Hutchison 3G Australia Pty Ltd v City of Mitcham
[2005] HCATrans 1027
[2005] HCATrans 1027
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A43 of 2005
B e t w e e n -
HUTCHISON 3G AUSTRALIA PTY LTD
Appellant
and
CITY OF MITCHAM
First Respondent
CKI UTILITIES DEVELOPMENT LTD
Second Respondent
HEI UTILITIES DEVELOPMENT LTD
Third Respondent
CKI UTILITIES HOLDINGS LTD
Fourth Respondent
HEI UTILITIES HOLDINGS LTD
Fifth Respondent
CKI/HEI UTILITIES DISTRIBUTION LTD
Sixth Respondent
THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA
Seventh Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 15 DECEMBER 2005, AT 10.03 AM
Copyright in the High Court of Australia
__________________
MR R.J. WHITINGTON, QC: May it please the Court, I appear with my learned friend, MR S.W. HENRY, for the appellant. (instructed by Minter Ellison)
MR B.R.M. HAYES, QC: If the Court pleases, I appear with my learned friend, MR G. MANOS, for the first respondent. (instructed by Norman Waterhouse)
MR C.J. KOURAKIS, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear with my learned friend, MR C JACOBI, for the seventh respondent. (instructed by Crown Solicitor’s Office South Australia)
GLEESON CJ: Yes, Mr Whitington.
MR WHITINGTON: May it please the Court, the case involves the erection by my client of five of their downlink sites, sometimes called base stations. Those sites have two distinct elements or two distinct parts. One part comprises the equipment attached to the electricity poles in question and the other element comprises equipment on the ground. It may pay some benefit if I take the Court briefly to a description of the equipment so the Court has the context of the arguments.
KIRBY J: Do you know, just as a matter of interest, whether the equipment that you are installing is capable of being put underground? It does not require above ground installation in order to be able to connect with satellite and other communications?
MR WHITINGTON: Your Honour, I think the equipment that is installed on the poles must be in the air for two reasons. There are two essential components to that part of the equipment which is installed on the poles. There are what are called the panel antennas and then below it there is a microwave dish or sometimes called a parabolic antenna. As I understand, the technological function of the equipment, a mobile phone will transmit, by radio wave, which will be received by one of the panel antennas. If the communication is to another mobile phone in the same cell area, a signal can be sent out by a panel antenna. If, however, the communication is more remote than that, then the signal must go from the receiving panel antenna to the microwave dish which then sends the signal on to another microwave dish and ultimately to a network distribution centre which then finds the receiving mobile phone and connects it by a similar arrangement and, of course, the communications are virtually instantaneous and they flow backwards and forwards.
Now, that is maybe not an entirely clear explanation but I should also say this. I have described the microwave dishes which communicate on communicator message. There is an alternative method of making that link and that is a coaxial cable but in the case of these downlink sites they are configured so that the message is transmitted on by a microwave dish. One of the issues in the case, or one of the issues for Hutchison, and then ultimately ETSA is that the microwave dishes have to fire to the next microwave dish with precision within very limited tolerance, and in the case of some of the electricity poles, if they were older and weaker, they were capable of some torsion under the weight of cables and so that would upset the line of fire, so to speak, of the microwave dish.
So, to answer your Honour’s question, that equipment could not be put underground although there may be a coaxial cable alternative for the dish component. The equipment in the air is then connected to other electric equipment which, as I understand it, drives it - enables it to perform its functions. That electrical equipment is installed and maintained in what are called equipment shelters. They are some small distance remote from the installation in the air and connected to the components on top of the pole by cable. Now, I suppose it would be theoretically possible although inconvenient to install that part of the equipment - that is the equipment shelter - underground.
KIRBY J: So if we are to continue to endure the age of the mobile phone with its great convenience to lots of citizens there has to be, unless coaxial cable replaces the current technology, an external and elevated disc?
MR WHITINGTON: Correct, as I understand it.
KIRBY J: So just part and parcel of that form of communications technology as it is now practised.
MR WHITINGTON: Yes, because it depends upon radio wave communication which is a form of electromagnetic wave communication and so it must be communicated through the atmosphere in some way. There is another aspect to your Honour’s question and that is whether these installations always need be on top of electricity poles, bearing in mind a general public desire to see electricity cabling undergrounded.
As I discern the Telecommunications Act, and particularly Schedule 3 that I will be taking the Court to, there is a policy embedded in that Act that if the electricity poles or puppet utility structures upon which these kinds of equipment are installed are to be relocated underground then the carrier must, within a certain time, remove its equipment and find an alternative location.
Against that background could I ask the Court to take up the appeal book and perhaps start at page 103. This, as the Court will see from page 101, is the Clarence Gardens site. There are five sites in question. At four of the sites the poles were replaced or, in the vernacular, swapped out. In Clarence Gardens the existing pole was used. The Court sees the pole at page 103. They are colloquially known in South Australia as “Stobie poles”, after the name of the so-called inventor.
They consist of side rails which certainly in the early days were, I think, reused railway lines with a concrete centre and the Court can see in the photograph numbered 4 at page 103 a pole attached to the electricity pole. That is described as the mounting pole. Attached to that is a round object. That is the parabolic antenna or microwave dish that I have referred to.
Above that is what appears to be a cylindrical object. That is in fact three panel antennas set around 360 degrees so that they can receive and also, as I understand it, transmit in all directions in that particular plane.
KIRBY J: Is photograph No 3 of Clarence Gardens?
MR WHITINGTON: Yes. This run of photographs, your Honour, is Clarence Gardens up to ‑ ‑ ‑
KIRBY J: Just let me understand how high the Stobie pole was before the connected equipment was – if we look at photograph No 3, is the pole the entire length of that or is it – that was the length of the pole as it originally was, was it?
MR WHITINGTON: Correct.
KIRBY J: It is quite a tall pole.
MR WHITINGTON: Tall Stobie pole?
KIRBY J: Yes.
MR WHITINGTON: Yes, and I can give your Honour the dimensions of that.
GLEESON CJ: The height of the pole is made clear on page 107.
MR WHITINGTON: That is Kingswood and that is a replacement pole.
KIRBY J: That is quite considerably higher, is it not?
MR WHITINGTON: Than?
KIRBY J: Than the one at photograph No 3.
MR WHITINGTON: If the Court has regard to page 97, there is a schedule of the heights of these poles.
GLEESON CJ: Thank you.
MR WHITINGTON: So the Court will see that the Clarence Gardens pole, which was untouched, is approximately 18 metres. The Kingswood pole that the Chief Justice has taken me to at page 107 as depicted – there were two different measurements as I understand it. So it was between 19.76 metres and 20.1, and the original height of the replaced pole was 20.13 metres, and so it goes. As I say, the Clarence Gardens site involved the use of an existing pole. In the other four sites the poles were replaced. Colonel Light Gardens involved what was called a landing arrangement.
KIRBY J: They look much taller than poles in Sydney.
MR WHITINGTON: Well, I cannot account for that ‑ ‑ ‑
KIRBY J: That Kingswood – I am just trying to look at it from the point of view of ratepayers in the municipality, that whether the poles you are installing are considerably taller and more unsightly for say that very nice federation home which is shown at Kingswood on page 107. It does not seem, on the figure you gave us, that there is very much increase in the height.
MR WHITINGTON: No there has not been, except in the case of Colonel Light Gardens, and I will come to that. There was some increase in the cross-sectional area. The case stated does not make it clear whether it was an increase in width or depth or both, but that was to achieve the purposes of both parties.
GUMMOW J: Now, you were telling us what was different about Colonel Light, as distinct from Bellevue, Kingswood and Torrens.
MR WHITINGTON: Yes.
GUMMOW J: The four of them are new, are they not?
MR WHITINGTON: Yes. They are all new except for Clarence Gardens.
GUMMOW J: Yes, but what is particular about Colonel Light?
MR WHITINGTON: Colonel Light Gardens involved a two‑pole arrangement and your Honours will see that depicted starting at page 157 and in about the middle of that photograph one sees two upright poles connected by three cables. That is the so‑called landing arrangement. There is another perspective of it in photograph 51 and then repeated again in 52 and 53.
KIRBY J: This appears to be in a substation of some kind.
MR WHITINGTON: It is.
KIRBY J: So it is not, shall we say, the most beautiful site in the City of Mitcham?
MR WHITINGTON: No, and your Honour will see that more clearly ‑ ‑ ‑
KIRBY J: It starts out being pretty ugly and it is ‑ ‑ ‑
MR WHITINGTON: It stays pretty ugly.
KIRBY J: Yes, it stays rather unattractive.
MR WHITINGTON: Yes.
KIRBY J: I am just trying to get some idea of the marginal increase in ugliness, but it does not seem, on what you have told us, that save for that substation that there is a very great increase in the height or offensiveness of the pole by simply putting that item on the top. This does not determine the issue but I am just trying to understand what has motivated the battle royal that we are engaged in.
MR WHITINGTON: Behind your Honour’s point is a further point and that is this – and I will take the Court to the instruments later – but there is evinced in various statutory instruments a policy of co‑location, meaning that carriers are required if they want to locate a network to find available existing carrier sites or public utility structures on which to locate. If they cannot do that of course, they then have to find some alternative which may well be constructing their own pole. So the policy of co‑location is clearly designed to minimise the aesthetic offence and minimise the proliferation of these kind of public utility structures.
The radio facilities on top of the poles are connected to equipment shelters, as I say. If the Court would go to page 149, this is the Bellevue Heights site. At photograph 44 there is depicted the top of the electricity pole with the Hutchison attachment and then in photograph 45 one can see an equipment shelter inside a fence with some cabling coming into the equipment shelter and right next to the left of the tree there are depicted the two air‑conditioners which are part of the issue in this appeal. There is a closer-up perspective of that at photograph 47 on page 151.
The Court has a description of the downlink sites in the case stated. If I could take the Court to appeal book 26, there is a short description in paragraphs 16 and 17 of the facilities, and that was obviously a description adopted and relied on in the Full Court. If the Court would turn back to page 24 in paragraph 10 of the case stated, there is a description of Hutchison’s procedure for identifying suitable sites and then arranging with ETSA for the installation of its equipment. In paragraph 12 there is the best explanation one has in the case stated for the replacement in the third sentence. That is:
ETSA determined that each stobie pole save for the Clarence Gardens stobie pole needed to be replaced to allow the access requested by Hutchison to proceed.
Then in 13(a):
ETSA replaced three stobie poles with poles consistent with the requirements of both Hutchison and ETSA at the cost of Hutchison.
That was at Bellevue Heights, Torrens Park and Kingswood.
Each of these poles is the same height as but is larger in cross‑section than the original pole it replaced.
Then there is a description of the landing poles at Colonel Light Gardens and a reference to the photographs I have taken the Court to.
The installation of Hutchison’s equipment was conducted in reliance on the powers conferred upon Hutchison pursuant to the Telecommunications Act. Could I take the Court to some relevant parts of the Telecommunications Act. The Court has extracted certain provisions in our book of submissions starting in this case behind tab 1 at page 23. I should tell the Court, although it is not in this extract, that the objects of the Act are set out in section 3 of the Act, then there are some relevant definitions in section ‑ ‑ ‑
GUMMOW J: We have the Reprint No 4 of the Telecommunications Act.
MR WHITINGTON: Yes.
GUMMOW J: That is 1 November, 2004. Reprint 3 is 18 February, 2002. Which is the better?
MR WHITINGTON: Reprint 4, your Honour, is the one that ‑ ‑ ‑
GUMMOW J: That is the one you have, I think.
MR WHITINGTON: I will double check that, but that is the one I am working from. If I could take the Court then into section 7 quickly, one of the critical definitions for the purpose of this case is the word “facility” and it is a rather elliptical definition. It is in two limbs. It means:
any part of the infrastructure of a telecommunications network -
and that is a defined term itself, and then limb (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.
Obviously, in a sense, there is some overlap and redundancy between those two limbs. Presumably, in part, the explanation for the second limb is to elaborate upon the concept of the telecommunications network but also, presumably, to enlarge the definition to equipment which may not strictly be considered part of the network but which facilitates the use or operation of the network.
GUMMOW J: There is a definition of “telecommunications network”.
MR WHITINGTON: Yes, there is, in terms of a system.
GUMMOW J: Yes.
MR WHITINGTON: The other point about the second limb in the definition of “facility” is it has a temporal consequence or aspect to it in that it speaks of things “used, or for use, in or in connection with a telecommunications network”. In other words, it is intended in part, obviously, to allow for the case where the network is only partially installed and, for instance, may not be operating so it may be in the process of being built or it may have been built and may not yet be a functioning system.
Can I then take the Court to section 484, the section that this Court in the Bayside City Council Case described as proleptic because it simply provides “Schedule 3 has effect”.
HAYNE J: That is prolix drafting, is it not?
MR WHITINGTON: The economy in the section itself is to be encouraged, but when one comes to the schedule it is fairly compendious. The schedule is extracted in a copy in our submission and also it appears at page 431 of the statutory print. It is a schedule to do with carriers’ powers and immunities.
There are then in clause 2 certain definitions. We emphasise the definition of “installation” and particularly part (c). We also emphasise the definition of “public utility”. If the Court would turn to clause 4 the Court will see that there is what is in substance a definition of “tower”. Critically, clause 4 operates if the “tower is a facility”.
KIRBY J: Where does “tower” come in, I am sorry?
MR WHITINGTON: In clause 4 on page ‑ ‑ ‑
KIRBY J: Yes.
MR WHITINGTON: Part 1 of the Schedule:
For the purposes of the application of this Part to the installation of facilities, if:
(a) a tower is a facility –
That drives one back, of course, to the definition of “facility”.
GUMMOW J: And to this phrase “or for use” which you latch on to.
MR WHITINGTON: Yes. Then Division 2 deals with inspection of land and the operation of Division 2, Division 3 and Division 4 of the schedule is to confer certain rights on a carrier. They are rights in relation to the creation of a telecommunications network. They are rights which are cast in terms of a right to carry out an activity but the end result of the activity will be, in most cases, the creation of a structure and so the right, while it is cast in terms of a right to carry out an activity will result in a structure and the right to, if you like, leave that structure where it is and use it must be carried with the right to build it.
So Division 2 confers on a carrier a right to go on to land and to inspect the land for the purpose of finding suitable sites. Division 3 confers a power on a carrier to install facilities and Division 4 confers a power on carriers to maintain facilities. The rights conferred by clauses 5, 6 and 7 clearly involve an authority to do what without that authority would be a trespass at common law and so, in a sense, there is a derogation from the other parties’ right to claim trespass.
GUMMOW J: I think we went into this in Bayside in some way. Is there some consideration in this statute of compensation?
MR WHITINGTON: Yes, there is, but only for damages, if your Honour pleases. As I discern the statute, there is no right of compensation in the nature of a rent charge but there is a right of compensation in clause 62 – I am sorry, clause 42, first of all. Clause 62, I think, is in the transitional provisions, so it is 42 but it is compensation for financial loss or damage.
HEYDON J: Clause 62 is in Part 3. The transitional provisions are Part 2.
MR WHITINGTON: Yes, thank you.
GUMMOW J: Anyhow, the assumption is that that is just terms, I think.
MR WHITINGTON: That?
GUMMOW J: Clause 42 provides just terms.
MR WHITINGTON: It must be, and, as I say, I am not aware of any other provision in the schedule for something in the nature of a rental charge for the owner, say of a pole, who has a low-impact facility installed on it by a carrier as a matter of right under this clause. Clause 6, then, authorises the carrier to carry out the installation of the facility and ‑ ‑ ‑
KIRBY J: You told us on the special leave hearing that you were confident that there was no constitutional question of the intersection of the federal and the State law, but why is it that - and I do not want to raise something that the parties do not want to litigate - but why are you not doing things pursuant to a federal law and what business is it of the State law to be intruding into that domain which has been the subject of all these detailed provisions?
MR WHITINGTON: Yes, and if I can just pick up your Honour’s point for a moment before I answer it ‑ ‑ ‑
KIRBY J: Or you cast it aside? Throw it out the window.
MR WHITINGTON: No, before I answer it, your Honour. There is a section 109 clause, which is ‑ ‑ ‑
GUMMOW J: Sort of a live and let live provision, is there not?
MR WHITINGTON: Yes.
KIRBY J: This is in the Act itself?
MR WHITINGTON: Sorry, in the schedule itself.
KIRBY J: Is it?
MR WHITINGTON: There is clause 37 ‑ ‑ ‑
KIRBY J: Tucked away in the schedule.
MR WHITINGTON: Now, perhaps first of all ‑ ‑ ‑
KIRBY J: There is 37(2)(c).
MR WHITINGTON: Yes, and the issue ‑ ‑ ‑
GUMMOW J: It is clause 38, is it not, “capable of operating concurrently”?
MR WHITINGTON: Yes. To the extent to which they are, there is no inconsistency, but clause 37 is the kind of clause that was endorsed by this Court, I think, in Randwick City Council and earlier by the High Court.
GUMMOW J: GMAC, is it not?
MR WHITINGTON: Yes. There have been a number of cases, in any event, that say it is open to the Commonwealth, in exercise of its legislative power, to provide that its enactment operates to the exclusion of any inconsistent State law and thereby the Commonwealth law engages section 109.
KIRBY J: But all of this is what the Europeans would call subsidiarity. This is just a federal law. I am talking about the Constitution. The federal law cannot vary the effect of and operation of the Constitution.
MR WHITINGTON: No, quite so, but, as I understand it, clauses like clause ‑ ‑ ‑
KIRBY J: I am not saying that it is not helpful to have a statement of the purpose of Parliament – they are to work together in some way – but in the end it is the Constitution that governs.
MR WHITINGTON: Well, I think a clause like clause 37 operates in amplification of the covering the field test. So it is designed to make clear, in conjunction with clause 38, the ambit and the limits of the field that the Commonwealth intends to occupy.
GLEESON CJ: It got us in Bayside into this argument about manufactured inconsistency.
MR WHITINGTON: Yes, that is right.
GLEESON CJ: There is a judgment of Justice Evatt somewhere along the line in which he says that you cannot do that.
MR WHITINGTON: That is right. I was going to give the Court a reference. I think it is discussed by the Court as well in the Council of the Municipality of Botany Case v Federal Airports Corporation 175 CLR 453.
GLEESON CJ: What is the reference to Bayside?
GUMMOW J: It is 216 CLR 595.
MR WHITINGTON: Thank you. The way this matter developed before the Full Court was along these lines. It did not appear that Mitcham was putting any argument as to the application of the Telecommunications Act, which threw up any inconsistency. The question initially appeared to come down to the interpretation of the scope of the respective exemptions in this Act to carriers from planning law and in the South Australian Development Act to ETSA also from planning law, and in turn, the requirements in the Development Act for a developer to have approval.
It appeared that there was an issue of construction of the respective enactments, but not any issue of inconsistency. However, along the way Mitcham put an argument to the effect that even for Hutchison to install its low‑impact equipment and installation, which is exempt under clause 37, on an existing pole involved, or effected, a change in use of that pole and that change in use was participated in by ETSA, the owner of the pole, and that as a result it had undertaken development by causing suffering or permitting a change in use. Therefore, while Hutchison might have a Commonwealth exemption for the installation of its equipment, ETSA was not exempt under the Development Act and required development approval in effect for having the item on top of its existing pole.
Now, at that point we complained that that did raise plainly a question of inconsistency in section 109. There was an adjournment of the proceedings for several months. We issued section 78B notices. The only party to come in, or the only Attorney to come in under our section 78B notice was the Attorney for the State of South Australia, but subsequent ‑ ‑ ‑
KIRBY J: Can I just ask, once the matter came into this Court did you renew your 78B notices?
MR WHITINGTON: Because of the way the matter developed in the Full Court we did not renew them, but what we did was write to the Attorneys pointing out that we had served an original section 78B notice advising them of the effect of the Full Court’s judgment, which on its face did not raise any constitutional issues, providing them with a copy of our submissions before this Court and inviting them to do what they thought was appropriate.
GLEESON CJ: I think you were in the course of telling us what happened in the proceedings in South Australia.
MR WHITINGTON: When the matter came back on after we had served section 78B notices, as I recall it, Mitcham, in effect, drew back from the argument but said that to install our equipment on one of ETSA’s poles – an existing pole – involved ETSA in a change of use and therefore development under the Development Act. Mitcham, in effect, conceded either that ETSA was not involved in development as defined in the Development Act or in any event that the Commonwealth exemption available to Hutchison was wide enough to cover the entirety of that development irrespective of the participants and so the issue went away, but the issue remained ‑ ‑ ‑
GUMMOW J: But the Attorney stayed?
MR WHITINGTON: The Attorney stayed.
GUMMOW J: And is a party?
MR WHITINGTON: Yes.
KIRBY J: He is here ever vigilant to protect State laws?
MR WHITINGTON: State law, that is right.
KIRBY J: Who is there to speak for the Commonwealth and its law, and specifically section 37(2)(c)?
MR WHITINGTON: Yes. The invitation has been offered and it has not been taken up. Can I perhaps go back to traversing briefly the provisions in Schedule 3. I should take the Court back to clause 6. Clause 6(1) provides the authorisation for “the installation of a facility” in four cases. The Court need not concern itself with cases (c) and (d). In relation to case (a) the installation may be:
authorised . . . by a facility installation permit –
which is a defined term. There is also a procedure or mechanism provided for later in this schedule for the obtaining of such a permit, and as Justice Bleby found, it is an extremely difficult permit to obtain. It is an extremely difficult procedure to satisfy, so to all intents and purposes the relevant authority, and certainly the one involved in this case, is that created by paragraph (b). It is an authority or a right to install:
a low‑impact facility (as defined by subclause (3)) -
Under subclause (2) there is a right to do certain things:
for purposes in connection with the carrying out of that activity:
and we stress subclause (2)(b) to:
do anything necessary or desirable for those purposes, including, for example -
and some examples are given. Then subclause (3):
The Minister may, by written instrument, determine that a specified facility is a low‑impact facility for the purposes of this clause. The determination has effect accordingly.
Then subclause (5):
A tower must not be specified in an instrument under subclause (3) –
that is, as a low‑impact facility unless it:
is attached to a building; and . . .
does not exceed 5 metres.
Then in passing you will note subclause (10). Clause 7 permits the carrier to “maintain a facility” and to do that to enter onto property on which a facility is erected, and to do things including, in subclause (3) relating to “the alteration, removal or repair of the original facility”. Now, that is noteworthy because it was a power purportedly relied on by Hutchison in the Hurstville Case which I will come to.
The Court might note in passing that there are certain noise tests and volume tests imposed in subclause (5) in respect of the exercise of the maintenance power which involve a change in the facility.
KIRBY J: Mr Whitington, may I ask you one last question on the constitutional matter which still worries me. At least on one view this is very detailed federal legislation designed to bring under a national law a system of facilities which the Federal Parliament has regarded as important for federal law to such an extent that they have moved into quite detailed provisions designed to carry out federal purposes, one of which is to use common facilities in municipalities and to limit the planning control that would otherwise apply to such matters.
I just do not understand at the moment why you have not pursued a constitutional point, that it just is no business of State law and State local government authorities to cut across the high national purposes of the Commonwealth which are expressed in very detailed provisions in this federal law and that that is a threshold question that really is presented by the very detail through which you are now taking us. I am not saying it would ultimately be determined in your client’s favour but it just seems to stand out, if I can say so, like an antenna pole, even a tower.
MR WHITINGTON: I understand what your Honour is putting to me and, indeed, that kind of approach formed the very basis of the section 78B notices that we issued.
KIRBY J: Yes, but 78B notices are facilities. They are facultative to the doing by this Court of its function which is ultimately sworn to uphold the Constitution. I am just very concerned, I must say, that we are going to be taken through this matter and it is going to be like Hamlet’s father; it is going to be wandering across the stage but we are told we have to ignore it, even when it speaks to us. I think I did raise these matters on the special leave hearing.
MR WHITINGTON: I think your Honour did mention it and I think the answer I gave then is the best answer I can give now, and that is that as the matter developed in the Full Court, it came down to an interpretation of the respective powers and exemptions and if the ‑ ‑ ‑
KIRBY J: But if you take the constitutional point, you do not get down into the engine room; you are taking a high point of constitutional principle that the Federal Parliament of our country has enacted a law of great detail on a matter which, as it were, appears certainly to be within the telecommunications power and which is designed for a very important national purpose. It would be hard to conceive how you could have a mobile phone network across the nation and across the world without a federal law of great detail.
MR WHITINGTON: I accept all of that and I hope we have not been remiss, but after the Full Court decision we have proceeded on the basis that the matter devolved into a question of, if you like, the ambit of exercise of Commonwealth power and that if we were right in our approach to the ambit of exercise of Commonwealth power, then the Commonwealth law prevailed and there was really no issue.
GLEESON CJ: I thought that was being assumed in your favour. The argument is an argument about the meaning of the Commonwealth law, is it not?
MR WHITINGTON: That is right. Then behind that, if the Commonwealth law does not avail my client in the way it says it does, the meaning of the State Development Act and whether that in turn avails my client, or indeed ETSA or the development. So, leaving aside what I will call the noise test issue, which is quite a separate and discrete issue and I will come to it in a moment, really the argument in practical terms comes down to this.
Where ETSA has replaced poles to facilitate the installation of Hutchison’s equipment, is that replacement something which can be said to have been carried out by Hutchison pursuant to its powers under clause 6 and, if it has, it carries with it the clause 37 exemption from State planning law. If that cannot be said but, nonetheless, it is said that ETSA has carried out the development or undertaken the development for the purposes of the Development Act, ETSA has an exemption in respect of the construction of electricity infrastructure, an exemption from planning approval.
GUMMOW J: Under State law.
MR WHITINGTON: Under State law. What we say is that what ETSA did when it erected these new poles to make them stronger to facilitate our equipment was simply to put a new pole in part of an existing electricity infrastructure network ‑ ‑ ‑
KIRBY J: Yes, but it was to strengthen the pole in order to carry the federally‑regulated telecommunications facility.
MR WHITINGTON: Yes, and I think your Honour might be putting that in my favour, but it is put against us that by ETSA doing it for that purpose it has destroyed its right of exemption under the State Development Act because it is said on several bases that the State Development Act involves a sole purpose test. So if ETSA puts a pole up to simply carry electricity cables and wires, then it has an exemption from State planning law and does not require development approval. If, on the other hand, ETSA puts up the identical pole, say, replaces an old pole with a new pole which is identical but now suitable to carry Hutchison’s equipment, then it is put against us that that pole has been installed, not for the sole purposes of electricity infrastructure but, rather, it has been installed, wholly or partly, for Hutchison’s purposes ‑ ‑ ‑
KIRBY J: I will not say another word on this but the answer that the Constitution may give is, “So what? Butt out. This is federally‑regulated territory”.
MR WHITINGTON: I will certainly undertake to reflect on that, your Honour, and I will develop the argument on statutory construction and ‑ ‑ ‑
KIRBY J: Yes, that is what we are here for.
GUMMOW J: Why did you lose in the Full Court on the first plank of your argument which must be Schedule 3? Forget about the State law for the minute. Why did you not win on the federal law?
MR WHITINGTON: The reason is, I have to say, a little obscure but the reasoning of the majority appeared to run this way. The new pole qualifies as a facility and a tower. We say it does not at all, but we say the Full Court adopted a strained interpretation of the concept of “used, or for use, in . . . a telecommunications network”. The majority said the replacement poles were put up for Hutchison’s equipment notwithstanding they were put up to carry the cables that had been there before. That made it a telecommunications facility. It also came within the definition of a “tower” in clause 4 of the schedule. Then the court said, as a tower, it cannot be a low-impact facility. A low-impact facility is defined to exclude towers. Then the Full Court said, in fact, in this case, the facility is not the equipment and not the pole, it is the culmination of the two, you aggregate to find a facility, and we say that is wrong. It said, in those circumstances, because the pole with the equipment is not a low-impact facility it cannot attract the clause 6(1)(b) right of installation, it cannot have been installed under that right ‑ ‑ ‑
GLEESON CJ: The Full Court said you were hoist with your own petard. What was going on here was the construction of a tower.
MR WHITINGTON: Yes, but our response to that is, with respect, that is irrelevant. We did not claim exemption for the construction of the tower as a low‑impact facility. We claimed exemption for the installation of the equipment on top primarily. In relation to the new poles, we said that they were ETSA’s poles, that they were either exempt from the requirements of State development approval under the State Development Act itself or, alternatively, we put an alternative proposition, which we advance here as well, that if in fact it should be said that Hutchison has erected those poles, it has done so not in the installation of low‑impact facilities but under the extended definition of “installation” in Schedule 3 or under the extended authority for installation under clause 6(2).
GLEESON CJ: Is it the case that the majority in the Full Court fastened not on what Hutchison was doing but on what ETSA was doing?
MR WHITINGTON: They fastened onto both at different times.
GLEESON CJ: Which is the provision of the Telecommunications Act on which you primarily relied?
MR WHITINGTON: We primarily relied on clause 6 of Schedule 3.
GLEESON CJ: The carrier being Hutchison?
MR WHITINGTON: Yes, and then the co‑relative immunity in clause 37.
HAYNE J: Identifying the facility as the Hutchison equipment which was to be put on top of the ETSA pole.
MR WHITINGTON: Exactly, and saying that the pole itself was not a facility and, therefore, the question of whether or not it was a tower was irrelevant to any consideration of this Act. But we also put an alternative argument that did not depend upon the pole being the facility. We said that if it could be said the Hutchison itself had undertaken the erection of the pole, that could be installation under the definition of “installation” which extended to anything that is ancillary to the installation of the low-impact facility or, alternatively, it was an authorised activity under clause 6(2) which:
authorises a carrier . . . for purposes in connection with the carrying out of that activity –
that is, the activity referred to in subclause (1), the installation of the low‑impact facility – to do anything necessary or desirable for those purposes. Now, we say that either ETSA installed ‑ ‑ ‑
GUMMOW J: There could be a simple answer to this. Now, what do you say the simple answer is? It is not an exercise of gymnastics. This should operate fairly clearly. You say, if A, not B; if B, not C. What is the target?
MR WHITINGTON: With respect, the dilemma in this case is that we seem to fall between two exemptions and there does not appear to be a simple or ready answer because, leaving aside the question of the noise test I will come to, if we had installed our low-impact facilities on an existing ETSA pole, the Full Court says that the exemption from the requirement of planning approval in clause 37 of Schedule 3 would avail us. However ‑ ‑ ‑
HAYNE J: The more complex you make this, Mr Whitington, the more chance there is there is a gap.
MR WHITINGTON: That may be so. I would like to make it very simple. One way of making it simple is to say that the activity of the erection of the pole, if that is attributed to Hutchison, is ancillary to the installation of the low‑impact facility or something necessary and desirable. There will be issues of characterisation there in fact and degree, but if a pole is replaced with a virtually identical pole, then we say that is an activity or an installation which is ancillary to the installation of the low‑impact facility.
HAYNE J: All of this proceeds from an unstated premise that it is right to attempt to give a single global characterisation to the events that are occurring. The moment you take that as your premise, it seems to me your opening up not just gaps, you are opening crevasses. The real questions may perhaps better be seen as being, under clause 6 what could Hutchison do? It is a carrier. It can install a facility that is a low‑impact facility. It can stick its bits and bobs on to a pole. What can ETSA do? ETSA can replace its poles. ETSA replaced a pole. Hutchison stuck some stuff on top of a pole. The two events happened, if not simultaneously, which would be a tad difficult, sequentially. So what? The argument against you is it is all part of a grand scheme. Now, why do you take that last step? Your argument seems to proceed from the premise, “Yes, you can take that last step. This is part of a grand scheme.”
MR WHITINGTON: No, as we develop the argument, we say you cannot take that last step, and we say that really in two ways. We say that to the extent that the Full Court relied upon development in the form of change of use, we adopt, with respect, your Honour’s analysis. The change of use occurred after the pole had been erected. That means that the change of use, in effect, was carried out by Hutchison alone and carried out, therefore, by installation facilities and it gets the benefit of the clause 37 exemption.
GLEESON CJ: Presumably, ETSA does not need anybody’s permission to replace old poles with new poles.
MR WHITINGTON: No, it does not. The case stated was that these were stock standard poles and also in the case stated it was said that there was no need to replace the pole at Clarence Gardens because it had been the subject of a recent replacement program and it was an adequate pole.
GLEESON CJ: I gather it is accepted that if these facilities are put on the top of an existing pole there is no problem? Putting that to one side.
MR WHITINGTON: Subject to the noise test which I will come to which really does not bear upon the conceptional analysis we are engaging at the moment.
GLEESON CJ: All right. So the only development that is going on is activity pursuant to clause 6?
MR WHITINGTON: On one analysis, yes. That is – and the clause 6 activity ‑ ‑ ‑
GUMMOW J: Well, Mr Whittington, those words “on one analysis” ‑ ‑ ‑
HAYNE J: Yes. All that is missing is the British Virgin Islands is the place of payment, pumping the money around, collapsing a trust and turning it into a tax scheme, Mr Whitington. I mean, how complex do you really want to make your case?
MR WHITINGTON: I do not want to make it at all complex, your Honour.
HAYNE J: Well, you are succeeding.
MR WHITINGTON: Well, I will ‑ ‑ ‑
GUMMOW J: I think you had better re‑attend to the Chief Justice’s question.
MR WHITINGTON: Yes. I will answer it this way then. The only activity being carried on is being carried under clause 6 ‑ that is our first position - and that is the installation of the low-impact equipment and the replacement of the pole, but it is put against us that because ETSA replaced the pole that was development for the purposes of the Development Act.
GLEESON CJ: What do you mean by the word “that”?
MR WHITINGTON: The replacement of the pole.
GLEESON CJ: I thought you said earlier that ETSA could replace its poles any time it wanted to.
MR WHITINGTON: Yes. Can I take the Court to the Development Act? I do not want to make this more complicated. I am trying very hard not to. I will touch this and move on. The Court has the Development Act at page 131 of our book of submissions. Could I start with section 32:
Subject to this Act, no development may be undertaken unless the development is an approved development.
Then section 49A at page ‑ ‑ ‑
GLEESON CJ: Are there existing use provisions in this?
MR WHITINGTON: No, not any overt provisions. 145, section 49A, “Development involving electricity infrastructure”.
HAYNE J: Well, just pause a moment. “Development”, relevantly, means “(b) a change in the use”.
MR WHITINGTON: Or “building work”.
HAYNE J: Yes, all right, go on.
MR WHITINGTON: And they were the two aspects of the definition relied upon below. Then 49A, at page 145:
if a prescribed person proposes to undertake development for the purposes of the provision of electricity infrastructure (within the meaning of the Electricity Act 1996), not being development of a kind referred to in section 49(2) or (3) -
then approval is required. One then goes to 49A(3):
No application for approval is required (either under this section or any other provision of this Act) . . . if the development is of a kind excluded from the provision of this section by regulation.
Now, we say it is excluded by regulation and relevantly the regulation is in Schedule 14A. Perhaps I should take the Court first of all to regulation 69 at page 154:
Pursuant to section 49A(3) of the Act (but subject to this regulation) the various forms of development specified in Schedule 14A, when carried on by a prescribed person, are excluded from the provisions of section 49A of the Act.
GLEESON CJ: You only get to this point if what is going on by replacing a pole is either building work or a change in use.
MR WHITINGTON: Correct.
GLEESON CJ: Which is it?
MR WHITINGTON: The Full Court said both. The Full Court said that the erection of new poles was building work - and in that context I do not think they were referring to the installation equipment - so I think they said the erection of poles was building work. They also said that there was a change in use. The reasoning is none too clear, but they appear to say it is a change in use because of the installation of the equipment on the top.
GLEESON CJ: The erection of the pole being the replacement of an old pole by a new pole?
MR WHITINGTON: Yes.
GUMMOW J: Why is that building work?
MR WHITINGTON: Because of the definitions, your Honour:
building work means work or activity in the nature of-
(a) the construction, demolition or removal of a building ‑ ‑ ‑
GLEESON CJ: Is the pole a building?
MR WHITINGTON: The pole is a building.
building means a building or structure or a portion of a building or structure (including any fixtures or fittings . . . whether temporary or permanent, moveable or immovable –
and so on. To answer your Honour the Chief Justice’s question and without trying to make the case seem too complex, the majority in the Full Court fastened onto the concept of “change of use”. To put the reasoning shortly, they said this.
GUMMOW J: But the definition of “building work” does not encompass replacement operations, does it?
MR WHITINGTON: “Building work” encompasses a construction, a demolition or removal of a building.
KIRBY J: It is not in (c), is it? There is no prescribed work or activity?
MR WHITINGTON: No, there is not.
KIRBY J: You would not really, at least at first blush, think of an installation of a pole as a building or structure or a portion of a building or structure.
MR WHITINGTON: As I understand it, conventionally it has been regarded as a structure, the erection of which requires Development Act approval unless it is otherwise exempt.
KIRBY J: It might be a structure; it is hard to call it a building.
MR WHITINGTON: Yes.
GLEESON CJ: I do not imagine a private landowner could go and put up a great big pole in his back garden. You were talking about these regulations.
MR WHITINGTON: Yes. Can I just complete what I was going to say on change in use because the Full Court is a little cryptic, but they appear to proceed this way. There was a change in use, the change in use is effected by the installation of the equipment and that change in use has been carried out by Hutchison. If the ETSA pole was used by Hutchison in pursuance of its clause 6 rights, ETSA did not, if you like, participate in the use and the immunity extended to Hutchison covers the change in use. However, if ETSA changed the pole, swapped out the pole, then it participated in the change in use. The court said that was development. The court then said it was not exempt development under the regulations.
I was about to take the Court to the regulations. The Court has the relevant regulations at page 161. We relied on paragraphs (a) and (f), top and bottom of the page, and particularly (a)(ii). The majority only addressed (a)(ii); they did not address (f). We say that we clearly fall within (f). In relation to (a)(ii) the Full Court said that reliance on this provision was not open to ETSA because it had undertaken the construction of the new pole, not simply in connection with the supply of electricity. Perhaps I could ask the Court to take up the reasons of the ‑ ‑ ‑
GLEESON CJ: This is the sole purpose argument that you told us about earlier?
MR WHITINGTON: Yes, and rather than have me explain it in my fashion if I could take the Court to where the majority deal with this argument and how they dispose of it.
GLEESON CJ: Once you get to this you are fairly well on the back foot because what has happened is that the Commonwealth’s scheme of legislation has not covered the activities of people like ETSA?
MR WHITINGTON: That is right, except for this, that we say that this activity is ancillary to installation.
GLEESON CJ: I was going to say to get you on the front foot you would be looking to the Commonwealth scheme of regulations?
MR WHITINGTON: Yes, well, I had not taken the Court to clause 43 of the Commonwealth scheme which permits the carrier to do things by contractors.
KIRBY J: There would be no other way or no ready way that you could do that, at least consistently, without defacing the landscape with lots more poles?
MR WHITINGTON: Yes, that is right.
KIRBY J: That is contrary to the federal scheme which is to use the poles that exist so far as you can?
MR WHITINGTON: Yes, to encourage co‑location.
GLEESON CJ: Did anyone argue that clause 43(f) applied?
MR WHITINGTON: We did, yes, and there is a contract and it is in the papers. It is called the facilities access agreement.
GUMMOW J: We had better look at that. Whereabouts is it?
MR WHITINGTON: It actually appears in two places, but if the Court would go to page 67 of the appeal book and unfortunately the Court only has here an abbreviated or expurgated version because the document was treated as confidential.
GLEESON CJ: Yes, but parts of it were included in the case stated, were they not?
MR WHITINGTON: That is right. What the Court has at page 67 is the part included in the case stated. The first page is the first page of a deed of novation which novated the benefit of the agreement from one Hutchison company to the other, the appellants, so the Court then really should come to page 68, the facilities access which is then part of the novated agreement.
Can I introduce this by saying that this agreement is clearly made between Hutchison and ETSA in pursuance of respective obligations that each of them have to effect co‑location. Hutchison has such an obligation under Schedule 3 and also under the Ministerial Code promulgated by the Minister under the Telecommunications Act. It has an obligation to use all reasonable endeavours to co‑locate and likewise ETSA is under an obligation pursuant to the Electricity Transmission Code of South Australia and its licence to make an offer to any person who seeks co‑location on one of their facilities.
GUMMOW J: Anyhow, there is no suggestion that insofar as ETSA is a party to this agreement it was ultra vires?
MR WHITINGTON: No.
GUMMOW J: Or attackable in any way?
MR WHITINGTON: No, and we say this is a contract to the effect envisaged by clause 43 of Schedule 3 so that should it be said that Hutchison has the power to replace a weak old pole with a good new pole it is authorised to employ a contractor to do it. The effect of the facilities access agreement is that it has employed ETSA to do it and paid ETSA. This is what is called in the agreement “Make Ready Work” and the Court has behind the agreements in the next tab a series of facility access application forms that refer to “Make Ready Work”. They do not describe it but it is clear that ‑ ‑ ‑
KIRBY J: Which tab is that?
MR WHITINGTON: Tab 4.5, and item 13, in each case, refers to the scope of Make Ready Work, and item 14 refers to the cost of the Make Ready Work. If your Honour the Chief Justice pleases, we are only on the back foot, in the way your Honour puts it, if we could not find a power in the Commonwealth legislation to effect the change of pole and ‑ ‑ ‑
GUMMOW J: If you have the power in 43 pursuant to this contractual mechanism, there would then be a 109 problem if the State legislation in any way impeded it. There is not said to be any 109 question raised by the State.
MR WHITINGTON: Because I think the State would concede that if Schedule 3 permits us to do this then it must override the State Development Act.
GUMMOW J: You are on more than the front foot; you are on a Constitutional foot, if you bring yourself within 43. Was there any treatment of 43 by the Full Court majority, clause 43 of Schedule 3?
MR WHITINGTON: No, there is not.
KIRBY J: You do not seem to want the constitutional foot.
MR WHITINGTON: I want to kick a goal, your Honour.
GLEESON CJ: Hang on, you have mixed the metaphor now.
MR WHITINGTON: I just want to make sure I do not get my feet mixed up and trip over.
HAYNE J: If you depend on 43, that dependence relevantly is in connection with the erection of the pole, is it?
MR WHITINGTON: Yes.
HAYNE J: That is to treat the pole as part of the facility?
MR WHITINGTON: No, it is not, your Honour. It is to treat the installation of the pole as installation activity within the extended definition or as an authorised activity being something which is necessary or desirable for the installation of a facility, namely a low-impact facility, but those ancillary powers do not require the activity only to be affected on or by or with a facility itself.
HAYNE J: Who installs the pole, ETSA or Hutchison?
MR WHITINGTON: On this argument, Hutchison.
HAYNE J: Under the agreement?
MR WHITINGTON: Under the agreement, the physical activity is done by ETSA as the contractor of Hutchison. It is Make Ready Work which is required to be done and it is done for the benefit of Hutchison by ETSA and paid for by Hutchison.
GLEESON CJ: And whether you are right or wrong, all three members of the Court of Appeal found against you on that point.
MR WHITINGTON: No.
GLEESON CJ: I thought Justice Bleby said that he would not accept an argument that this was work by Hutchison. You may be right, but I thought you lost on this point in the Full Court.
MR WHITINGTON: I did not think he went that far.
GLEESON CJ: Do not stay to get on to the detail of it now, but if the argument against you is right, what has been exposed is a gap in the Commonwealth legislative scheme.
MR WHITINGTON: Correct. If the argument against us is right, there is no Commonwealth power. Then the development is to be assessed under the State Development Act. If ETSA has carried it out, it has carried out for a multiple purpose which is in some way in conflict with the sole purpose test.
GLEESON CJ: But, as a question of power, detail does not matter. If the Commonwealth has left this gap in its scheme of legislation, then this becomes a matter for State law, and whether or not the existing State law catches it, the next State law could catch it.
MR WHITINGTON: Yes. We say the existing State law does not catch it and if something happens later, well, so be it, and we would say the Court would not be concerned about the possibility of some later State law fixing up what is perceived to be a gap.
GLEESON CJ: What the Court might be concerned about is the possibility of a gap in the Commonwealth legislative scheme.
MR WHITINGTON: Yes.
KIRBY J: But you deny there is a gap in the federal legislative scheme.
MR WHITINGTON: I do, but the entire case against us is that there is a gap and that, therefore, what has been done is forced back into the confines of the State development scheme and then it is put against us ‑ ‑ ‑
KIRBY J: The question of whether you have played this case according to the tune that has been orchestrated by the Solicitor and played by the respondent, instead of playing it on the higher constitutional level that at least for the moment I think is there.
MR WHITINGTON: I cannot say much about that standing as I do. I think that the matters that are well and truly canvassed in our written submissions, there is only one other matter I want to take the Court to, which deals with the noise test, which I have treated as separate and apart from the Development Act argument.
The majority of the Full Court adopted an approach to the low‑impact facilities determination which will have the effect of making it virtually impossible for carriers to install low-impact facilities equipment. Could I address that argument briefly? To do that can I take the Court to the low-impact facilities determination. The Court will find that determination in our book of submissions at page 85. This is the determination made by the Minister in pursuance of his powers under clause 6 of Schedule 3. Section 1.3 has certain definitions of significance. First of all, can I emphasise the definition of “co-located facilities”, and then there is the definition of “installation”, “public utility” and “public utility structure”.
GUMMOW J: Sorry, what page are you reading from?
MR WHITINGTON: Page 89, your Honour, I am sorry.
GUMMOW J: Thank you.
MR WHITINGTON: There is a definition of “public utility” and “public utility structure”. Then can I come to Part 3, section 3.1 on page 94:
(1) A facility described in column 2 of an item in the Schedule is a low-impact facility only if it is installed, or to be installed, in an area mentioned in column 3 of the item.
Then if I could simply note subsection (4). The Court then has the schedule starting at page 95. I should tell the Court that this schedule is a combination of the original determination made in 1997 and certain amendments made by a further determination in 1999. The Court, if it needs to check, has the original version of the determination in the first respondent’s appeal submissions, so the Court can compare, if necessary ‑ ‑ ‑
GUMMOW J: What we have beginning at 85 is the determination as amended. That is what it says.
MR WHITINGTON: That is right, yes, and the determination as in force ‑ ‑ ‑
GUMMOW J: Include the 1999 amendments.
MR WHITINGTON: Yes, and relevant for the purposes of these proceedings but it can at times, at certain points, be useful to refer back to the original version to ascertain the intention of the amended determination. Part 1 deals with certain radio facilities and these radio facilities, if installed in the areas identified in column 3, as regarded as low‑impact facilities and therefore exempt from the requirements of State planning or approval by virtue of clause 37 of Schedule 3.
Can I draw the Court’s attention to item 3, first of all, the panel antenna matching that description is a low‑impact facility if installed in residential or other area. The panel antennas in question in these five installations are of the item 3 kind and they are installed in residential areas. item 5 describes a “Radiocommunications dish”.
GUMMOW J: So the metre limitations there are satisfied, are they?
MR WHITINGTON: Yes.
GUMMOW J: Hence the significance of that list you took us to?
MR WHITINGTON: Yes. There was an argument which Mitcham advanced in the Full Court which it lost and does not now advance about protrusion. The Court will see that in the reasons. The issue was whether the protrusion was to be measured from the top of the structure to the bottom of the item or the top of the structure to the top of the item. Item 5, “Radiocommunications dish”. The dish I have shown the Court on the installations answers that description.
Then Part 2 deals with underground housing. Part 3 deals with above ground housing, and item 4 is significant. It is an equipment shelter of certain dimensions and character. The equipment shelters we have erected answer this description. Part 4 relates to underground cable facilities; Part 5, public payphones; Part 6, emergency facilities; and then Part 7. Part 7 relates to co‑located facilities, and I remind the Court that that is a defined term in section 1.3 of the determination.
Can I note in passing that under Schedule 3, clause 11 the carrier is under an obligation to take “reasonable efforts to enter into an agreement with a public utility” in relation to the installation of low‑impact facilities. This part of the schedule is clearly in implementation of that regime and that obligation. We are dealing in this case with item 2 in Part 7. The facility mentioned in Part 1, 5 or 6 or item 3 of Part 4, and for relevant purposes the facility here, we say, is that mentioned in Part 1 that I took the Court to, namely a panel antenna and also a radiocommunications dish. The Court will see there is no mention here of Part 3 underground housing.
HAYNE J: Part 3 above ground housing.
MR WHITINGTON: I am sorry, above ground housing, yes. So there is no reference in item 2 in the facility description to above ground housing, that is equipment shelters. To qualify as a low‑impact facility, the facility mentioned in Part 1 must be:
installed on or within:
(a) an original facility; or
(b) a public utility structure.
Pause there. The relevant Hutchison equipment on the poles are installed on a public utility structure. Then:
where:
(e) the total volume of the co-located facilities is no more than 25 per cent greater than the volume of the original facility or original infrastructure ‑ ‑ ‑
GLEESON CJ: What exactly does the concept of “volume” mean in this context?
MR WHITINGTON: There is a definition of “volume”. It means “apparent volume”. It is a slightly slippery concept but ‑ ‑ ‑
GLEESON CJ: I guess it is probably intended to be more precise than “size”.
MR WHITINGTON: Yes. It is a three-dimensional consideration and obviously what underlies this is a concern that bulky equipment would be put on top of public utility structures which frequently are fairly slender and high and it would create an overbearing and unaesthetic appearance. So there is a limit to the volume. As I say, “volume” is defined as “apparent volume”.
HEYDON J: What is the difference between the real volume and the apparent volume though? If it is a box, it is length times breadth times depth.
MR WHITINGTON: I think one has to bear in mind that this determination was drafted with input from technical people who were ‑ ‑ ‑
GUMMOW J: Yes, hence the problems that arise.
MR WHITINGTON: Yes, that is right. But in this case, to answer your Honour Justice Heydon’s question, I think it is concerned with visibility from the outside and general appearance. So if you take our installation with three panel antennas, they are not in fact connected. So on one view you might calculate the volume as being the volume of each separate antenna and aggregate it, but they in fact create the appearance of a cylinder. I think that is the concept being got at.
HEYDON J: Their real volume is very low but the apparent volume would be quite high.
MR WHITINGTON: Correct.
GLEESON CJ: Is what appears on page 141 in the first photograph on that page an example of this problem? You would not want to base your argument on aesthetics.
MR WHITINGTON: No, but a lot of these are the aesthetics of ETSA, your Honour, and installed there by the State and who now intervene to oppose what we are doing. I accept that these objects are not very pretty but beauty is in the eye of the beholder.
GLEESON CJ: But relating the concept of volume to that object, what does it mean?
MR WHITINGTON: That object is the top of the pole and your Honour is looking at the side rails there, so in terms of apparent volume of that pole, one would in effect fill in the side rails. Then if I can take your Honours to another picture where ‑ ‑ ‑
HAYNE J: But in determining the volume of the array of insulators that you see in that photo at 141 you may simply take the volume of the array determined by length and diameter of one insulator, in effect, filling in the gaps and determining your volume?
MR WHITINGTON: Yes. Can I take the Court to page 117 in respect of our equipment where – it is one of the better photographs, if I can find it, that depict this. Photograph 13 shows our mounting pole with our three panel antennas on the top. It may not be all that clear but you can see a gap between the panel antennas and yet clearly from a distance that would create the appearance of a cylinder.
Now, the other and more critical test or condition for present purposes in the determination schedule Part 7 is item 2 with condition (f):
the levels of noise that are likely to result from the operation of the co‑located facilities are less than or equal to the levels of noise that resulted from the operation of the original facility or the public utility structure -
What we say is that that noise limit or noise test only has application to facilities installed as low‑impact facilities in reliance upon Part 7. It has no application to other low‑impact facilities or indeed other telecommunications equipment not installed in reliance on Part 7 even though it might be part of the same downlink site. Now, in this case ‑ ‑ ‑
GLEESON CJ: That does not include the noise of the airconditioners?
MR WHITINGTON: That is right, but what the Full Court found was that you had to treat the entire complex as a facility and that the noise test applied by the schedule in respect of our equipment on top of the poles had to be transported to, in effect, each and every item of the entire complex and that meant, according to the Full Court, that we had one entire facility which emitted noise, it could not satisfy the noise test in Part 7, therefore no part of it could be a low‑impact facility, therefore we were not entitled to rely on the Commonwealth planning or exemption.
Now, that leads to particularly stringent and inconvenient results because it means that whenever low‑impact facilities are connected to other equipment which drives it, as invariably they will be, and that other equipment is airconditioned and the airconditioner emits noise, as it is bound to, then the whole site loses the benefit of Commonwealth exemption, which applies to its several parts. The equipment shelters here are exempt in their own right.
GUMMOW J: Where do we see that?
MR WHITINGTON: Equipment shelters?
GUMMOW J: Yes.
MR WHITINGTON: If your Honour will turn back ‑ ‑ ‑
GUMMOW J: The exemption.
MR WHITINGTON: The exemption, your Honours, is back in Schedule 3, clause 37.
GUMMOW J: Whereabouts?
MR WHITINGTON: Clause 37(2)(c). It is an exemption which applies to an activity “if the activity is authorised by Division” 3. Division 3 relates to the installation of low-impact facilities, relevantly. A low-impact facility can be an equipment shelter of a certain dimension.
GUMMOW J: Where do we see that?
MR WHITINGTON: Well, you have to then go back to the determination and the missing link, your Honour, is - while your Honour has Division 3 of the schedule open, your Honours should note subclause 3:
The Minister may, by written instrument, determine that a specified facility is a low-impact facility ‑ ‑ ‑
GUMMOW J: What page are you reading from?
MR WHITINGTON: Page 440.
GUMMOW J: Yes.
MR WHITINGTON: So it is in pursuance of that authority that the Minister made the determination I have taken the Court to, and in that determination he said in the schedule, Part 3, that an equipment shelter of a certain size was a low-impact facility and therefore had the benefit of the clause 37 exemption. He also said in Part 7 that co-located radio equipment, that is panel antennas and a dish on top of the pole, were low‑impact facilities, provided they satisfy the volume and a noise test.
Now, what the Full Court has done is transposed the noise test from the equipment on top of the pole to the equipment shelter. The Full Court said the entire complex must be treated as one facility, and the noise test directly and plainly imposed by the schedule to the determination on the radio equipment on top of the pole can also be applied to the equipment shelter. We say that that is plainly contrary to the interpretation of Part 7 in the determination and it also has the potential, effectively, to destroy the whole low-impact facility’s determination and exemption, because the noise test was only intended to apply to part of the facilities.
HAYNE J: Can you give me an example of an item in Parts 1, 5 or 6 that would be a noise‑emitting facility?
MR WHITINGTON: The answer to that, your Honour, is I cannot, unless it might be items 6 or 7 and 8.
HEYDON J: This is in Part 1?
MR WHITINGTON: Yes.
HEYDON J: Items 6, 7 and 8?
MR WHITINGTON: Items 6, 7, and 8, in Part 1, are perhaps liable to emit noise. Can I tell your Honour that the imposition of the noise test came in in the 1989 amended determination and it is something of a mystery because when one goes to the explanatory statement supplied at the time the determination was introduced and our learned friend, Mr Hayes, has extracted that in his submissions, one finds no reference or explanation for the noise test.
There is an explanation for the volume test which I think, read fairly, amounts to what I was putting earlier that the volume test is imposed for aesthetic reasons so you will not get an overbearing appearance but the noise test simply seems to slip in without apparent explanation.
KIRBY J: Noise can be very disturbing to the environment and a sense of aesthetics.
MR WHITINGTON: Yes. What I meant was there is no explanation as to why the noise test was applied to co-located facilities because there is no noise test applied to the same facilities under Part 1 of the schedule when they are stand-alone installations. The noise test is only imported into the schedule in Part 7 relating to co-located facilities. As I say, the reason for that is obvious in the case of the volume test and the fact that that reason is obvious makes it clear that the volume test is being applied directly to the co-located facility.
GUMMOW J: Yes, Justice Bleby was in your favour on this point, paragraphs 279 and 280.
MR WHITINGTON: He was. We also had in our favour the decision of the Court of Appeal of Victoria in the case Hutchison 3G Australia Pty Ltd v Director of Housing. It is unreported. The neutral citation is [2004] VSCA 99, 3 January 2004. I will not stay with that case but the critical reasoning is at paragraphs 39 to 46 and what Justice Morris says there is that in determining what is a facility, for the purposes of the schedule, one must look at the level of abstraction applied by the schedule itself.
He concludes that the schedule itself, by defining items in particular ways, defines what is to be a facility for the purpose of the schedule. It is a dish or it is a panel antenna or it is a shelter, that is the level of abstraction for the purpose of the inquiry and you take that back to Part 7, and what that means is that the relevant facility, and therefore the relevant low-impact facility, is that described in Part 7 alone. It is not something described in Part 7 connected to something described in Part 3 in the aggregation of the two. I understand that this can seem to be a minor point in the scheme of this case but, as I say, it has quite serious implications for carriers if the decision of the majority is upheld in this case.
GUMMOW J: It goes to discretion whether there is a gap in the Commonwealth scheme, does it not? It suggests there is not.
MR WHITINGTON: Yes, but the interpretation of the majority creates real difficulties.
KIRBY J: It would hardly be likely to be the purpose of the legislature, it would have to be some slip that has occurred because the purpose is to encourage co-location and that is going to require co‑operation and that is going to require the installation of these facilities with certain aesthetic objections but as part of the grand federal scheme.
MR WHITINGTON: Yes, but also technically the installation of equipment in the air, this is the discussion I had with your Honour at the outset, equipment in the air connected to equipment on the ground, and inevitably that equipment on the ground will involve electrical equipment which inevitably will, or may well need to be cooled and there is no noise test imposed by the legislation on the equipment shelter itself. Why would you take a noise test imposed upon equipment in the air which does not make any noise and then impose it on the connected equipment shelter and now say you cannot install anything unless it is completely and utterly silent, well knowing that equipment shelters may not be completely and utterly silent.
KIRBY J: What level of decibels does the noise get to, just as a matter of interest?
MR WHITINGTON: Your Honour has seen the picture of the two airconditioners. They are, as I understand it, ordinary domestic airconditioners of the type fitted, one sometimes sees, into rooms or windows.
GLEESON CJ: Sticking out of Wentworth Chambers and leaking water over Phillip Street.
MR WHITINGTON: Yes, I think I know what your Honour means. Curiously, despite Mitcham’s objection, airconditioners which otherwise, under the Development Act regulations, are exempt from the requirements of planning approval. So if one were to install one of these airconditioners in the Phillip Street equivalent of Adelaide you would not need planning approval. But Mitcham uses the noise generated by such an airconditioner in effect to destroy the efficacy of the whole low-impacts facilities determination.
That only leaves the volume question. That question was not answered by the court. You will see for instance the question in the appeal book at page 300, paragraph 225. In the conclusions there is a table, and the question was posed, question 1.2(a). The majority said it was unnecessary to answer that question, it was otiose, because they said that the relevant facility comprised the pole and the Hutchison equipment on the top. They said that, therefore, could not be a low-impact facility, but the question was directed towards a test imposed on a low-impact facility. So they said the question was otiose and they did not answer it. Justice Bleby ‑ ‑ ‑
GUMMOW J: Justice Bleby would have answered it “yes”, would he not? Paragraph 282?
MR WHITINGTON: Except that he says that the question is irrelevant.
HEYDON J: Question 1.2 he answered “yes”.
MR WHITINGTON: Sorry?
HEYDON J: He answered 1.2 “yes”, paragraph 305 on page 322.
MR WHITINGTON: Yes, he did ‑ ‑ ‑
HEYDON J: He took a reverse position. He did not think it necessary to answer 1.1, but he answered 1.2 “yes”.
MR WHITINGTON: That is right. That was subject to a qualification he made about 1.2(a) that appears at 266. Put shortly, he says the question is misconceived, and the question is misconceived as framed. We would simply say that this Court need do nothing about it.
HEYDON J: This is 1.1 you are talking about?
MR WHITINGTON: No, 1.2(a), your Honour. So if the Court is at paragraph 266 in the reasons of Justice Bleby at page 313, the Court will see the question at 1.2(a). At 266 he says, in effect, the question has no bearing on the determination, and that is because the Telecommunications (Low‑Impact Facilities) Determination in Part 7, in effect, required a comparison of the volume of the installation with the volume of what it was installed on to see whether the increase was less than 25 per cent, but the question as framed did something different. The question as framed said, take the new pole and take the installation on top and compare that with the volume of the old pole, and he said that is misconceived because that is not the inquiry.
GUMMOW J: The question is awkward in having regard to the fact that – the question is, has Hutchison erected low‑impact facilities within the meaning of the determination, and he would have answered yes.
MR WHITINGTON: Yes.
GUMMOW J: Is that what you encourage us to do?
MR WHITINGTON: Yes, we do.
HEYDON J: What about 1.1, do you agree with Justice Bleby’s refusal to answer that, paragraphs 261 and 262, page 312?
MR WHITINGTON: He declined to answer the question as it was irrelevant ‑ ‑ ‑
HEYDON J: He said it would not assist in the resolution of the present dispute.
MR WHITINGTON: Yes, we agree with that. We do not agree necessarily with the path by which he got to that conclusion. We say the tower could not ever be a facility. We rely on the reasoning of the Court of Appeal in Hurstville City Council v Hutchison.
KIRBY J: In the orders that you seek at page 333, 4.1, you say, “an order substituting the answer ‘No’”.
MR WHITINGTON: Yes, we do seek that because we say that the poles are not facilities and therefore towers. We also in our argument explain why that question does not really go anywhere, but our contention is that the new poles are not to be regarded as towers because a tower under the Telecommunications Act must first be a facility, and for it to be a facility it must be a piece of equipment “used, or for use, in . . . a telecommunications network”. We say that while these Stobie poles were capable of housing or hosting the Hutchison equipment, it is not appropriate to say that they are facilities in the sense that they are for use in a telecommunications network.
GUMMOW J: What you really seek is a speaking answer in a way, is it not, to 1.1?
MR WHITINGTON: Yes, that is so.
GUMMOW J: Perhaps we had better have that formulation, I think, after some further thought.
MR WHITINGTON: Yes.
GUMMOW J: This might be true of all these answers, I do not know.
MR WHITINGTON: Yes, I will reflect on that.
HAYNE J: The answer you give to this debate about tower or not tower is an answer that takes as its premise the Act’s premise about co-location. Co‑location on public utility facilities presupposes, does it not, that what you are co-locating on is something distinct from the telecommunications facility?
MR WHITINGTON: Precisely, and that is at the heart of the reasoning in the decision of the Court of Appeal in Hurstville City Council v Hutchison (2003) 200 ALR 308 where the Court of Appeal said that by reference to the definition of “facility” that definition must be read down in a way your Honour Justice Hayne has indicated ‑ ‑ ‑
HAYNE J: I do not know about reading down.
MR WHITINGTON: Well, interpreted, to avoid the situation where telecommunications equipment, say, is installed on the Sydney Harbour Bridge and the kind of definition put against us of “facility” would then mean the bridge became a “facility”. That would, in turn, mean that a whole host of powers were opened up to the carrier to interfere with the bridge and the Court of Appeal said that that result was readily avoided by attending to the fact that the legislation in various places drew a distinction between telecommunications equipment, properly so-called, and structures on which it was installed, and applying that distinction to the definition you would not call the host structure a facility. So, in this case, we would say, you would not call the public utility structure, the pole, be it an old pole or a new pole, a facility, and if it is not a facility, it cannot be a tower. They are our submissions, if the Court pleases.
GLEESON CJ: Thank you, Mr Whitington. Yes, Mr Hayes.
MR HAYES: If the Court pleases, can I commence with the observation in relation to the breadth of Commonwealth legislation in this case, it is our submission that the Commonwealth has been very careful in ensuring the extent to which it has chosen to legislate in this field. That is apparent from clauses 36, 37 and 38 of Schedule 3. It makes it clear that it is not seeking to literally cover the field in relation to telecommunications facilities. That has come about, we say with respect, through a series of changes in policy. What the Commonwealth appears to be doing through this legislation is to say there are some cases which the States will be able to legislate for in terms of telecommunications facilities because they give rise to controversy within the community and there are other cases where they will not be able to legislate. That is the effect of, in our submission, clause 37 when read in conjunction with clause 36 and clause 38.
GUMMOW J: Another consideration, I think, of which the Commonwealth would be aware was the need to not turn these into Commonwealth places for which there would be a complete exclusive power of the Commonwealth. They did not want to do that.
KIRBY J: Subject to the Commonwealth places legislation which again endeavours to correct that constitutional consequence.
GUMMOW J: Yes. They did not want to get into another problem they had got into there.
MR HAYES: Yes, but there is in addition to that a clear indication, and we can see this from some of the explanatory statements made in relation to Schedule 3, which seems to indicate that the Commonwealth was acutely aware of the local controversy.
GUMMOW J: But they excluded town planning.
MR HAYES: Yes, they did and they went on to exclude town planning in relation to clause 37. That is what I say. That is there they have said town planning does not apply. But when you look at the ‑ ‑ ‑
GUMMOW J: At the moment it is a bit difficult, having regard to 37(2), as to what is left.
KIRBY J: Especially when you add “the use of land” in (f).
GUMMOW J: Yes.
MR HAYES: There is no doubt that they have excluded that.
GUMMOW J: What do you say is left? Reading 37(2) for the minute, what areas of legislation are left?
MR HAYES: For example, this legislation in Schedule 3 is concerned with low‑impact developments, low‑impact facilities. The Commonwealth legislation does not seek to control those facilities which are not low‑impact impact other than through other provisions in the Commonwealth legislation itself. But if it does not fit the category of low‑impact facility, then it is governed by the State legislation in relation to town planning law. That is the question that arises in this case.
If we accept, and we do accept, that Hutchison’s antenna and the pole above the Stobie pole, subject to the noise criterion which I will deal with separately, that fits the category of low‑impact facility, on its face clause 37 would give them an exemption from town planning laws at the State level in order to install that low‑impact facility. The question that arises though is when they seek to do more than install a low‑impact facility, if they should seek to, for example, construct a pole upon which they want to put some low‑impact facilities on, then that does not enable them to take advantage of the Commonwealth exemption.
In this case, if they co‑locate their low‑impact facility on an existing public utility structure, the legislation enables them to do it. If, on the other hand, they seek to build – I will go to one end of the extreme. If Hutchison seeks to construct a pole upon which it seeks to put the low‑impact antenna, then it does not have the exemption of clause 37.
The question here is, as the Full Court by the majority held, that is the effect of what they did by reference to the nature of the agreement that they made with ETSA and the way in which the replacement poles came into being and the purpose for which those replacement poles were constructed. The Full Court said that the reality of the situation is, and when you read the Facilities Agreement which I will take the Court to, you will see, if the Court pleases, that there is, in effect, a joint venture between ETSA and Hutchison to enable Hutchison to construct or erect its telecommunications facilities which include the pole. That is the Stobie pole.
HAYNE J: What is revealed is that the argument you advance seems to begin from the start point of the development controls of South Australia by saying, “Thou shalt not”, and really you say what is happening here is they are developing or building. That is not the right place at which to begin the inquiry. The right place to begin the inquiry is, “What is authorised under the Commonwealth law?”
GUMMOW J: And you start by looking at Schedule 3 as a whole, what it is doing, and 2, 3 and 4 of Schedule 3, taken together, seem to cover a pretty wide universe.
MR HAYES: Yes, but they do not ‑ ‑ ‑
GUMMOW J: And it is 2, 3 and 4 which is spoken of then in the exemption in 37(1). What other divisions are not within 37(1) but one might have thought could have been but were not? The answer is none.
MR HAYES: But 2, 3 and 4 do not include the construction of a tower. We have to look at that.
HAYNE J: I understand the importance you place on this tower argument. Let us leave that to one side for the moment. What is wrong with an analysis that sees this case in this way. Hutchison sought to co‑locate certain facilities. The facilities it sought to install were two forms of antenna on a support pole that was to be put on top of a Stobie pole. Hutchison paid ETSA to have ETSA replace its, ETSA’s, Stobie pole. The first set of activities were activities explicitly dealt with in the telecommunications sets of Act, determinations, et cetera. The fact that Hutchison may have paid ETSA to have ETSA replace its pole is interesting but irrelevant. Now, what is wrong with that analysis?
MR HAYES: With respect, what is wrong with that analysis, if your Honour pleases, is this. If one looks at what the factual situation is, Hutchison, in paying ETSA to construct a pole which ETSA does not – put it another way. Hutchison, in saying to ETSA, “We want to construct our low‑impact facilities on your pole, but your pole is not good enough; it is not strong enough. We need a different and purpose-built pole to put our low‑impact facilities on it”, that is the difference.
KIRBY J: Just pause there. I thought we were told by the appellant that this was not a purpose-built pole. True, it had a purpose, but that it was just a standard pole. There is a factual difference here.
MR HAYES: Yes, we say – and I think this was the finding of the majority in the Full Court – that ETSA would not have changed their poles had it not been for the fact that Hutchison wanted the new poles to support their infrastructure.
HAYNE J: Had Hutchison not paid them lots of money. I understand that.
KIRBY J: But you are going down a trapdoor then, because that merely means that ETSA is doing what it is doing in order to facilitate the federal activity.
MR HAYES: ETSA is doing what they are doing in that sense to facilitate the federal activity. The question is ETSA does not have the benefit of, we would argue, the federal exemption in relation to that. What is happening here is this, if I can put it in this way. If Hutchison – forget about ETSA – wanted to have the same Stobie pole at Colonel Light Gardens and there was not one there before, they could not instruct us, ETSA, we say, to “Please put a Stobie pole there to these specifications, which are our specifications, to enable us to put our low‑impact facility on top of it”.
That clearly, we would say, is in breach of the third schedule because they would thereby be constructing and erecting a tower and they do not have the benefit of a clause 37 exemption to do that. If that approach is right, the next point is: is it any different where Hutchison goes to ETSA and says, “We have identified these three poles but they are no good for our purposes unless they are strengthened, unless they are made different, and in one case unless they are significantly increased in height. If you do that, we will then be able to put up low‑impact facilities on top of it”. The Full Court said that is effectively a joint arrangement between Hutchison and ETSA to construct a tower. The tower does not get the benefit of the clause 37 exemption and therefore you then look to see whether the State legislation in some way exempts Hutchison or ETSA from doing it.
Hutchison has always puts its case, as I understand it, they were not relying on clause 37, the Commonwealth exemption, other than the ancillary provisions and the necessary or desirable ones. They were relying on the provisions at State level that ETSA was able to ‑ ‑ ‑
GUMMOW J: I think they have changed their focus now, so it is no good crying over spilt milk.
MR HAYES: If I was in their position given this morning, I would be changing focus. But the point is this, with respect. I ask rhetorically why is it not the case where Hutchison is virtually behind, not only paying ETSA to do this but reaching an agreement with ETSA that when they do it they will in effect provide all the specifications to enable ETSA to put up a pole which is for their purpose, the purpose of telecommunications. If that is not getting in through the back door what the Hurstville Case said, what they would otherwise have to go through getting a facility permit to do, which is an extremely difficult thing to get because you have to go through environmental impact statements and so on under the Commonwealth legislation. This way they can go along and achieve the same end without going through that process. That is why it is causing some concern in relation to councils like Mitcham.
We say, with respect, it is simply a question of looking at what the Full Court, in our respectful submission, correctly found to be the case, and that is that there was in effect a joint approach or a joint venture between Hutchison and ETSA and that therefore meant that at the end of the day a tower was being constructed and that telecommunications legislation simply does not exempt a tower from State law.
Can I take the Court to the appeal book, in particular at page 282 at paragraph 85 where his Honour Justice Perry sets out an extract from the Minister’s determination which the Court will see referred to:
The ‘low-impact’ list does not include any aerial cabling or telecommunications towers, meaning that installation of these new facilities, which have caused the greatest controversy and concern for local communities, are now governed by State and territory laws.”
That, with respect, is how we say the Commonwealth legislation should be viewed in relation to the field that it is covering. His Honour goes on:
The replacement stobie poles were, in my view, an integral part of a facility within the meaning of the Telco Act.
With respect, that is absolutely right because without those poles there Hutchison could not operate its antennae.
HAYNE J: How is that consistent with the notion of co-location? How is that approach consistent with that at all?
MR HAYES: Co-location enables Hutchison to install its low-impact facilities on existing infrastructure. It does not contemplate Hutchison, by agreement with the public utility, replacing existing infrastructure in order to accommodate its requirements. That, with respect, is the difference. It does not impact on the policy of co-location at all.
There is nothing to stop Hutchison co-locating on existing buildings should they choose to find buildings which are suitable, on Stobie poles, whatever, but it does not given them the power, for example, in the case of a farm shed where they may want to co-locate on top of that, an existing structure, it does not give them the power under the telecommunications legislation to rebuild that shed to a much bigger and stronger shed in order to put their low-impact facilities thereon, and that is the difference here. That is the case that we are dealing with here. Hutchison comes along and says to ETSA, “Your poles are no good but they are obviously in the right location and so we want you to have some new poles to our specifications”. That is the effect of it. That is why, with respect, the Full Court was able to say that there was, in effect, a joint venture between the two.
Justice Bleby, on the other hand, viewed the commercial arrangement between ETSA and Hutchison as no more than an agreement which gave effect or removed some of the possible obstacles which might have been in the way of the statutory process of a carrier being able to co‑locate. There is a policy of co-location. They can go to the public utility structure and say – and there is encouragement to reach agreement with them. If they do not reach agreement, then there are processes whereby they go to the Ombudsman and so on. Justice Bleby took the view that this agreement was a very convenient commercial arrangement to remove all of those.
HAYNE J: If there is co-location, is it anticipated that there will usually, perhaps invariably, be payment by the telco to the public utility?
MR HAYES: I imagine so, yes.
HAYNE J: Why does it matter whether the cost of any capital work is paid separately rather than simply rolled into a rent but is paid over time?
MR HAYES: It does not.
HAYNE J: Therefore, if Hutchison had said to ETSA, “We will in cases where your Stobie poles are not strong enough pay you twice the rent we will pay you for those where your Stobie poles are strong enough; we won’t put them in until your Stobie poles meet specification”, where then are we left?
MR HAYES: Then the question arises as to whether or not, at the point of when the pole is being constructed to Hutchison’s specifications, it can be said that those facts are similar to the facts in this case. I do not know the answer with respect to that. It is more than simply a question of timing here. In this case it is a question of the poles were replaced for the purposes of accommodating Hutchison’s telecommunications equipment. If that is accepted, which it is, then the question that arises as to can it therefore be said, and we say it can, that Hutchison constructed or joined with ETSA in putting up that tower and, if it is, then it is not covered.
GUMMOW J: The net result was a continuation of the electricity supply, was it not, plus this added function as well?
MR HAYES: Yes, but that does not ‑ ‑ ‑
GUMMOW J: That seems to be what the Commonwealth is trying to encourage.
MR HAYES: It is on existing ‑ ‑ ‑
GUMMOW J: Your example of a country shed is just inapposite. It is not being used to carry electricity supplies.
MR HAYES: No.
GUMMOW J: You said it is the same as this case and it is just not.
MR HAYES: The co-location enables the co‑location to occur not only on ‑ ‑ ‑
KIRBY J: But it is defined by reference inter alia to reticulation of electricity in the federal law.
MR HAYES: Yes, but all that I am suggesting, though, is that there is nothing, for example ‑ ‑ ‑
KIRBY J: There is nothing in that definition about sheds or other such buildings.
MR HAYES: But there is nothing to prevent, on this view, Hutchison from placing rather than co‑location – placing its facilities on a shed.
KIRBY J: That is not the point.
GUMMOW J: That is what the Commonwealth is not encouraging. It is disencouraging that.
KIRBY J: And for very good reasons. I mean, aesthetically, just imagine all these poles and posts going up all over the place instead of co‑locating them. I hate that word.
GUMMOW J: Let us have as few as possible.
MR HAYES: If your Honour could just pardon me while I look at the definition – no, sorry, that does not help me. I was turning to “original facility”.
KIRBY J: It not only does not help you, but if I can humbly suggest to you it harms you because it does talk about co‑locating on reticulation of services, including electricity services.
MR HAYES: I accept that, but it has to be looked at ‑ ‑ ‑
KIRBY J: You just say that is all very well, if they just can use an old pole as they could in Clarence Gardens, but when they need a new one they fall under our regime, they are not protected.
MR HAYES: Because in those circumstances Hutchison are, in effect, jointly erecting that pole with ETSA. Now, there is nothing ‑ ‑ ‑
HAYNE J: A lot hangs on this “in effect, jointly” expression, does it not? What do you really mean by that in the context of the legislation rather than as a jury point?
MR HAYES: No, in the context of the legislation, if Hutchison is not able to construct a tower, if Hutchison is not able itself to construct a tower, what we are putting to the Court is it cannot go along to someone else who is able to construct a tower and say, “We will pay you to construct a tower in order to accommodate our infrastructure on it”. That is what I mean by jointly involving itself in constructing that tower. That is the case here. Hutchison went along to ETSA and said, effectively, “We want to join with you, we want to pay for it, these are our specifications and we want this tower constructed. Why? Not to enable you to better reticulate your electricity, but to enable us to put our telecommunications facility on it”. That, with respect, is effectively constructing the tower.
Why would the legislation contemplate a carrier being able to do that when it does not contemplate a carrier – or where the carrier itself has to put up a tower in that way, it has to go through a very detailed public scheme of scrutiny, EISs and the like. Carriers will necessarily avoid that. Now, what we are saying here then is co‑location applies, yes, on existing structures. It does not apply on new structures built for the purpose of accommodating the telecommunications facility and, effectively, we say that was the situation in the Hurstville Case which is referred to by both judges in the Full Court.
Can I take you to page 283 of the appeal book at paragraph 92. Justice Perry refers to the Hurstville Case there and the extract is:
The respondent relies upon that portion of part (b) of the definition which states that facility means any ‘pole or other structure or thing used, or for use, in or in connection with a telecommunications network’. The respondent contends that these words extend to buildings, poles, steeples, or other things, so long as they are ‘used, or for use in or in connection with the telecommunications network’.
GUMMOW J: The Hurstville Case is reported now in 200 ALR 308. It is a rather better report than the Local Government Report.
MR HAYES: Yes. I think we all got that wrong in our list of authorities. Can I just go on with this extract, paragraph [67]:
The respondent argues that the words should be construed and applied literally, so that any conceivable structure or thing is a facility so long as it is used or for use, in or in connection with a telecommunications network. At this point, an alternative reading of the definition offers itself. Schedule 3 elsewhere distinguishes between ‘facilities” and the land or structures to which they are fixed . . . It makes perfect sense to say that the Harbour Bridge remains a bridge and does not itself become a facility even though facilities (low-impact or otherwise) might be installed upon or affixed to it. Likewise with existing buildings erected as residences etc but which have ‘facilities’ attached to their rooftops. The definition of ‘facility’ can operate to its full literal extent in such situations without turning the bridge or building into part of the facility itself. Part (b) of the definition makes perfect sense if construed as being confined to any line, equipment etc or thing that is purpose built or dedicated by its inherent nature for use in or in connection with a telecommunications network or which is actually used accordingly. It is not necessary to treat an existing (non purpose‑built) pole, structure or thing upon which a ‘facility’ is placed as the facility itself.
[68] There are additional difficulties with the respondent’s expansive appeal to the maintenance power.
[69] It enables the respondent by indirect means to achieve something directly addressed and prohibited by Div 3, ie the installation of a tower without passing through any of the gateways offered by cl 6(1).
Now, if we look at the situation here, what we are dealing with is, in effect, a purpose‑built pole for ETSA when they change it from the one which was only there for electricity to one which is now there for electricity and to accommodate Hutchison’s requirements. That is what the Full Court was adverting to here when it says:
It is not necessary to treat an existing (non purpose-built) pole, structure or thing -
as a facility, a fortiori, an existing Stobie pole for electricity – that does not become a facility if you put low-impact facilities on top of it but change that and bring in a whole new pole, expressly for that purpose, then you have a situation where you are achieving something directly addressed and prohibited, that is, the installation of a tower, without passing through any of the gateways offered by clause 61. That is the case here, with respect.
Hutchison would have us say, “Well, all we are doing is adapting a pole”. Well, you do not adapt a pole by ripping it up and putting in a new one which is built for that purpose. That is quite different. Now, that does not fly in the face of co-location. That is not inconsistent with the co‑location policy encouraged ‑ ‑ ‑
KIRBY J: Effectively it does, because if the poles are not strong enough to carry and they need some reinforcement, as would have happened earlier if there had been a regular reinforcement in that area, possibly replacement, but if you cannot do it that way then you either have to find some new pole and then deflect people from using the pole facility in that area; hence co‑location is defeated.
MR HAYES: Well, it is not defeated, with respect, if – I will put it the other way. The co-location policy is designed to enable the carriers to identify where there are existing structures and put their facilities on top of them. I come back to them – I cannot say it any more strongly. It is not designed to enable carriers to identify locations of where there are poles and then say, “Now that’s a good location, but the pole is no good. Take the pole out and put a new pole in, and in that way we can now put our infrastructure on it”.
KIRBY J: But we were told that if in fact ETSA simply replaced the pole in the course of a regular update with a stronger pole which (happened to be good enough for the purpose of carrying Hutchison’s equipment), that there was no planning intervention by you. Is that correct?
MR HAYES: There is a special planning regime for ETSA to replace its poles provided the poles are being replaced for the purposes, and we say the only purpose, of electricity. If ETSA chooses to replace its poles for the purposes of electricity and telecommunications then the exemption in section 49A of the Development Act on our case would not apply to them because the purpose of that exemption is only to enable the electricity authority to continue its operations, disposing electricity.
KIRBY J: Well, that is where I have a constitutional problem because then, by your variation from the position you would adopt to a simple replacement of the pole to a search into the purpose of ETSA for the purpose of replacing the pole, you cut across the object of the federal legislation, which is to encourage co-location on sturdy poles.
MR HAYES: But, in our respectful submission, it is not the object of federal legislation to encourage the construction of new poles to accommodate the telecommunications facilities just because, in addition to those new poles, they will be used for electricity as well. That is not the object of co-location, we would argue. If the finding that the Full Court made, namely that it was part and parcel of the construction of this pole jointly with ETSA, is a proper one, the Full Court at page 286, if I could take you to the appeal book, pointed out if it was ‑ ‑ ‑
GUMMOW J: Paragraph?
MR HAYES: At paragraph 107. They pointed out some anomalous situations which would arise if they were not right:
For example, in the instant case, if Hutchison’s arguments are correct, it can persuade ETSA to double the height of the poles at the Colonel Light Gardens substation site, but maintain that they are not poles the erection of which would require development approval. Furthermore, if the facility installed on top of the new poles was to be a low‑impact facility, no such approval would be required with respect to the facility.
HAYNE J: Does this not reveal with stark clarity that the Full Court is starting from the Development Act. They are taking the Development Act as the starting point rather than the relevant starting point which is the Telco Act.
GUMMOW J: It is a very Adelaide-centric view of the world, if I may say so.
MR HAYES: Perhaps I can go to the next paragraph because they do go to the Telco Act there. On the other hand, if one metre away from the ETSA pole at the Colonel Light Gardens substation site Hutchison was to erect solely for its own purposes a pole of the same dimensions as a replacement pole which ETSA in fact installed it would undoubtedly be a pole within the meaning of the Telco Act other than of a kind which was open for the Minister to determine to be a low‑impact facility and would accordingly require approval under the Development Act absent the grant of a facility installation permit.
That is the very point that we are trying to make. It would be quite anomalous that literally on the other side Hutchison could not do what it is doing with the benefit of ETSA and the outcome is precisely the same, namely, a tall tower with telecommunications facilities on the top.
HAYNE J: Is this notion of joint endeavour a notion that leads to the proposition put by the Solicitor in his submissions, particularly paragraph 3, that the entire tower, meaning thereby the Stobie pole and what is on top of it, is a part of the infrastructure of a telecommunications network?
MR HAYES: Yes. It is then a facility and that is the effect of ‑ ‑ ‑
HAYNE J: So ETSA’s pole owned by ETSA, used by it for the reticulation of electricity is a part of the infrastructure of a telecommunications network?
MR HAYES: Yes, because it is part and parcel of ‑ ‑ ‑
HAYNE J: That runs flat against the notion of co-location because that means, does it not, inevitably that if Hutchison or another telco puts its equipment on top of an electric light pole, the electric light pole has become a part of the infrastructure of a telecommunications network.
MR HAYES: I am talking about a new electric light pole, not an existing one.
GUMMOW J: A replacement electric light pole.
MR HAYES: A replacement electric light pole, not an existing one.
GUMMOW J: It is more than an electric light pole, is it not? It is more than the Hurstville Case.
MR HAYES: It is.
GUMMOW J: What does the Hurstville Case have to say that is of any use to you?
MR HAYES: What the Hurstville Case does point out though is that the facility upon which ‑ ‑ ‑
GUMMOW J: You said the light pole in the ‑ ‑ ‑
MR HAYES: The structure that you put your low impact facility on does not become a facility but it is a facility if it is purpose-built for that purpose. That is the question. If I can just take Justice Hayne’s example that you gave, if Hutchison built a Stobie pole for its telecommunications ‑ ‑ ‑
HAYNE J: Yes, different considerations would intrude. If things are different, things are different. I can understand that.
MR HAYES: But, with respect, what is different from Hutchison paying and agreeing and requiring the building of a new pole in these circumstances and asking ETSA and reaching agreement with ETSA as to how that should be done? There is, with respect, no difference in those circumstances at all. That has nothing, as we say, to do with the co‑location argument.
Justice Perry, at paragraph 139, pointed out that to the extent he recognised that ETSA physically was responsible for doing it:
138 Even although ETSA was physically responsible for that activity, it occurred at the behest of Hutchison and at the expense of Hutchison. ETSA and Hutchison jointly carried out the development.
139 To the extent that it was undertaken by ETSA, ETSA did so solely because Hutchison sought to utilise the infrastructure used by ETSA to transmit power, for Hutchison’s own purposes.
Can I take you to Justice Bleby’s analysis of this where, on my reading of his judgment, he was of a similar view but the only difference was that he felt that Hutchison had not undertaken the development. At page 310, paragraph 254, he says:
I have already referred to the relevant parts of the definition of “facility” in the Telco Act. At the time when ETSA installed the new stobie poles, the poles did not form part of the infrastructure of a telecommunications network. They did not come within paragraph (a) of the definition. However, at the time of their installation it was known by ETSA that Hutchison intended to attach a telecommunications facility to the top of the pole. Although the stobie pole was not then used in or in connection with a telecommunications network and was then used for the purpose of electricity distribution, it was also a “tower” or “pole” “for use in or in connection with a telecommunications network”. That was one of the reasons it was erected. It therefore fell within paragraph (b) of the definition of “facility”. That is to be distinguished from, for example, the stobie pole at the Clarence Gardens site. When that pole was installed there was no suggestion that it would ever be needed to support a telecommunications facility. It was not then a pole “for use in or in connection with a telecommunications network”. However, when Hutchison installed its equipment on the pole it became a pole “used . . . in or in connection with a telecommunications network” and from that time on came within the definition of “facility” in the Telco Act.
He goes further and says that that then makes it a facility in the Telco Act and he says he realises these conclusions appear to be at odds with the dictum in Hurstville. If I can just go to paragraph 257:
To exclude from the definition of “facility” the stobie poles erected by ETSA for use (among other things) in or in connection with a telecommunications network, or to exclude from the definition a previously installed pole to which is attached, much later, equipment for use in connection with a telecommunications network, is to fly in the face of the plain meaning of the definition.
Your Honour, he then finds that Hutchison in fact did not install the poles but ETSA did, and that is the basis upon which he was able to reach his decision.
GLEESON CJ: Did he then reach his decision, favourable to your opponents, on the basis that the South Australian town planning legislation did not prevent ETSA from doing what it did?
MR HAYES: That is right, because ETSA was replacing its poles and, as I understand his reasoning there – I think that he did not deal with that. I do not know where he dealt with that, your Honour. I am sorry, at paragraph 295:
It follows that, as the work was carried on by ETSA, it falls within the exclusion from the operation of s 49A(3) of the Development Act and no approval was required to be obtained by anyone.
HAYNE J: This branch of the argument depends, does it not, a lot on characterising the pole, as a pole used in, et cetera, rather than focusing, as the legislation does, on who does what?
MR HAYES: It depends on the purpose for which the pole is erected.
HAYNE J: Yes, rather than who is doing what, the legislation is concerned to give authority to telecommunications companies to do certain things.
MR HAYES: Yes, that is the teleco legislation.
HAYNE J: Yes, and this argument stands it on its head and says, “Well, we can classify this pole as having one or two or a dominant or a sole purpose”. Then how is that connected to what the thrust of the legislation is, which says telcos can do certain things?
MR HAYES: But telcos cannot construct or erect towers.
HAYNE J: Just so. Yes, I understand that.
MR HAYES: And that is the difference. Your Honour, it is not starting from the wrong premise when one – we say we start from the right premise. We ask the question, “What can the carrier do under the telecommunications legislation?” We know what they can do. They can construct and install low-impact facilities. They cannot construct towers.
Now, once we get to that point, the telco legislation is not of any assistance to the carrier any longer. It is not covering the entire field that says they have got a free go to do whatever they like in relation to telecommunications. So we do have to go then to the State legislation because it brings the State legislation into play. The reliance on ETSA in that case can only be the State legislation. ETSA does not get the benefit of the telco legislation. It is not a carrier for the purposes of the telco legislation. That is why, with respect, if I could take the Court to section 49A of the Development Act, because that is the point at which we now have to look at to see whether ETSA has any benefits or any exemptions.
GLEESON CJ: Is that a convenient time?
MR HAYES: It is, your Honour.
GLEESON CJ: We will resume at 2.00 pm.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.03 PM:
GLEESON CJ: Yes, Mr Hayes.
MR HAYES: If the Court pleases, can I take the Court to section 49A of the Development Act? We get to this point to consider whether or not it can find any exemption for its replacement pole. Section 49A provides that:
if a prescribed person proposes to undertake development for the purposes of the provision of electricity infrastructure –
then there is a scheme put in place for any application development. Subsection (3) is important:
No application for approval is required (either under this section or any other provision of this Act), and no notice to a council is required under subsection (1), if the development is of a kind excluded –
So there is a scheme of development control which excludes or exempts ETSA from going through this process of getting development control if there is a regulation made which excludes the development but it is – the regulation‑making power is in relation to development under this section. The majority relied on construing this section as being limited to the provision of electricity infrastructure. Schedule 14A is the regulation which has been made pursuant to the – regulation 69 is the relevant regulation and that then takes us to Schedule 14A. The Court has already been taken to that schedule:
the construction, reconstruction or alternation of a building or equipment used for or associated with the supply . . . control of electricity ‑ ‑ ‑
GLEESON CJ: We only get to this if a pole is a building, do we not?
MR HAYES: Yes.
GLEESON CJ: So the reconstruction of a Stobie pole:
used for or associated with the supply . . . of electricity ‑ ‑ ‑
MR HAYES: Yes. What we say is that if that regulation is made pursuant to 49A(3) ‑ ‑ ‑
GLEESON CJ: Is this behind tab 4?
MR HAYES: I am using the Solicitor’s book.
HEYDON J: Yes, it is.
MR HAYES: Your Honour will see 49A is:
if a prescribed person proposes to undertake development for the purposes of the provision of electricity infrastructure –
It is limited in that way. So what we say is that is limited to the provision of electricity infrastructure. It does not include and it does not provide an exemption for ETSA if it chooses to go beyond that and provide for electricity infrastructure as well as telecommunications facilities.
GLEESON CJ: Why do you say that? I see, this is development for a purpose in addition to the purpose of the provision of electricity.
MR HAYES: That is right. If the Court looks at regulation 69, that commences pursuant to section ‑ ‑ ‑
GUMMOW J: What page? Page 154.
GLEESON CJ: This is what Justice Kirby has been talking about, is it not? If the additional purpose is telecommunications facility, is there a possibility of collision between this and the Commonwealth Act if the telecommunications facility is of a kind which is exempted from planning approval by the Commonwealth Act? In other words, it is a low‑impact facility.
MR HAYES: There is not because it is only a carrier that gets the benefit of the exemption under clause 37.
GLEESON CJ: Yes, but if the purpose is the purpose of enabling a carrier to have a low-impact facility, if that is the additional purpose, that is within the scope of the prohibition in 49A, is there an inconsistency problem?
MR HAYES: There is no inconsistency if it is a low‑impact facility. That is not something we are talking about here.
GLEESON CJ: That is why you need the tower argument.
MR HAYES: Yes.
GLEESON CJ: Absent the tower argument, if what is going on here is ETSA’s purpose of providing an electricity infrastructure and Hutchison’s purpose of having a low-impact facility on the top of the electricity infrastructure, then there may be an inconsistency, might there not?
MR HAYES: Well, we say there is not because you cannot disengage, in the circumstances of this case, Hutchison with the tower. It is not a low‑impact facility. We go past the telco legislation into the State legislation. ETSA is a carrier but it is not for the purposes of this.
KIRBY J: Your argument, good or bad, is that the purpose of building the new structure was a dual purpose, and it cannot be categorised as a purely State-controlled purpose of putting in a new pole because of the fact that the old pole would have been perfectly good for the electricity reticulation, but once they started to design it and start afresh for a dual purpose then it did not attract the State exemption.
MR HAYES: Yes.
KIRBY J: But there is the anterior question as to whether the federal legislation and the scheme of the federal Act prevents one approaching the matter in that way, given that that has the tendency and immediate effect to undermine the co-location and to discourage co-location, which is one of the main objects of the federal law.
MR HAYES: Not if it is not a low‑impact facility, and it is not a low‑impact facility if it is a tower. So the fact of the matter is ETSA is putting up a tower. If Hutchison is joining with ETSA to put up the tower, there is nothing in the telco legislation which enables a carrier to construct a tower as a low‑impact facility, and so there is no clash by stopping or saying that the State legislation applies in relation to the tower.
GLEESON CJ: Mr Hayes, there is a reference in that section to the Electricity Act 1996. Does it throw any light on the solution of this problem?
MR HAYES: My friends say that it does, we say that it does not, and it does not for this reason. The Electricity Act does contemplate the use of electricity infrastructure for telecommunication purposes. That is under the Electricity Act. But we say, with respect, that that does not widen the exemption under the Development Act which is limited to the sole purpose of electricity infrastructure or the provision of electricity. So the fact that the Electricity Act contemplates that you can use the infrastructure for telecommunications purposes does not assist.
GLEESON CJ: Why is the word “purposes” in plural there when it refers to a single purpose?
MR HAYES: I am not sure I know the answer to that. It reads quite well the plural, “for the purposes of the provision of electricity infrastructure”. There may be a number of different ways you can provide electricity infrastructure. So really that, as your Honour Justice Kirby put it, that is our argument, and I do not know that ‑ ‑ ‑
KIRBY J: Yes. Now you see it, now you do not. It is one of those matters where the Court has to do a classification really.
MR HAYES: I think one of the difficulties I have found, going over and over this, we seem to be going around in circles. You get to a point where you have to say – what I have tried to do is just put it as straight and simply as I can without trying to – well, I hope I have not put any gloss on it. I have just put it simply and so that is how we have approached it. There is the section. There are the words used. There is nothing in the telco legislation which enables a tower to be built. If this is a tower, it loses the exemption of the telco legislation exemption. It is caught by the State legislation. The State legislation does not provide an exemption because that is limited to electricity infrastructure only, the transmission of electricity. If you provide more than that, ETSA loses the benefit of that.
All of that is consistent with the policy underlying all of this legislation and that is – I recognise that that policy includes co-location which stops proliferation of towers and so on but, on the other hand, it does point up that the Commonwealth Parliament does not see fit to discriminate in the way in which it is applying this very detailed legislation and limited the ways in which – it cut out the State and allowed the State. It goes hand in hand, as it were.
HAYNE J: If we get to 49A(1), whose purposes are relevant?
MR HAYES: The prescribed person, which is itself ‑ ‑ ‑
HAYNE J: Is it not inevitable that a prescribed person will have at least mixed motives for providing electricity infrastructure, one of those motives being, these days, profit?
MR HAYES: Yes. The motive is not the determinant ‑ ‑ ‑
HAYNE J: I understand that, but profit will be a fact that will intrude often, perhaps always, will it not?
MR HAYES: These days probably.
HAYNE J: In ETSA’s case, in the circumstances that we are considering, ETSA’s motive to go along with Hutchison was financial, was it not?
MR HAYES: According to the facilities agreement, yes.
HAYNE J: Thus, the purposes of ETSA were to provide electricity infrastructure from which it could make profit by the sale of electricity and the rental of the use of the structure.
MR HAYES: It might be able to do that. The Act, however, restricts it to what it can build in order to do that.
HAYNE J: I understand that, but Hutchison’s purpose of use is not a relevant purpose for the purposes of 49A(1).
MR HAYES: Objectively, the use, which happens to be Hutchison’s in this case, is a relevant purpose because that is what the structure is being put up for and that is the way one looks at it.
GLEESON CJ: Does not the Telco Act and the system of co-location just produce an additional way of turning electricity infrastructure to account?
MR HAYES: It enables electricity infrastructure to be used for telco purposes.
GLEESON CJ: It enables the owner of electricity infrastructure to make money out of co-location.
MR HAYES: Yes. I do not, with respect, think any of that goes to determining whether or not the exemption applies having regard to the words in the legislation. The final point that I would like to address, your Honours, is the noise question because if we get to that point the Clarence Gardens site, which we accepted, if you put low-impact facilities on there, is not in the same category as the erection of the tower.
GLEESON CJ: Does that mean the noise issue only relates to the Clarence Gardens site?
MR HAYES: It does not. It relates to the other sites as well but in relation to ‑ ‑ ‑
GLEESON CJ: If you are right you do not need it.
MR HAYES: I do not need it.
GLEESON CJ: You do not need the noise issue except in relation to Clarence Gardens.
MR HAYES: That is right. The noise issue is – I do not want to take up too much time on this. The Court will see that the Full Court dealt with the schedule in the determination - this is Part 7 – by looking at it, if I can put it this way, in a very pragmatic way and said, “What is the facility that we are concerned with here?” Some assistance can be obtained from the explanatory statement which is behind tab 3 of our submissions where there was some concern expressed – this was when the noise provision was brought into the determination.
The Court will see at page 27 of that book there were three alternatives mentioned or identified, no change, co‑location allowed in any case and then:
(iii) Inclusion of Amendments 3.1 and 10
Carrier access to customers in Residential and Commercial areas will be facilitated and coverage (particularly mobile coverage) in these zoning areas will be more reliable. Limits will be placed upon the volume of any addition to any existing facility and noise levels in these zoning areas. Further, the meaning of co‑location will be clarified to mean placing an additional low‑impact facility on or within the existing telecommunications facility or public utility structure.
There is another reference further in which is in an extract in the submissions itself in terms of the need for the noise restriction because of the amenity considerations. So that appears to be behind the introduction of this provision in the determination in 1999. The way in which the majority of the Full Court looked at this was to say, “What is the facility?” and then to look at – if the Court can look at Part 7, item 2 what it does is to require a comparison to be made in order to determine the application of this noise provision:
the levels of noise that are likely to result from the operation of the co‑located facilities are less than or equal to the levels of noise that –
were there before. The Full Court at page 297 of the book, paragraph 198, Justice Perry, said:
In my view, the only sensible construction of the Determination, consistent with its evident purpose, is to regard the requirements set out in the Schedule as cumulative, in the sense that
in order to qualify as a low‑impact installation, all relevant items in the Schedule must be satisfied.
That, with respect, does make some sense when you look at what else would the words “the operation of the co‑located facilities” mean? You cannot operate the co‑located facilities without all of the elements of it, including the shelter, including the equipment, including the airconditioners. It is not simply looking at one or other and so we say, with respect, that the Full Court where it makes this final – at page 298, paragraph 212 said:
If part of that facility, namely, the antenna, is mounted on the stobie pole, Part 7 applies, and it is relevant to have regard to the level of noise emanating from the equipment shelter in determining whether the facility as a whole satisfies item 2 –
Again, that is a pragmatic and a sensible approach to take, given that on the face of it there is not a great deal of logic to Part 7, in any event. Some of those references, for example, cable location marking posts or sign do not emit noise anyway, yet they are caught by that provision.
So what we say is that is a reasonable approach and that is the only way to make some sense. Looking at the facility as a whole is what this is all about. It is not just looking at individual components of it. Otherwise the noise provisions have very little use, or very little utility.
Your Honours will finally notice that the determination does distinguish between areas in relation to the noise. In Part 7, column 1, there is no noise requirement in relation to industrial or rural areas. It is only in Part 2, which is the residential or commercial areas, that you bring the noise into it. So that brings into play what we say is the rationale for the amenity considerations. If the Court pleases, unless there are any questions, those are our submissions.
GLEESON CJ: Thank you, Mr Hayes. Yes, Mr Solicitor.
MR KOURAKIS: If the Court pleases, all the parties accept that the third schedule to the Telco Act authorises Hutchison as a carrier to attach antennae to Stobie poles – there is no difficulty or no argument about that – and that they are therefore exempt from any State legislation that would otherwise require authorisation.
In this case, however, certain other building work has been undertaken. That building work is the demolition, first, of a structure and then the construction of another structure, meaning the old and new Stobie pole. Now, that Stobie poles are structures, in my submission, appears from the width of the definitions that your Honours have been ‑ ‑ ‑
KIRBY J: So your theory is that Hutchison should simply struggle on against all the risks and perils and dangers and stick to some old poles just in case they have to fall foul of the State planning law.
MR KOURAKIS: No, your Honour, not at all. There are a number of other avenues that are open to them.
KIRBY J: It sounds like it.
MR KOURAKIS: If an existing pole is not sufficiently strong, they simply make an application. That does not mean they cannot put in another pole that will carry their structure. They make an application for approval because, after all, the residents of a particular community have a pole that has been built in accordance with law before them, it is proposed that another one will be built, it should go through the approval process. What the Act allows for is for certain limited structures, the low‑impact structures, to be attached to existing structures without the need for any approval. That is the only difference.
Now, your Honours, that building work has been undertaken, in my submission, by both Hutchison and ETSA. The only reason we go to the Telecommunications Act and the schedule with respect to the demolition and construction of Stobie poles is because the appellant seeks, at least as an alternative argument, to rely on exemptions it has under the third schedule to justify the construction of the Stobie pole, either by it or ETSA as its contractual agent. That is why we go there.
If the appellant did not seek to show that the Stobie pole did not need any approval, did not seek to rely on the third schedule for that purpose and simply went to 49A, there would be no issue about the Telecommunications Act today. But the appellant goes there, and for that reason it must be addressed, on a submission I will make in a moment, because, as I said in answer to your Honour the Chief Justice’s question, Hutchison itself constructed, or at least caused the Stobie pole to be constructed. It is not just a matter of a choice, an alternative argument, but the appellant, in my submission, does need to try and show some authorisation under the third schedule to make its grounds good.
Going then to the third schedule and what it authorises, plainly that can only be ascertained from the scope of that schedule itself. Can I just say something briefly about clause 37 of the third schedule to the Act. Your Honours have been taken to it on a number of occasions but, in my submission, the critical provision is clause 37(1). The exemption that is provided for by clause 37 is limited to activities that fall within those divisions and relevantly to this case then Division 3 which deals with the installation of facilities.
If the demolition of the old pole and the construction of a new one does not fall within Division 3 in section 6, there is no exemption. So with respect to the pole, it is a simple matter in a sense of looking at section 6 and seeing whether it is authorised. Your Honours, the appellant relies on clause 6(2). The appellant concedes that the Stobie pole is not a low‑impact facility. There never has been any suggestion that it had a permit to install the Stobie pole. Permits can be given for the installation of things which are not low impact. It does not rely on that. It says the antennae are low impact but, says the appellant, it can construct the Stobie pole. That could never have been authorised by the low‑impact facility determination because the third schedule prohibits the Minister from ever authorising such a thing but, says the appellant, it can do so because the demolition of the old pole and the construction of the new pole are things that are necessary or desirable for the purposes of installing the antenna.
Your Honours, what is necessary or desirable for that purpose cannot be gleaned in the abstract. One commences by asking: what is the power under section 6(1) that the appellant seeks to invoke? The power is the power to attach a low‑impact antenna to a structure.
GLEESON CJ: Which, according to the appellant, is all that the appellant relevantly did.
MR KOURAKIS: Your Honour, the question has to be: what was the installation prior to conducting this work which it says was necessary or desirable, that is the demolition of an existing pole and the construction of a new one? At that point, whilst the old pole ‑ ‑ ‑
HAYNE J: Demolition and construction are notions out of the State Development Act. They are foreign wholly to the present exercise in which you are engaged, which is an exercise in construing the Telco Act.
MR KOURAKIS: Your Honour, we can have the same discourse by simply using the words of section 6, and it proceeds thus. How can it be necessary or desirable for the installation of antennae to a Stobie pole that is unsuitable to demolish it and replace it with something else? The power to do the ancillary matters, the matters that are necessary and that are covered by section 6(2), is premised on the existence of the power to install something under 6(1), that is attach antennae to do something. The appellant’s argument proceeds thus. We want to attach an antenna to something at this location.
GUMMOW J: You have to read the whole of clause 6(2) together, have you not?
MR KOURAKIS: Yes.
GUMMOW J: All sorts of things, cutting down trees, putting up workshop sheds, altering the surface of the land, levelling it, making roads.
MR KOURAKIS: Yes, your Honour, and nothing that comes close to constructing the structure on which the antenna is to be attached.
GUMMOW J: Yes, but you have to ask yourself, what is the purpose of this collocation of integers in this genus.
MR KOURAKIS: Yes, your Honour, and it is not a genus that includes the construction of the very structure on which the carrier wants to install the low‑impact facility. Your Honour, one does not just look at 6(2), one looks at the obvious purpose of the clause ‑ ‑ ‑
GUMMOW J: “[A]nything necessary or desirable . . . including” – “including” I may say. Now, “necessary or desirable” to whom?
MR KOURAKIS: Your Honour, “necessary or desirable” for the purpose of attaching the antennae in this case but, your Honours, consider where the appellant’s argument takes ‑ ‑ ‑
GUMMOW J: No, it is “necessary or desirable” “for purposes in connection with the carrying out of that activity”.
MR KOURAKIS: Yes, which relevantly is the installation ‑ ‑ ‑
GUMMOW J: Of a low‑impact facility.
MR KOURAKIS: Exactly. Now, your Honours, on the appellant’s construction ‑ ‑ ‑
GUMMOW J: This is the sort of approach to statutory construction which went out a long while ago, I would have thought.
MR KOURAKIS: Your Honour, on the appellant’s construction, if the carrier wants to attach low‑impact antennae to a structure that is not there, it can construct a tower which the schedule specifically prohibits the Minister from proclaiming to be a low‑impact facility; construct a tower of any height and attach the antennae to it. It is a case of using the ancillary provision, which is clause 6(2), as a tail that wags the dog. It would drive a hole through the obvious purpose of the scheme which is to allow carriers to install those limited facilities that might be included in the schedule of low‑impact or a determination of low‑impact facilities but no more.
Can I take your Honours to clause 6(7)? There is no point – clause 6(7) serves no purpose if the appellant’s argument is right. Why would the legislature go to the trouble of limiting what can be included in the low‑impact determination and removing from the scope of that determination towers of that height if towers on what we have heard and what we have seen in this case four times that height – four times that height – can be installed because it is “necessary or desirable” to attach an array several metres in diameter to it?
Now, your Honours, in this particular case, of course, ETSA, for the profit motive that your Honour has adverted to, has agreed to that course being undertaken. Now, of course, if ETSA had not agreed, if ETSA had wanted no interference with its Stobie poles, on the appellant’s construction under 6(2) the carrier could nonetheless have arrived at these places, removed the structures without any consent, replaced them with towers well in excess of what they were allowed to construct under the determination, and it is not just to the public utility. They can do it to any private landowner.
GLEESON CJ: This does not affect the argument, but what is ETSA an acronym for and how do those second to sixth respondents inclusive fit in?
MR KOURAKIS: Your Honour, it is the Electricity Trust of South Australia as it first started. It was put into a corporate form shortly before it was sold and, as I understand it, the other utilities are the private holders of the electricity providing authority. I think it is a distribution on the electricity network authority.
GUMMOW J: But does ETSA exist any more?
MR KOURAKIS: I am told only as a business name. I am using the expression really, again, in a peculiarly Adelaide way to describe those respondents.
GLEESON CJ: So these respondents, two to six inclusive, carry on business under the name of ETSA, do they?
MR KOURAKIS: I think that is right. Your Honours, this power, of course, could not only be applied without any consent to the holders of public utilities but to the landholder who has a flagpole in their property or any other sort of structure in their property and there is no answer to say, “Look, that all does not matter because this is all about co-location of public facilities”, because the word “co-location” appears in this schedule only in clause 27(5). There is no definition of it.
KIRBY J: But I rather gather from an answer Mr Hayes gave to the Chief Justice by reference to the Electricity Act (SA) that this is something that did not come in with this Act. This is an old PMG phenomenon and our own experience as Australians teaches us that the idea of putting telecommunications lines on electric poles is a very old one. I think it long preceded this Act.
MR KOURAKIS: Your Honour, when you say “this Act” you mean the Telecommunications Act?
KIRBY J: Yes, the Act of 1997.
MR KOURAKIS: Your Honour, I am told that there were amendments to the legislation at the same time. I have lost where your Honour is going. Is your Honour saying that the ‑ ‑ ‑
KIRBY J: I am saying that co-location is not a new policy.
MR KOURAKIS: No, as a matter of fact it has occurred and that is so but the point that I am making is that the submissions of the appellant proceed largely on a notion that Schedule 3 was intended to put into effect ‑ ‑ ‑
KIRBY J: What you are putting, as I understand it from the point of view of the merits of choosing between the two interpretations that are being urged on us, is if they want to attach it to an existing pole, that has no big environmental considerations. They just attach it and that is it and that is co-location. But insofar as they have to create a new pole or a new structure then that has potentially very significant environmental concerns that affect citizens and that they want to express through their local authority and that, to that extent, unless the federal Act stops this in very clear terms, you just have to run through the hoops of the local planning law and that that is not such a bad thing because there are all sorts of appeals and processes and so on, but it does tend to cut across the scheme of the federal law, especially in the facts of this case where all they were doing was putting in a stronger pole of the kind that was already there. I can understand your argument for a flagpole when you start putting in a huge new mast, I can understand it then and the question is how do you resolve that disparity.
MR KOURAKIS: On the appellant’s case it is an issue that must be faced, your Honours, because the appellant’s case proceeds on the basis the carrier wants to put an antenna to something at this spot, there is nothing here now, we can put whatever it takes to attach to the antenna. Where does the appellant draw the line? In my submission, it is immediately on a slippery slide. On our case, we say for good or bad, the policy compromise that the Parliament has decided upon is on the attachment of antennae to existing structures, structures that have been constructed in accordance with the law as it stood, and the policy of Schedule 3, evident from its very provisions, is simply to allow limited equipment to be attached to those structures. But if another structure is to be built, then it must go through the development town planning ‑ ‑ ‑
KIRBY J: Or if the Commonwealth does not really want that, it has to be more specific in its own legislation and say where all that is involved is the replacement of a structure of the same size, dimension and so on that was already there then, in that case, that is permitted under the federal law.
MR KOURAKIS: Your Honour, on the question of whether the construction we contend for sounds inconsistent with the scheme of Schedule 3, the answer to that must be found in its very provisions but I make this general submission. If, as Mr Whitington has accepted, nothing in Schedule 3, other than the necessary or ancillary provisions, authorises Hutchison to construct the Stobie pole - perhaps I should put it another way. If Schedule 3 does not authorise Hutchison directly to construct the Stobie pole on which it wants to attach antennae, it could not be said that a law of the State that prohibited someone else constructing it without approval was inconsistent with Schedule 3.
So, as to whether the laws which require ETSA to go through the 49A process are inconsistent or not, what we say is this, that if Hutchison itself does not fall within this schedule, and in particular Division 3, there can be no inconsistency. It would be odd to give persons other than the carrier a greater freedom from State laws than the carrier enjoys from the application of clause 6 of this schedule.
GLEESON CJ: You say Schedule 3 does not permit Hutchison to replace the Stobie pole, a fortiori, it does not permit ETSA to do it.
MR KOURAKIS: It does not exempt ETSA from any obligations it has under State laws in doing it. Now, your Honours, the line that we draw then, and the submission I make about where the line is for anything that is necessary or desirable, is quite commonsensical and of easy application. If the pole is too weak but can be reinforced, then it can be, if it is necessary or desirable to allow the antennae to be attached to it, and if it falls within a genus that is within those examples that clause 6(2) describes.
KIRBY J: You realise what that means? It means that horrendously unaesthetic poles with buttresses that will not be like the buttresses of Notre Dame, they will be great poles and posts that are holding up these otherwise flimsy posts that are already in place.
MR KOURAKIS: If your Honour pleases, whenever a line is drawn there will be anomalies and difficulties either side of it, but in clause 6(2) there is a line which, in my submission, is of easy application. If the buttressing and strengthening or the change to the structure reaches the stage where what is left is no longer the structure on which the antennae were going to be attached, then the power in clause 6(2) goes because the initial structure on which the antennae were going to be attached is gone.
GLEESON CJ: Is it the case, as a matter of historical fact, that both the Development Act (SA) and the Telco Act (Cth) were enacted against a background of a long history in Australia of the use of electricity infrastructure for carrying telecommunications facilities?
MR KOURAKIS: Your Honour, I do not know. No, I cannot say that that is so and there is nothing in the materials that have been provided so far that ‑ ‑ ‑
GLEESON CJ: How do telephone lines operate in South Australia?
MR KOURAKIS: Well, as a matter of fact, I am not sure how they operate and the extent to which the electricity lines are used.
KIRBY J: Could you have one of your thousands of minions in your office have a look at this issue? It would probably be in the old Postmaster‑General’s Act that there would be some power to co-locate. They might not have used such a vulgar modern expression but the idea was probably there.
MR KOURAKIS: Yes.
KIRBY J: Because it has happened. I do not know what has happened in South Australia, but in New South Wales the telecommunications lines were put on the electricity lines which by inference were there before. They went back to the 19th century.
MR KOURAKIS: Your Honours, we can look at that and we will provide whatever materials we find about the basis in law in which all that was done. Your Honours, can I just make the points about the third schedule and where the words “co-location” and “public utility” appear. They appear in clause 27(5). That is, the word “co-location” appears in clause 27(5) in subparagraphs (f) and (g).
Firstly I should say that clause 27 deals with the criteria which govern the provision of a telecommunications facility licence, that is, a licence to install something other than that which is a low-impact facility. Amongst the criteria governing the issue of those licences are those found in clause 27(5) and there co-location of the facility for which the licence is sought with another facility is dealt with.
The word “facility” there has the meaning it has in the Act, which is a structure for use in a telecommunications network. So that says nothing about its application to other public utilities.
GLEESON CJ: This would also contemplate pipelines underground?
MR KOURAKIS: In terms of the co-use of facilities, yes. I am sure it would.
GLEESON CJ: As I understand it, “co-use of facilities” is a very large issue in the telecommunications area.
MR KOURAKIS: Your Honour, it is plainly a large issue but, your Honours, an issue that is an issue as a matter of fact cannot – because we know that that is so between telecommunication carriers and in the community generally, one cannot then assume an intention about the schedule and then proceed to ‑ ‑ ‑
GLEESON CJ: No, no, I am just interested in the context in which both the Development Act and the Telco Act were enacted and what would have been within the contemplation.
MR KOURAKIS: Yes. But, your Honour, all that assumes is the historical context about there being issues. It is then, in my submission, simply impossible to try and draw assumptions about how the Parliament wanted to balance the competing considerations, but there has been much spoken about the policy of co‑location and how that should influence in the submission, the submissions that your Honours have heard, influence the construction of clause 6.
The only point I am making here is that “co-location” appears only in clause 27(5) with respect to telecommunications facilities, “public utility” only in clause 11, which imposes an obligation on carriers to “enter into an agreement with a public utility” about the way they exercise their powers under the Division, and that is plainly sensible and explicable on the basis that it might be very dangerous if the powers were used as a matter of force relying simply on the sections rather than by making arrangements as to how those powers will be used. So very little can be drawn from broad statements about co-location and assumptions on which these provisions are to be construed arising from that.
Again, I say the line we draw is simply that if a structure exists something can be attached to it; that is authorised by clause 6. That structure can be reinforced if necessary, but the power cannot go so far as to drive a hole through the evident purpose in limiting those things which can be described as low-impact facilities, and in particular clause 6(7).
The clause which provides for the provision of an installation facility licence would also be largely unnecessary. Its purpose is there to allow carriers to obtain a licence to install a facility that would not fall within the low‑impact facility. On the appellant’s argument, all that work could be done through the words “necessary or desirable”.
HEYDON J: Is it not legitimate to take into account in construing clause 6 of Schedule 3 a ministerial determination made simultaneously with its enactment?
MR KOURAKIS: No, your Honour, in my submission.
HEYDON J: Is there not a decision of Sir Anthony Mason supporting that proposition I just put?
MR KOURAKIS: Your Honour, I am not aware of it but it would seem to me to have been what, in my submission, is a sounder proposition, with respect. That is the act of the Executive in how it exercises a power which it has and what it says about why and how it is exercising the power.
HEYDON J: But does it not cast light on the overall scheme? In the real world Parliament enacted the legislation but a Minister presented it to Parliament. Does it not reveal the underlying scheme of the legislation as a whole?
MR KOURAKIS: Your Honour, what the Minister says plainly in introducing the legislation might help reveal the scheme, but let us assume that there is silence about that when the legislation is introduced. The fact that the Minister then exercises his or her powers in a particular way cannot help the construction of the legislation itself, in my submission.
GLEESON CJ: It might depend on what the Minister says. If the Minister said to Parliament, “This is the way I propose to exercise this power” ‑ ‑ ‑
MR KOURAKIS: I accept that, your Honour, and that is plainly so but the explanatory memoranda that have been referred to have been explanations of why the delegated power has been used. It is not something said about the legislation when it is introduced. The regulation‑making power must be limited by the scope and purpose of the legislation. One cannot construe the scope and purpose of the legislation by reference to how the regulation‑making power as a matter of fact happens to have been used.
Your Honours, I said that this argument as to the scope of clause 6 and in particular clause 6(2) arises on the alternative argument of the appellant but, in my submission, it has to be faced in any event by the appellant because if it went to 49A alone, that provision, for reasons that I will come to, applies and gives an exemption to ETSA only as a prescribed electricity authority and not to Hutchison. So if it is the fact that Hutchison undertook development work by having the Stobie pole replaced, then, unless it has an exemption under Schedule 3, Hutchison would be subject to the State Act.
I have made my submissions as to why Hutchison does not have an exemption for the construction of the Stobie pole under Schedule 3. Can I just explain why I say Hutchison does need it and why, in our submission, Hutchison has undertaken building work by its involvement in the replacement process. Your Honours, the definition of “undertaking development” in the State Act includes causing, suffering or permitting the development to be commenced or proceeded with. By reason of the very facilities agreement and applications under it that Mr Whitington took the Court to, Hutchison plainly caused that building work, that is the demolition of the pre‑existing pole and the construction of the new one, to take place. Once the application was made, the electricity authority ‑ ‑ ‑
HAYNE J: Can I just understand the submission. Does this amount to a submission that the person in a remote part of South Australia who is having electricity connected to their property for the first time and agrees with ETSA, no doubt on payment of a suitably large amount of money, they will have electricity run into their property, that that person is engaging in development?
MR KOURAKIS: No, most certainly not, your Honour, because it could not, on the authorities possibly be ‑ ‑ ‑
HAYNE J: What is the different between that and what Hutchison has done?
MR KOURAKIS: Your Honour, the difference is found in the facilities agreement under tab 4.4 of the appeal book, the very provisions your Honours have been taken to but I will go to them again. At page 68 of the appeal book in paragraph 2.1 the applicant, Hutchison, can make an application to ETSA. Under 2.3 the application can deal with “Make Ready Work”. Your Honours will see that in 2.3.2(c). “Make Ready Work” I can tell your Honours is defined widely enough for the purposes of this agreement to include the placement of the pole. Then in 2.4 your Honours will see that ETSA must then comply with the obligation subject only to some exceptional circumstances that are not suggested exist here. The remote householder, your Honour, cannot ‑ ‑ ‑
HAYNE J: What do you say 2.4 does?
MR KOURAKIS: It requires ETSA ‑ ‑ ‑
HAYNE J: To either accept or reject and give grounds for rejection.
MR KOURAKIS: Yes.
HAYNE J: Yes.
MR KOURAKIS: Yes, but there is no suggestion, your Honour, that those grounds existed ‑ ‑ ‑
HAYNE J: I understand that and the facts that have happened, but you are giving a perfectly general description of what 2.4 does, Mr Solicitor, and the description you give is wholly inaccurate.
MR KOURAKIS: Your Honour, I apologise for that but I was applying 2.4 to the particular facts of this case.
HAYNE J: That is a different proposition from that which you advanced.
MR KOURAKIS: Yes, and in particular applying it to the facts in the case stated. Now, your Honours, what the facts are is that with respect to the replacement of these poles the applicant Hutchison, the appellant, made an application and pursuant to the agreement that is included under 4.2 ETSA complied with its obligation to replace the poles. That is causing a development. It is more than paying for it. It is more than requesting it. It is the applicant relying on the agreement to, by contractual force, bring about the building and Hutchison has accordingly undertaken development within the definition in the State’s Development Act.
GLEESON CJ: Is there any South Australian authority on the meaning of this concept of causing development?
MR KOURAKIS: Yes. Your Honour, it is referred to in our outline, the case of Wright & Romeyko v West Torrens City Council. It is referred to at paragraph 33 of our submissions.
GLEESON CJ: Thank you.
MR KOURAKIS: Your Honours, it is the case that it is not sufficient for the building work to have been undertaken. One does not cause building work to take place simply by encouraging it. What the word “cause” requires is some sense of obligation on the person who has carried it out, obligation to the person who is causing it. The conduct of the person who brings about the work must have some, as far as the person who then succumbs, either legal or actual force in bringing about that result, but, in my submission, that is the case with respect to the facilities access agreement for the very reasons that have been explained to your Honours as to why ETSA went about replacing these poles.
GLEESON CJ: Where one person, pursuant to a contractual obligation, undertakes development work, who is obliged to apply for the development consent, both of them?
MR KOURAKIS: Your Honours, in my submission, probably not. The Act operates in perhaps an unusual way. It is an offence and measures can be taken to stop people who undertake development without approval. Now, in those circumstances, if one person has, let us say, directly constructed the facility and not applied for an approval and someone else has caused them to do so, both of them would be in breach of the provisions of the Act.
If one person, that is the person most directly doing the work, say, has obtained approval, then on the Act as it stands arguably the person who causes or permits that work to be undertaken nonetheless breaches the Act himself or herself if they have not separately obtained an approval for their undertaking of the building work, undertaking it under that extended definition. On the facts of this case, of course, the facilities agreement provided that the applicant, Hutchison, was to obtain all of those approvals.
So, in short, your Honour – and I apologise for the clumsy way I went around it – a person undertaking any development must obtain approval, and you can undertake a development even in the extended way that I have just been speaking about, that is, causing someone else to undertake it. It would follow from that that one would require an approval so that one could go about causing someone else to undertake a development.
GUMMOW J: Mr Solicitor, could you go back to clause 6 for a minute in Schedule 3. When the Chief Justice and Justice Kirby, I think, suggested to you that this sort of activity, though not called co‑locations, has been going on for a long time, that is borne out by section 16 of the Telecommunications Act 1975 when, in fact, subsections (3) and (4) are largely in the same terms and the same terms replicated in 6(2). It was there in 1973.
MR KOURAKIS: Yes.
GUMMOW J: If you go back further to the Post and Telegraph Act 1901, it seems to have been there in sections 83 to 93. So this piggy‑backing activity, however you call it, has been going on for an awfully long time, and that is the context. Forget about the privatisation context of all of this with telcos, when the Postmaster‑General was the official concerned.
MR KOURAKIS: Your Honour, that context is neutral as to how far one reads the phrase “necessary or desirable”. Now, your Honours, turning to section 49A of the Development Act that arises if the construction of the Stobie pole is not authorised under the third schedule, the submission that I make is that the power to exclude by regulation some forms of development in 49A(3) is governed and restricted by 49A(1).
For example, to give an example not perhaps directly relevant to this case, the undertaking of a development by someone other than a prescribed electricity provider could not be proclaimed under subsection (3). If one reads subsection (3) on its face and without reading it in context, one would say that the Governor can simply describe any sort of electricity infrastructure work, no matter by whom it is carried out, and no approval need be obtained for that work.
In my submission, in context, given that the exception which primarily governs the section in subsection (1) is limited to prescribed electricity providers, any exemption of building work or development by the Governor under subsection (3) must be limited to that work conducted by persons who are prescribed electricity providers.
For the same reason, in my submission, to the extent that certain forms of electricity infrastructure are prescribed pursuant to subsection (3), they are only exempt from the provisions of the Act, not only if they have been undertaken by a prescribed person but also, to go back to the words of 49A(1), undertaken “for the purposes of the provision of electricity infrastructure”.
GLEESON CJ: What was the point of departure between Justice Bleby and the majority?
MR KOURAKIS: Your Honour, the point of departure probably did not, at least expressly, deal with 49A(1) and (3) at all for this reason. The majority accepted that to fall within subsection (3), the electricity infrastructure had to have been developed, constructed, for the purposes, and only for the purposes of electricity infrastructure, but they drew that conclusion from the way in which regulation 14A was drawn and there was the point of departure. As to regulation 14A, Justice Bleby held that there was no requirement that the infrastructure therein described be constructed for the sole purpose of providing electricity infrastructure.
The ultimate holding of the court below, the majority, was that these Stobie poles did not fall within the 49A(3) exception. That is a holding which we support. The argument I put in support of it though does not rely on Schedule 14A to the regulations but it relies on a reading of 49A(3) in context, that is with subsection (1) so that subsection (1) restricts it so that the regulations can only prescribe infrastructure development undertaken by a prescribed electricity provider and so that they can only describe that infrastructure constructed by the prescribed provider for the purposes of the provision of electricity infrastructure.
GLEESON CJ: You mean for the purpose only.
MR KOURAKIS: Yes, and your Honour, the use of the word “purposes” in 49A(1), in my submission, is largely neutral but, if anything, supports the contention I make and that is that all purposes must be for the provision of electricity infrastructure.
HAYNE J: And it is turning to account for profit.
MR KOURAKIS: Your Honour, that is the motive. The purpose is the object the person seeks to achieve, the motive is the reason or reasons for which they might attempt to seek that object. But here the question must be what is the object that the provider seeks to achieve? Your Honours, the question is not what is the purpose of the pole when it is constructed, because 49A ‑ ‑ ‑
GLEESON CJ: Is not the question what is the character of the pole when it is constructed?
MR KOURAKIS: In my submission, no.
GLEESON CJ: If the pole has the character of electricity infrastructure, then the purpose of the prescribed person is to provide a pole; that is to say, electricity infrastructure, is it not?
MR KOURAKIS: Your Honour, one must ask what is the purpose of undertaking the development, if one looks at 49A.
GLEESON CJ: The development being the building.
MR KOURAKIS: Yes, and that may, often will be, the same question as what is the purpose of that which was built – but not necessarily so. Your Honours, the purpose ‑ ‑ ‑
GLEESON CJ: It turns on the character of what is built, does it not? If you want to build meatworks, then the purpose of the development is the provision of meatworks. Would you not in this case ask whether what was provided, as a result of this development activity, bore the character of electricity infrastructure, and if you did have that character would you not say the purpose of the development was the provision of electricity infrastructure?
MR KOURAKIS: Your Honour, in most cases you would, but can I attempt to illustrate why I say in these cases it does not by going to the photograph of the Colonel Light Gardens site at page 163 of the appeal book. Perhaps along the way I might ask your Honours to pause at page 161. Your Honours, the Colonel Light Gardens site is the site shown there, and it is the one that had the two poles together with the landing arrangements, the crossbeams between them. These are the poles that were half the height before the demolition and replacement. Plainly, what those poles served to do was to take the lines that came from the street lines into the substation, that is the nine metre poles served that purpose.
The question is why were the nine metre poles replaced with the 18 metre poles? In my submission, that is the question because that is the question that asks what was the purpose of the development because the purpose of the development was relevantly, under the State Act, and that is where we are now, is both the demolition of the existing poles and the replacement of them with poles twice their height. Your Honours, there is only one answer to that question. The purpose of the development was to allow the poles to be used for telecommunications infrastructure.
Your Honours, the poles themselves once built served two purposes, but this is a rare case in which there is a different answer to the question what purpose do the poles now serve and the question what was the purpose of the development? Your Honours, Colonel Light Gardens is the most obvious of the examples, but it is accepted with respect to the rest, apart from Clarence Gardens where there was no replacement, that they were only replaced because Hutchison asked and relied on its contractual rights to have them replaced. Again, with respect to those, if one asked, “What was the purpose of the replacement?” the answer would be to comply with the contractual arrangements and provide poles that could be used for telecommunications infrastructure.
Your Honours, outside the facts of this case an even more obvious example would be the electricity authority providing a third pole between two existing good poles, not because they were needed as a matter of engineering to hold the weight of the lines suspended between them but because they wanted a third pole strong enough to hold an antenna.
Once that third pole was constructed there is no doubt that that pole was being used to support, although it was not necessary from an engineering point of view, the lines in between the two. So the pole has two purposes, but equally there is no doubt that the purpose of the development, that is deciding to put it there, or putting it there, was a sole purpose - one related to telecommunications infrastructure. If the Court pleases.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Whitington.
GUMMOW J: I think the correct business name is ETSA Utilities, is it not - paragraph 4 of the reasons?
MR WHITINGTON: That is how it is described in the proceedings, yes. The Court can also see that in appeal book in the originating proceedings, the amended inter partes summons at page 2 of the appeal book.
GLEESON CJ: Are these second to sixth respondents in private ownership now?
MR WHITINGTON: Yes, they are and I should tell the Court in case somebody says I was remiss, although nothing has ever been to turn on it in this case, these companies, as I understand it, have the same ultimate ownership as Hutchison or at least there is a connection between the ultimate owners of the two relating back to, I think, interests in Hong Kong. I do not think anything turns on that.
GUMMOW J: There is a submitting appearance in the second to sixth.
MR WHITINGTON: That is right.
GUMMOW J: These collectively trading as ETSA utilities ‑ ‑ ‑
MR WHITINGTON: That is right, and they appeared at the trial which led to the case stated. They have always been separately represented and for all relevant purposes quite separate and distinct from my client. They appeared in the Full Court on the case stated and then they have entered a submitting appearance in this Court.
My learned friends, Mr Hayes, and most recently the learned Solicitor‑General, said various things about the way in which the poles were identified and the replacements were undertaken and at whose instance. I simply invite the Court’s attention in due course to the case stated at paragraphs 10 through to 13 and that is, we say, the correct factual basis upon which the court is to proceed.
GLEESON CJ: Your opponents say that Hutchison could not under Schedule 3 of the Telco Act have built new Stobie poles and placed these telco facilities on the top of them. They say if the Telco Act did not permit Hutchison to do that, a fortiori it did not permit ETSA to do that. Therefore, they say, ETSA has to rely on the Development Act. Do you quarrel with that?
MR WHITINGTON: We quarrel with the starting point which we say is illusory. We would accept that Hutchison is not entitled ab initio to erect a tower and install on it low‑impact facilities pursuant to its powers under clause 6, including the ancillary aspect of installation. But that is not what happened here at all. What happened here was that there was an existing pole as part of a public utility infrastructure network and some of the existing poles, because ETSA determined they were unsuitable for Hutchison’s purposes, were removed and replaced with virtually identical poles. That is a very different proposition from saying that Hutchison has erected a pole ab initio.
GLEESON CJ: You said virtually identical poles. The Solicitor‑General showed us an example of poles that were twice the size of the earlier poles.
MR WHITINGTON: Yes. In three cases they are virtually identical; they are wider. In the fourth case, the Colonel Light Gardens case, the landing station, the landing site, the poles went from nine metres to 18 metres. There is no basis in the case stated for the Court or anyone to know why that increase was effected. It cannot, for instance, be suggested that the increase was effected at the instance of Hutchison or to suit Hutchison. As Justice Bleby found, in the case of all the replacement poles the case stated says that the cables are attached and the poles are otherwise entirely suitable and appropriate for the purposes of ETSA.
The Court will see that in the case stated paragraph 13(d):
All the replacement stobie poles are in positions that are necessary for supporting power lines and are appropriate for that purpose.
There is nothing in the case stated that suggests that Hutchison in some way contrived the higher poles. The Court simply does not know why ETSA, having undertaken the research indicated by paragraph 12 of the case stated, determined in that case to use higher poles.
To come back to your Honour the Chief Justice’s starting point, we would concede that it would not be open to Hutchison to seek to invoke clause 6 of Schedule 3 to erect a tower, ab initio, and say that that was either a low‑impact facility or that the erection of the tower where there was no tower in the first place was either an ancillary installation under the definition of installation or was something necessary or desirable for the purpose of carrying out the activity of the installation of equipment.
We accept the learned Solicitor‑General’s proposition that it makes a nonsense of clause 6 to say it is ancillary to the installation of low‑impact equipment to build the structure, the very structure on which you are going to install it but that is only so in the case where there is no structure there in the first place. When there is a structure there and it is otherwise appropriate and suitable and its location is suitable the only difficulty is that it is of insufficient strength to support the equipment and allow it to function effectively, then to replace that pole is authorised and can be done in exercise of an authorised right under clause 6(2) or under the extended definition of “installation”.
GLEESON CJ: Done by whom? Who has the authorisation?
MR WHITINGTON: If we are focusing now on the Commonwealth legislation, the authorisation is only in the carrier, but the carrier can use a contractor under clause 43.
GLEESON CJ: That seems to require a choice in the identification of the person who is carrying out this work. From the point of view of the Telco Act, it might be to your advantage to have Hutchison seen as the person who is carrying out the work. From the point of view of the Development Act, that might be to your disadvantage.
MR WHITINGTON: Correct, except for this, that we put our submission in our written submissions in the alternative and in relation to the Development Act we put a submission that the construction could be seen to be carried out in terms of the Development Act by both Hutchison and ETSA, that when one comes to section 49A, and there is a debate between us as to whether one goes through the gateway of 49A(1) or 49A(3), but either way, where the development is to be undertaken by a prescribed person and by a prescribed person only – in other words, we say not only does section 49A and/or the relevant regulations not require a sole purpose test, they do not require a sole person test. So we agree with what your Honour the Chief Justice says about there being a nice point ‑ ‑ ‑
GLEESON CJ: Which way did Justice Bleby go on that question?
MR WHITINGTON: On?
GLEESON CJ: Identifying the person who did the work.
MR WHITINGTON: He said that ETSA did the work and he said that in the context of his analysis of section 49A.
GLEESON CJ: But he said ETSA was covered by the Development Act.
MR WHITINGTON: Yes, and he said that there was no reason why it need be – I am sorry. There is a complication here, I am sorry. My learned friend, the Solicitor‑General, has referred to section 49A(1) as being the gateway to exemption. Neither the majority nor Justice Bleby treated that as the gateway to exemption. They treated section 49A(3) as the gateway to exemption and they treated it as being, if you like, an exclusive gateway, quite possibly because of the words in subsection (3) in brackets:
No application for approval is required (either under this section or any other provision of this Act) –
In other words ‑ ‑ ‑
GUMMOW J: Well, the answer is that subsection (1) is subject to (3).
MR WHITINGTON: Yes, that is right.
GUMMOW J: That is what its opening words say.
MR WHITINGTON: And that is how the court has read it unanimously. The Solicitor‑General reads it differently and says that subsection (3) is subject to subsection (1). Having reached that point, Justice Bleby then said, “That then takes me to regulation 69”, which the Court has in our book at page 154.
GLEESON CJ: Where is the regulation-making power?
MR WHITINGTON: In the Development Act. Can I turn that up, if the Court pleases?
GLEESON CJ: Certainly.
MR WHITINGTON: Can I just go to regulation 69:
Pursuant to section 49A(3) . . . the various forms of development specified in Schedule 14A, when carried on by a prescribed person, are excluded from the provisions of section 49A of the Act.
Justice Bleby then determined that ETSA carried on the development. His analysis commences at paragraph 286. Now, I accept that paragraph 286 may involve reasoning which is not consonant with our primary reliance on clause 6 of the Commonwealth legislation, but we have always put our case in the alternative.
GLEESON CJ: Mr Whitington, can I take you back to this question of the gateway to the regulation? Section 49A(3) says:
No application for approval is required . . . if the development is of a kind excluded from the provisions of this section by regulation.
What are the provisions of this section relevantly apart from subsection (1)?
MR WHITINGTON: I would have said at first blush all of them in the sense that there is a regime in this section for approval.
GUMMOW J: The Development Assistance Commission seems to get involved if they wish under (4) and then various things follow from that.
MR WHITINGTON: That is right.
GLEESON CJ: Subsection (3) is a dispensing provision, is it not?
MR WHITINGTON: That is apparently how the Crown would read it against us, that it is a dispensing provision and it dispenses from the requirements of subsection (1).
GLEESON CJ: How would you read it?
MR WHITINGTON: Our primary submission is that it is a stand‑alone provision that stands on its own and provides for an exemption from approval “either under this section or any other provision of this Act” and that would therefore include an exemption from a requirement of approval under section 32 of the Act provided that the development is of a kind designated by the regulations. If the Court pleases, in our written submissions we take the precaution of going through either gateway. We address the matter primarily through subsection (3) because that is the way unanimously the Full Court addressed it.
We make the point in our submissions in reply that there are no notices of contention on this point. We did not do that as a matter of idle procedure and we do not take any procedural point about a lack of notice of contention, but we did want to emphasise the fact or highlight the fact that the Full Court chose to treat subsection (3) as a stand‑alone section rather than a dispensing section. As I say, in our submissions we put the alternative propositions.
GUMMOW J: It is also to be read with 32, which says “Subject to this Act”, and 32 is the basic prohibition.
MR WHITINGTON: Yes, that is right. That is why we think the Full Court, although it did not say so, probably foundered on the words in the interpolation which dispensed not only from that section but from the entire Act, which is capable of making subsection (3) a stand‑alone provision in the context of section 49A, but whichever gateway one has to pass through to get to exemption, we put an argument that the applicable provisions do not require a sole purpose test, nor do they require a sole person test.
So, for example, assume we go through and can go through the subsection (3) gateway directly to Schedule 14A, there are relevant exceptions there in item (a)(ii) and item (f). We put in our written submissions that each of those items is capable of embodying a purpose test in a sense in that there must be, for instance – this is reading from (a)(ii) – “construction . . . of . . . equipment used for . . . the supply . . . of electricity”, and likewise in (f), “the construction . . . of an electricity power line”. Each of those concepts implicitly embodies a notion of purpose but we say it cannot be meant to be sole purpose.
We say in the alternative, if we are required to pass through the gateway of section 49A(1) and there is an overarching requirement that there be a development for the purposes of the provision of electricity infrastructure, again, that should not import a sole purpose test.
GLEESON CJ: Are the opening words of Schedule 14A material in this connection?
MR WHITINGTON: Well, I have always read those, if your Honour pleases, as picking up on the words in subsection (3).
GLEESON CJ: As they do.
MR WHITINGTON: Yes. Therefore, I have always taken that as reinforcing the stand‑alone interpretation of subsection (3).
GLEESON CJ: I was just wondering what provisions of section 49A are the following forms of development excluded from, apart from 49A(1).
MR WHITINGTON: I do not have the time to read in detail now all of 49A, but my memory is that apart from 49A(3) the other provisions in 49A are, if you like, consequential upon 49A(1). So by and large they are machinery provisions that assist in the implementation of subsection (1), but nonetheless we say that does not ‑ ‑ ‑
GLEESON CJ: That was my quick impression, but I have not read the detail of it I must admit.
MR WHITINGTON: Yes. Well, that was my impression when I went through them for this purpose earlier, and I think I can say that is exclusively so. Nonetheless, we say that does not diminish from the operation of subsection (3) as a stand-alone provision because it dispenses not only from the requirements of the section but the requirements of the Act itself, including therefore section 32.
In any event, the argument really in a sense comes down to much the same argument because whether one goes through subsection (1) or subsection (3), one must then go to regulation 69, which excludes a “development . . . carried on by a prescribed person”. So, whichever path one takes, you must find a prescribed person carrying on or undertaking development, and we say there is no material difference.
We say the prescribed purpose test is not a sole purpose test. Then if the correct path is through subsection (1), then we say that it does not import a sole purpose test for the same reason as we say the regulations do not import a sole purpose test.
GLEESON CJ: I wonder if some of the argument has not proceeded upon an assumption that section 49A(1) creates a permission. Section 49A(1) is a prohibition and, on the argument against you, only applies where something is done for the purpose of providing electricity infrastructure. If what is being done is not for the purpose of providing electricity infrastructure, why does the prohibition in section 49A(1) become engaged?
MR WHITINGTON: I do not think it does, but I think that then drives you back to section 32, and there is a layered or another prohibition behind this and so that would be engaged, but then if the exception is engaged ‑ ‑ ‑
GUMMOW J: It gets you to 69, does it not?
MR WHITINGTON: Yes.
GUMMOW J: Through (3), 49A(3).
MR WHITINGTON: Yes, that is right. So, if the exception is engaged, it will lead to consequences not only of a prohibition in subsection (1) should it apply, but also a prohibition in section 32.
GLEESON CJ: That probably explains why all three members of the Court of Appeal went directly to regulation 69 and the schedule.
MR WHITINGTON: Yes, I think so. I will just note that in our written submissions on the question of the application of the sole purpose test, we refer to the cases of Hook v Rolfe in the New South Wales Court of Appeal and Mikasa in this Court which stand for the proposition that one does not ordinarily interpret a requirement that something be done for a reason or purpose.
GUMMOW J: Mikasa is about resale price maintenance, is it not?
MR WHITINGTON: It was, but ‑ ‑ ‑
GUMMOW J: I am not saying that makes it a bad authority. What is the actual point from Mikasa?
MR WHITINGTON: This point is that where legislation imposes a requirement that something be done for a reason, and there it was for the reason of resale price maintenance, that did not have to be the only reason. The section of the old Trade Practices Act provided that a person called “the supplier”:
engages in the practice of resale price maintenance if . . . the supplier withholds the supply of goods to a second person for the reason that the second person . . . is likely to sell –
at a particular price. Particularly in the reasons of Justice Stephen, at 656 to 658, he makes the point that the construction of these words does not require that there be only one reason and that a reference to the reason can mean that only one of a number of reasons is being indicated. I accept the legislative context was a little different there as it was in Hook v Rolfe but we draw from that the broad proposition that the Court would not normally construe words requiring a purpose or a reason as indicating that the specified reason or purpose must be the sole reason or purpose.
GLEESON CJ: Is the heading to Division 3A part of the legislation? I notice ETSA uses the expression “Development involving electricity infrastructure”.
MR WHITINGTON: Yes. I would like to rely on that, your Honour. I cannot now bring to mind what our Acts Interpretation Act says about that. I think it says the headings are not to be used in construction of legislation but, in any event, in the context of section 49A probably it does not add a lot. Although, that said, we say that is the very sense of this part of the Development Act. It is dealing with developments involving electricity infrastructure.
In this context, can I take the Court to one point – and my learned friend, Mr Hayes, made a point, I think, particularly to Justice Kirby, that there was a relevant provision in the Electricity Act. The Court has not been taken to it, but if the Court would go to our written submissions at page 163, behind tab 6, the Court will see the Electricity Act 1996. The particular point we emphasise appears at page 168 where the Court has part of section 23, and perhaps reading back from page 167, subsection (1):
The Commission must make a licence authorising the operation of a transmission or distribution network subject to conditions determined by the Commission ‑
. . .
(j) requiring the electricity entity to comply with code provisions as in force from time to time (which the Commission must make under the Essential Services Commission Act 2002) establishing a scheme –
(i) for other bodies to use or have access to the entity’s transmission or distribution network for telecommunications purposes –
So there is embodied in the South Australian legislation itself controlling ETSA and the distribution of electricity a de facto obligation to afford co‑location. That is in turn picked up in the Code which is established under that Act and referred to by Justice Bleby in a section in his judgment.
Perhaps can I give the Court a reference to that so the Court can have set out in one place all the legislative indicators towards co-location. The Court has it in Justice Bleby’s reasons in the appeal book starting at page 302. The Court might note in particular his reference to the code of practice in 237. My learned friend the Solicitor‑General took the Court through Schedule 3 and made a point that there are not copious references to “co-location” in the schedule but the Court should have regard to clause 15 in the Telecommunications Act, Schedule 3. That provides for a code of practice to be made by the Minister. The Court will note that subclause (7) says:
An instrument under subclause (1) is a disallowable instrument for the purposes of . . . the Acts Interpretation Act 1901.
We have included relevant parts of that code in our appeal submissions at tab 3 and I perhaps will not dwell on it, but Justice Bleby summarises relevant portions in that section of his reasons I have taken the Court to.
HEYDON J: An additional one is 4.13, is it not?
MR WHITINGTON: I am sorry, your Honour?
HEYDON J: He refers to 4.27 and 4.28. An additional one is 4.13 which is on page 113 of your bundle of submissions.
MR WHITINGTON: Correct, yes. That is so, and 4.13 is the one that we particularly emphasise in the code. That is to be the commencement point for the requirement to co‑locate. That is mirrored by obligations in the South Australian statutory regime requiring the public utility to co‑operate in the co‑location.
GUMMOW J: That is the paragraph (j) you referred us to, is it, in the Electricity Act?
MR WHITINGTON: That is that, your Honour, and that then takes one to the licence and the code, compliance with which is a condition of the licence and then that code ‑ ‑ ‑
HAYNE J: Do you add anything to what Justice Bleby says in 236 about that subject?
MR WHITINGTON: No, we do not. That whole section, 236 over to 240 he, I think, relevantly sets out the provisions we want to rely on for the purpose of co‑location. There are just one or two other points I wanted to make. Your Honour the Chief Justice asked whether there was any authority in South Australia on the meaning of the expression “cause, suffer or permit”. There is a case in the Full Court, R v The Corporation of the Town of Hindmarsh 37 SASR 388. In that case the Chief Justice and Justice Millhouse interpreted that expression in light of its history in the criminal law and particularly in light of the interpretation given to it by the High Court of O’Sullivan v Truth and Sportsman 96 CLR 220. We refer to that in our submission as well.
If I can just turn it up quickly. The passages relied upon and often cited are at page 231 in the reasons of Justice Kitto and in the majority it is at 228 to 229.
GLEESON CJ: I think there was a decision within the last year or two of the Court of Appeal of New South Wales concerning a case in which a tenant of land developed the land without permission. The tenant was a person of no worth and the council sought to exercise remedies against the owner of the land on the basis that the owner had permitted it by not enforcing contractual rights under the lease to prevent it.
MR WHITINGTON: Yes.
GLEESON CJ: If you should have the opportunity to give us a reference to that case, it would be helpful. I only know of it because there was a special leave application that I think was refused.
MR WHITINGTON: We will get that out, if the Court pleases. Finally, my learned friend, the Solicitor‑General, had an exchange with the Court about the concept of “purpose”. In our respectful submission, “purpose” in the context of the law of planning relates to the character of the finished product. It does not relate to the process of development or building by which one gets to the finished product. Some of my learned friend’s propositions came suspiciously close to suggesting the purpose of the erection of the new poles was one which related to their construction, the process of construction rather than the end use.
As to the end use, the character of the replacement poles, we say that while they might have one character as a facility capable of accepting telecommunications equipment, they also have another character of electricity infrastructure.
GLEESON CJ: Although, I imagine, your argument is that the new Stobie poles, like the old Stobie poles, were electricity infrastructure.
MR WHITINGTON: Exactly, it is, and whatever else they might be they are electricity infrastructure. The answer to the question about where is the regulation‑making power in the Development Act is that it is in section 108. In relation to the question of orders, can I read something out on the assumption that it will appear on the transcript so I can read it fairly quickly. This is addressing, first of all, question 1.1 and conveniently the questions are in the appeal book at 300 in the reasons of Justice Perry. In relation to question 1.1 we seek the answer, “No”.
KIRBY J: Are you going to vary the answers you got in the orders sought at 333?
MR WHITINGTON: Yes. As Justice Gummow said, we really would seek a kind of speaking order, that is some elaboration to the answer so that there is an explanation. So we would seek an answer in these terms, “no”.
GUMMOW J: This may be important because this has to go back and there is injunctive relief sought.
MR WHITINGTON: That is right and that is why we have tried to think it through from that point of view and I hope we have addressed it to suit our purposes. 1.1 we would seek along these lines: no, because the Stobie poles are not and do not become facilities for the purposes of the Telecommunications Act 1997 notwithstanding the installation on them of Hutchison’s facilities. Therefore, the Stobie poles are not and do not become towers within the meaning of clause 6 of Schedule 3 of the Act.
In relation to question 1.2 in the notice of appeal we simply seek an answer “yes”, but again we think that requires some elaboration and we would seek an answer in these terms: yes, and on the basis that the fact referred to in question 1.2(a) is not relevant to the identification of low‑impact facilities in the determination. That is a way of attempting to dispose of the difficulty created by the infelicitous question in 1.2(a) which may be misdirected. Unless there is anything arising out of that, they are our submissions in reply.
GLEESON CJ: Thank you, Mr Whitington. We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow morning in Canberra and in Melbourne.
AT 3.53 PM THE MATTER WAS ADJOURNED
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