Exceland Pty Limited v North Sydney Council

[2006] NSWLEC 84

Land and Environment Court

of New South Wales

CITATION:

Exceland Pty Limited v North Sydney Council [2006] NSWLEC 84

PARTIES:

APPLICANT
Exceland Pty Limited
RESPONDENT
North Sydney Council

FILE NUMBER(S):

11367 of 2005; 11131 of 2005

CORAM:

Pain J

KEY ISSUES:

Appeal - Development Consent :- whether relocation of telecommunications shelters a relevant consideration under s 79C of the Environmental Planning and Assessment Act 1979

Appeal: - s121 order - whether should be made

Questions of Law: - whether development consent required for installation of three telecommunication equipment shelters on roof of building - operation of commonwealth telecommunications legislation in local government areas - whether equipment shelter on roof of building is a low impact facility - whether multiple equipment shelters on roof of building is a low impact facility - where height of equipment shelters should be measured from

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s79C(1)
North Sydney Local Environmental Plan 2001
Telecommunications Act 1997 (Cth) s3, s484, Sch 3,
Telecommunications (Low-impact facilities) Determination 1997, pt 3

CASES CITED:

Kingston v Keprose (1987) 11 NSWLR 404;
Shoalhaven City Council v Lovell (1996) 136 FLR 58

DATES OF HEARING:

13/02/2006, 15/02/2006

 
DATE OF JUDGMENT: 

06/21/2006

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Duggan (barrister)
SOLICITOR
Pike Pike & Fenwick

RESPONDENT
Mr A Galasso (barrister)
SOLICITOR
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 June 2006

11367 of 2005 Exceland Pty Limited v North Sydney Council

11131 of 2005 Exceland Pty Limited v North Sydney Council

JUDGMENT

1 Her Honour: There are two matters listed before me. In matter 11131/05, the Applicant has appealed against the Council’s deemed refusal of development consent for Development Application No 323/05 for alterations and additions to an existing retail/commercial building at 506-508 Miller Street, Cammeray to create a new commercial tenancy at the rear of level 3 and to install an automatic teller machine at the Miller Street frontage of the site (“the development application”). The area is zoned residential under the North Sydney Local Environmental Plan 2001. The Court undertook a view of the premises and surrounding area.

2 The Applicant has not sought development consent for the relocation and/or replacement of three equipment shelters used by different telecommunications carriers which are present on the level where the intended building is to take place. The shelters are intended to be located on top of the building. The Applicant has already constructed a metal platform above the roof of the building, in order for the shelters to be placed in that location. The Applicant has development consent for the construction of a smaller platform to accommodate air conditioning fans on the southern end of the roof. A large part of the platform which has been constructed does not have development consent. I note that the platform is surrounded by a balustrade.

3 Matter no 11367/05 is an appeal against a s 121 order issued by the Council that requires the Applicant to demolish 12.9m of the metal platform on the roof. This would leave the size of the platform as that already approved by the Council for the air conditioning fans. The issues raised concern the operation of the Commonwealth legislation regulating telecommunications activities carried out in local government areas in NSW. As the issues raised are interrelated it is appropriate that both matters proceed together.

4 The Council has advised the Court that there are no merit issues it wishes to raise in relation to the development application the subject of matter 11131/05. It argued however that there is a direct link between the relocation of the equipment shelters and the proposed development and this is a matter which should be considered in the assessment of the application under s 79C(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). (Question 3 below raises this issue).

5 Three questions of law are raised by the parties as follows:

1. A. Whether an equipment shelter (as referred to in either item 4 or item 5 of Part 3 of the Schedule to the Telecommunications (Low-impact facilities) Determination 1997(Cth)) on the roof of the subject building would be a low-impact facility within the meaning of the Telecommunications Act 1997 (Cth).
B. Whether for the purposes of determining whether an item to be located on the roof of the subject building is an equipment shelter (as referred to in either item 4 or item 5 of Part 3 of the Schedule to the Telecommunications (Low-impact facilities) Determination 1997 ) (Cth) it is appropriate to measure height from the roof of the building so as to include any supporting platform beneath the item, or it is appropriate to measure height from the floor of the item.
C. (i) Whether the placement of more than one equipment shelter on the roof of the subject building comprises a low-impact facility and is authorised by the Telecommunications (Low-impact facilities) Determination 1997 (Cth);
(ii) Whether the placement of more than one equipment shelter on a single platform on the roof of the subject building comprises low-impact facility and is authorised by the Telecommunications (Low-impact facilities) Determination 1997 (Cth);
(iii) Whether more than one equipment shelter on a single platform on the roof of the subject building with a combined area in excess of the areas set out in item 4 or item 5 of Part 3 of the Schedule to the Telecommunications (Low-impact facilities) Determination 1997 (Cth) comprises low-impact facility and is authorised by the Telecommunications (Low-impact facilities) Determination 1997 (Cth).

D Is the platform a low impact facility because of Pt 3 cl 3.1(4) of the Low Impact Determination?

2. If the answer to question one is in the affirmative, does such relocation require development consent pursuant to the provisions of the Environmental Planning and Assessment Act 1979?

3. If the answer to question two is in the negative, is the proposed relocation of the telecommunication shelters an irrelevant consideration in the determination of Development Application 323/05?

The answer to these questions will determine finally both sets of proceedings.

Relevant legislation

6 Part 24 of the Telecommunications Act 1997 (Cth) (“the Telco Act”) is headed “Carriers’ powers and immunities”. Section 484 (the only section in Pt 24) provides “Schedule 3 has effect”. Schedule 3 sets out telecommunications carriers’ powers and immunities from State and Territory laws under the Telco Act. Schedule 3 provides for the installation and maintenance of certain facilities by a carrier. Clauses 36 and 37 exempt a carrier from the need to hold a development consent under State law in relation to activities under Div 2, 3 and 4 of Sch 3 of the Telco Act. Division 2 of Sch 3 of the Act deals with inspection of the land on which telecommunications facilities are located and gives the carrier permission to enter the land for the purpose of inspection of these facilities. Division 3 of Sch 3 to the Act deals with the installation of facilities. It sets out the scenarios and conditions under which a carrier can install telecommunications facilities on land. Division 4 of Sch 3 to the Act deals with the maintenance of these facilities. It gives carriers powers to enter the land to maintain the facilities on it and sets conditions for replacement facilities as part of this maintenance.

7 Clause 37(2) of Division 7 of Sch 3 to the Telco Act states:

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
…
(c) town planning; or
(d) the planning, design, siting, construction, alteration or removal of a structure; or
…
(f) the use of land; or
…

8 Clause 38 of Sch 3 provides:

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.

9 Clause 6(1) of Sch 3 provides:

A carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if:

(a) …
(b) the facility is a low-impact facility (as defined by subclause (3)); or…

10 Clause 6(3) provides that:

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.

The Telecommunications (Low-impact Facilities) Determination 1997 (Cth) (the Determination) was made by the Minister under cl 6(3) of Sch 3 of the Telco Act, and came into effect on 1 July 1997.

11 The term "facility" is defined in s 7 of the Telco Act and the term "installation" is defined in cl 2 of Sch 3 to the Telco Act. The term “telecommunications network” is also defined in s7 of the Telco Act:

facility means:

installation , in relation to a facility, includes:

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.

12 Part 3, s 3.1 of the Determination provides that:

(not relevant here)

(a) the low-impact facility; or
(b) persons or property in close proximity to the low-impact facility.

“equipment shelter”

13 There are two provisions dealing with equipment shelters in the schedule, contained in Pt 3 and titled “Above-ground Housing”.

Column 1 Item no.	Column 2 Facility	Column 3 Areas
…	…	…
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

14 It is also relevant to consider the purposes of the Telco Act given some of the issues raised by the parties.

15 Section 3 of the Telco Act sets out the Act’s objectives as follows:

( 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:

(b) to provide a framework under which a carriage service that provides digital data capability comparable to an ISDN channel is to become available to all people in Australia:
(i) by 1 January 2000; or

(ii) by another date having regard to the findings of the review into the timing of the availability of that service;

(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;

(e) to promote the effective participation by all sectors of the Australian telecommunications industry in markets (whether in Australia or elsewhere);

(f) to promote:
(i) the development of the technical capabilities and skills of the Australian telecommunications industry; and
(ii) the development of the value-adding and export-oriented activities of the Australian telecommunications industry; and
(iii) research and development that contributes to the growth of the Australian telecommunications industry;

(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;

…

Question 1A – is an equipment shelter on the roof low impact?

16 Question 1A is intended to raise the issue of whether “above ground housing” in Pt 3 of Sch 3 of the Determination means that the height of any equipment shelter must be measured from ground level so that it can be no more than 2.5m above natural ground level if under item 4, or 3m above natural ground level if under item 5.

Council’s Arguments

17 When the whole of the schedule identifying low impact facilities is considered, it is clear that “above ground housing” refers to facilities intended to be at or near the natural ground level. In its written submissions, the Council compared references in the Determination to “underground housing” with “above ground housing”. Part 2, dealing with “underground housing”, referred to items placed below the earth’s surface, such as pits and manholes. Part 3, dealing with “above ground housing”, has as its relevant reference point the natural ground level. This interpretation of the Determination is proper when it is considered that the purpose of the Determination in general is to constrain the height limits of facilities so that they are “low impact”.

18 The meaning of “ground” is not defined in the Determination. However other references in the Determination, such as the items in column 1 of Pt 3, (pillars, roadside cabinets etc) take the natural ground level as their appropriate reference point. Nor does the Determination provide for shelters being able to be constructed on top of buildings. However other parts of the Determination refer to “in building” or “inside a structure”. The draftsman of the Determination appears to have purposefully chosen not to use a building as a reference point in the calculation of height. Finally, if an equipment shelter is placed on top of a roof, it becomes “above building house”, not “above ground housing”. Unless the natural ground level is taken as the appropriate datum point, then it is possible that equipment shelters can be excessive in height, taking into account all circumstances, but still fall within the definition of low impact in the telecommunications legislative scheme.

19 The Council argued the shelters were visually not low impact the higher they were built. It was not appropriate to interpret the Determination in a way which sanctions an increase in the height of the shelters above ground level.

20 An important aspect of the Council’s argument that a facility is not low impact in relation to this and the other legal questions raised is that it is an overriding intention of the Commonwealth telecommunications legislation that a low impact facility under the Determination is objectively low impact.

Applicant’s Arguments

21 There is no reference in Pt 3 Item 4 or 5 to “height”, rather there is reference to an equipment shelter being no more than 2.5m or 3m high. Similarly, there is no reference to “natural ground” level in these parts of the Determination. It is clear that “ground” is used only to identify a horizontal plane from which measurement can be taken, and from which it can be determined whether a facility falls on one side of that plane or the other. There is nothing in the Determination to suggest that the facility must be affixed to the ground in order to be classified as low impact.

22 This is strengthened by reference in Item 6 Pt 3 of the Determination to “in-building subscriber equipment”. This equipment has no physical connection to the ground but still qualifies as a low impact facility.

23 The Council’s reference to a “roadside cabinet” being required to have a physical connection to the ground is because of the character of that item, not because of the construction of the Determination.

24 The Applicant argued that the intention of the Telco legislation is to ensure that those facilities which meet the description of the Determination are deemed low impact regardless of whether they actually are. This approach ensures certainty for telecommunications carriers when they are erecting facilities which fall under the low impact determination.

25 The low impact facility requirements in the Determination describe the facility itself. There is no requirement for external factors to be considered in making the determination. The Council’s submissions that equipment shelters could be excessive in height but still qualify as low impact facilities is incorrect, because the purpose of the Determination is to identify certain facilities of a particular nature as being low impact no matter what their location.

Findings on question 1A

26 I agree with the Applicant’s arguments as set out at par 21 - 23 that an equipment shelter referred to in Items 4 and 5 of Sch 3 can be a low impact facility if constructed on the roof of a building. It is more likely that had the intent of the Determination been to specify that equipment shelters be placed only on the ground that the words “natural ground” level would have been used. “Installation” includes the fixing of a facility to a building, (b) at par 11, so that it is clearly contemplated by the wording “above ground housing” in Pt 3, s 3.1 of the Determination that facilities would be installed above ground level, not at ground level.

27 The Council’s argument rested in part on the submission that the shelters must be objectively low impact as well as meeting the description in the Determination. As set out at par 24, 25 the Applicant argued that it was sufficient to meet the description in the Determination. Given the parts of the Determination to which I have had regard in answering this question it has not been necessary to consider this broader argument but I will consider this matter in relation to the next question.

Question 1B - is the equipment shelter height measured from the roof of a building or a supporting platform or from the floor of the item?

28 Having decided that it is not required that the height of the equipment shelters be measured solely from “natural” ground level, the next question I must determine is whether the height measurement of the equipment shelter must be taken from the roof of the building or from any supporting platform or refers only to the height of the shelter itself measured from floor level.

Council’s Arguments

29 The Council submitted that even if a shed is permitted on the roof of the relevant building, in order to determine the height of the shed it cannot simply be measured from the floor of the shed itself. The construction of the platform currently on the roof has the effect that the height of the shelters if built on it will be above either 2.5m or 3m measured from the roof or the shelter. The shelters consist of their superstructure and the platform they are intended to sit on, which combined are in excess of the height limit prescribed in the Determination.

30 The s121 order should be upheld because allowing the platform has the necessary and inevitable consequence of elevating the shed, thereby creating a visual impact.

Applicant’s Arguments

31 Contrary to the Council’s submissions, even if the shed is measured from the roof surface of the building, the measurements do not exceed the dimensions referred to in the Determination. As argued previously at par 23, 24 it is only necessary that the shelters satisfy the description in the Final Determination without reference to external factors. Nor is it necessary that the shelters be objectively low impact.

Finding

32 Part 3, s 3.1 of the Determination refers to how high an equipment shelter can be. The Determination is silent on how the height of the equipment shelter is to be measured to ensure that it is no more than 2.5m high under Pt 4, or 3m under Pt 5. It is contemplated that a facility can be attached to a building or other structure because the definition of “installation” in cl 2 of Sch 3 refers to the attachment of the facility to any building or other structure (cl 2(b)). The wide definition of “installation” suggests the shelter can be attached to the roof or to the platform. The objects of the Telco Act are set out above (par 15) and emphasise that the aim of the legislation is, inter alia, to ensure the provision of a telecommunications network across Australia as efficiently as possible.

33 Under the Acts Interpretation Act 1901 (Cth) s 15AA states:

In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

34 That approach is supported by numerous cases such as Kingston v Keprose (1987) 11 NSWLR 404, McHugh J at 423.

35 Given that objective in the Telco Act, the Determination needs to be applied in a way which promotes that object. Clearly the intent of the Determination, which applies across the whole of Australia, is to specify criteria which if met in a wide range of circumstances render a shelter low impact. This suggests that the height of a shelter is not site dependent but rather that “high” in Pt 4 and Pt 5 refers to the shelter itself. This suggests that the submissions of the Applicant that it is sufficient if the shelter meets the description in the Determination rather than also having to satisfy objectively the description of “low impact” is correct as the Council argued. The height of the shelter should be measured from its floor.

Question 1C(i) - Can any more than one equipment shelter be low impact, that is, can all three shelters on the roof ever be low impact?

Council’s Arguments

36 The Council submitted that the Determination does not authorise the construction of multiple shelters. The Determination is expressed in the singular. It does not make reference to equipment sheds being located in close proximity to one another, whether on a building or elsewhere. Further, the object of the Determination is to regulate “low impact” facilities. An interpretation of the legislation that permits the conglomeration of such facilities in close proximity is counter-purposive to these objectives. Whilst they may individually be low impact, as a group they are not.

Applicant’s Arguments

37 The Applicant argued that the Determination makes clear that each shelter is to be considered separately. If the description in Sch 3 Items 4 or 5 is met by a single facility it does not matter how many low impact facilities are intended to be placed on a single site. The Applicant further submitted that the singular language adopted in the Determination cannot be interpreted in a way which excludes construction of more than one facility. The correct construction of the Determination is that each shed is to be considered by reference to its own characteristics and nothing else.

Finding

38 The Applicant’s arguments are correct in light of the legislative scheme which I have outlined in relation to question 1B at par 35. The question must be answered in the affirmative so that the three equipment shelters on the roof are separately low impact facilities. There is simply no basis for arguing that there is a limit on the number of low impact facilities able to be located on a single site.

Question 1C(ii) – if the shelters are located together on a single platform are they still low impact facilities?

Council’s Arguments

39 The Council argued that the presence of a single platform to house the three shelters means the nature of the structure in aggregate does not comply with Pt 3 of the Determination. It submitted that when three shelters are located on one continuous platform the result is one large structure, rather than three separate low impact facilities, which does not conform with the Determination.

Applicant’s Arguments

40 The Applicant argued that the platform is separate to the equipment shelter and the Determination does not include the structure on which a shelter is located. It is not to be included in the calculation of whether an equipment shed is low impact. Further the platform is still a low impact facility in its own right by virtue of Pt 3, s 3.1(4).

Finding

41 The maximum base area of different shelters specified in Pt 3 Sch 4(b) and 5(c) must be met in order for these to be low impact. There is no indication within the wording of the Determination that the calculation of that base area includes the area of the platform on which the shelters are to be located. The general legislative scheme as identified at par 35 provides that the schedule identifies criteria to be met in a wide range of circumstances across Australia. This suggests that the structure on which the shelters are to be placed is not included in the base area calculation. I accept the arguments of the Applicant to that extent. The three individual shelters are low impact facilities if they individually meet the base area and other criteria in the schedule. As I am responding to the question as posed the single platform remains as an issue. It does not necessarily follow that the single platform is a low impact facility.

42 Whether the platform as a separate structure is a low impact facility, as raised by the last sentence in par 40, is dealt with in question 1D. Therefore the answer to the question as posed in relation to the single platform is determined by the answer to question 1D.

Question 1C(iii) – can shelters with aggregate floor areas exceeding the area in Items 4 or 5 of the Determination be low impact?

43 The Council argued that it is open to the Court to consider what is being proposed as only one installation, based on the fact that the platform supports all three sheds and the aggregate base area exceeds the maximum specified in the schedule. The Council submitted that a structure this large would breach the base area limitations set out in Pt 3 of the Sch to the Determination.

Applicant’s Arguments

44 For the same reasons outlined above in relation to question 1C(ii), the Applicant submitted that each shed is to be considered by reference only to its own characteristics, and not as one large structure.

Finding

45 This question raises very similar, if not identical, issues to question 1C(i) and (ii). I held in question 1C(i) that three shelters on the roof are to be considered separately. That finding also applies to a consideration of their floor areas. The aggregate floor areas of the equipment shelters are not relevant to the determination of whether an individual shelter is low impact in this case. I have held that the platform on which the shelters sit is separate from the individual shelters in question 1C(ii) so that whether the shelters are low impact individually is to be determined separately from the platform area.

46 Once again whether the platform is a low impact facility arises in relation to question 1D.

Question 1D - is the platform a low impact facility because of Pt 3 cl 3.1(4) of the Low Impact Determination?
Council’s arguments

47 The Council argued that the platform was not a low impact facility under Pt 3 cl 3.1(4) of the Determination because it was not built solely for the “protection or safety” of the equipment shelters but rather for their support to ensure they could be built above the building without the roof collapsing.

Applicant’s arguments

48 The Applicant argued the platform was for the protection and safety of the shelters as without the platform they could not be supported on the roof. The platform is clearly necessary for their protection.

Finding

49 Part 3 cl 3.1 provides that a facility ancillary to a low impact facility is also low impact in defined circumstances. The platform is clearly a facility within the very wide definition of “facility” - (a) and (b) - in s 7 of the Telco Act (see par 11). The words “protection” and “safety” are not defined in the Commonwealth telecommunications legislation. I have not been referred to any case where they have been considered in this context. It is not immediately apparent in a building and development context that the protection or safety of a low impact facility or persons in close proximity to it, is intended to include the structure on which the shelter is placed in order to protect the building on which it is to be located. The analogy relied on in the Council’s arguments was whether the foundation of a building can be considered as being for its protection and safety and the protection of persons in close proximity to it. In a planning and development context I think probably not. In this case however I am considering the relevant Commonwealth telecommunications legislation.

50 The clearly expressed intent of the legislation in its objects clause, see par 18, is the efficient provision of telecommunication services to the general community and the making of the Determination in that context is to identify those facilities which do not require the development consent of the Council. Their installation is intended to be facilitated by this legislation.

51 Applying a purposive approach to the use of those words in this context I consider a platform on the roof for the low impact shelters is intended to be covered by the words “protection” and “safety” of the low impact facility, and the persons in close proximity to it as specified in Pt 3 cl 3.1(4). Clearly a platform does provide for the safety of persons in the building below the platform, and for the protection of the shelters themselves. A platform which is intended to support the shelters is a low impact facility under Pt 3 cl 3.1(4). Such a structure would not require development consent from the Council before it could be built. A balustrade around a platform is also a structure which appears to fall within Pt 3 cl 3.1(4) of the Determination.

52 A platform needed to support a shelter on top of a building is theoretically a low impact facility under Pt 3 cl 3.1(4) but such a conclusion can only apply to a platform of the dimensions necessary for the support of the shelter. Whether a single platform can accommodate three shelters and be low impact depends on what is proposed to be built. In this case part of the platform is clearly larger than is needed for the three shelters intended to be relocated onto it. The Applicant has already offered to move the balustrade 2.7m in from the northern boundary of the platform and also remove the mesh which forms the platform’s “floor” by a similar distance. Presumably this reduced size is the appropriate size of platform needed, in the Applicant’s view. What remains if this material is removed are the steel structural members placed on top of the roof for most of its width. These extend well beyond the floor areas of the shelters. Whether structural members of this size are necessary is not presently known as no evidence was presented to the Court on that issue. It is also not known if three separate smaller platforms with the same floor area as an individual shelter can be constructed instead. Further evidence will need to be presented to the Court on the engineering necessity for structural members of that size in order to consider if they are a low impact facility. At this stage it is not clear that the platform as constructed is a low impact facility within Pt 3 cl 3.1(4).

Question 2

53 The parties agreed the answer to question 2 is in the negative.

Question 3 – whether the equipment shelters are a relevant consideration under s 79C(1)

54 Section 79C(1) provides:

(1) Matters for consideration—general in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
…

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

…

(e) the public interest.


Council’s argument

55 By virtue of s 79C(1) of the EP&A Act the necessity to move the existing equipment shelters is a relevant consideration which the Court is entitled to consider when determining the development application for the additional office space. Because of the visual impact of the shelters on the adjoining properties and locality, the development application for the additional office space should be refused. Reliance was placed on Shoalhaven City Council v Lovell (1996) 136 FLR 58.

Applicant’s arguments

56 The preamble to s 79C(1) states that the consent authority is to take into account matters that are relevant to the development the subject of the development application. As the relocation of the shelters is not part of the development application it does not give rise to considerations relevant to it. All that can be considered are the matters in the development application.

57 Further the relocation is a separate and distinct activity unrelated to the development application. The relocation could happen at any time unrelated to this DA. A coincidence of timing cannot render the relocation of the shelters a relevant consideration under s 79C(1).

Finding

58 Only one equipment shelter is actually within the floor space to be occupied by the proposed accommodation. One shelter is directly outside the proposed window area of the office space so that it must also move for the purposes of the application. Does this render the shelters’ placement on the roof a relevant consideration warranting refusal because of the visual impact on the surrounding properties and locality from that relocation?

59 By virtue of the scheme found in the Commonwealth telecommunications regime considered already, equipment shelters of the appropriate dimensions can be placed elsewhere on the building at any time without the requirement to obtain development consent under NSW planning legislation. The Council conceded that if the equipment shelters were moved at any time separately from the timing of the development application this argument could not be made.

60 The Council relied on Lovell as a case where the Court of Appeal held that the “public interest” under s 90 of the EP&A Act (now s 79C(1)(e)) was very wide in its operation. In that case the trial judge took into account matters relating to safety and the air base, in deciding to refuse a development consent for a subdivision. The Court of Appeal held that the public interest includes matters relating to safety and the use of a nearby air base. Such considerations are relevant to the exercise of discretion and in appropriate circumstances may be relevant to the Court’s decision. The considerations were relevant because of the possibility of people’s safety being compromised by erecting dwellings on the site. While the court proceedings related to a development application to subdivide the land, and were not related to any of its proposed or possible uses, the Court can have regard at an earlier stage rather than a later stage to safety matters arising as a result of having buildings built on the land. The erection of buildings on the land is “apt to occur” if the land is subdivided, so these matters can be considered when deciding whether to grant the DA approval for the subdivision.

61 This case is not analogous to the circumstances in Lovell, which concerned the assessment of the future use of the land the subject of the development application. Rather the circumstances here are that as a consequence of the intention to use a particular area of the building the subject of the development application there will be relocation of equipment shelters which generally do not need development consent to another part of the building not the subject of the development application. The fact that the trigger for moving shelters is an activity that does require development consent cannot bring them within the scope of factors relevant to a consideration under s 79C(1).

62 The repositioning of the equipment shelters on the roof is not a relevant consideration under s 79C(1) for the Applicant’s development application.

Conclusion

63 It follows from my findings on questions 1A, 1B, 1C and 1D that I do not consider the s 121 order as currently drafted should be enforced. An amended order which requires a smaller area of platform to be removed would appear warranted except that the structural necessity for the existing structural members which extend beyond the necessary area of platform is not the subject of any evidence. Nor is the possibility of erecting three separate platforms each no greater than the base area of an individual shelter known. The parties should consider these findings and advise the Court what further steps they wish to take on this matter.

Matter 111311 of 2005

64 It follows from my finding on question 3 that I consider development consent should be granted to Development Application No 323/05 subject to conditions. Clarification of those conditions by the parties is necessary before I make final orders.