Hurstville City Council v Hutchison 3G Australia Pty Limited

[2003] NSWLEC 52

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Reported Decision: (2003) 124 LGERA 425

Land and Environment Court

of New South Wales

CITATION:	Hurstville City Council v Hutchison 3G Australia Pty Limited [2003] NSWLEC 52 revised - 19/03/2003
PARTIES:	APPLICANT Hurstville City Council RESPONDENT Hutchison 3G Australia Pty Limited (ACN 096 304 620)
FILE NUMBER(S):	40143 of 2003
CORAM:	Pain J
KEY ISSUES:	Construction and Interpretation :- Telecommunications Act 1997 (Cth) - whether low-impact facility - removal of pole by Council - whether replacement structure constitutes installation and/or maintenance of a facility - meaning of "for use" in definition of facility Judicial Review : - whether Notice issued pursuant to cl 17 of Sch 3 of the Telecommunications Act 1997 (Cth) and Chapters 4 and 6 of the Telecommunications Code of Practice 1997 is invalid - whether failure to give details required by Code
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Environmental Planning and Assessment Act 1979 s 121B Hurstville Local Environmental Plan 1994 Telecommunications Act 1997 (Cth) s 7, s 484, Sch 3 cl 2, cl 4, cl 5, cl 6, cl 7, cl 15, cl 17, cl 36, cl 37, cl 47 Telecommunications Code of Practice 1997 cl 4.24, cl 4.27, cl 4.30 Telecommunications (Low-impact Facilities) Determination 1997 cl 3.1, Sch Pt 1 Item 3 and 4
CASES CITED:	Deputy Commissioner of Taxation v Stewart (1983-1984) 154 CLR 385; Erickson v Pittard [1976] 2 NSWLR 528; Federal Commissioner of Taxation v Kentucky Fried Chicken Pty Ltd (1988) 12 NSWLR 643; Hunter Resources Ltd v Melville (1988) 164 CLR 234; Hutchison 3G Australia Pty Limited v Hurstville City Council [2003] NSWLEC 53; R v Ellames [1974] 1 WLR 1391; Scurr v Brisbane City Council (1973) 133 CLR 242; Telstra Corporation Ltd v City of Marion [2000] SAERDC 70; Telstra Corporation Ltd v City of Onkaparinga [2001] SAERDC 55
DATES OF HEARING:	13, 14/02/2003
DATE OF JUDGMENT:	03/18/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr M Holmes QC with Ms M Allars (barrister) SOLICITORS Deacons RESPONDENT Mr I Jackman SC with Mr C Moore (barrister) SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40143 of 2003

Pain J

18 March 2003

HURSTVILLE CITY COUNCIL

Applicant
v

HUTCHISON 3G AUSTRALIA PTY LIMITED

ACN 096 304 620

Respondent

Judgment

Introduction

1 In these proceedings the Council is seeking a declaration and orders in its Amended Class 4 Application in the following terms:

The Applicant also claims by way of interlocutory relief:

(vi) Until further or other order of the Court the Respondent be restrained from carrying out any further works in accordance with the Notice.

2 The matter first came before me as Duty Judge on 10 February 2003 for urgent interlocutory orders sought by the Council. On that occasion the parties provided cross undertakings to the Court and there was no hearing on the matter. I adjourned the proceedings until 13 February 2003 for a final determination of the legal issues in the proceedings, no facts being in dispute. On the first day of the hearing Hutchison 3G Australia Pty Limited, the Respondent in these proceedings, commenced proceedings in matter no. 40158 of 2003. Those proceedings concern a challenge to the legal validity of an order issued by the Council upon Hutchison 3G Australia Pty Limited in relation to the works. Both matters were heard together. I have handed down a separate judgment in matter no. 40158 of 2003 (Hutchison 3G Australia Pty Limited v Hurstville City Council [2003] NSWLEC 53) at the same time as this judgment.

Facts

3 This matter concerns the Respondent's proposal to build a telecommunications facility at the top of a light pole in Oatley Park. This action is opposed by the Council. Oatley Park is zoned No. 6(a) Open Space Zone under the Hurstville Local Environmental Plan 1994 (the LEP).

4 By letter dated 29 November 2002, received by the Council on 2 December 2002, the Respondent issued to the Council a Notice (the Notice) pursuant to cl 17 of Sch 3 to the Telecommunications Act 1997 (Cth) (the Act) and Chapters 4 and 6 of the Telecommunications Code of Practice 1997 (the Code). The terms of the Notice included, according to the summary provided in the Council's written submissions, that the Respondent proposed to carry out "maintenance activity" on a pole at Oatley Park to:

(i) replace the pole with a H3GA pole of the same height;

(ii) attach a parabolic antenna of 300 mm diameters to the pole;

(iii) attach 3 panel antennae equal to or less than 2.8 metres in length to the pole by a cluster mount and supporting structure of less than 3 metres in length;

(iv) attach a radiocommunications dish of 300 mm diameter attached to the "monopole" by a pole of less than 2 metres length;

(v) construct a brick equipment shelter with a length of 3 metres, width 2.5 metres and height 2.8 metres;

(vi) construct around the shed "ancillary infrastructure for the sole purpose of ensuring the protection and safety of the facility and persons or property near the facility including landscaping, a H3GA cluster mount and cluster mount supporting structure (as referred to above)";

(vii) construct "draw pits" of unspecified dimensions, various feeder cables and conduit.

(hereinafter referred to as "the work"). The Respondent points out the Notice refers to its intention to carry out maintenance in relation to the existing pole and installation activity in relation to the new facility to be installed.

5 The Council provided to the Court a chronology of events which it is useful to set out. Amendments to that chronology made by the Respondent's counsel are included. (Note: unless otherwise stated, page references refer to the Annexure attached to the affidavit of Ms Brewer, sworn 10 February 2003.)

Date	Event	Reference
4 July 2002	Preliminary discussion between Hutchison and Hurstville Council	B3
24 July 2002	Council meeting resolves to reject proposal by Hutchison	B9, B50
12 Nov 2002	Letter from Hutchison outlining proposal	B14
27 Nov 2002	Meeting of Council, resolves to object to the proposal and to make representations to the Federal Minister	B37
29 Nov 2002	Hutchison serves purported notice of intention to construct a low-impact facility during the period 18 Dec 2002 to 21 March 2003.	B22
3 Dec 2002	Council writes to Hutchison that Council strongly objects to proposal	B39
15 or 16 Dec 2002	Public meeting attended by representatives of Council and Hutchison at which Hutchison agrees to extend the commencement date from 18 Dec 2002 up to 18 Jan 2003	B97
17 Dec 2002	Hutchison sends letter to Council containing undertaking to extend by month.	B96, B102
18 Dec 2002	Council meeting, resolves to object and to take whatever legal action is available	B114
18 Dec 2002	Letter of Hutchison to Council regarding the detail of proposal and referring to possible removal of pole by Council.	B105
13 Jan 2003	Meeting between Council representatives and representatives of Hutchison at which they agreed to defer the commencement of the construction of the low-impact facility	Affidavit of Lampe, par 3
14 Jan 2003	Hutchison writes to Council about investigating other sites	Affidavit of Lampe, Annex C
24 Jan 2003	Council resolves to move the existing light pole to another venue and to replace it with shorter wooden light poles	B161
24 Jan 2003	Hutchison writes to Council advising that they are looking at other sites and will discuss these with the Council	Affidavit of Lampe, Annex A
30 Jan 2003	Council writes to Hutchison and advises them of the resolution and the decision to replace the existing pole. Council removed existing 18m pole. (Note: Respondent points out chronology does not include recognition by Council officers of the legal validity of the Notice and recognition that nothing could be done to stop the activity)	B161
10 Feb 2003	Hutchison starts work excavating around the footing of the existing light pole	Affidavit of Birnie, par 47
10 Feb 2003	Hurstville Council serves a stop work order on Hutchison, Hutchison continues to work	Affidavit of Birnie, Annex F
10 Feb 2003	Hutchison writes to Council advising that it has commenced work on the maintenance activity and that it is a criminal offence to interfere with the facility belonging to a carrier (but 10 days before told of its removal)	Exhibit C
10 Feb 2003	Hutchison writes to residents advising that construction works have commenced	Exhibit C
10 Feb 2003	Hutchison writes to the Mayor advising that they have commenced the construction of the facility today	Exhibit C
10 Feb 2003	Hurstville Council commences proceedings in the Land and Environment Court, interlocutory application for restraining order resolved on the basis of the exchange of mutual undertakings by consent and without admissions. Matter is fixed for hearing on Thursday 13 Feb 2003
13 Feb 2003 to 14 Feb 2003	Hearing

6 The evidence relied on by the parties was largely documentary. A large number of documents were attached to the affidavit of the Council's solicitor Ms Brewer. The Respondent relied on an affidavit of Mr Birnie, its New South Wales project manager.

Relevant legislation

7 The Commonwealth legislation that applies to the installation and maintenance of telecommunications facilities in New South Wales is convoluted. The starting point is the Act. Part 24 of the Act is headed “Carriers’ powers and immunities”. Section 484 (the only section in Part 24) provides “Schedule 3 has effect”. Schedule 3 sets out carriers’ powers and immunities under the Act. Schedule 3 of the Act provides for the installation and maintenance of certain facilities by a telecommunications carrier. The Respondent is a "carrier" for the purposes of the Act. 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 Act. Under cl 37(2) of Sch 3 to the Act, a carrier may engage in an activity under Div 2, 3 or 4 of Sch 3 despite a state law about, inter alia, (c) town planning; or (e) the powers and functions of a local government body; or (f) the use of land.

8 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:

9 Clause 6(3) of Sch 3 to the Act 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”. Pursuant to cl 6(3) of Sch 3 of the Act, the Telecommunications (Low-impact Facilities) Determination 1997 (the Determination) was made by the Minister and came into effect on 1 July 1997. It was amended in 1999.

10 Schedule 3 cl 6(2) of the Act vests in a carrier specified powers to carry out activities on land (if the carrier is authorised under cl 6(1)). Clause 6(2)(a) empowers a carrier to enter on any land. Clause 6(2)(b)(i) empowers the carrier to do anything necessary or desirable for those purposes including constructing, erecting and placing any plant, machinery, equipment and goods. These powers arise "if subclause (1) authorises [a] carrier to carry out a particular activity."

11 Clause 15 of Sch 3 to the Act empowers the Minister to make a Code of Practice setting out conditions to be complied with by carriers in relation to any or all of the activities covered by Div 2, 3 and 4 of Sch 3. The power was exercised by the making of the Code, which came into effect on 1 July 1997. Clause 15(2) in Sch 3 to the Act provides that a carrier "must comply with the Code of Practice".

Power of a carrier with respect to low-impact facility

12 Clause 6(1) of Sch 3 of the Act provides a carrier with the power to install a low-impact facility. The Determination, made under cl 6(3) specifies those facilities that are low-impact. Clauses 6(1) and 6(3) are set out above.

13 The power of the Minister to make a determination is limited by cl 6(5) and (7):

(5) A tower must not be specified in an instrument under subclause (3) unless:

(6) To avoid doubt, a reference in subclause (5) to a tower does not include a reference to an antenna.

For this purpose, tower has the same meaning as in clause 4.

14 The definition of "tower" in cl 4 is as follows:

(1) For the purposes of the application of this Part to the installation of facilities, if:

then:

(2) To avoid doubt, a reference in this clause to a tower does not include a reference to an antenna.

(3) In this clause;
tower means a tower, pole or mast.

15 The term "facility" is defined in s 7 of the Act and the term "installation" is defined in cl 2 of Sch 3 to the Act:

facility means:

installation , in relation to a facility, includes:

The Determination

16 Pursuant to cl 3.1(1) of the Determination and the Schedule attached to the Determination certain kinds of facilities are designated as low-impact facilities if these are installed or to be installed in a relevant described area. For the purposes of the Determination, "installation", for a facility, has the same meaning as in Pt 1 of Sch 3 to the Act (cl 1.3 of the Determination).

17 The Determination provides in the Schedule, Pt 1 Item 3, that a panel or other like antenna which is not more than 2.8 metres long and which protrudes from the structure to which it is attached by not more than 3 metres, is a low-impact facility if installed in a residential, commercial, industrial or rural area.

Power of carrier to maintain facility

18 Pursuant to Sch 3, cl 7(1) of the Act a carrier has power to "maintain a facility". The meaning of "maintain" is derived from a definition of "maintenance" in cl 7(3) and (4) of Sch 3, which provides relevantly as follows:

7(3) A reference in this clause to the maintenance of a facility (the original facility) includes a reference to:

…

(d) the replacement of the whole or part of the original facility in its original location, where the conditions specified in subclause (5) are satisfied; and
(e) the installation of an additional facility in the same location as the original facility, where the conditions in subclause (6) are satisfied; and …

(4) A reference in this clause to the maintenance of a facility does not include a reference to the extension of a tower. For this purpose, tower has the same meaning as in clause 4. …

(a) the levels of noise that are likely to result from the operation of the replacement facility are less than or equal to the levels of noise that resulted from the operation of the original facility;

(b) in a case where the original facility is a tower:

(6) For the purposes of paragraph (3)(e), the following conditions are specified:
(a) the combined levels of noise that are likely to result from the operation of the additional facility and the original facility are less than or equal to the levels of noise that resulted from the operation of the original facility;
Notice

19 Clause 17(1) of Sch 3 provides that a carrier before engaging in an activity under Div 2, 3 or 4 must give written notice of its intention to do so to the owner of the land and the occupier. The notice must:

(i) specify the purpose for which the carrier intends to engage in the activity (cl 17(2));

(ii) contain a statement relating to compensation (cl 17(3)); and

(iii) be given 10 business days before the carrier begins to engage in the activity (cl 17(4)).

20 Clause 4.27(1) of the Code requires the following content in the notice:

A carrier must include in a notice mentioned in section 4.24:

… [emphasis added]

Right of objection

21 Clause 4.30 of the Code provides:

Council's grounds

22 The Council relied on the following grounds to argue that the declaration sought in Prayer 1 of the Amended Class 4 Application ought be made:

1. The work being undertaken by the Respondent is prohibited

under the Hurstville Local Environment Plan 1994. The area of Oatley Park in Oatley Park Avenue is zoned under the LEP as 6(a) (Open Space Zone). Under the LEP it is not a permitted use for the land to be used as a communications facility (see Part 1, clause 5(1) of the LEP and page 23 for zone number 6(a)).

2. The Respondent failed to give the Plaintiff notice of the intended activity in Oatley Park as required by clause 17 in Schedule 3 to the Telecommunications Act 1997 (Cth) before it commenced to engage in the activity in that:
2.1 The Respondent's purported notice contained in its letter dated 12 November 2002 failed to provide the Plaintiff with details, as required by clause 4.27 of the Telecommunications code of Practice 1997, of the actions the Respondent expected to carry out with respect to:

[sic (f) whether any overground cabling was proposed]

2.2 The Respondent has no power to install a facility within cl 6 of Schedule 3 or to maintain a facility with [sic] cl 7 of Schedule 3 to the Act.

3. The Respondent therefore had no power to install the facility because it is not a low-impact facility for the purposes of Schedule 3 clause 6(1)(b) and 6(3) of the Act and the Telecommunications (Low-Impact Facilities) Determination 1997 in that:
3.1 the proposed work protrudes more than three metres from (the existing structure); and
3.2 …(not relied on)

4. The Respondent has no power to carry out the work pursuant to s 484 of the Act, Schedule 3 clause 7, since the proposed work is not "maintenance of a facility" for the purposes of s 7 of the Act (definition of "facility"), in that:
4.1 the pole has at no time been used for or in connection with a telecommunications network; and
4.2 the proposed work is not an extension to a tower within cl 6(7) and cl 4.

[sic] is the trustee of the land in Oatley Park;

[sic] has not consented to the work being carried out; and

[sic] has issued an order to the Respondent pursuant to the Environmental Planning and Assessment Act 1979 (NSW) Part 6 Division 2A clause 121B item 12 to immediately cease carrying out excavation and building works in Oatley Park.

Ground 1

23 The Council argues that as Oatley Park is zoned Open Space it is not a permitted use for the land to be used as a communications facility under the LEP. This is not disputed by the Respondent. However, this is not the end of the matter. It is necessary to determine whether, pursuant to cl 36 and 37 of the Act which exempt a carrier from having to obtain development consent under State laws for activities under Div 2, 3 and 4 of Sch 3 to the Act, development consent was required. This answer will necessarily follow from the findings made in relation to Grounds 3 and 4.

Ground 2 - Notice under the Act invalid
Council's argument

24 The Council argued that the notice given pursuant to cl 17 Sch 3 to the Act dated 29 November 2002 failed in various respects to provide the details required by cl 4.27 of the Code. The alleged defects are set out in the Council's ground 2.1 above, (a) - (f). Subparagraph (b) was not relied on at the hearing. The Council submitted that the regime established under Sch 3 of the Act and in the Determination provides detailed specifications for low-impact facilities. This was said to emphasise the precise nature of the details required for the notice under cl 4.27 of the Code. It was argued that compliance with cl 4.27 of the Code and cl 17 of Sch 3 is a precondition to the valid exercise of power under cl 6 of Sch 3. The provision of adequate notice is a central feature of the scheme and is a procedural element which is so essential that non-compliance renders the administrative action invalid. Scurr v Brisbane City Council (1973) 133 CLR 242 at 254 - 7 was relied on in support of this argument.

25 In Scurr, the relevant planning Act required Council to advertise notice of the application in question, including the particulars of the application. Stephen J (Barwick CJ, McTiernan, Menzies and Gibbs JJ agreeing) held the notice did not adequately set out the particulars of the application as required by the Act in question. The requirements for the giving of public notice had not been complied with. His Honour held that "the giving of the public notice [was] a condition precedent to any consideration of the application by the council" (at 255). Accordingly, the Council submits, relying on Scurr as authority, that the Respondent has no power to install a facility within cl 6 of Sch 3 of the Act or to maintain a facility pursuant to cl 7 of Sch 3 to the Act in the absence of a valid notice.

Respondent's argument

26 Counsel for the Respondent identified each of the alleged failures in the Notice as argued by the Council and, in submissions, referred to the contents of the Notice to show that each of the inadequacies identified by the Council were not sustainable given the Notice itself. The submissions were as follows:

(a) Volume of proposed pole - p 2 of the Notice states that the “new monopole will have the same height and apparent volume as the existing Council pole”. Apparent volume can be seen in the Act, Sch 3, cl 7(5) which states that when replacing a facility the height and volume must not be greater than that of the original facility.

(b) …

(c) Nature and dimensions of draw pits – the draw pits are visible on two of the plans attached to the notice (pp 31 - 32 of Ms Brewer’s affidavit). Their dimensions are easily determined by using a scale ruler, or the ruler provided on the plans.

(d) Siting of a radiocommunications dish on the pole – the plan attached to the notice (at p 32 of Ms Brewer’s affidavit) shows a parabolic antenna, that looks like a dish, at 18.50m. There is a table at the top of the page showing the parabolic antenna dimensions. Furthermore, “B” in par 2.2 of the notice states that there will be a 300mm diameter radiocommunications dish attached to a pole.

(e) Nature and dimensions of underground cabling – “E” at par 2.2 of the notice states: “Underground cables and conduits deployed by direct burial in trenches not more than 450mm wide”. The depth can easily be worked out from the elevation plan attached to the notice.

(f) Nature and dimensions of overground cabling – there is no underground cabling, if there were it would have been shown on the Notice.

Finding on Ground 2

27 I accept the Respondent's submissions that the Notice was adequate as required by cl 4.27 of the Code and is not invalid. Clause 4.27 of the Code requires that details of the actions that the carrier expects to take on land when undertaking a low-impact facility activity be included in the Notice required under cl 4.24 of the Code. There is no further requirement specified for the Notice in the Code.

28 Each of the alleged inadequacies in the Notice are not sustained on a close examination of the Notice itself as is clear from the Respondent's analysis: see par 26 above. This finding applies even if the high standard urged by the Council in light of the detailed regime in the Determination and Pt 1 of Sch 3 to the Act is applied. I consider there has been compliance with the terms of cl 4.27 of the Code in that the details of the intended activity are made clear in the Notice in my view.

29 As the alleged defects have not been made out by the Council I do not need to consider whether compliance with cl 4.27 of the Code and cl 17 of Sch 3 to the Act constitutes a condition precedent to the exercise of the installation power under cl 6 of Sch 3. The Council has failed to establish Ground 2.

Ground 3 - Excess of power in that proposed work is not a "low-impact facility"

30 There are two arguments to consider under this ground. It is necessary to set out the table from Pt 1 of the Schedule to the Determination (see par 16, 17) concerning Items 3 and 4 in order to understand the context for the first argument.

Column 1 Item no.	Column 2 Facility	Column 3 Areas
3	Panel antenna Panel, yagi or other like antenna: (a) not more than 2.8 metres long; and (b) if the antenna is attached to a structure - protruding from the structure by not more than 3 metres; and (c) …	Residential Commercial Industrial Rural
4	Array An omnidirectional antenna or an array of omnidirectional antennas: (a) not more than 4.5 metres long; and (b) not more than 5 metres apart; and (c) if the array is attached to a structure - protruding from the structure by not more than 2 metres	Industrial Rural


Argument 1
Council's submissions

31 The Respondent has no power to install the facility because it is not a low-impact facility for the purposes of Sch 3 cl 6(1)(b) and 6(3) of the Act and Item 3 Pt 1 of the Schedule to the Determination in that the proposed work protrudes more than 3 metres from the pole. Item 3 is set out above.

32 The proposed low-impact facility protrudes more than three metres from what is the existing pole height of 18 metres, amounting to an additional height above the existing pole of 3.95 metres. The pole height is therefore increased to 21.95 metres. This means that it is not a low-impact facility as defined by Sch 3 cl 6(1)(b) and 6(3) of the Act and the Determination because the work protrudes more than 3 metres from the pole. The Schedule, Pt 1, Item 3 in the Determination should be interpreted literally which means that any protrusion from an existing pole must not be greater than 3 metres.

Respondent's submissions

33 The Respondent relied on the decision of Trenorden J in Telstra Corporation Ltd v City of Onkaparinga [2001] SAERDC 55. In that case the essential issue before her Honour was: "Does the description of the facility in Item 3 mean that the mounting pole may extend for a maximum of 3.0 metres, with a panel antenna extending for a further distance, up to 2.8 metres?" (at [9]). At [15] her Honour stated:

If "protruding" in Item 3 of Part 1 of the Schedule is to be read as including the whole of the panel antenna, and if, in the interests of consistency of meaning, "protruding" is read in the same manner where it appears in Item 4 of Part 1 of the Schedule, the result would be absurd. The results would be that an omni-directional antenna having a length of 4.5 metres could be installed by attachment to an existing building, but only 2.0 metres of the total length of 4.5 metres could extend beyond the existing structure. It would be no answer to say that the omni-directional antenna could be flush-mounted to the existing structure, as that would make no sense, having regard to the obvious nature of an omni-directional antenna.

34 As the Determination is a disallowable instrument (Sch 3, cl 6(10) of the Act), the Acts Interpretation Act 1901 (Cth) applied so that certain extraneous material such as the Explanatory Memorandum could be relied on. Her Honour referred to the Explanatory Statement (which was tabled with the Telecommunications (Low-Impact Facilities) Determination 1997 (Amendment No. 1 of 1999) in both Houses of the Commonwealth Parliament) in support of her conclusion because she found there was sufficient ambiguity in the meaning of "protruding" in Item 3 to justify giving consideration to it. The Explanatory Statement provided an explanation for the word "protruding" which included that it refers to:

For the purposes of Part 1 of the Schedule to the Determination, the words "protrusion" or "protruding" from a structure are intended to mean the lateral, vertical or horizontal distance between the supporting structure and the facility (i.e. the length of the mounting brackets). The words are not intended to include the measurement of the low-impact facility attached to the supporting structure.

35 Her Honour stated that if the ordinary meaning of the words in Item 3 was applied this would result in a nonsense in relation to Item 4. Her Honour stated it was preferable that "the same words be given the same meaning within a document", and took that approach. Trenorden J held at [18]:

…the words "protruding from the structure by not more than 3 metres" used in Item 3 of Part 1 of the Schedule mean that the distance between the nearest point of the antenna to the existing structure, and the existing structure, should not exceed 3.0 metres.

36 The Respondent submitted I should follow this decision in relation to the interpretation of Item 3 in the Schedule. Based on this reasoning it is clear that an antenna can stretch 5.8 metres beyond the structure to which it is attached. In this case the antenna extends 3.95 metres and is clearly authorised by the Determination. Further, the antenna panel proposed does not exceed 2.8 metres in height, and is within the limits set in Item 3 of Pt 1 of the Schedule to the Determination.

37 The Respondent also relied on material prepared by the Australian Communications Authority for distribution to local councils. In a document entitled Telecommunications Facilities Information for Local Government (attached to the affidavit of Stephen Birnie, sworn 12 February 2003) it stated “Under the Act, the maximum height of a low-impact facility is 6.5 metres. The most commonly installed facility is 5.8 metres high. By contrast, mobile phone towers are generally 25 to 30 metres high.”

38 In reply in relation to Onkaparinga, the Council argued that her Honour’s attention was not drawn to other parts of the legislation where the draftsperson saw fit to include a section to explain that the meaning of a word had the same meaning as used elsewhere. The Council used cl 7(4) of Sch 3 of the Act as an example. Clause 7(4) states "A reference in this clause to the maintenance of a facility does not include a reference to the extension of a tower. For this purpose, tower has the same meaning as in clause 4." Clause 4(3) states "In this clause: tower means a tower, pole or mast." The same word is being used in two different places and the Council submitted it would normally be expected to be used in the same sense. Nevertheless the draftsperson thought it necessary to make clear that the word "tower" is to have the meaning it has elsewhere by actually stating that the word is to have the meaning it had elsewhere. This was not done with the word protrusion, such that Item 3 which deals with different subject matter to that in Item 4 could have a different meaning from that held by Trenorden J in Onkaparinga. Hence a literal interpretation of Item 3 is open and should be adopted.

39 The Council also referred to the definition of original facility in the Determination and the use of the words in the Act. The Council submitted this is another example of the same words having a different meaning in different parts of the telecommunications legislation and subordinate legislation. This is another basis on which to distinguish Onkaparinga.

Argument 2
Council's submissions

40 The Council submitted that there is a need to look at the substance of the whole development. If this is done it demonstrates that what is proposed is really the installation of a new facility and it is a facility which is not authorised by cl 6 of Sch 3 to the Act as a low-impact facility. That is, the Respondent cannot rely on cl 6 to install it. The Respondent is building a new tower purpose-built for their low-impact facility to be installed on top. The tower cannot be a low-impact facility. This argument appears to overlap with arguments put in relation to Ground 4.

41 The Council made the following submissions to argue that the replacement pole is not a low-impact facility. The Council argued that, pursuant to Sch 3 cl 6(3) and 6(5)(b), the relevant Federal Minister does not have power to make a determination to authorise the carrier to carry out the installation of a tower which exceeds 5 metres, or authorising an extension to a tower unless the height of the extension does not exceed 5 metres (it being assumed that in the present case there have been no previous extensions to the tower). In order to form a view as to whether cl 6(5) applies it is important to understand what is meant by "tower…attached to a building" in cl 6(5). For the purposes of cl 6(5), a reference to a "tower" does not include a reference to an antenna. It was further argued that unless the footpad for the tower as it existed prior to removal can be considered a "building" cl 6(5) is inapplicable. Adopting a common sense meaning of "building", the footpad is not a building and cl 6(5) does not apply to allow the tower in this case (that is, the new pole) to be construed as a low-impact facility.

42 The Council submitted that failure to comply with detailed height and space restrictions set out in the Determination must be considered a non-compliance which renders the action invalid. Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 249-50, Telstra Corporation Ltd v City of Marion [2000] SAERDC 70 (Judge Trenorden, 6 October 2000) were relied on in support of this submission.

43 The decision of Marion was particularly referred to because Trenorden J in the Environmental Resources and Development Court of South Australia relied on the explanatory section included in the Determination which refers to certain facilities that could not be low-impact facilities. The Council relies on Marian to submit that Trenorden J concluded that the Act contemplates that facilities are attached to existing structures and does not authorise the destruction and replacement of existing structures (see par 19 set out below). The Council relies on Marion (at [18] – [19]) to argue that the Court must determine the purpose of the development. Her Honour had stated:

17 It seems to me that the appropriate course is to proceed to deal with the proposed development as if one were considering an application under the Development Act, taking care, at each stage, to assess whether the Telecommunications Act provisions override the Development Act. Adopting this course, the Court should determine the nature of what is proposed. Is it merely the construction or installation of a number of items, namely the pole, the antennae, the equipment hut and the fence? Alternatively, is it the construction and operation of a telecommunications network station, or as Mr Manos for Council would have it, a transmitting station? (It is to be noted that I am using the term "telecommunications network station" as a term of art, drawn from the Telecommunications Act, in preference to the term "transmitting station", but nothing should be read into the choice of terms.) 18 In my view, one has to look at the purpose of the building work to determine the nature of what is proposed. Telstra seeks to construct a pole, install antennae on that pole, construct an equipment hut in which equipment for the network system would be installed, and surround the site with the fence, for the purpose of establishing a telecommunications network station. It should be noted that this is not the approach taken by the Telecommunications Act, which seeks to exempt each of these facilities required for the establishment of a telecommunications network station based, inter alia, on assumptions about the impact of the facility in the planning area or zone.
19 It would appear that the approach of the Commonwealth Government through the Telecommunications Act and the 1997 Determination has been to facilitate the development of low-impact facilities attached to an existing building, by exempting them from the application of State planning laws, in the interests of the objects of the Telecommunications Act, but to allow a wholly new telecommunications network station, wherever located, to be subject to State planning laws.

44 The Council submits that in this case the Respondent's purpose is to build a tower and put a facility on top. This is not the carrier using an existing tower but rather the carrier building a new tower, which is not a low-impact facility.

Respondent's submissions

45 The Respondent submitted this argument had no basis because the Act and Schedule clearly identify what is contemplated by maintenance and installation. There is no need to go outside the provisions of the Act as the Council was submitting when it submitted that what was proposed was that this activity involved the building of a new tower.

46 The Respondent referred to par 17 of Marian (see par 43) and submitted that the task is not one of wholesale characterisation as the Council submitted, but rather to assess whether the Act overrides the State legislation.

47 Furthermore, the Respondent submitted that it is not constructing a new pole. The Council's submissions are flawed in that they deal solely with installation and do not recognise that both the installation and maintenance power are relied on. This undermines the Council's reliance on Marian. In Marian Trenorden J was concerned with a wholly new telecommunications network station (see [19] of Marian), here there was an existing light pole when the notice was issued. The Respondent is undertaking combined installation and maintenance works. Even if there were a question of characterisation, the activity involves two features, namely, maintaining in the sense of replacing the existing pole and installing on top of that a low-impact facility. The Respondent is not building a new tower from scratch as the Council submitted.

Finding on Ground 3
Argument 1

48 I see no reason to depart from the approach taken by Trenorden J in Onkaparinga in relation to the interpretation of Item 3 Pt 1 of the Schedule in the Determination and apply its literal meaning. A literal approach produces a result which it is unlikely the drafters of this legislation intended. I do not find compelling the proposition put by the Council that because the same word, for example tower, used on numerous occasions in the legislation is in some cases deliberately stated to be given the same meaning by the draftsman as in other places (for example, cl 4(3) of Sch 3 of the Act) the word "protrusion" in Item 3 should be considered differently to Item 4. The legislation under consideration is long and complex and there may well be examples where the draftsman has considered it necessary to clarify what is intended in a particular section but I do not think that supports the Council's general submission.

49 Accordingly, I consider the installation of the proposed antenna and related equipment at the top of the pole is a low-impact facility which complies with Item 3 Pt 1 of the Schedule to the Determination and accordingly cl 6(1)(b) and cl 6(3) of Sch 3 to the Act.

Argument 2

50 The arguments raised under Argument 2 in Ground 3 essentially raise the same issue that arises under Ground 4, namely whether the Respondent is attempting to install a new facility (the pole) which the Council submits it would not be authorised to do under cl 6 of Sch 3 of the Act as it does not constitute a low-impact facility, and putting a low-impact facility on top, or whether the Respondent can rely on the maintenance and installation power in relation to the works (in other words, the replacement pole constitutes maintenance) and a low-impact facility is being installed on top. It is necessary that I address Ground 4 first, before I make a finding on this argument.

Ground 4 - Excess of power as proposed work not "maintenance of a facility"

51 The Council argued the Respondent has no power to carry out the work pursuant to cl 7 of Sch 3 of the Act as the proposed work is not "maintenance of a facility" for the purposes of s 7 (which defines facility) on three grounds according to its written submissions:

(a) the Minister has no power under Sch 3 cl 6(3) of the Act to make a determination defining the meaning of "original facility" for the purposes of Sch 3 cl 7 of the Act,

(b) the pole has at no time been used for, or in connection with a telecommunications network, and

(c) the proposed work is not an extension to a tower as defined by Sch 3 cl 6(7) and cl 4 of the Act.

52 The arguments were refined in the course of the hearing. Ground (a) was originally argued by the Council in its submissions in anticipation of arguments from the Respondent relying on the definition of original facility in the Determination. However, as the Respondent did not seek to rely on that definition in its submissions, the Council, in its submissions in reply, stated it did not need to rely on these arguments. This means that ground (a) is no longer relevant and I do not intend to deal with it.

53 Ground (c) did not appear to be separately addressed in the Council's submissions, in relation to Ground 4. It overlaps with Argument 2 in Issue 3 in any event and some reference was made to the argument contained in Ground (c) in the submissions made in relation to Argument 2 in Issue 3 (see par 41) It relates to the Council's argument that the replacement pole is a new facility. I will not therefore deal with the arguments separately here but consider all the Council's submissions on this ground together. The Council made a number of submissions, some of which were difficult to follow. I have endeavoured to summarise its arguments.

54 A major focus of the issue between the parties relates to the definition of s 7 in the Act. Section 7 of the Act provides that facility means:

(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 .
[emphasis added]

Council's arguments

55 The Council argued the proper construction of cl 7(3) depends upon the construction of the Act as a whole. Clause 7 of Sch 3 precludes the construction of an original facility so as to include a pole which has not formerly been used for telecommunications purposes.

56 Clause 7(5)(a) and 7(6)(a) of Sch 3 proceed on the assumption that the "original facility" had some kind of "operation", and had measurable "levels of noise". That is, these sections assume that it was always operational as a facility. This is inconsistent with the idea that the Respondent can demolish and rebuild a low-impact facility.

57 Clause 7(1) and 7(3) of Sch 3 combined indicate that cl 7 is concerned with the maintenance of a facility as defined in s 7 of the Act. The expression "original facility" is introduced in cl 7 to maintain clarity in the drafting of the clause which intends to deal with more than one facility. Clause 7 of Sch 3 is not intended to apply to poles which have not previously been used for telecommunication purposes. This is evidenced by cl 6(5) of Sch 3. This provides that a tower must not be specified in a determination as a low-impact facility unless it is attached to a building and its height does not exceed 5 metres. The pole which was 18 metres in height cannot be a low-impact facility in its own right.

58 To sustain the argument that it is an original facility within cl 7 of Sch 3, the Respondent would have to concede that it is an original facility which is not a low-impact facility. It could not therefore be installed under cl 6(1)(b) which deals only with low-impact facilities.

59 The Council argued that the powers of a carrier under Sch 3 can be identified as follows:

A carrier may enter onto land and exercise any of the following powers:

(a) to inspect the land to determine whether it is suitable (cl 5)

(b) to install a facility on the land (cl 6), and

(c) to maintain a facility that is situated on the land (cl 7)

60 This is an orderly sequence and the maintenance power must be understood in the context of that sequence. Essentially the power to maintain a facility relates to the facility being previously installed under the Act. Clause 7(3)(d) of Schedule 3 to the Act referring to the replacement of the whole or part of the original facility is referring to an existing facility already covered by the definition in the Act.

61 The Council submitted that the Respondent is purporting to exercise its power to maintain facilities under cl 7 of Sch 3 to install a new facility which it is not authorised to do under the Act. A new facility would require a facility installation permit if it is not a low-impact facility. The Council argued that constructing the new pole which is made and owned by the Respondent and the attachment of a new low-impact facility on the pole is not maintenance within the meaning of Sch 3, cl 7. Clause 6 of Sch 3 does not confer a power to remove and replace property.

62 Further, under cl 47 of Sch 3, which concerns ownership of facilities, a facility that is supplied, maintained or operated by a carrier remains the property of its owner. The Council argued that the pole being installed remains the property of the Respondent and was not the property of the Council. It could not therefore be possible for the removal and replacement of the pole to constitute maintenance.

63 If it were accepted that by virtue of s 7 of the Act the pole is an original facility under cl 7 of Sch 3, "facility" would be expanded to cover any structure which a carrier intends to use as a base for an installation. The meaning of "facility" would be determined by the intention of the carriers with respect to the property of other persons. Such construction is inconsistent with cl 6 of Sch 3 which assumes that a "facility" is installed by the carrier.

64 In relation to the meaning of “for use” in s 7 of the Act the Council relied on Federal Commissioner of Taxation v Kentucky Fried Chicken Pty Ltd (1988) 12 NSWLR 643 and Deputy Commissioner of Taxation v Stewart (1983-1984) 154 CLR 385, both cases relating to Commonwealth sales tax legislation. In Federal Commissioner of Taxation v Kentucky Fried Chicken s 5(1) of the Sales Tax (Exemptions and Classifications) Act 1935 (Cth) provided certain goods in the First Schedule were exempt from sales tax. One such exemption was “Containers used, or for use, in marketing goods covered by any item or sub-item in this Schedule … where the property in the container passes, or is to pass, to the purchaser or lessee of the contents”. Hope JA (Priestly and McHugh JJA agreeing) stated at 654:

Some assistance is to be obtained from passages in some of the judgments in Deputy Commissioner of Taxation v Stewart (1984) 154 CLR 385. The sales tax exemption considered there concerned “goods for use … by … a public benevolent institution.” In relation to the relevance of actual use Brennan J said (at 398):

“…As the question whether goods were goods for use by a public benevolent institution is likely to arise for determination after the institution has begun to use them, evidence of actual use to which the goods have been put will be relevant and admissible.”

Deane J (at 401) considered the problem that arises in relation to items specifying goods for use by a particular category of person or organisation where there is no designation of any person by reference to whose purposes or intentions the question whether the requirement is satisfied must be determined. His Honour said:

“…While the subjective intentions of manufacturer or purchaser are relevant and may well be conclusive, what is required is an objective characterisation of the goods themselves in the light of all the relevant circumstances. That characterisation must be made as at the time when liability to sales tax would otherwise attach. It will, in an appropriate case, be made with the benefit and in the context of knowledge of the actual use which was subsequently made of the goods.”

…

It order to establish the necessary facts to attract the exemption, it would, having regard to the language of item 91(1) and the context of the sales tax legislation and regulations, be relevant and admissible to have regard both to the purpose for which the goods are to be used in the ordinary course of business, which in turn involves the subjective intention of Kentucky, and also to the actual use to which the goods are put. If actual use did not conform to the conditions of exemption, no doubt the exemption would not apply.

65 The Council submitted it is not the mind of a carrier which is the determinant. It does not matter whether the intention is formed on sound grounds, as the Respondent suggests through the affidavit of Mr Birnie, or capriciously. It is whoever is involved in the manufacture and supply of the goods or the owner of the goods (the Council), not a bystander (the carrier) which is relevant to determining the definition under s 7 of the Act.

66 In relation to the criminal law authorities relied on by the Respondent (referred to below), the Council submitted those relate to a different context, namely where the Prosecutor has to prove the intent of the person charged.

Respondent's arguments

67 The Respondent's counsel argued that the circumstances before the Court were a commonplace and conventional use of the legislative powers conferred on the carrier by the Commonwealth legislative regime. The Respondent is maintaining the existing pole and installing a new low-impact facility, the antenna and short structure at the top of the pole. The Respondent relies on the wording "for use…" in s 7 of the Act. Although the light pole may never have been historically used in connection with a telecommunications network, relying on the words "for use…" the Respondent submitted it formulated an intention for the purposes of s 7, after detailed studies, and issued the necessary notice. On 29 November 2002 the intention to adopt the pole for use in or in connection with the Respondent's telecommunications network was manifested when the Notice was sent. This is clearly contemplated by the definition in s 7 of the Act. Further, Sch 3, cl 6 provides for the installation of low-impact facilities. The Respondent relies on cl 6(1)(b) of Sch 3, that is, that the facility is a low-impact facility and on the powers in cl 6(2) in relation to installing a low-impact facility. The Respondent notes that the Minister's Determination in relation to low-impact facilities relates to cl 6 of Sch 3 (installation of low-impact facilities). Clause 7 of Sch 3 provides that a carrier may maintain a facility. It is a separate power to which the Determination does not relate. Maintenance of an original facility in cl 7 includes removal of the original facility (cl 7(3)(a)) (which was not addressed by the Council's submissions and is a complete answer to them) and the replacement of the original facility (cl 7(3)(d)) provided conditions in cl 7(5) are met. Under cl 7(5)(b) where the original facility is a tower, the height of the replacement must not exceed the height of the original, that is 18 metres. The Respondent is complying with all these provisions.

68 In summary, the Respondent submitted:

(1) There was an 18 metre tower in Oatley Park.

(2) The Respondent formed an intention to use it in connection with their telecommunications facility.

(3) The maintenance power allows the Respondent to remove and replace it.

(4) The installation power allows the Respondent to add a low-impact facility on top (the antenna and structure which attaches it to the pole).

69 There was no need to apply for an injunction restraining the Council after it removed the 18 metre pole at Oatley Park as this was going to be removed anyway under the maintenance powers as notified in the Notice dated 29 November 2002. The Respondent had notified its intention to use the pole in November 2002 and there was no formal objection lodged, as provided for, under the Act. Its actions in seeking to build a replacement pole are a lawful entitlement. When the notice was served there was a pole which was intended to be replaced. There is no need to rely on any commonsense definition of maintenance as there is a clear definition in the cl 7(3)(d) definition of "maintenance". This is relied on and clearly includes replacement of an existing pole.

70 In response to the Council's argument that you must install before you can maintain, the Respondent relies on cl 7(1) "A carrier may, at any time, maintain a facility". Furthermore, the Respondent submitted that as it is simply replacing the pole, under cl 47 of Sch 3 the pole remains the property of the Council.

71 Further, the definition of "facility" in s 7 of the Act which includes "for use" applies in this situation. Where a carrier elects to install a new low-impact facility on an existing structure it is not necessary under the Act that the structure be firstly installed under the Act. The facility can be "for use" in the telecommunications network if the carrier forms the view that it will be for use in the network.

72 Submissions were made in relation to the words "for use" relying on the English criminal case R v Ellames [1974] 1 WLR 1391, which was followed by Cantor J in Erickson v Pittard [1976] 2 NSWLR 528.

73 In R v Ellames the defendant had been charged under s 8(1) and s 25(1) of the Theft Act 1968 (UK) with robbery and going equipped for stealing. Section 25 of the Theft Act 1968 (UK) provided:

(1) A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary, theft or cheat.
…
(3) Where a person is charged with an offence under this section, proof that he had with him any article made or adapted for use in committing a burglary, theft or cheat shall be evidence that he had it with him for such use.”
The Court held at 1397:
In our judgment, the words in subsection (1) “has with him any article for use” mean “has with him for the purpose” (or “with the intention”) “that they will be used.” The effect of subsection (3) is that if the article is one “made or adapted for use in committing a burglary, theft or cheat,” that is evidence of the necessary intention, though not of course conclusive evidence. If the article is not one “made or adapted” for such use, the intention must be proved on the whole of the evidence, as it must be in the case of an article which is so made or adapted, if the defendant produces some innocent explanation.

In Erickson v Pittard the Appellant appealed against a conviction under s 21(1)(f) of the Poisons Act 1966. That section provided:
if any person –
(f) has in his possession any pipes or other utensils for use in connection with the smoking of opium, prepared opinion or Indian hemp or any utensils used in connection with the preparation of opium or Indian hemp for smoking;

he shall be guilty of an offence against this Division.

Cantor J stated at 530 – 531:

In reaching the conclusion that s. 21(1)(f) involves it being established by the prosecution that the defendant intended that the items would be used in the future in connection with the smoking of Indian hemp, I have considered, in particular, the words “for use in connection with the smoking of Indian hemp”.

I have received assistance from the decision of R v. Ellames …There the expression “for use” was given a similar interpretation to the interpretation I give the words in this section. …

74 The Respondent submitted what must be established is that the carrier has formed a sufficient intention to use the structure in connection with that carrier's network.

Finding on Ground 4

75 It is apparent from the above submissions that the three issues I must answer are as follows. Firstly, whether the Respondent has power to remove the pole and replace it with a new pole by reliance on the maintenance power under cl 7 of Sch 3 to the Act (see (2) below). To answer this question it is first necessary to consider whether the pole falls within the definition of facility under s 7 of the Act, which involves interpreting the meaning of "for use" in s 7 (see (1) below). It is then necessary to consider whether removal of the pole by the Council prevents the Respondent from relying on the maintenance power (see (3) below).

(1) Meaning of "for use" in s 7 - does the original pole constitute a facility pursuant to s 7?

76 The words "for use" in the definition of facility in s 7 of the Act have a plain and ordinary meaning, in my view, in that they would generally be understood to mean that the structure or thing will be used in the future. However, that is not the end of the matter, how does one determine that a facility will be "for use" for the purposes of s 7? There are conflicting submissions from the parties on the issue of who or what determines whether a facility is to be for use.

77 The Respondent has relied on English criminal law cases to argue that the words "for use" involve an intention that the items would be made or adapted for use in the future and submitted that the carrier is the appropriate body as the operator of the network to so determine. I consider it curious to apply case law from the criminal law, where the elements of the offence, including mens rea, will be very significant in determining the meaning of words used in the legislation, to the words used in the Act before me. Given their quite different context, I did not find these cases to be of much assistance in the legislative context before me.

78 The Council argued that as the light pole is the property of the Council and that is how it would continue to be used if not already removed, it cannot be a facility under s 7 of the Act because it has never been used in a telecommunications network before. The Council relied on cases before the New South Wales Supreme Court and the High Court dealing with qualification for sales tax exemption. Is the test proposed in Kentucky, namely to determine what the purpose for which the goods are to be used in the ordinary course of business, involving the subjective intention of the seller of the goods, and the actual use to which the goods are put, useful in this context? The context of the sales tax exemption decisions relied on by the Council is different again to that in the Act before me and these are also not directly applicable in my view.

79 The Act and subordinate legislation contains numerous other references to the words "for use". Given the length and complexity of the legislation a complete search of all such references was impossible and not particularly helpful. For example, the words "is used, installed, ready for use or intended for use" are used in s 20 and s 21 of the Act. The fact that the words "intended for use" are not included in the definition in s 7 may be supportive of the Respondent's interpretation of "for use", that is, that facilities which when built were not intended for use in a telecommunications network can become so if the carrier identifies them for that purpose, but that is far from conclusive of this matter.

80 It is important to consider the regime for low-impact facilities established by the Act to provide some guidance on the likely meaning of "for use" in s 7 of the Act. In this case, a light pole owned by the Council is very unlikely to ever be identified by the Council as a structure or thing for use in or in connection with a telecommunications network (that is, a facility under s 7 of the Act) for the obvious reason that the Council is not a carrier in the business of building and operating telecommunications networks. There are several factors which suggest the Council's approach is wrong and the Respondent's approach that the carrier can determine if a facility is "for use" under s 7 of the Act is correct. There is a wide range of structures or things which can be used or "for use" in or in connection with a telecommunications network under s 7 of the Act, in other words, any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing, all of which items could be original facilities under cl 7 Sch 3. The regime under the Act which deals with notification of the installation of low-impact facilities and carriers' powers to enter on land, inspect, install and maintain low-impact facilities clearly contemplates these will be placed on existing structures not owned by the carrier. This was also referred to by Trenorden J in Marion (see par 43).

81 Further, there are no provisions in Sch 3 linking the facilities installed under cl 6 of Sch 3 with those original facilities which can be maintained under cl 7 of Sch 3, that is, that a facility must first be installed under cl 6 before the maintenance power under cl 7 can arise. I do not accept the Council's submission that the sequence of inspection, installation and maintenance in the Act is just that, a sequence. There is nothing in the Act or Schedule apart from the ordering of cl 5, 6 and 7 in Sch 3, to support the Council's submission that maintenance under cl 7 of Sch 3 can only follow from an installation that has already been carried out under cl 6 of Sch 3. In my opinion, cl 7(5)(a) and 7(6)(a) which refer, inter alia, to noise levels resulting from the operation of the replacement facility, do not support the Council's construction that the only facilities which can be maintained under cl 7 of Sch 3 are those installed under cl 6. It will be apparent in the next section that my view on the scope of the maintenance power under cl 7 of Sch 3 also precludes this argument.

82 On balance I consider the Respondent’s interpretation is to be preferred so that s 7 of the Act applies to structures or things which the carrier has identified as "for use" in or in connection with its telecommunications network.

83 The regime established by the Act and subordinate legislation does not make explicit when the "for use" determination of a carrier in relation to a facility "crystallises". Given the large number of circumstances which may arise under this legislation, I do not think it appropriate to make a definitive statement on this matter. I accept the Respondent's submission that the carrier's intention is certainly made clear by the service of the Notice pursuant to cl 17 of Sch 3 advising the Council of its intention to undertake installation and maintenance activity. In this case the Notice dated 29 November made clear the carrier's intention that the pole was "for use" (that is, was a pole that will be used in the future) in the Respondent's telecommunications network (in other words was a facility within the meaning of s 7) and I consider the provisions of Sch 3 in relation to the maintenance of the original facility under cl 7 of Sch 3 apply from that point to the light pole at issue here.

(2) The maintenance power allows the Respondent to remove and replace the pole

84 It is apparent from the preceding paragraph that when the Notice was issued the pole became a facility for the purposes of s 7 of the Act, the consequence being that the maintenance powers in relation to original facilities under cl 7 of Sch 3 to the Act applied. These powers allow a carrier to remove and replace an original facility, in this case, the pole. The Council's interpretation of cl 7 and construction of cl 6(5) of Sch 3 to argue that it supports a finding that cl 7 of Sch 3 does not apply to poles which have not previously been used in telecommunications networks does not follow given my finding that "for use" in the definition of facility in cl 7 of the Act can include structures or things, including towers, not used previously as part of a telecommunications network (cl 6(5)).

85 However, one further question remains, namely, whether the removal of the pole by the Council prevents the Respondent from relying on the maintenance power or, in other words, because the pole was removed by the Council not the Respondent, by putting up a new pole is the Respondent actually installing a new facility?

(3) Does the Council's removal of the light pole prevent the Respondent from relying on maintenance power?

86 The Council's decision to remove the light pole, while not illegal in that it was the owner of the pole, does not result under this legislative regime in the new pole being an installation such that one would need to consider whether cl 6 of Sch 3 was available to erect the pole, but rather is encompassed by the maintenance powers available to the carrier under cl 7 of Sch 3. The fact that the Council, the pole's owner, removes the pole, (which importantly at the time it was removed already constituted a facility under s 7 of the Act to which the maintenance powers under cl 7 of Sch 3 operated) rather than the carrier or its agents does not alter the fact that the pole is an original facility under cl 7 of Sch 3. In other words, it does not alter the fact that the Respondent can replace the pole pursuant to cl 7 of Sch 3. This approach may not apply to other kinds of structures which are determined by a carrier to be "for use" in or in connection with a telecommunications network under the Act, such as a building, but it is less likely these will be removed by their owner when a notice pursuant to cl 17 Sch 3 is received in any event.

87 In relation to the ownership of the pole under cl 47 of Sch 3 of the Act, although the meaning of the clause could be worded more clearly, it is the intention of that clause that this pole remain in the ownership of the Council, in my view.

Ground 3, Argument 2

88 As I have already stated, the arguments raised under Argument 2 in Ground 3 raised similar issues to those arising in Ground 4. These are essentially whether a new facility was being installed and whether there was power to install it, or whether the Respondent could rely on the maintenance and installation powers in order to establish the lawfulness of the work. I have found in Ground 4 that the Respondent can rely on the maintenance power in relation to the replacement of the pole, such that it is not installing a new facility in relation to the replacement pole. I have also found in Ground 3, Argument 1 that the installation of the antenna and associated structure constitutes the installation of low-impact facility. For those reasons the Council must fail in relation to Ground 3. I note that Council's Argument 2 in Ground 3 related to a proposed test of determining the substance or purpose of the development. I do not consider it necessary in this case to address whether that is the correct test to apply, but note that even applying this test, based on my findings in relation to Ground 4, the Council's argument would fail.

Ground 5 - Section 121B Notice

89 The argument that the Council has issued an Order to the Respondent pursuant to s 121B Item 12 of the EP&A Act with which it must comply was not pursued by the Council at the hearing. The arguments in relation to the validity of the Order, which the Respondent has raised in separate proceedings, are dealt with in my judgment in matter no 40158 of 2003 (Hutchison 3G Australia Pty Limited v Hurstville City Council [2003] NSWLEC 53).

Summary of findings

90 In summary, the Council has failed on Grounds 2, 3 and 4. As I have already noted at par 23, Ground 1 is not sufficient to found the relief sought by the Council in the absence of a finding in favour of the Council in relation to either Ground 3 or 4. Thus, the Council has failed to prove the Respondent lacks power to carry out the work without obtaining a development consent under the EP&A Act. Accordingly, the Council's Amended Class 4 Application must be dismissed.

Orders
The Court orders:

1. The Applicant's Amended Class 4 application is dismissed.

2. The parties are released from their cross-undertakings given to the Court on 10 February 2003.

3. The question of costs is reserved.

4. The exhibits are to be returned.