Leichhardt Council v Telstra Corporation

Land and Environment Court

of New South Wales

CITATION:

Leichhardt Council v Telstra Corporation [2005] NSWLEC 152

PARTIES:

APPLICANT:
Leichhardt Council

RESPONDENT:
Telstra Corporation

FILE NUMBER(S):

41610 of 2004

CORAM:

Lloyd J

KEY ISSUES:

Construction and Interpretation :- subordinate legislation - Telecommunications (Low Impact Facilities) Determination 1997 - applicability of Determination to land zoned Open Space - characterisation of land as an area of environmental significant and a heritage item pursuant to Leichhardt Local Environmental Plan 2000 - relevance of context - use of s 15AB Acts Interpretation Act 1901 (Cth) - expressio unius est exclusio alterius - generalia specialibus non derogant

LEGISLATION CITED:

Acts Interpretation Act 1901 (Cth) s 15AB
Telecommunications Act 1997 (Cth)
Telecommunications (Low-Impact Facilities) Determination 1997 (Cth), s 1.4; Pt 2, ss 2.1, 2.2, 2.3, 2.4, 2.5(7); Pt 3, sub-cll 3.1(1) and (2)
Leichhardt Local Environmental Plan 2000, sub-cll 13(2)(b) and (g) cll, 15, 16 and 25(1); Schedules 2 and 3

CASES CITED:

Canada Bay City Council v Optus Mobile Pty Ltd [2004] NSWLEC 611;
Lee and Anor v Pittwater Council, New South Wales Land and Environment Court, 20 June 1996, Unreported;
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635;
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165;
Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1924) 35 CLR 449;
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

DATES OF HEARING:

14/03/2005

 
DATE OF JUDGMENT: 

04/14/2005

LEGAL REPRESENTATIVES:

APPLICANT:
Mr I J Hemmings (barrister)
SOLICITORS:
Margaret Lyons
Leichhardt Council

RESPONDENT:
Ms J M Jagot (barrister)
SOLICITORS:
Blake Dawson Waldron

JUDGMENT:

1

- -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

LLOYD J

Thursday, 14 April 2005

LEC No. 41610 of 2004

LEICHHARDT COUNCIL v TELSTRA CORPORATION [2005] NSWLEC 152

JUDGMENT

The Issues

1 LLOYD J: The respondent, Telstra Corporation (“Telstra”), proposes to install a telecommunication facility (the “facility”) on land (the “land”) located within Leichhardt Park (the “park”), Mary Street, Leichhardt, within the applicant’s local government area. The installation would involve the erection of six panel antennas to an existing floodlight pylon and an equipment shelter within an existing adjacent building on the land. The land is zoned Open Space under the Leichhardt Local Environmental Plan 2000 (the “LEP”).

2 The question in these proceedings is whether or not the respondent is authorised to install this facility as a “low-impact facility” under Sch 3 (Div 3, cl 6(1)(b)) of the Telecommunications Act 1997 (Cth) (the “Telco Act”). To answer this question, the following issues must be determined:

a Does the zoning of the land as Open Space under the LEP prevent the land from being categorised as an area which is either residential, commercial, industrial or rural as defined for the purposes the Telecommunications (Low-Impact Facilities) Determination 1997 (Cth) (the “ Determination ”), with the effect that the facility cannot be installed as a low-impact facility?

b Can the land be properly characterised as an “