Hutchison 3G Australia Pty Ltd v City of Mitcham & Ors

[2005] HCATrans 602

[2005] HCATrans 602

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A17 of 2005

B e t w e e n -

HUTCHISON 3G AUSTRALIA PTY LTD

Applicant

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

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 11 AUGUST 2005, AT 10.07 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 applicant.  (instructed by Minter Ellison)

MR B.R.M. HAYES, QC:   If the Court pleases, I appear with my 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:   If the Court pleases, I appear with my learned friend, MR C. JACOBI, for the Attorney‑General, the seventh respondent.  (instructed by Crown Solicitor’s Office South Australia)

GUMMOW J:   There is no appearance from the second to the sixth respondents. 

KIRBY J:   You read the affidavit of Marie Louise Sexton on the application?

MR WHITINGTON:   Yes, I do, if the Court pleases.

KIRBY J:   I assume there is no objection to that affidavit?  I ought to say that it is not insignificant to my approach to the matter.  I think the matters raised in the affidavit are significant reasons for granting special leave.

MR WHITINGTON:   Yes, if the Court pleases, and that of course has a wider implication because there are two main issues that arise in this case.  One relates to the interpretation of the (Low‑impact Facilities) Determination, and that is a matter that is specifically germane to the affidavit of Ms Sexton.  There the effect of the Full Court decision is that while specific items listed in the schedule such as radio telecommunications equipment are regarded as low impact facilities and can be installed without planning consent ab initio, if they are collocated on a public utility structure, then suddenly, according to the Full Court, the position changes and tests which are not applicable to that equipment under the schedule suddenly become applicable, including in this case a noise test.  The result is that the collocated facilities require planning approval and the entire installation loses its Commonwealth exemption.  That is one aspect of the matter I will develop. 

The other aspect relates to the impact of location of so‑called low‑impact facilities on public utility structures under State planning law.  All of this is in the context of the importance of the establishment of mobile telecommunication networks throughout Australia and a philosophy and policy which is evident in both the Commonwealth legislation and the State legislation to encourage collocation of what are called low‑impact facilities on other public utility or telecommunications facilities, obviously to avoid a proliferation of sites.  The effect of the Full Court decision is substantially to destroy or negate the combined Commonwealth and State policy of collocation.

KIRBY J:   Will the policy of collocation impede the removal of these horrible structures on our landscape?  There is a bit of a tendency in some suburbs in Sydney to put what used to be on light poles underground.  Maybe if you have collocation, there will be reasons for people to keep those poles.

MR WHITINGTON:   The whole question of the undergrounding of the electricity network or distribution network is a different question.  We should have thought that would proceed at the instance of the electricity distributor and the planning authorities, quite independently of any of these considerations.

KIRBY J:   Collocation is all very well but it does mean you add another object which makes it higher and bigger and it is also a noisy object.

MR WHITINGTON:   The alternative of course if one wants a telecommunications network is to have freestanding towers built or, alternatively, the low‑impact facility equipment put on top of other structures.  The point of collocation is to accept that in certain areas electricity infrastructure is a blight on the landscape and the blight should be minimised as much as possible.  So, instead of having the installation of further and major telecommunications structures creeping down the streetscape, they should be installed on top of the existing poles.

KIRBY J:   And is collocation a national policy?

MR WHITINGTON:   Yes, it is.  Collocation is a policy encouraged by the Commonwealth, required of telecommunications carriers, and in turn endorsed and encouraged under the South Australian legislation, as we understand it, everywhere around Australia.  Can I then perhaps take the Court to the (Low‑impact Facilities) Determination that grounds the first aspect of the application for special leave.  We have provided the Court with a book of authorities.  Does the Court have that?

GUMMOW J:   Yes.

MR WHITINGTON:   Could I ask the Court to go to the (Low‑impact Facilities) Determination of 1997.  It is behind tab 6.  Perhaps if the Court would go to Part 3 on page 10 of the schedule, this is a determination made by the Minister under the Telecommunications Act.  In Part 3, clause 3.1 says what a low‑impact facility is.  It is to be installed in a particular area and it has to meet the requirements of the schedule.  If the Court would then come to the schedule, Part 1, the first category of items are radio facilities and item 3 is the relevant one here, a panel, yagi or other like antenna is a low‑impact facility and can be constructed in a residential area.  Over the page, item 5, a radiocommunications dish is a low‑impact facility. 

Then if the Court comes to Part 3, there is a part dealing with above ground housing and item 4 is an equipment shelter.  The effect of the evidence on the case stated and also Ms Sexton’s affidavit is that you need to attach the equipment by cable to an equipment shelter because other receiving and transmitting equipment is deployed in the equipment shelter and because that generates heat through electrical activity, an air‑conditioner is necessary to cool the equipment in the equipment shelter.

So the low‑impact facilities in the form of a dish and the antenna are on top of the electricity pole.  They are connected by cable to other equipment in the equipment shelter which is kept cool by an air‑conditioner.  If my client were to install that on anything except a collocated facility, it would not have to meet any noise test.  There was no noise test at all involved.

Then if one comes across to Part 7, there is a part dealing with collocated facilities and item 2 is the relevant item. 

Facility mentioned in:

(a)      Part 1 –

Now, that is the radio facility, that is, the dish and the antenna on top of the pole:

installed on or within:

(c)      an original facility; or

(d)      a public utility structure;

So here is an example of collocation being encouraged and such installation of equipment of this kind represents an installation of low‑impact facilities provided certain conditions are met - we need not concern ourselves with the volume test - and the second condition is in paragraph (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 –

So this part is addressing Part 1 equipment, the dish and the antenna put on top of the pole and it is said that that can be installed as a low‑impact facility on an existing public utility structure, that is, an electricity pole, provided it does not generate any more noise than that pole generated before.

Now, what the Full Court said was, that is all very well, but these items are connected to the equipment shelter, which is addressed in another part, Part 3.  That equipment shelter makes noise.  You must aggregate the installations to create one entire downlink site and then the entirety of the installation must satisfy the noise test and we say that is plainly wrong.  It is contrary to the decision of the Court of Appeal in Victoria in the case Hutchison v Director of Housing where the Court of Appeal held that you did not have to aggregate and you should not aggregate.  You just address the noise test in Part 7 on its own terms in relation to the items addressed here, the radio facilities which are installed on top of the pole.

GUMMOW J:   Now, did Justice Bleby accept in his judgment what you are saying is the correct position?

MR WHITINGTON:   Yes, he did.  Yes, he did, and the implications of holding otherwise are really to completely destroy the low-impact facility exemption under this determination because all collocated radio facilities on top of the pole need to be connected to other equipment which needs to be housed in a shelter which needs to have an air-conditioner to keep it cool.  That is the effect Mr Sexton’s affidavit.  So the hundreds of sites installed across Australia in the same way with the same technique and the same equipment are now liable to be found, on the approach adopted by the majority of the Full Court, to be not conforming or exempt installations and therefore they must gain planning approval under State law.

KIRBY J:   Do you raise a suggested inconsistency between the Telecommunications Act and the State planning law?  You are not really relying on any intersection between the federal and the State law, are you?

MR WHITINGTON:   No, not as the case developed.  We did initially, but as the case developed on the construction employed by the ‑ ‑ ‑

KIRBY J:   So that takes away what would often be an important point for this Court to look at.

MR WHITINGTON:   Yes.

KIRBY J:   So really it comes down to the interpretation of the State law and how that has a consequence for your nationwide operations that is different from other States?

MR WHITINGTON:   That is the second aspect of the case, if the Court pleases, because this aspect involves wholly and solely the interpretation of Commonwealth legislation because it is the case the Court can infer that if there is no Commonwealth exemption and that is the effect of the Full Court’s decision on this point, then planning approval will be necessary not only in South Australia, but in every jurisdiction of Australia and these installations that will be non-complying under planning law will either have to be pulled out or will have to be submitted to planning processes.

GUMMOW J:   There seems to be a Commonwealth/State – well, “scheme” might not be the word, but the two laws will operate harmoniously.  The two regimes, the Commonwealth and State will operate harmoniously and you complain that the Full Court majority decision discloses a crack?

MR WHITINGTON:   Yes.

GUMMOW J:   Through which you fall.

MR WHITINGTON:   Exactly, your Honour, and the problem is even more profound in the second aspect of the case which involves this, and this moves right away from the issue of the schedule.  In four cases we installed our low-impact facilities on electricity poles which were installed specifically to accommodate the equipment in three out of four cases.  The poles were of the same height, slightly larger cross-section.  That was necessary because it was deemed by the electricity distributor that they were not of sufficient strength to support the low-impact facilities in their intended use.  In the fifth case an existing pole was used and not replaced.

Now, my client has an exemption, a Commonwealth exemption, under the Telecommunications Act from planning approval in respect of the impact of low-impact facilities – the installation of low-impact facilities on existing structures.  So Hutchison did not need any planning consent to install its telecommunications equipment on an existing ETSA pole provided the equipment is properly characterised as low impact, and we say it is.

However, the Full Court said that once ETSA replaced its poles, notwithstanding that the poles were to be part of its existing distribution network, and notwithstanding the poles in three out of four cases were virtually identical to the replaced poles, then both Hutchison and ETSA needed planning approval under the State planning Act, under the South Australian Development Act.  They said that was because there was an act of development either in the form of a change of use by Hutchison installing its equipment on the pole and ETSA facilitating that, or a development in the form of building work by ETSA swapping out the poles, as it is colloquially put, and the result is ‑ ‑ ‑

KIRBY J:   Even though the substitute pole was identical in effect to the previous pole?

MR WHITINGTON:   They are identical in effect.  In one case they are substantially higher.  There is no explanation for that in the case stated, but as his Honour Justice Bleby noted, in each case the poles are used by ETSA in the ordinary way to hang powerlines from the top of the poles.  So there can be no suggestion that ETSA did not employ the full extent of each of the replaced poles to support its suspended powerlines.

KIRBY J:   Of course it might not be such a bad thing for Commonwealth developments to be subject to State planning laws.  Sometimes very large buildings are created and those buildings pay no heed to local State environmental law and that upsets a lot of people.

MR WHITINGTON:   Well, I should have thought they were, but I am not sure about that, your Honour.  But certainly in this case, if it is a telecommunications development, apart from a low-impact facilities development, it must comply with planning requirements.  Either there must be a planning authorisation under the Commonwealth Telecommunications Act or in default there must be a planning consent under the State regulatory regimes.  There is only exemption in respect of low-impact facilities.  The Court has an indication of what I mean by that with the photograph that we have annexed ‑ ‑ ‑

KIRBY J:   Yes, we have seen that.

MR WHITINGTON:   Yes, well, that is the extent of the exemption, small facilities at the top of a pole.  The trouble here is that the Full Court said that once ETSA in some way assists not by allowing its pole to be used, but by replacing the pole, then the Hutchison Commonwealth consent is negated and ETSA’s own State exemption from the installation of electricity infrastructure is negated.  As his Honour Justice Gummow says, we somehow fall between the crack of two exemptions. 

GUMMOW J:   What was the role of the State?  They were not a party in the action initially, but they intervened, did they?

MR WHITINGTON:   They intervened, yes.  They intervened.  Initially we gave section 78B notices to all the Attorneys because we considered an inconsistency issue was raised.

GUMMOW J:   I see.

MR WHITINGTON:   I think my learned friend appeared on that footing and also ‑ ‑ ‑

GUMMOW J:   And stayed?

MR WHITINGTON:   And stayed, but I think he also ‑ ‑ ‑

HAYNE J:   He got a foot in the door.

MR WHITINGTON:   It may also be that he pushed the door open, as I recall it, with the ‑ ‑ ‑

HAYNE J:   Ever so slightly.

MR WHITINGTON:   With his right arm with the Crown Proceedings Act, but having pushed the door open he, of course, did a very good job in persuading the Full Court that – at least a majority of them - there was a difference between an existing pole and an identical replaced pole.  In one case there was no planning issue, but in another case there was a planning issue, and one can test ‑ ‑ ‑

KIRBY J:   What is the problem with you going down the street and getting an existing pole?

MR WHITINGTON:   The trouble with that is that the poles have to be specifically located within the network.  So the location has to be precise.  So you then find the pole in the right place.  However, it might then be an old pole which is slightly corroded or not as strong as needs be and the issue here is that the equipment must – particularly the microwave dish – must fire in a precise and direct line with millimetre precision to the next microwave dish.  If the pole has not got sufficient strength, there is a tendency to torsion or slight movement which renders the installation futile.

KIRBY J:   And consequent - this is what Justice Gummow has called the crack - that has not appeared in any other State of the Commonwealth?

MR WHITINGTON:   Well, we are not aware that the issue has arisen in this form in any other State.  The issue has arisen in New South Wales.

KIRBY J:   That is the Hurstville Case.

MR WHITINGTON:   The Hurstville Case, and we say that case is quite sound.  The majority depart from it in a way which we say is unsound and his Honour Justice Bleby puts another construction on it which we also say is unsound.  But what the Court of Appeal said in Hurstville is that a facility under the Telecommunications Act is a telecommunications facility.  It is not the Harbour Bridge on which a telecommunications facility is installed.  They then use the expression “purpose built” to distinguish between the cases of a tower erected specifically by the carrier and the Harbour Bridge and what the majority said, well, if we followed Hurstville these replacement electricity poles are purpose built, so they are no longer like the Harbour Bridge.  They now become a telecommunications tower erected by Hutchison, in effect, and therefore they cannot be low-impact facilities, therefore, Hutchison loses its Commonwealth exemption.

Now, we say that is a completely wrong construction and misapprehension of the reasons of the Court of Appeal.  His Honour Justice Bleby put another position which we also disagree with.  I see my time is up.  If the Court pleases.

GUMMOW J:   Yes, thank you, Mr Whitington.  I should have noted that as to the second and third respondents, they have submitted to any order save as to costs.  Yes, Mr Hayes.

MR HAYES:   If the Court pleases, there are two issues here.  The first is in relation to what is colloquially referred to as the “swap out” of the poles, and the second relates to the (Low-impact Facility) Determination in relation to noise.  Neither of those issues, in our respectful submission, having regard to the way in which the case was decided, warrant intervention by this Court.  The reason for that is this.  The first issue in relation to the swap out of the poles is simply this.  There is an underlying principle in the legislation that is ‑ ‑ ‑

GUMMOW J:   Which legislation?

MR HAYES:   The Telco legislation, which encourages – and we accept this – collocation of facilities by carriers, the carriers such as Hutchison.  They are entitled to collocate with other carriers and the use of the public utility infrastructure is by other carriers.  So there is no argument that if a carrier finds other carriers already in place, they can collocate and should collocate with them.

GUMMOW J:   Yes, avoiding clutter amongst other things.

MR HAYES:   Exactly.  That is ‑ ‑ ‑

HAYNE J:   Then the point becomes one of timing, does it not?

MR HAYES:   Exactly.

HAYNE J:   When does ETSA replace its pole and how soon after it replaces its pole does Hutchison come along and stick its aerial on top?

MR HAYES:   It is, but the important issue here though is the legislation enables them to collocate on an existing public utility infrastructure, not replace it for the purposes of the telecommunications network.  That is what has been done in this case. 

GUMMOW J:   If the result of this case is that they cannot collocate, what do they do?

MR HAYES:   They can though.  That is the very point.  There were five stobie poles involved in this case.  There was no argument in relation to the Clarence Gardens site that they could put their facility on that site in terms of the pole.  It was existing and they could put it there.  I will deal with the noise issue as a separate issue.  This is just in relation to the swap out of the poles.  The effect of what – and the finding by the court below is a finding of fact that the agreement between Hutchison and ETSA in this case amounted to an agreement whereby Hutchison, in effect, identified the locations where they wanted to put their facility.  They found that those locations included a stobie pole.  They went to ETSA – they have a right to approach ETSA.  They then entered into an – those stobie poles were not suitable for their collocation at that point.

HAYNE J:   The consequence of the decision below is they cannot collocate save with the consent of the Council for whom you appear, is that not right?

MR HAYES:   The legislation does not give them a right to collocate irrespective of the consent of the public utility.  There is no such right.  They are encouraged to collocate.  They went in this case ‑ ‑ ‑

GUMMOW J:   What is the answer to Justice Hayne’s question?

MR HAYES:   The answer is no, it does not prevent them from collocating without the consent of ETSA because they do not ‑ ‑ ‑

HAYNE J:   No, without the consent of the local municipality.

MR HAYES:   Without the consent of the ‑ ‑ ‑

HAYNE J:   It means that they need the consent of City of Mitcham, do they not, to collocate?

MR HAYES:   Only if they install a facility which is not a low‑impact facility.

HAYNE J:   I understand that.

KIRBY J:   It does not seem a very rational situation to reach in a national grid.  That is the problem, and it seems to be exceptional to South Australia and you have a dissenting opinion in the Full Court and you have an affidavit by Hutchison saying that they have to locate in specific places and this is an extremely inconvenient outcome.

MR HAYES:   The affidavit is only, as I read it, in relation to the second point and that is the noise issue for the shelter.

KIRBY J:   But they are interrelated.  You put the aerial on the pole and you get the noise.

MR HAYES:   No, the issue is not in relation to the noise from the pole.  It was from the equipment shelter.  That is all.  There was no issue that noise was – if noise emanated from the aerial, then they would be caught by the determination.  The issue in the determination was in relation to the shelter.  So, your Honour, the first point, it is a question of fact which the court by the majority have decided the agreement in this case, peculiar to this case, in relation to the stobie poles, essentially Hutchison and ETSA got together to construct and erect the stobie pole. 

That is consistent with the New South Wales case decision of Hurstville where there Hutchison went in, there was an existing pole, they took it out, they put in a new pole and the court there said that is – by alleging that that was maintaining an existing pole they were getting through the process without going through the gateway set out in clause 6.  So there is no reason in this case to doubt, in our respectful submission, the finding of the majority of the Full Court on those facts as they found them to be.  Now, as far as the issue ‑ ‑ ‑

GUMMOW J:   It was a case stated, was it not?

MR HAYES:   It was a case stated, yes, on agreed facts.

GUMMOW J:   Exactly.

MR HAYES:   In relation to the shelter, it is entirely, in our respectful submission, consistent with the facts to argue that Hutchison’s facility included all the elements.  The network could not operate without the electrical equipment which was housed in the shelter and that is included in the determination.  Now, you cannot isolate that.  My friend is quite right to say if he only wanted to put up a shelter, there are no noise restrictions applicable, but if he does that as part of the overall facility, then clearly the noise restrictions, in our respectful submission, should apply because it is only in residential and commercial zones, that your Honours will see from the determination, that noise is an issue.  It is not an issue in rural zones and in other areas.

So clearly the legislation was concerned to ensure that the facilities from which noise will emanate should be controlled, and that is what the Full Court decision is.  It is not inconsistent, in our respectful submission - or the Victorian case can be distinguished because that case did not concern collocation of a facility.  That was concerned with putting the facility on top of a building.  There, obiter the court said, well, you look at each of the individual elements to determine what the facility was in the circumstances of that case.

GUMMOW J:   What does appear, I think, is that these technological changes and legislative responses are producing varied litigation outcomes across the country.  Unless we are careful, there will be some folklore in distinguishing these cases one from the other.

MR HAYES:   Well, your Honour, the same might have been said of the Hurstville Case and Sydney.  This Court declined to grant special leave in that case.  That involved, in a sense, the issue of the use by the carrier of ‑ ‑ ‑

GUMMOW J:   That was in 2003.

MR HAYES:   Yes, it was in 2003, and that involved the issue of the carrier, the same carrier, seeking to use a pole.  On any view of the matter, if the facts as found by the Full Court can be justified, and we say it can be, in terms of the agreement between ETSA and Hutchison, what Hutchison are seeking to do here is direct a tower upon which, in association with ETSA ‑ ‑ ‑

GUMMOW J:   In broad terms what is happening is what on one view of it was arrangement of understanding between federal and State levels of government is shown to be imperfect because there is an intrusion of a third level of government.  Now, that may be a good or a bad thing, but that seems to be what is happening.

MR HAYES:   But the two laws do work hand in hand.  The Commonwealth Parliament anticipated that the State laws would apply to those facilities which were not low-impact facilities and they can and have been working hand in hand without – it is not a question of falling through any cracks here.  If Hutchison wanted to collocate on an existing pole they could do so without any clash of laws.  If they wanted to tell ETSA that “Your pole is not enough and we are prepared to pay you”, which is the case here, “to construct a pole which is sufficient for our specifications”, which is the case here, then they are in fact installing a facility which includes a tower.  It would logically follow that that was so.

That is flying in the face of the Commonwealth and the State legislation which anticipates that the State legislation will continue to control those sort of towers in this, and that really is the issue here.  When asked rhetorically, why should this Court interfere with that finding which was a finding of fact on a case stated, and that is ‑ ‑ ‑

GUMMOW J:   They were not finding facts on a case stated.

MR HAYES:   Your Honour ‑ ‑ ‑

GUMMOW J:   I hope not.

MR HAYES:   Well, your Honour, his Honour Justice Bleby concluded that the arrangement between Hutchison and ETSA was just a commercial arrangement to give effect to Hutchison’s statutory obligations.

HAYNE J:   It is the first time a commercial arrangement has been used in a term of rank disapproval I think, but do go on.

MR HAYES:   I think I am saying what Justice Bleby did find, that to be a commercial arrangement, but it was because he was able to say that that he was able to conclude that Hutchison were not an active party in the erection or the installation of the tower, that is the reason, whereas the majority said Hutchison and ETSA got together, Hutchison paid for it, Hutchison said what specifications it required its tower to be in order to accommodate its equipment, ETSA said, “Yes, we can do that.  We will also continue to use it as transmitting electricity”, and the new tower then went up.

Now, that, in our respectful submission, is patently clear that is the installation of a tower and does not get the benefit of clause 37, the exemption.  So for those reasons, if the Court pleases, we say that this Court should not intervene by granting special leave in the circumstances of this particular case.

GUMMOW J:   Thank you, Mr Hayes.  Yes, Mr Solicitor.

MR KOURAKIS:   If the Court pleases, I only wish to address ‑ ‑ ‑

GUMMOW J:   Now, you have become a party?

MR KOURAKIS:   Yes, by reason of a joinder under the Crown Proceedings Act at least, if the Court pleases.

GUMMOW J:   It was federal jurisdiction surely.  What has the State Crown Proceedings Act to do with anything?

MR KOURAKIS:   Well, in my submission, it would be picked up and applied in these proceedings.

GUMMOW J:   Why would it not be 78A of the Judiciary Act?

MR KOURAKIS:   Well, your Honour, insofar as there is a constitutional point that is sufficient.  Insofar as there are other points concerned it is simply the construction of State legislation.  The intervention was on the basis of the Crown Proceedings Act, if the Court pleases.  Your Honours, I only wish to be heard on what my learned friend Mr Hayes described as the swap out point.

GUMMOW J:   Now, having become a party, you are subject to costs orders.

MR KOURAKIS:   Yes, if the Court pleases.  Your Honours, I only wish to be heard on ‑ ‑ ‑

KIRBY J:   That is not put to discourage you.

HAYNE J:   But do bring your wallet, Mr Kourakis.  Do bring your wallet.

MR KOURAKIS:   Your Honours, the swap out question is the subject matter of the second paragraph of the draft notice of appeal.  The air conditioning is the third paragraph, so it is only on the second question that I now wish to be heard.

Now, your Honours, for the purposes of the submissions I wish to make about that, I take your Honours to the book of materials and to the tab marked 4(d) and your Honours will see that there clause 6 of a schedule to the Act which deals with the installation of facilities, the exemption from State planning approval extends only so far as the activity falls within, in this case dealing with the stobie pole replacements, clause 6.

Now, your Honours, the power there given to the telecommunications carrier to install a facility is limited, as your Honours can see from clause 6(1)(b) to cases where the facility is a low‑impact facility.  Over the page your Honours will see from subparagraph (5) that a tower cannot be.  Now, your Honours, the stobie poles, the replacement stobie poles, were plainly towers.  The telecommunications determination did not purport to include stobie poles within its list of low‑impact facilities, nor could it have.  This suffices to show that the stobie poles themselves could not have been low-impact facilities. 

It follows from that that the Telecommunications Act could have given no exemption to Hutchison or to ETSA to construct the towers and development approval would be necessary for that.  As I understand the applicant’s argument on this question, it accepts that the stobie pole being a tower could not be a low-impact facility, but says nonetheless that its construction was incidental to the placement of the antennae on it.  The argument seems to be that although the tower itself could not be exempted directly by application of paragraph 6 because the tower was a necessary step in the installation of the much smaller antennae, it can rely on the

extension to the exemption and power which applies in the case of ancillary activities.

HAYNE J:   Can ETSA replace a stobie pole without planning permission?

MR KOURAKIS:   Not by reason of any exemption under the Telecommunications Act.

HAYNE J:   No, I understand that, but can it replace its stobie poles without planning permission?

MR KOURAKIS:   In my submission, no, and that was the answer of the – in this case, that was the answer of the majority and it is ‑ ‑ ‑

KIRBY J:   It does not sound like a change of use though.  I cannot understand how it would be held to be a change of use.

MR KOURAKIS:   Your Honour, it does not even have to go there.  The construction of the tower is a development all on its own.

HAYNE J:   Yes, I understand the tower argument.  Absent any telecommunication equipment being added to it, simply because the pole is old and tired – rings a bell – can it replace it?

MR KOURAKIS:   Plainly so, your Honour, plainly so.  On this case, on the facts that this question went to the court on, that was not the case.  It was replaced so that the telecommunications antennae could be placed on it.  For that reason the exemption that ETSA enjoys under the Development Act cannot apply to the construction of these particular poles.  In our submission, Justice Perry, with whom Justice Gray agreed, was plainly right on that question.  The exemption that ETSA enjoys is only for the construction of stobie poles for the sole purpose of supporting its electricity infrastructure.  If the Court pleases.

GUMMOW J:   Yes, thank you, Mr Solicitor.  Yes, Mr Whitington.

MR WHITINGTON:   Two points very briefly.  In relation to the learned Solicitor’s point that the pole is a tower, that is directly contrary to the authority of the Court of Appeal in Hurstville and that is one of the issues, we say, which would arise for debate on any appeal.  Then can I address ‑ ‑ ‑

KIRBY J:   But I suppose if you turn an ordinary tired old pole, which is replaced, into a telecommunications bearing object, that is arguably a change of use.

MR WHITINGTON:   The argument was a change of use and that has certain implications, but the question on that score is whether that change of use falls within the Commonwealth exemption.

KIRBY J:   Yes.

MR WHITINGTON:   But as for the suggestion that an electricity pole was a tower, on a proper analysis of the Hurstville decision, it is no different from any other structure such as the Harbour Bridge which is used for the installation of telecommunications equipment, and it does not thereby become a facility as defined in the Telecommunications Act because it has telecommunications equipment installed on it.  That was the effect of the holding in Hurstville and that is one of the significant points for decision here. 

My learned friend, Mr Hayes, was asked a direct question by Justice Hayne.  He did not say that that answer is this, notwithstanding the Commonwealth exemption afforded to my client, the installation of the equipment cannot be done without his client’s consent if it involves the replacement of the pole and one can test the absurdity of that this way.  What is to be done in this case if our learned friend succeeds, if the City of Mitcham succeeds and they ultimately get their declaration?  What is the result?  Does Hutchison have to remove its equipment?  Does Hutchison have to remove the pole?  But Hutchison did not put the pole in.  Does ETSA have to remove the pole?  If it does, its wires fall down.  The next day I want to put up another pole, can it put up the identical pole, because, as we understand it, it says the old pole has gone to the scrap heap?  Can it replace the ‑ ‑ ‑

GUMMOW J:   What was the final relief sought in the proceeding out of which the case derived?

MR WHITINGTON:   A declaration, if the Court pleases, that the equipment had been installed without a necessary planning consent.

GUMMOW J:   Did they seek injunctive relief as well?

MR WHITINGTON:   They did, yes.

GUMMOW J:   If the matter goes forward, we had better have that process in the record I think.

MR WHITINGTON:   Yes, if the Court pleases.  They are our submissions in reply.

GUMMOW J:   Yes, thank you.  Yes, there will be a grant of leave in this matter which will be a one‑day case, I think.

MR WHITINGTON:   Yes, if your Honour pleases.

AT 10.50 AM THE MATTER WAS CONCLUDED