Director of Housing v Hutchison 3G Australia Pty Ltd
[2003] VSC 310
•27 August 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 5474 of 2003
| DIRECTOR OF HOUSING | Appellant |
| v | |
| HUTCHISON 3G AUSTRALIA PTY LTD (ACN 096 304 620) | First Respondent |
| CITY OF PORT PHILLIP | Second Respondent |
---
JUDGE: | Balmford J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 & 5 August 2003 | |
DATE OF JUDGMENT: | 27 August 2003 | |
CASE MAY BE CITED AS: | Director of Housing v Hutchison 3G Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 310 | |
---
APPEAL FROM TRIBUNAL - Appeal made pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 – whether VCAT erred in law by construing a telecommunications facility as a “low-impact facility” – meaning of term “facility”– meaning of term “ancillary” – purpose of the Telecommunications Act 1997 (Cth) - power to consult extrinsic material pursuant to s.15AB of the Acts Interpretation Act 1901 – found not to be a “low-impact facility” – decision set aside – matter remitted to VCAT.
Acts Interpretation Act 1901 (Cth) – ss.15AB, 23(b), 46
Administrative Appeals Tribunal Act 1984 – s.52(1)
Housing Act 1983 – s.11
Planning & Environment Act 1987 – ss.114, 149A
Telecommunications Act 1997 (Cth) – cl.6(3) and cl.37 to Schedule 3, s.42
Victorian Civil and Administrative Tribunal Act 1998 – s.148
Coco v R (1994) 179 CLR 427
S v Crimes Compensation Tribunal [1998] 1 VR 83
Transport Accident Commission v Hoffman [1989] VR 197
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M Dreyfus QC with Mr P Connor | Hunt & Hunt |
| For the First Respondent | Mr J Gobbo QC with Mr J Pizer | Minter Ellison |
HER HONOUR:
Introduction
This is an appeal under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”) against an order made by the Victorian Civil and Administrative Tribunal (“the Tribunal”), on 24 March 2003, in its Planning List. By consent, leave to appeal was granted by this Court on 6 June 2003, pursuant to section 148 of the VCAT Act. There was no appearance for the second respondent (“the Council”).
The order of the Tribunal which is under appeal reads:
[In application P2157/2002]
1.A declaration is made pursuant to Section 149A Planning and Environment Act 1987:
A.The proposal by Hutchison 3G Australia Pty Ltd for a telecommunication facility which includes various ancillary components at 150 Inkerman Street, St Kilda is a low-impact facility as described in the Telecommunications (Low-impact Facilities) Determination 1997.
B.The proposal by Hutchison 3G Australia Pty Ltd for a telecommunications facility which includes various ancillary components at 150 Inkerman Street, St Kilda does not require a planning permit under the Port Phillip Planning Scheme.
[In application P2388/2002]
2.The application for an enforcement order pursuant to Section 114 Planning and Environment Act 1987 is refused.
3.Costs reserved. [Procedure for submissions as to costs.]
This appeal relates to what I will refer to, in order to avoid begging any questions as to its nature, as a “construction” installed by the first respondent (“Hutchison”) on the roof, and in the rooftop plant room, of a twelve storey residential building (“the building”). The building is vested in the appellant (”the Director”) pursuant to section 11 of the Housing Act 1983, and is situated at 150 Inkerman Street St Kilda. It appears that no planning permit was sought for the installation of the construction, and the Council, as responsible authority under the Port Phillip Planning Scheme, (“the planning scheme”) took the view that a permit was not required. The issue is whether the construction is a “low-impact facility” in terms of the Telecommunications (Low-impact Facilities) Determination 1997 (“the Determination”), as amended in 1999.
It was common ground that the legislation has the effect that a carrier may enter on the land of another and install a “low-impact facility” in disregard of the common law as to trespass, and in disregard of State legislation as to planning. The Tribunal, having found that the construction was a low-impact facility, necessarily found that its construction did not require a planning permit. Accordingly, it made a declaration to that effect and refused the Director’s application for an enforcement order seeking that the development of the proposal be stopped until planning permission was given.
Purpose of the legislation
The Determination was made in 1997 pursuant to clause 6(3) of Schedule 3 to the Commonwealth Telecommunications Act 1997 (“the Act”), the interpretation of which is governed by the Commonwealth Acts Interpretation Act 1901 (“the Interpretation Act”). By virtue of clause 6(10) of Schedule 3 the Determination is a disallowable instrument. Section 15 AB of the Interpretation Act reads:
15ABUse of extrinsic material in the interpretation of an Act
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
This provision does not expressly authorise the consideration of extrinsic material in order to ascertain the purpose of an Act, despite the provision in section 15AA of the Interpretation Act that a construction that would promote the purpose or object underlying the Act is to be preferred. Further, it is expressed to apply only to “the interpretation of a provision of an Act” and says nothing about the interpretation of subordinate legislation such as a disallowable instrument. Nevertheless, as the hearing proceeded on the basis of the submission of Mr Dreyfus, for the Director, which was unchallenged by Mr Gobbo, for Hutchison, that the purpose of the Determination and the enabling legislation is to reconcile the need for an efficient roll-out of telecommunications facilities with the community concern for the impact of the installation of those facilities, it is convenient to refer to such material as is available to give some background to that submission.
The Explanatory Statement relating to the original enactment of the Determination in 1997 (“the 1997 Statement”) does not include any direct indication as to the purpose of the Determination. However, the Regulation Impact Statement (“the 1999 Statement”) issued on the enactment of the amendment to the Determination (“the amendment”) in 1999 states that the purpose of the Determination is “to specify when a carrier can enter land and install a low-impact telecommunications facility without seeking approval under State and Territory laws”.
The 1997 Statement does explain that the Determination was drafted following a public enquiry lasting several months and a period of public comment on exposure drafts, and continues, under the heading “Overview of [the Determination]”:
The ‘low-impact’ list does not include any aerial cabling nor 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.
And later in the 1997 Statement the following appears:
The Determination contains a list of telecommunications facilities and activities that are essential to maintaining telecommunications networks and are unlikely to cause significant community disruption during their installation or operation. Adherence to provisions under the Determination facilitates rollout of sensitively designed carrier infrastructure which benefits the end-user.
The 1999 Statement also indicates that the amendment was enacted following the preparation of a discussion paper and the consideration of invited submissions. It refers to such matters as the effect upon visual amenity of the installation of facilities, the convenience of the occupiers of premises where facilities are installed, and the effect on property values of the installation of facilities.
The 1997 and 1999 Statements, read together, thus clearly support the unchallenged submission of Mr Dreyfus, set out in [6] above as to the purpose of the legislation. Although that purpose is nowhere expressly spelt out, it appears to be taken for granted in the text of both the 1997 and 1999 Statements. The conditions in the Determination requiring items to be colour-matched to the background or in a colour agreed in writing between the carrier and the local authority, and the limitations on the size of items, graded according to the nature of the area, are also consistent with that purpose.
The Legislation
The Determination, as has been said, was enacted in 1997 pursuant to clause 6(3) of Schedule 3 to the Act, and was amended in 1999.
Section 7 of the Act reads, so far as relevant:
7.Definitions
In this Act, unless the contrary intention appears:
.. .
“carriage service” means a service for carrying communications by means of guided and/or unguided electromagnetic energy.
. . .
”carrier” means the holder of a carrier licence.
“carrier licence” means a licence granted under section 56.
. . .
“facility” means:
(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.
.. .
“telecommunications network” means a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy.
By virtue of section 46 of the Interpretation Act those expressions have the same meaning in the Determination, being an instrument made under the Act, as they have in the Act. Section 42 of the Act provides that, with some exceptions not here relevant, the owner of a network unit (as defined in Division 2 of Part 2 of the Act) that is used to supply carriage services to the public must hold a carrier licence. It is not in issue that the first respondent (“Hutchison”) is a carrier as defined.
Clause 6 of Schedule 3 of the Act reads as follows, so far as relevant:
6.Installation of facilities
(1)A carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if:
(a). . . or
(b)the facility is a low-impact facility (as defined by subclause (3)); or
.. .
(2)If subclause (1) authorises a carrier to carry out a particular activity, the carrier may, for purposes in connection with the carrying out of that activity:
(a)enter on, and occupy, any land; and
(b)on, over or under the land, do anything necessary or desirable for those purposes, including, for example:
(i)constructing, erecting and placing any plant, machinery, equipment and goods; and
(ii)felling and lopping trees and clearing and removing other vegetation and undergrowth; and
(iii)making cuttings and excavations; and
(iv)restoring the surface of the land and, for that purpose, removing and disposing of soil, vegetation and other material; and
(v)erecting temporary workshops, sheds and other buildings; and
(vi)levelling the surface of the land and making roads.
(3)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.
.. .
(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 5 metres.
(6)To avoid doubt, a reference in subclause (5) to a tower does not include a reference to an antenna.
.. .
(10)A determination under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Clause 37 of Schedule 3 provides that if an activity carried on by a carrier is authorised by (inter alia) clause 6 of the Schedule, the carrier may engage in the activity despite a law of a State or Territory about any of a number of specified matters, which include town planning, the use of land, and tenancy.
The relevant provisions of the Determination (as amended in 1999) are set out below. It is not in issue that, for the purposes of column 3 of the Determination, the building is in a residential area as defined in the Determination and it is not necessary to set out the provisions relevant to that definition.
Part 1Preliminary
1.3Definitions
In this determination:
.. .
“in-building subscriber connection equipment” means a facility installed within a building with the aim of managing and maintaining the supply of carriage services to a customer of a carrier;
. . .
“subscriber connection” means an installation for the sole purpose of connecting premises to a telecommunications network;
. . .
“tower” means a tower, pole or mast;
. . .
Part 3Low-impact facilities
3.1Facilities
(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.
.. .
(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.
SCHEDULE
FACILITIESAND AREAS
PART1¾RADIO FACILITIES
| Column 1 Item no. | Column 2 Facility | Column 3 Areas |
| 1 | Subscriber connection deployed by radio or satellite terminal antenna or dish: (a) not more than 1.2 metres in diameter; and (b) 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 Rural |
| 1A | [As item 1 but antenna or dish not more than 1.8 metres in diameter] | Industrial Rural |
| . . . | ||
| 3 | Panel, yagi or other like antenna: (a) not more than 2.8 metres long; and (b) if the antenna is attached to a structure¾protruding 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 Rural |
| . . . | ||
| 5 | Radiocommunications dish: (a) not more than 1.2 metres in diameter: and (b) either: (i) colour-matched to its background; or; (ii) in a colour agreed in writing between the carrier and the relevant local government authority: and (c) if attached to a supporting structure, the total protrusion from the structure is not more than 2 metres | Residential Commercial Industrial Rural |
| 5A | [As item 5 but dish not more than 1.8 metres in diameter] | Industrial Rural |
| . . . | ||
| 8 | Equipment installed inside a structure, including an antenna concealed in an existing structure | Commercial Industrial Rural |
| . . . |
PART2¾UNDERGROUND HOUSING
.. .
PART3¾ABOVE GROUND HOUSING
| . . . | ||
| 4 | Equipment shelter: (a) not more than 2.5 metres high; and (b) with a base area of not more than 5 square 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 Rural |
| 5 | Equipment shelter: (a) used solely to house equipment used to assist in providing a service by means of a facility 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 | Residential Commercial Industrial Rural |
6 | In-building subscriber connection equipment | Residential Commercial Industrial Rural |
| . . . |
State planning provisions
The relevant planning provisions are contained in the planning scheme, under which the building is located in a Residential 1 zone (which leads to its being classified as in a residential area for the purposes of the Determination). Clause 52.19-2 of the planning scheme relevantly provides:
52.19-2Permit requirement
A permit is required to construct a building or construct or carry out works for a Telecommunications facility.
This does not apply to:
§ Buildings and works associated with:
qA low-impact facility as described in [the Determination].
q. . .
qAny Telecommunications facility described in A Code of Practice for Telecommunications Facilities in Victoria which complies with the requirements of the Code.
§ Buildings and works associated with activities which are:
qAuthorised under Clause 6(2) of [Schedule 3 of the Act]
q. . .
“Telecommunications facility” is defined in clause 74 of the planning scheme in effectively the same terms as the definition of “facility” in the Act.
Thus a permit under the planning scheme is not required for buildings and works associated with a telecommunications facility which is a low-impact facility in terms of the Determination, or a telecommunications facility which complies with the requirements of the Code of Practice for Telecommunications Facilities in Victoria (“the Victorian Code”) or with activities authorised under clause 6(2) of Schedule 3 of the Act.
The relevant provisions of the Victorian Code read as follows:
4. Principles for the design, siting, construction and operation of telecommunications facilities
[omitting explanatory detail]
4.1A Telecommunications facility should be sited to minimise visual impact.
4.2Telecommunications facilities should be co-located wherever practical.
4.3Health standards for exposure to radio emissions will be met.
4.4Disturbance and risk relating to siting and construction should be minimised.
Construction activity and site location should comply with State environment protection policies and best practice environmental management guidelines.
5. Telecommunications facilities which may be developed without the need for a planning permit
.. .
5.2An above ground housing
An above ground housing is an above ground equipment shelter housing telecommunication infrastructure. An above ground housing includes:
· a pillar
· a cabinet
· a pedestal
· an elevated joint
· minor street furnishings
· marker posts
· a remote integrated multiplexer
Requirements
1.The design, location, installation and operation must be in accordance with the principles set out in section 4 of this code.
.. .
5.9A telecommunications facility located inside a building, structure or tunnel
A telecommunications facility located inside a building, structure or tunnel is a facility located so that it is not visible from outside the building, structure or tunnel or which is included in or integrated with the building, structure or tunnel in such a way as to have the appearance of being part of the building, structure or tunnel.
Requirements
1.The design, location, installation and operation must be in accordance with the principles set out in section 4 of this code.
2.The facility must be located wholly within the building, structure or tunnel or must be integrated with the building, structure or tunnel in such a way as to have the appearance of being part of the structure.
Evidence
Mr Bell, an engineer who is responsible for project delivery of the Hutchison’s telecommunications network, was the sole witness called by Hutchison before the Tribunal. His statement of 19 November 2002 relevantly reads as follows:
4.I have been provided with a map prepared by Hutchison’s radio frequency engineers . . . [which] shows an area . . . that does not have radio signal coverage for our networks. There is a ‘hole’ in the coverage. It was therefore necessary to locate a site for a base station with antenna to provide coverage to cover this hole in the networks, to provide network coverage to users of the networks. Site selection involved finding a site with the necessary characteristics to provide this coverage.
5.Radio signals must be of a sufficient level to allow communication. The siting of base stations plays a crucial role in delivering these levels, ensuring network quality. When planning for a new base station it is necessary to take into account factors including the distance between the mobile handset and the proposed base station, antenna height of the base station, local terrain and any physical obstructions to signals. Computer modelling and field visits are used to identify suitable candidates. This site was selected after a detailed candidate assessment.
6.I have been provided with plans by Hutchison’s radio frequency engineers . . . showing the impact on coverage for our networks with the addition of antenna on the rooftop of [the building]. It can be seen from the map that installing antenna to transmit and receive radio signals at this location (with some minor gaps) provides coverage to deal with the existing hole in the networks. The elevation provided by the building . . . allows for the coverage required. It represents the minimum height required to satisfy service coverage requirements.
7.The radio signal process is as follows:- the handset sends a signal to a panel antenna on the roof which goes through the feeder cable to the Base Transceiver Station (BTS) and the transmission rack. From there the signal for the Hutchison 3G network for example travels via the parabolic microwave antenna (PMA) to the switch centre at the Rialto building in Collins Street. The signal is then passed via PMA to another base station site to the end caller. The end caller’s signal goes back to the switch centre, then back to the transmission rack, via the PMA, the BTS, feeder cable, the panel antenna and then to the handset.
8.Antenna have been installed but are not yet operational. The site is divided into three sectors, . . . Each sector is serviced by one panel antenna with each antenna being connected to the BTS by two radio frequency feeder cables (RFFC). . . . These RFFC run from the antenna to the fitout room.
10.. . . the site was redesigned to reflect the Director of Housing’s preference that the feeder cable tray (accommodating the RFFC and transmission cables) not be located on top of the roof so they were attached to the parapet wall . . .
12.The fitout room houses the supporting equipment for both Hutchison networks. Originally it was proposed to have it as a freestanding equipment shelter on the roof. However the Director of Housing preferred that the equipment be placed in the existing plant room at the roof level. Free space was available in the plant room to accommodate an enclosed fitout room. A new wall was constructed within the existing structure, with a door so that the equipment is closed off and secured from the rest of the plant room.
13.The fitout room contains the following equipment:
1)Rectifiers and batteries – these are used for ‘back up’ power i.e. if the mains power is cut off they will run the networks for two hours.
2)Transmission racks – these are the microwave links to the network switch sites.
3)The BTS which provides the cellular mobile services to customers.
4)The power supply.
5)Air conditioners to maintain constant temperature and to regulate dust.
. . .
14.The other equipment installed on the roof is as follows:
1)Walkways – required for occupational health and safety reasons to access the antenna and to ensure there is no damage to the roof structure. . . .
2)Feeder Cable trays – these are fixed against the parapet and carry the RFFC and the transmission cables.
3)Hand rails – in conformance with occupational health and safety legislation.
4)Signage – in conformance with occupational health and safety legislation.
5)Outdoor units for air conditioners.
It is apparent from Mr Bell’s further statement dated 20 November 2002 that there are seven antennas in all. (I note that he explains that the word “antenna” is used by him in the singular and the plural. I have not adopted that usage elsewhere in these reasons for judgment.)
Grounds of appeal
The grounds of appeal set out in the appellant’s notice of appeal are as follows:
1.The Tribunal erred in law by failing to properly construe the meaning of Item 8 of Part 1 of the Schedule to the Telecommunications (Low-impact Facilities) Determination 1997 in its consideration of the equipment room installed by the respondent within the appellant's building at 150 Inkerman Street St Kilda.
2.The Tribunal erred in law by failing to properly construe the meaning of Item 5 of Part 3 of the Schedule to the Telecommunications (Low-impact Facilities) Determination 1997 in its consideration of the equipment room.
3.The Tribunal erred in law in finding that the equipment room falls into the category of a low impact facility described in Item 5 of Part 3 of the Schedule to the Telecommunications (Low-impact Facilities) Determination 1997 because it was not reasonably open to the Tribunal to make that finding.
4.The Tribunal erred in law by failing to properly construe the meaning of Item 6 of Part 3 of the Schedule to the Telecommunications (Low-impact Facilities) Determination 1997 in its consideration of the equipment room.
5.The Tribunal erred in law in finding that the equipment room falls into the category of a low impact facility described in Item 6 of Part 3 of the Schedule to the Telecommunications (Low-impact Facilities) Determination 1997 because it was not reasonably open to the Tribunal to make that finding.
6.The Tribunal erred in law by failing to properly construe the meaning of section 3.1(4) of the Telecommunications (Low-impact Facilities) Determination 1997 in its consideration of the equipment room.
7.The Tribunal erred in law in finding that the equipment room falls into the category of a low impact facility for the purposes of section 3.1(4) of the Telecommunications (Low-impact Facilities) Determination 1997 because it was not reasonably open to the Tribunal to make that finding.
8.The Tribunal misdirected itself by considering Item 5 of Part 1 of the Schedule to the Telecommunications (Low-impact Facilities) Determination 1997 in considering the poles installed by the respondent on the rooftop of the appellant's building at 150 Inkerman Street St Kilda.
9.The Tribunal erred in law by failing to properly construe the meaning of the Telecommunications (Low-impact Facilities) Determination 1997 in its consideration of the poles installed by the respondent on the rooftop of the appellant's building at 150 Inkerman Street St Kilda.
10.The Tribunal erred in law in finding that the poles fall into the category of a low impact facility for the purposes of section 3.1(4) of the Telecommunications (Low-impact Facilities) Determination 1997 because it was not reasonably open to the Tribunal to make that finding.
11.The Tribunal erred in law by failing to properly construe the meaning of the Telecommunications (Low-impact Facilities) Determination 1997 in its consideration of cables installed by the respondent on the rooftop of the appellant's building at 150 Inkerman Street St Kilda.
12.The Tribunal erred in law in finding that the cables fall into the category of a low impact facility for the purposes of section 3.1(4) of the Telecommunications (Low-impact Facilities) Determination 1997 because it was not reasonably open to the Tribunal to make that finding.
Appeal on a question of law
By virtue of section 148 of the VCAT Act, an appeal to this Court from a decision of the Tribunal lies only on a question of law. Essentially, the submission of the plaintiff is that there was no evidence on which the Tribunal could come to the conclusion to which it came, namely that the construction was a low-impact facility. Mr Dreyfus relied on the well-known passage from the judgment of Young CJ and McGarvie J in Transport Accident Commission v Hoffman[1], where the Court was concerned with the provision in section 52(1) of the Administrative Appeals Tribunal Act 1984 that a party to a proceeding might “appeal to the Supreme Court, on a question of law, from a decision of the [Administrative Appeals] Tribunal in that proceeding”. Their Honours said:
The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal’s decision. . . . This construction . . . would . . . allow an appeal upon the question whether there was any evidence upon which the Tribunal could have reached the decision which it did reach.
[1][1989] VR 197 at 199
He then referred to the judgment of Phillips JA in S v Crimes Compensation Tribunal[2] where His Honour said:
Similarly, if clear about the meaning of the relevant statutory provision, the court might conclude that the facts in evidence were such that they led only to one result as to the application or not of the statutory description in the particular circumstances of the case; and if the decision below was to the contrary, that decision will be set aside for error of law on the footing that the necessary findings were not open or the meaning of the relevant statutory description must have been misunderstood. Either way the decision is set aside for error of law.
. . .
Thus, where an appellant’s concern centres on a finding or an inference of fact made by the Appeals Tribunal, that concern can be canvassed on an appeal under section 52 of the Administrative Appeals Tribunal Act if it is contended that that finding or that inference, and in consequence the tribunal’s conclusion in so far as it depended upon that finding or that inference, were not open to the tribunal. Ordinarily, anything less than that will not raise a question of law where the complaint is essentially about a finding of fact.
[2][1998] 1 VR 83 at 92
“Facility”
At first glance the definition of “facility” in the Act [3] is extremely wide, and certainly takes the word far beyond its natural and ordinary meaning. The closest meanings in The Macquarie Dictionary [4] are:
1.something that makes possible the easier performance of any action; advantage: transport facilities; to afford someone every facility for doing something.
9.a building or complex of buildings, designed for a specific purpose, as for the holding of sporting contests.
The ascertainment of the proper meaning of a word defined in such a special sense is clearly a question of law. [5]
[3]set out in [12] above
[4]third edition 1997
[5]S v Crimes Compensation Tribunal [1998] 1 VR 83 at 88 per Phillips JA
It is to be noted that the definition of “facility” appears in the Act, which in its current reprint has 485 pages; it is not a definition applying purely to the Determination. At first glance, the inclusion of the word “thing” would indicate that, for example, a spanner used by a technician employed on duties in connection with a telecommunications network would be a “facility” within the meaning of the definition. However, the references to “facilities” in, for example, sections 14, 374, 411, 443, and 447, clause 17 of schedule 1, part 6 of schedule 1, and part 1 of schedule 3 of the Act, would indicate that a facility is something which can be operated, to which equipment can be connected, to which access can be given, which can be inspected and which can be installed. The definition is to be interpreted, by the application of the ejusdem generis rule [6] , in the light of those and similar provisions in the Act.
[6]as to which see Pearce & Geddes Statutory Interpretation in Australia 4th edition at 100-104
This appeal is concerned with the effect of the legislation as possibly obviating the need for Hutchison to obtain a planning permit for the construction. However, it is important to remember that the classification of the construction as a “low-impact facility” also entitled Hutchison to disregard the common law as to trespass, and to install the construction on the property of the Director.
In Coco v R[7] Mason CJ, Brennan, Gaudron and McHugh JJ said:
Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. . . . Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct. . . . But the presumption is rebuttable and will be displaced if there is a clear implication that authority to enter or remain upon private property was intended. Such an implication may be made, in some circumstances, if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, as Gaudron and McHugh JJ observed in Plenty v Dillon (1991) 171 CLR at 654:
(I)nconvenience in carrying out an object authorized by legislation is not a ground for eroding fundamental common law rights.
[7](1994) 179 CLR 427 at 435-436
The definition of “facility” is not unmistakable or unambiguous, and nor is clause 37 of Schedule 3 to the Act, although the meaning of clause 6(1) of that Schedule is clear. In the circumstances, the definition of “facility” should, where there is doubt, be interpreted narrowly rather than widely, given that its interpretation is related to the power of a carrier to invade the property of another person for the installation of a “facility”. The balancing required by a consideration of the purpose of the legislation, as appearing from [5] to [10] above, must also be borne in mind.
Paragraph (b) of the definition of “facility” in the Act specifies a number of individual objects, any of which, standing separately, may need to be regarded as a separate “facility” for the purposes of any one of the various provisions of the Act in which that word appears. However, where, as here, the evidence is that a group of such objects are installed together, in one place, physically connected to each other as described by Mr Bell, in order to carry out one single purpose, it does not appear to me that the legislation is intended to have the effect that each of those objects is to be considered separately, in order to ascertain whether it is a “low-impact facility”. It is not necessary to strain the meaning of the definition to find that together the group of objects constitutes a “part of the infrastructure of a telecommunications network” in terms of paragraph (a) of the definition of “facility”; or “any equipment” in terms of paragraph (b) of that definition.
Mr Bell speaks of the need to “locate a site for a base station with antenna” (his paragraph 4), of “the distance between the mobile handset and the proposed base station”, and of “antenna height of the base station” (his paragraph 5). The radio signal travels from the user’s handset to the antenna to the base station (his paragraph 7). What is to be placed on the site is the base station, apparently incorporating the antennas, two parts of the same whole, linked by the cable.
When the considerations set out in [24] to [30] above are taken into account, it seems to me that, as Mr Dreyfus submitted, the conclusion to be drawn from the evidence of Mr Bell, read as a whole, as to the purpose of the installation of the construction on the building and the nature of the construction is that what has been installed on the building is one facility, namely a base station with antennas, with one purpose, namely to fill the “hole” in radio signal coverage for Hutchison’s networks.
If the construction is considered as one “facility”, it is apparent that it does not fall within any of the relevant items of “low-impact facility” appearing in the Schedule to the Determination. There is no item consisting of “a base station with antennas”.
“Ancillary”
Subsection 3.1(4) of the Determination deals with “a facility that is ancillary to a facility covered by subsection (1)”, i.e. a facility that is ancillary to a low-impact facility. The adjective “ancillary” is not defined in the Act or the Determination, and its natural and ordinary meaning appears from the definition in The Macquarie Dictionary [8] as “accessory; auxiliary”. Subsection 3.1(4) was introduced into the Determination by the amendment, and the 1999 Statement relevantly reads:
Ancillary facilities
Ancillary facilities are used to protect a telecommunications facility from damage, and technicians and the general public from injury, while having little or no impact upon the visual amenity of the area. These facilities may include facilities such as security fences or facility supports designed to elevate a low-impact facility above potential flood levels in rural areas.
The Code [9] requires a carrier to protect the safety of persons and property when carrying out its operations (see Part 2 of Chapter 2 of the Code). For clarity, this amendment specifically defines ancillary facilities as low-impact if used solely for protection and/or safety purposes. The intention of this amendment is to ensure that installation of such facilities is not subject to local planning approval and that potentially dangerous situations are avoided in all zoning areas.
[8]see fn. 4 above
[9]The Code of Practice 1997, clearly a Commonwealth publication, and unrelated to the Victorian Code referred to in [17] to [19] above
The first paragraph of that passage seems to be intended to limit the meaning of “ancillary” in subsection 3.1(4) to the protective function described. However, to take that paragraph into account would be to introduce into the subsection an ambiguity which it does not contain. To interpret “ancillary” in accordance with the passage from the 1999 Statement would be to use extrinsic material to introduce an ambiguity, and then to resolve the ambiguity by reference to the extrinsic material, so that the Statement comes to override the Determination in a context where no ambiguity existed until the Statement was consulted. This is not a permissible use of the power to consult extrinsic materials conferred by section 15AB of the Interpretation Act, even were that provision available in the interpretation of the Determination.
If that passage from the Statement is ignored, the effect of subsection 3.1(4) is clear. A facility, within the meaning of the definition in the Act, which is accessory or auxiliary to a low-impact facility, is itself only a low-impact facility if installed solely for the protection or safety of the low-impact facility or of persons or property. It is clear that the issue as to whether an object is an ancillary facility only arises if it can be found to be ancillary to a low-impact facility.
The Decision of the Tribunal
In its formal order the Tribunal describes the construction as “a telecommunication facility which includes various ancillary components”; i.e. as one facility. However, in the reasons for that order (“the reasons”), it deals separately with a number of components (not all of them “ancillary”, in the ordinary meaning of the word) of the construction, treating each as a separate facility. It does not appear to have considered the question as to whether the construction consists of one facility or a number of facilities. In my view the Tribunal, in approaching the issue before it as requiring separate consideration of the component parts of the construction, misunderstood the meaning of the Act and the Determination. Further, the evidence of Mr Bell, as I have said, stresses the unity of the construction and its purpose, and does not support the separate consideration of its various components.
However, in case I am wrong in my finding set out in [31] to [32] above that the construction constitutes one facility, and that it is not a low-impact facility, I turn to consider the approach of the Tribunal. I note that the Tribunal found that there was one parabolic antenna, described by Mr Bell in his statement of 19 November 2002 as a radiocommunications dish. The Tribunal expressly found [10] that antenna to be a low-impact facility within the meaning of item 5 of Part 1 of the Schedule to the Determination, and that finding is not challenged by the appellant. The Tribunal dealt with the remaining antennas in the context of their protrusion from the building, and while not making a formal finding that they are low-impact facilities, the Tribunal appears to have intended to do so. [11] Again, there is no claim by the Director that the antennas were not low-impact facilities, and I say no more about them, save as they are relevant to the findings of the Tribunal relating to “ancillary facilities”.
[10]at paragraph 45
[11]at paragraph 44
The Tribunal considered separately the fitout room (described by the Tribunal as “the equipment room”), the poles on the roof to which the antennas are attached, the cables installed on the rooftop, the handrails and walkways on the roof, and the antennas. This appeal relates only to the fitout room, the poles and the cables. In considering the fitout room, the Tribunal also considered the equipment which it contains.
The Tribunal initially found [12] that the fitout room fell within item 5 of Part 3 of the Schedule to the Determination. However, Hutchison conceded at the hearing before the Court that this was an error in that the size of the fitout room exceeded the prescribed size for that item.
[12]at paragraph 24
The Tribunal also found [13] that the fitout room would fall within item 5 of Part 3 of the Schedule as “in-building subscriber connection equipment”. To repeat the relevant definitions appearing in the Act and the Determination, which are set out in [12] and [16] above:
“carriage service” means a service for carrying communications by means of guided and/or unguided electromagnetic energy.
“in-building subscriber connection equipment” means a facility installed within a building with the aim of managing and maintaining the supply of carriage services to a customer of a carrier; and
“subscriber connection” means an installation for the sole purpose of connecting premises to a telecommunications network;
[13]at paragraph 25
Mr Dreyfus submitted that the fitout room could not fall within any item in Part 3 of the Schedule to the Determination, because Part 3 deals with “Above Ground Housing” which must refer to structures which rest on the ground. However, it seems to me that that heading is intended to contrast with Part 2 of that Schedule, dealing with “Underground Housing” and must be intended to refer to all facilities which are above ground rather than under ground.
Nevertheless, the definition of the expression “in-building subscriber connection equipment” is not without its difficulties. Section 23(b) of the Interpretation Act provides that “unless the contrary intention appears”, words in the singular number in any Act include the plural. That provision is, as I have said, not expressed to apply to a disallowable instrument. Even if that were not the case, I am inclined to the view that an intention appears that the word “customer” in that definition is not to include the plural. If that word read “customers” the meaning of the expression would be extremely wide.
If the three relevant definitions set out in [40] above are read together, on the basis that “customer” means what it says, and does not mean “customers”, the expression “in-building subscriber connection equipment” would appear to be intended to describe equipment installed within a building for the sole purpose of connecting the premises of a single customer, not necessarily limited to premises in that building, to a telecommunications network. It was submitted in effect that the phrase “subscriber connection”, defined as referring to the connection of premises to a network, had been deliberately omitted from the definition, and therefore should be ignored. However, that phrase is part of the name of the expression which is defined, and must be incorporated into the definition. It is clear from the evidence of Mr Bell that the construction has been installed for dealing with the supply of services to users of mobile handsets, not to occupiers of premises as such. That being so, neither the fitout room, nor the equipment which it contains, described in paragraph 13 of Mr Bell’s evidence appearing in [20] above, is “in-building subscriber connection equipment”, and the Tribunal, in finding otherwise, misconstrued the meaning of that expression.
The evidence is that the fitout room was installed, by the addition of a wall inside the plant room already on the roof of the building, in order to house certain equipment. It could be regarded as ancillary, in the ordinary sense of the word, to the equipment installed inside it. If that equipment is found to be “low-impact” within the meaning of the Determination, and the fitout room is found to have been installed solely to ensure the protection or safety of the low-impact facility or of persons or property in close proximity to the low-impact facility in terms of subsection 3.1(4) of the Determination, then the fitout room would itself be a low-impact facility. The Tribunal does not seem to have considered that issue.
So far as the equipment in the fitout room is concerned, “equipment installed inside a structure” falls within item 8 of Part 1 of the Schedule to the Determination, and is a “low-impact facility” only if installed in other than a residential area. The fitout room was created by building a wall inside the existing plant room on the roof of the building, and can be described as a “structure”. The Tribunal found that the equipment in the fitout room was ancillary to the antennas, which are a low-impact facility. That may be arguable, in terms of the ordinary sense of “ancillary”. However, the purposes of the installation of that equipment appear from Mr Bell’s evidence, and it is clear that it was certainly not solely, if at all, installed in order to ensure the protection or safety of the antennas or of persons or property. The equipment installed in the fitout room includes the base station itself. Thus that equipment does not become “low-impact” in terms of the test for an ancillary facility, and the Tribunal there appears to have misconstrued that test.
The Tribunal then considered the poles which attach the antennas to the roof. There is no item in the Determination which specifically describes poles. The Tribunal found the poles to be a facility ancillary to the antennas, which were low-impact facilities and continued, [14] ”As a facility it [sic] ensures that the antenna does not protrude from the structure more than 3 metres and in doing this it does not exceed a height of 5 metres”. Clause 6(5) of Schedule 3 of the Act prohibits specifying in a determination under clause 6(3) of that Schedule a tower more than 5 metres in height. The Tribunal there seems to have been proceeding on the incorrect basis that that prohibition was in fact incorporated in the Determination, so that a pole 5 metres or less in height would be a low-impact facility.
[14]at paragraph 29
It appears, although the passage [15] is not entirely clear, that the Tribunal also found that the poles were “used to ensure a facility as itemised [i.e. a facility which is low-impact by virtue of falling within one of the items in the Determination, in this case the antennas] is securely attached to a building and ensures that the low-impact facility is protected under the provisions of Part 3.1(4) of the Determination”.
[15]at paragraph 29
However, that does not amount to a finding that the poles were installed solely to ensure the protection or safety of the low-impact facility [the antennas] or of persons or property in close proximity to [the antennas], and again it appears that the Tribunal has misunderstood the statutory definition with which it was concerned.
As to the cables, the Tribunal found [16] that they had been installed on the parapet wall of the roof “to ensure the roof area is kept clear and/or safe”, and appears to have assumed, without formally deciding, that they were ancillary, in the ordinary sense of the word, to the antennas, and were low-impact by virtue of that being the purpose of their installation. However, the evidence of Mr Bell does not establish that the cables were installed solely to ensure protection and safety within the meaning of subsection 3.1(4) of the Determination, which would render them low-impact facilities. Safety may have been the reason for their positioning on the parapet, rather than anywhere else, but the evidence is clear that they were installed on the building in order to carry signals from the antennas on the roof to the Base Transceiver Station. They may be regarded as ancillary, in the ordinary sense, to the antennas, but do not satisfy the requirement of a low-impact ancillary facility, which the Tribunal appears to have misconstrued.
[16]at paragraph 34
In addition, the Tribunal found [17] that “the placement of cables” . . . would also fall within the provisions of Clause 6(2)(b) . . . [of] Schedule 3 . . . being the placing of equipment for the purposes [sic] in connection with the carrying out of the activity of installation of a low-impact facility”. However, as Mr Gobbo, rightly, conceded, subclause 6(2) cannot be used to render low-impact a facility which is not otherwise low-impact. The operation of that provision depends on an authorisation under subclause 6(1) to carry out a particular activity; in this context, to install a low-impact facility, as defined by subclause 6(3), in effect by the Determination.
[17]at paragraph 37
It is not in issue that the antennas constitute low-impact facilities. However, when the evidence is considered in the context of the provisions of the Determination, none of the fitout room, the equipment in the fitout room, the cabling, or the poles, all of which are essential to the fulfilment of the purpose for which the construction was installed on the roof of the building, constitutes a low-impact facility in terms of the legislation.
Accordingly, considering the matter, as the Tribunal did, on the basis that the construction consists of a number of facilities, in terms of the definitions, leads me in effect to the same conclusion as did my own finding that the construction was one facility only; namely that the construction is not a low-impact facility in terms of the definition.
In view of what has been said earlier in these reasons for judgment, it is not necessary to consider separately the various grounds set out in the notice of appeal.
However, the Tribunal also found [18] that the installation of the cabling could fall within “buildings and works associated with a low-impact facility” under clause 52.19-2 of the planning scheme, so that no planning permit was required, but that such a finding was not necessary because the cabling was “covered by provisions of the Commonwealth legislation”. That is the only reference in the reasons to the provisions of the planning scheme; having found that the construction was a ”low-impact facility” in accordance with the Commonwealth legislation, and accordingly that no planning permit was required, the Tribunal did not need to consider further the provisions of the planning scheme.
[18]at paragraph 35
While I have found that the construction is not a “low-impact facility” in terms of the Commonwealth legislation, it is still open for the Tribunal to find that it falls within the provisions of the Victorian Code, so as not to require a planning permit. I accept the submission of Mr Gobbo that it is appropriate to remit the matter to the Tribunal for reconsideration in the light of these reasons and the provisions of the planning scheme. I do not consider it appropriate that further evidence be called at this stage.
Conclusion
The decision of the Tribunal will be set aside and the matter remitted to the Tribunal, differently constituted, to be heard and decided again in the light of these reasons for judgment and the provisions of the Port Phillip Planning Scheme. Counsel may wish to make submissions as to the form of the orders and as to costs.
21
0
0