverse and innovative carriage services and content services;
(d) to promote the development of an Australian telecommunications industry that is efficient, competitive and responsive to the needs of the Australian community;
…
(g) to promote the equitable distribution of benefits from improvements in the efficiency and effectiveness of:
(i)the provision of telecommunications networks and facilities; and
(ii)the supply of carriage services;
“Carriage service” is defined in s 7 to mean “a service for carrying communications by means of guided and/or unguided electromagnetic energy”. Presumably “guided” electromagnetic energy is by means of cables, and “unguided” electromagnetic energy is by means of wireless communication.
Generally, the Act provides, among other things, for the licensing and regulation of telecommunications carriers. It regulates the installation and use of facilities. “Facility” is defined in s 7 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 structure or thing used, or for use, in or in connection with a telecommunications network.
Schedule 3 of the Act is of some relevance. It is given effect by s 484 of the Act. Among other things, it provides that a carrier may enter and carry out certain incidental activities on any land for the purpose of determining whether the land is suitable for the carrier’s purposes.[4] It also provides that a carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if the carrier holds a facility installation permit, if the facility is a low-impact facility or in certain other circumstances not relevant for present purposes.[5] It further authorises a carrier, subject to certain conditions, to maintain a facility.[6]
[4] Schedule 3, Part 1, Division 2.
[5] Schedule 3, Part 1, Division 3.
[6] Schedule 3, Part 1, Division 4.
The Schedule prescribes an elaborate procedure for obtaining a facility installation permit.[7] It is not necessary to describe that process for present purposes. It is sufficient to note that the respondent did not have a facility installation permit for the facility the subject of these proceedings.
[7] See Schedule 3, Part 1, Division 6.
A low-impact facility is one specified by the Minister in a written instrument pursuant to clause 6(3) of Schedule 3. Generally, a low-impact facility is a facility of a certain type attached to an existing building or structure in particular designated areas.[8] This was not a low-impact facility. It follows that the installation of this facility was not authorised by Part 1, Division 3 of the Schedule.
[8] Such facilities were the subject of the proceedings and are described in more detail in City of Mitcham v Hutchison 3G Australia Ltd & Ors (2005) 91 SASR 111; [2005] SASC 78 at 119-21, [63] – [73], Perry J; 136-38, [230] – [240], Bleby J.
One other feature of the Telco Act should be mentioned. Section 61 gives effect to Schedule 1. Schedule 1 contains the conditions of a carrier’s licence to provide carriage services. Those conditions include a requirement that a carrier must provide other carriers with access to facilities[9] and network information[10] for the purpose of enabling the other carriers to provide competitive facilities and competitive carriage services or to establish their own facilities. The Act provides, in effect, for the compulsory joint use of facilities by carriers.
[9] Schedule 1, Parts 3 and 5.
[10] Schedule 1, Part 4.
Part 1, Division 7 of Schedule 3 provides for certain exemptions from the operation of State and Territory laws. Clauses 36, 37 and 38 provide:
36Activities not generally exempt from State and Territory laws
(1) Divisions 2, 3 and 4 do not operate so as to authorise an activity to the extent that the carrying out of the activity would be inconsistent with the provisions of a law of the State or Territory.
(2) The rule set out in subclause (1) has effect subject to any exemptions that are applicable under clause 37.
37 Exemption from State and Territory laws
(1) This clause applies to an activity carried on by a carrier if the activity is authorised by Division 2, 3 or 4.
(2) The carrier may engage in the activity despite a law of a State or Territory about:
(a)the assessment of the environmental effects of engaging in the activity; or
(b)the protection of places or items of significance to Australia's natural or cultural heritage; or
(c)town planning; or
(d)the planning, design, siting, construction, alteration or removal of a structure; or
(e)the powers and functions of a local government body; or
(f)the use of land; or
(g)tenancy; or
(h)the supply of fuel or power, including the supply and distribution of extra-low voltage power systems; or
(i)a matter specified in the regulations.
(3) Paragraph (2)(b) does not apply to a law in so far as the law provides for the protection of places or items of significance to the cultural heritage of Aboriginal persons or Torres Strait Islanders.
(4) Paragraph (2)(h) does not apply to a law in so far as the law deals with the supply of electricity at a voltage that exceeds that used for ordinary commercial or domestic requirements.
38 Concurrent operation of State and Territory laws
It is the intention of the Parliament that, if clause 37 entitles a carrier to engage in activities despite particular laws of a State or Territory, nothing in this Division is to affect the operation of any other law of a State or Territory, so far as that other law is capable of operating concurrently with this Act.
Because the installation of this facility was not authorised by Division 2 of Schedule 3, the respondent was not exempted from any relevant provisions of the Development Act by virtue of clause 37 of the Schedule. However, there was nothing to prevent the respondent from installing the facility if it complied with the requirements of the Development Act.
Finally, clause 44 of Schedule 3 relevantly provides:
44 State and Territory laws that discriminate against carriers and users of carriage services
(1) The following provisions have effect:
(a) a law of a State or Territory has no effect to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular carrier, against a particular class of carriers, or against carriers generally;
(b) without limiting paragraph (a), a person is not entitled to a right, privilege, immunity or benefit, and must not exercise a power, under a law of a State or Territory to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular carrier, against a particular class of carriers, or against carriers generally;
(c) without limiting paragraph (a), a person is not required to comply with a law of a State or Territory to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular carrier, against a particular class of carriers, or against carriers generally.
Proceedings in the Environment Court
In the Environment Court the DAC submitted, as it did in this Court, that, in assessing the development against the provisions of the Development Plan,[11] there was an obligation on the respondent to prove a demand for the services provided by the 3G network in the area concerned (“demand need”), and not merely a need for a facility which could provide those services in a satisfactory manner in the area concerned (“facility need”). However, in its reply the appellant submitted that this was a misunderstanding of the argument and that the Development Plan requires development authorities to take into account demand need as a reason for approving a development which, in the absence of the provisions quoted above, might otherwise be refused approval because it would seriously impact on visual amenity. However the argument is put, it would seem to require some evidence of demand need before the assessment could be made. It was said that the requirement was based on the proper interpretation of the relevant objectives and principles of the Development Plan. It was submitted that the needs of the community referred to in Objective 87 meant the demand need, and that without proper weighing of such demand need the application must fail. It was further submitted that if such demand need were evident, it was to be weighed against the effect on visual amenity before consent could be granted. An applicant for approval for the installation of a telecommunications facility had to establish both demand need and facility need in the relevant locality.
[11] Development Act 1993 (SA), s 33.
The respondent, on the other hand, submitted that the Development Plan, properly construed, did not require proof of any demand need or weighing of that need against visual impact or, alternatively, that if it did, it was inconsistent with the provisions of the Telco Act, and was to that extent invalid.[12] It argued that there was a further inconsistency by virtue of the requirement to establish demand need, as that was discriminatory against carriers and was invalid by virtue of clause 44 of the 3rd Schedule of the Telco Act.
[12] Section 109, Constitution.
In its decision the Environment Court accepted the primary submissions of the respondent. The Court said:
It is not … the task of a planning authority in a planning assessment to assess the social utility of providing the latest generation of telecommunications services. The question to be addressed in a planning assessment is whether the particular facility proposed is needed to provide the service and, if so, whether it has been located and designed to minimise visual impact. The preference in the Development Plan for low impact facilities and for co-located facilities will enter into this assessment.[13]
[13] 3GIS v Development Assessment Commission & Anor [2006] SAERDC 89 at [27].
The Court went on to find that there was a need for a facility to cover the areas of poor reception. It then considered the impact of the proposed facility upon the visual amenity of the local environment and found that it had been minimised by the selection of tuft antennae, the setback of the monopole from Bonython Avenue, the placement of the monopole near existing mature vegetation and the proposed landscaping.
The Court then proceeded to compare the proposed location with two alternative sites which had been promoted by the DAC. One was for a low-impact facility on an existing electricity pole. The Court accepted evidence led on behalf of the respondent that it was not a practical alternative to the proposed development because it would not cover the whole of the area concerned, there would be problems associated with access to the antennae for maintenance purposes, and the location of the equipment shelter would need to be negotiated with an adjacent residential owner.
The other alternative was for a facility within the spire of a church. That was rejected because it would require a commercial arrangement with the church, might well involve substantial strengthening of the roof structure and would not completely address the coverage problems. The Court concluded that the two alternatives proposed did not meet the coverage needs of the respondent and there was no certainty that they could be undertaken.
The function of a Development Plan
There is a recognised and significant regime for the preparation and amendment of Development Plans contained in Part 3 of the Development Act.
In the first place, Division 1 of Part 3 requires that the appropriate Minister must ensure that a Planning Strategy for development within the State is prepared and maintained.[14] That Planning Strategy is prepared and reviewed following public advertisement and consultation.[15] There are other requirements attending the preparation and review of the Planning Strategy.[16]
[14] Development Act 1993 (SA), s 22(2).
[15] Ibid s 22(4).
[16] See generally ibid s 22.
Section 22(8) is significant for present purposes. It provides:
The Planning Strategy is an expression of policy formed after consultation within government and within the community and does not affect rights or liabilities (whether of a substantive, procedural or other nature).
The Planning Strategy is not an immediate reference document governing the assessment of particular developments, nor does it invalidate a Development Plan which might be said to be inconsistent with it.[17] However, it is obvious that the Planning Strategy will take account of the needs and demands of the community for a variety of services.
[17] Ibid s 22(10).
A Development Plan is developed and prepared under the provisions of Division 2 of Part 3 of the Development Act. Section 23(3) of the Act provides:
(3) A Development Plan should seek to promote the provisions of the Planning Strategy and may set out or include—
(a) planning or development objectives or principles relating to—
(i)the natural or constructed environment and ecologically sustainable development;
(ii)social or socio-economic issues;
(iii)urban or regional planning;
(iv)the management or conservation of land, buildings, heritage places and heritage areas;
(v)management, conservation and use of natural and other resources;
(vi)economic issues;
(b) provisions enabling the transfer of development rights between sites;
(c) material prescribed by the regulations;
(d) such other material relating to planning or development as may be appropriate.
A Development Plan will therefore take into account the identified needs and demands of the community in the area covered by the Development Plan and will reflect those needs and demands. So much is reinforced by s 23(3a):
(3a)A Development Plan may, in setting out objectives or principles under subsection (3)(a), describe the characteristics and other aspects of the natural or constructed environment that are desired within the community in order to provide clear directions with respect to development in the relevant area.
A council is also required from time to time to carry out periodic reviews for the purpose of determining the appropriateness of any Development Plan that applies in its area and the consistency of the Plan with the Planning Strategy.[18] The process of review prescribed by s 30 requires further public consultation and advice.[19]
[18] Ibid s 30(1).
[19] Ibid s 30.
The amendment of a Development Plan by a council is subject to wide-ranging requirements as to consultation and as to approval of the Minister.[20] Similar consultation and advice is required where a Development Plan is amended by the Minister.[21] All Development Plan amendments are open to Parliamentary scrutiny.[22] These processes are subject only to the Minister’s power to amend a Development Plan without observing those complicated procedures in cases where the amendment is minor and does not involve a change of policy.[23]
[20] Ibid s 25.
[21] Ibid s 26.
[22] Ibid s 27.
[23] Ibid s 29.
It follows that community needs for a variety of services will have been identified during the course of a number of processes that must be observed in the preparation and amendment of a Development Plan. One of the functions of a Development Plan is to give effect to the needs and demands so identified in an orderly, efficient and economic manner, and to set the directions in which those needs and demands may best be fulfilled in the area covered by the Plan.
The interpretation of the Development Plan
The processes involved in the preparation and amendment of a Development Plan will inform its proper interpretation.
The assessment of a particular development against the Development Plan has never required a reassessment of community needs or demands, and has never required proof of the types of community needs or demands for which the Development Plan provides directions for fulfilment. It is a decision for a developer whether a particular development will answer the needs and demands of the community. It is how a developer may provide for those needs and demands that engages the planning process provided by the Development Act and the several Development Plans prepared and adopted in accordance with the Act’s provisions. It is not for a developer to establish the need.
It follows that, where this Development Plan speaks of the needs of the community,[24] and in this case the communication needs of the community,[25] it is speaking of those needs which have been identified in the process leading up to the making and amendment of the Development Plan.
[24] See, for example, Objective 87.
[25] Principle 294(a).
I have already noted that the stated objectives of the Telco Act include the provision of reasonably accessible carriage services to all people in Australia wherever they reside or carry on business, and doing so as efficiently and economically as practicable, and at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community. The objectives of the Telco Act assume the need for advanced telecommunication services, and the Act provides for a number of coercive powers to be exercised in order to fulfil that need in the most efficient manner. That is one of the community needs which this Development Plan identifies as providing the background to the Plan, and in particular to that part of the Plan relating to telecommunications facilities. The relevant provisions of the Development Plan were prepared against the background of the scheme provided by the Telco Act, and with the objects of that Act in mind. So much is clear by the specific reference to the Act in the paragraphs which follow Objectives 87 and 88, and the description given to the Telco Act as being “pre-eminent” in relation to telecommunications facilities.
The Development Plan in respect of telecommunications facilities recognises that coercive powers will be exercised to fulfil that recognised need, and that in many cases, those powers will be exercised to the exclusion of the operation of State planning legislation. Consistent with the background which informs those provisions of the Plan, the Plan expressly recognises in the Objectives that telecommunications facilities are “an essential infrastructure required to meet the rapidly increasing community demand for communications technologies”. The demand is assumed. In order to meet that assumed demand the plan recognises the need for new facilities to be constructed. It specifically recognises that new development of facilities “will be unavoidable” in more sensitive areas “in order to achieve coverage for users of communications technologies”.
Where Objective 87 refers to the “needs of the community” and Principle 294(a) speaks of the need to locate and design facilities to meet the “communications needs of the community”, those provisions are referring to those needs acknowledged and assumed by the Development Plan, not to any demand need that must be established in respect of each particular application.
Telecommunications facilities are therefore to be constructed in the area covered by the Development Plan in order to satisfy the community need for access to the relevant telecommunications technologies. The concern of the Development Plan then is to ensure that those necessary facilities are constructed in a manner which ensures that coverage is available to satisfy the need, but in a way which minimises the visual impact of those facilities on the amenity of the local environment.[26]
[26] Objective 88.
It is not, as the appellant argued, a matter of balancing the impact of a particular development on the amenity against some demonstrated demand need. The demand need is given. The appellant relied for support in its argument on a passage from the judgment of Besanko J in Hutchison 3G Australia Pty Ltd v City of Mitcham.[27] That case involved an application for Development Act approval for a facility similar to this one. Besanko J was addressing provisions in another Development Plan which in all material respects were identical to those in this Development Plan. He said:
It seems to me that the assumption behind those provisions is that telecommunications facilities involving a tower are likely to be unsightly and low-impact facilities are likely to be less intrusive. However, the effect on visual amenity is not the only matter relevant to the planning assessment. The Plan recognises that in certain circumstances there will be a need for a telecommunications facility. The need might be for a facility in the general area or it might be for a particular facility in a particular location. The question of need is relevant to the planning assessment and is to be weighed against the effect on visual amenity. I think it is inherent in the question of need (which was an important part of the appellant’s case) that other options or alternatives be considered.[28]
[27] (2005) 141 LGERA 93; [2005] SASC 249.
[28] Ibid at 104, [45].
The assumption that Besanko J noted lay behind the provisions accords with the view I have already expressed. I also agree that the Plan recognises that in certain circumstances there will be a need for a telecommunications facility. What his Honour was clearly saying was that the relevant need to be considered was what I have described as the facility need, not the demand need. He was also saying that the weighing process, in the context he was discussing, was not a balancing of the need against the effect of a development on visual amenity but a weighing of available alternatives and options and the extent to which they would each minimise visual impact on the amenity of the locality.
It follows that the Environment Court was correct in holding that a planning authority was not required to assess the social utility of the 3G services provided by the respondent. The questions which it was required to address, and which the Court in due course did address, were whether this facility was needed to provide the service in the relevant area and whether it was located and designed to minimise the visual impact on the amenity of the locality.
The inconsistency arguments
The relationship of the Development Act and the Development Plan with the Telco Act is not unlike that which confronted this Court in City of Mitcham v Hutchison 3G Australia Pty Ltd & Ors[29] and the High Court on Appeal from this Court.[30] In their joint judgment the High Court made an observation which is equally pertinent to this case:
The present litigation concerns interaction between the Telco Act and legislation of South Australia. Whilst s 109 of the Constitution appears to have been invoked in the conduct of the case in the Supreme Court of South Australia, this was not decisive in the result reached there. In this Court, any reliance upon constitutional inconsistency was eschewed by the appellant and the appeal falls to be determined upon issues of construction of concurrently operating federal and State laws. However, the constitutional paramountcy of federal law is a contextual consideration that informs the resolution of the contested issues of interpretation argued in this appeal. Moreover, as will be shown, co-operation between the relevant federal and State instrumentalities is a policy mandated by both federal and State law.[31] [Emphasis added, footnote omitted]
[29] (2005) 91 SASR 111; [2005] SASC 78.
[30] Hutchison 3G Australia Pty Ltd v City of Mitcham (2006) 80 ALJR 711; (2006) 225 ALR 615; [2006] HCA 12.
[31] Ibid at [3].
As will be clear from what I have already said, the paramountcy or pre-eminence of the Telco Act is a contextual consideration that informs the proper interpretation of the Development Plan given effect by the State law. It is also evident from the Development Plan itself that it seeks to co-operate and to work in harmony with the Federal law, and that on the proper construction of the Development Plan there is no inconsistency by intrusion of the State law into the field covered by the Telco Act. Therefore, it is not necessary to address the respondent’s first alternative argument that, to the extent that the Development Act and the Development Plan required proof of demand need for 3G services, they are inconsistent with the Telco Act and, to the extent of the inconsistency, are invalid.[32]
[32] Section 109, Constitution.
For the same reason it is not necessary to consider the second alternative argument of the respondent based on clause 44 of the 3rd Schedule of the Telco Act. Nevertheless, it is desirable, in case I am wrong in my interpretation of the Development Plan, that some brief observations be made about these arguments.
In relation to the first argument, I do not consider that there would be an inconsistency. The installation of this facility is not authorised by the Telco Act. Clause 36(1) of Schedule 3 specifically preserves the operation of State law in respect of operations not authorised by Divisions 2, 3 and 4 of Part 1 of the Schedule. Clause 37 only renders State planning law inoperative in respect of an activity which is authorised by one of those divisions.
In my opinion it is insufficient to rely on the breadth of the stated objectives of the Telco Act, without more, in order to raise the necessary inconsistency. Something more in the operative provisions of the Act is required in order to do that. In Australian Mutual Provident Society v Goulden & Ors[33] the relevant provisions of the Anti-Discrimination Act 1977 (NSW) were not rendered invalid in respect of their operation on discriminatory provisions in a life insurance policy merely because the Commonwealth had enacted the Life Insurance Act 1945 (Cth) which regulated the issue of life insurance policies. The provisions of the State Act were invalid because it was the policy of the Commonwealth Act, and in particular the provisions of s 78 of that Act, which gave expression to –
… a legislative policy that the protection of the interests of policy holders is to be achieved by allowing a registered life insurance company to classify risks and fix rates of premium in its life insurance business in accordance with its own judgement founded upon the advice of actuaries and the practice of prudent insurers. In the words of Dixon J. in Victoria v. The Commonwealth (1937) 58 CLR 618, at p 630, it “would alter, impair or detract from” the Commonwealth scheme of regulation established by the Act if a registered life insurance company was effectively precluded by the legislation of a State from classifying different risks differently, from setting different premiums for different risks or from refusing to insure risks which were outside the class of risk in respect of which it wished to offer insurance. In particular, State legislation which, either absolutely or subject to qualifications and exceptions, made it generally unlawful for a life insurance company to take account of physical impairment in determining whether it would or would not accept a particular proposal or the terms upon which it would grant insurance cover would be inconsistent with the essential scheme of the provisions of the Act regulating the issue of policies and the fixing of premiums.[34]
[33] (1986) 160 CLR 330.
[34] Ibid at 337.
In respect of the installation of a facility which is not authorised by the Act, there is nothing in the Telco Act which gives effect to any policy which might be expressed in its objects. In Goulden the Court found that the Commonwealth had intended that registered life insurance companies should be free to set premiums based on actuarial advice but subject to Federal controls. It found that if the relevant provisions of the Anti-Discrimination Act 1977 (NSW) applied such companies would effectively be precluded from classifying risks and setting differential rates of premium according to the risks involved. The Court concluded:
If so applicable, the provisions of s. 49K(1) of the State Act would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Commonwealth Life Insurance Act for ensuring the financial stability of registered life insurance companies and their statutory funds and the financial viability of the rates of premium and other terms and conditions of the policies of insurance which they write in the course of their life insurance business. That being so, s. 49K(1) is inconsistent with the Commonwealth Act to the extent that it purports to apply to the life insurance business of registered life insurance companies.[35]
[35] Ibid at 339-40.
The position in the present case is plainly different from that which applies in respect of low-impact facilities and facilities in respect of which a facility installation permit has been granted. Section 41 of the Telco Act provides for the granting of licences authorising the use of a telecommunications network. The requirement to prove a demand need would not detract from the effectiveness of any such licence. The licence merely authorises the use of a network. It says nothing about the requirements for the installation of facilities.
Authority to carry out an activity granted by law of the Commonwealth does not mean that any State law can be ignored in the process. In Commercial Radio Coffs Harbour Ltd v Fuller & Anor[36] Wilson, Deane and Dawson JJ said:
The intention of the Commonwealth Act is to maintain the provision of high quality and technically efficient broadcasting services which are commercially viable and receptive to the needs of the community. It does so by the prohibition of broadcasting except under licence granted subject to certain conditions. But the relaxation of the prohibition by the granting of a licence does not confer an immunity from other laws, Commonwealth or State. The Act does not purport to lay down the whole legislative framework within which the activity of broadcasting is to be carried on. It is intended to operate within the setting of other laws with which the grantee of a licence will be required to comply. A useful example, which is specifically recognized by the Act in s.124, is the law of defamation, but, as we have recognized earlier, many other examples spring readily to mind. In the words of Dixon J. in Ex parte McLean (1930) 43 CLR 472, at p 483, the Act was intended to be "supplementary to or cumulative upon State law".[37]
[36] (1986) 161 CLR 47.
[37] Ibid at 57 – 58.
In Australian Broadcasting Commission v Industrial Court of South Australia & Anor[38] Gibbs J referred to a number of examples of State statute law which he considered would apply to the Australian Broadcasting Commission constituted under the Broadcasting and Television Act 1942 (Cth). He observed:
These are useful examples, and correctly state the position if no law of the Commonwealth reveals a contrary intention.[39]
[38] (1977) 138 CLR 399.
[39] Ibid at 403.
In relation to the operation of State planning legislation on telecommunications carriers, there is no contrary intention revealed in the Telco Act in respect of the installation of a facility which is not authorised by Part 1, Division 3 of Schedule 3. It follows that there would be no relevant intrusion by the State law into the field covered by the Telco Act in respect of the installation of this facility. The respondent’s primary argument based on inconsistency must therefore be rejected.
I turn to the alleged discriminatory effect of the operation of the Development Act and the Telecommunications Facilities provisions of the Development Plan on telecommunications carriers, and the effect of clause 44 of Schedule 3 of the Telco Act. The respondent contends that to the extent that the Development Plan requires proof of demand need it discriminates against telecommunications carriers when compared with the statutory exemption enjoyed by electricity and other infrastructure provides under ss 49 and 49A of the Development Act.
The views which follow must necessarily be tentative, because there is no factual material from which it could be determined whether exemptions granted to other utility providers are appropriate to the services they provide, in order to make an appropriate enquiry into discrimination between providers. However, some observations can be made about discrimination between telecommunication carriers and other developers in general.
In Bayside City Council & Ors v Telstra Corporation Ltd & Ors[40] a majority of the High Court considered that clause 44(1)(a) of Schedule 3 rendered invalid the levying of rates under the Local Government Act 1993 (NSW) on a telecommunications provider. The imposition of such rates was held to be discriminatory against telecommunications carriers because of the exemption from such rates of entities responsible for water supply and distribution and electricity and pipeline networks. Of the concept of discrimination embodied in clause 44 the majority said:
Discrimination is a concept that arises for consideration in a variety of constitutional and legislative contexts. It involves a comparison, and, where a certain kind of differential treatment is put forward as the basis of a claim of discrimination, it may require an examination of the relevance, appropriateness, or permissibility of some distinction by reference to which such treatment occurs, or by reference to which it is sought to be explained or justified. In the selection of comparable cases, and in forming a view as to the relevance, appropriateness, or permissibility of a distinction, a judgment may be influenced strongly by the particular context in which the issue arises. Questions of degree may be involved.[41] [Footnote omitted]
[40] (2004) 216 CLR 595; [2004] HCA 19.
[41] Ibid at 629 – 630, [40].
As to discrimination against Telecommunications carriers the Court said:
In relation to aerial cabling, which appears to be what primarily attracted the attention of the local authorities, the facilities installed by electricity authorities constitute an obvious basis of comparison. The fact that they are singled out in the Explanatory Memorandum confirms that the kind of discrimination with which cl 44 is concerned, in its reference to discrimination against carriers generally, is the subjection of carriers, in that capacity, to a burden of a kind to which others in a similar situation are generally not subject, and that a similar situation includes the use of public space for the installation and maintenance of facilities such as cables, pipes, ducts and conduits. In relation to underground facilities, the position is somewhat more complex, but gas pipelines in New South Wales are, apart from the facilities in question in this case, the exception to a general pattern of exemption.[42]
[42] Ibid at 630 – 631, [43].
We are not here concerned with an argument that the Development Act does not apply at all to a telecommunications carrier by virtue of the fact that other public utilities are exempted from equivalent elements of the Development Act regime. The respondent has expressly disavowed reliance on any such argument. The argument is limited to the alleged discriminatory effect of the Telecommunications Facilities provisions of the Development Plan.
In short, the argument is that to the extent that a demand need might be required to be established and measured against its effect on visual amenity, a telecommunications provider is singled out and treated differently from any other applicant for development approval. A carrier would be subject “to a burden of a kind to which others in a similar situation are generally not subject”.[43]
[43] Bayside City Council& Ors v Telstra Corporation Ltd & Ors (2004) 216 CLR 595 at 631; [2004] HCA 19 at [43].
The Telecommunications Facilities provisions of the Development Plan apply only to telecommunications carriers licensed under the Telco Act. No-one else is authorized to operate a facility. Whether the applicant for development approval is the carrier or a third party as lessor of the facility, it is a facility dedicated to a carriage service. The ability of the carrier to provide the service depends on the installation of the facility. The burden of establishing the relevant demand need will therefore fall on the carrier. Alternatively, it is the carrier and only the carrier who will be adversely affected if the burden is not discharged. No other applicant for development approval, including any other infrastructure provider, is required to prove such a need. The carrier is therefore singled out and treated differently from any other applicant for development approval.
Accordingly, on the information available and if it were necessary to do so, I would hold that the requirements of the Development Plan, insofar as they require proof of demand need in the area covered by the proposed facility, would be invalid by virtue of the operation of clause 44 of Schedule 3 as discriminating against carriers generally or at least the class of carriers who are required to obtain development approval for the installation of facilities in accordance with the requirements of the Development Act.
The role of visual amenity and alternative sites
The appellant argued that in dealing with an application for development approval for a telecommunications facility, a planning authority was required to weigh the demand need against the effect of the development on the visual amenity of the locality. As demand need is given and fixed, such a balancing or weighing process is inappropriate. There is, however, still a facility need which has to be considered, namely whether the demand need can properly be met in the area by existing facilities. It was common ground in this case that, in certain parts of Novar Gardens and Glenelg North, the facility need was not presently being met.
However, even that facility need is not appropriately the subject of a balancing or weighing process against the effect of the facility on the visual amenity.
The function of this part of the Development Plan is to ensure not only that the technological requirements for delivery of the service can be satisfied by a particular installation but that they can be satisfied in a way which minimises what are assumed to be adverse effects on the visual amenity of the locality. It is not a matter of balancing the facility need with the environmental effects and then deciding whether the facility should be installed.
The provisions of the Development Plan relating to telecommunications facilities are not cast in the form of weighing that need against any other objectives or principles of the Plan, such as Objective 82. It recognises and assumes that telecommunications facilities will have a detrimental effect on visual amenity. Objective 88 makes this clear when it speaks of locating and designing facilities “to minimise” visual impact on the amenity of the local environment. For that reason the Plan encourages the development of low-impact facilities where possible “to minimise” visual impact on local environments. It encourages construction of such facilities in industrial and commercial and appropriate non-residential zones, and it requires facility design and location to ensure that visual impacts on the amenity of local environments are “minimised”. Those objectives are developed further in Principles 294-298.
To the extent that a planning authority must ensure that the installation of a proposed facility will minimise the effect on the environment, the planning authority will need to consider, where alternative sites or low-impact facilities are suggested, whether that minimisation can be better achieved by installation of a facility at some other preferred site. But it will also need to consider whether that possible preferred site will meet the facility demand. If it will not, it may be discarded. There may be other reasons why a particular alternative site is inappropriate or impracticable.
The need to consider alternative sites in a somewhat different context, but one in which the need to minimise bushfire risk was included, was discussed by Doyle CJ in City of Burnside v City Apartments Pty Ltd.[44] The application there concerned a residential development in Hills Face Zone land on the western face of a spur of the Mount Lofty Ranges with views over the Adelaide Plains. The Chief Justice summarised the relevant parts of the Development Plan as follows:
In short, the provisions of the Plan emphasise preserving and enhancing or re-establishing the natural character of the zone, ensuring that development is unobtrusive and that excavation is kept to a minimum, and minimising bushfire risk.[45]
[44] [2004] SASC 294. Nyland and Gray JJ agreed with the Chief Justice.
[45] Ibid at [13].
As to the role of alternative sites in that case the Chief Justice said:
In a particular case there might be an obvious alternative site for proposed development which would clearly better meet the objectives and principles of the Plan. If that were so, that circumstance might affect the ERD Court’s assessment of the proposal before it. It would be a matter for the ERD Court to consider in a practical and commonsense fashion. However, it would remain the ERD Court’s task to assess the proposed development against the Plan, but bearing in mind, if it were the case, the existence of an alternative site that would accommodate the proposed development and that would better conform to the provisions of the Plan.
…
I agree with Mr Roder’s submission that it would not be possible for a relevant authority to assess a proposed development against the Plan if it had to consider a variety of different locations, and also changes to a proposed development to accommodate those different locations, with a view to deciding whether the hypothetical proposal would better conform to the provisions of the Plan than the proposed development.[46]
[46] Ibid at [31] and [33].
Similar considerations are appropriate to a case like the present where alternative sites are suggested. The Environment Court was required to consider only the proposed facility. It was not required to determine whether some alternative site with some modified form of development would be more environmentally sensitive. An alternative site would have to be a reasonably practicable alternative that would meet the facility demand. There would then need to be some assessment of the extent to which an alternative proposal might minimise the visual amenity. Nevertheless, the Court would have to decide about this proposal bearing in mind whether there is such a feasible alternative site.
As to the concept of minimising a particular factor, the Chief Justice said in City of Burnside:
The provisions in the Plan that speak of minimising bushfire risk, keeping excavation to a minimum, or minimising the obtrusiveness of buildings do not call for a different approach. As Mr Roder demonstrated, such terminology (that is the use of “minimise” and like expressions) is found in many provisions of the Plan. Such language calls for a planning authority to consider the relevant aspect of the proposed development (bushfire risk, obtrusiveness, the amount of excavation), the extent of or the impact of the relevant aspect, and whether the proposal has been developed in a manner that will contain or reduce the relevant aspect to an acceptable level, having regard to the relevant Objectives and Principles of the Plan. I recognise that this is an indefinite criterion, but it is nevertheless meaningful.[47]
That is the approach which was required to be adopted by the Environment Court in this case.
[47] Ibid at [35].
The decision of the Environment Court
Having been satisfied that there was a need for a facility to cover what had been described as the “trouble spot”, the Court proceeded to consider the impact of the proposal upon the visual amenity, and in particular the impact on the adjoining residential zone. There was material on which the Court could properly conclude, as it did, that the visual impact of the development on the amenity of the local environment was minimised by the nature of the antennae, the set-back of the pole from Bonython Avenue and its placement near existing mature vegetation, together with the proposed landscaping.
The Court then discussed the two alternative sites which had been suggested. One, it appears, would have been a low-impact facility on an electricity transmission pole. However, the evidence was that such a facility would not cover the whole trouble spot, and there were difficulties with maintenance and the location of the necessary equipment shelter. That was considered by the Court not to be a practical alternative to the proposal.
The other alternative was the installation of a facility within the spire of a local church. That was said to require a commercial arrangement being struck with the church, possible substantial strengthening works to the roof structure, and it too would not cover the whole trouble spot. The Court concluded that neither alternative would meet the coverage needs of the respondent, and there was no certainty that they could be undertaken in any event.
All those conclusions were open to the Court. It has not been demonstrated that the Court failed to take into account any relevant consideration or that it should have acted on other relevant considerations. There is no reason why those conclusions should be disturbed.
Conclusion
For these reasons the Environment Court made no error of law, and it made no error of fact which would justify the granting of leave to appeal. Accordingly, the appeal should be dismissed.
SULAN J: I would dismiss the appeal. I agree with the reasons of Bleby J.
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