Leichhardt Council v Telstra Corporation

[2005] NSWLEC 152

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 “ area of environmental significance ” for the purposes of the s 3.1(2) of the Determination , with the effect that the facility cannot be installed as a low-impact facility?

The Legislation

3 Telstra is a “carrier” within the meaning of the Telco Act. That Act provides for a regulatory framework by which a carrier may provide and install telecommunications services and facilities.

4 Section 484 of the Telco Act gives effect to Sch 3 of that Act. Under cll 37(1) and 37(2)(c) of Sch 3, carriers may engage in activities authorised under Div 3 of Sch 3 (Installations of facilities), despite a law of a State or Territory about town planning.

5 Relevantly, cl 6(1) of Div 3 of Sch 3 states that:

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

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

Subclause (3) states that:

The Minister may, by written instrument, determine that a specified facility is a low-impact facility for the purposes of this clause. The determination has effect accordingly.

A “ carriage service ” is defined in s 7 of the Act as:

a service for carrying communications by means of guided and/or unguided electromagnetic energy.

Section 7 of the Act also defines a “ facility ” to include any antenna, pole or other structure or thing used, or for use, in or in connection with telecommunications network.

6 The Minister for Telecommunications and the Arts, acting under sub-cl 6(3) of Sch 3 to the Act, made the Telecommunications (Low-impact Facilities) Determination 1997 (“the Determination”). Part 3 of the Determination defines “low-impact facilities”. Clause 3.1 of the Determination states:

(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.
(2) However, the facility is not a low-impact facility if the area is also an area of environmental significance.
….

7 The Schedule to Pt 3 of the Determination (“the Schedule”) relevantly includes the following items:

Part 1 Radio facilities

….

Column 1 Item no.	Column 2 Facility	Column 3 Areas
3	Panel, yagi or other like antenna: (a) not more than 2.8 metres long; and (b) if the antenna is attached to a structure — protruding from the structure by not more than 3 metres; and (c) either: (i) colour-matched to its background; or (ii) in a colour agreed in writing between the carrier and the relevant local authority	Residential Commercial Industrial Rural ….

Part 3 Above ground housing

….

Column 1 Item no.	Column 2 Facility	Column 3 Areas
5	Equipment shelter: (a) used solely to house equipment used to assist in providing a service by means of a facility mentioned in Part 1; and (b) not more than 3 metres high; and (c) with a base area of not more than 7.5 square metres; and (d) either: (i) colour-matched to its background; or (ii) in a colour agreed in writing between the carrier and the relevant local authority	Residential Commercial Industrial Rural

….

8 Part 2 of the Determination provides definitions of the Areas mentioned in Column 3 of the Schedule. It provides as follows:

Part 2 Areas

2.1 Commercial area
An area is a commercial area if its principal designated use is for commercial purposes.
Note The use of an area is to be assessed at the time mentioned in subsection 1.4 (4).

2.2 Industrial area
An area is an industrial area if its principal designated use is for industrial purposes.
Note The use of an area is to be assessed at the time mentioned in subsection 1.4 (4).

2.3 Residential area
(1) An area is a residential area if its principal designated use is for residential purposes.
(2) A part of a built-up area is a residential area if it cannot otherwise be described as a commercial, industrial or rural area.
Note The use of an area is to be assessed at the time mentioned in subsection 1.4 (4).

2.4 Rural area
(1) An area is a rural area if its principal designated use is for rural purposes.
(2) An area that is not part of a built-up area is a rural area if it cannot otherwise be described as a commercial, industrial or residential area.
Note: The use of an area is to be assessed at the time mentioned in subsection 1.4 (4).

2.5 Area of environmental significance

….

(7) An area is an area of environmental significance if, under a law of the Commonwealth, a State or a Territory, it consists of a place, building or thing that is entered in a register relating to heritage conservation.

….

(Subsection 1.4 is not presently relevant.)

9 As noted above, the land the subject of these proceedings is zoned Open Space under the LEP. Clause 25 of the LEP relevantly provides:

25 Development Control Table: Open Space Zone

The following Table applies to development within the Open Space Zone:
Table
(1) Description of the zone
The Open Space Zone applies to open space used for both active and passive recreation in either private or public ownership. It includes land which is yet to be acquired by, or dedicated to, the Council, for public open space. Land within this zone is shown coloured green on the Zoning Map.

The Effect of the Open Space Zoning of the Land

10 The first issue which the Court must determine is whether the land, zoned Open Space, on which the facility is to be installed is “an area mentioned in column 3 of the item” and thus the facility is a “low impact facility” under s 3.1(1) of the Determination. As noted above, the areas mentioned in Column 3 are residential, commercial, industrial and rural, and these terms are defined in Pt 2 of the Determination.

11 The Council submits that as the Land is zoned Open Space, it is not within an “area mentioned in column 3”. Mr I J Hemmings, appearing for the Council, submits that the description of the Open Space zone provided in cl 25 of the LEP is not residential, commercial, industrial and rural. He notes that in New South Wales land use and zoning is not restricted to these areas and, therefore, “[i]t cannot be assumed that the failure to include open space was a mistake”. He further submits that land zoned Open Space could only fall within the residential designation if it is caught by cl 2.3(2) of the Determination. He states that the purpose of that clause, and likewise cl 2.4(2), is to “ensure that an area only has its ‘highest’ possible zoning out of residential, rural, commercial and industrial”. Conclusively, Mr Hemmings submits that the land is not caught by cl 2.3(2) and “[a]s cl 3.1 has application only to land described in the Schedule the facility cannot be a low-impact facility”.

12 Telstra however, submits that this argument is “premised on an assumption that the Determination does not cover all land within Australia…and that is inconsistent with the Determination both in terms of provisions and structure”. Ms J M Jagot, counsel for Telstra, argues that the provisions of Pt 2 – Areas “make plain that it “covers the field” of all land across the country”. Furthermore, she states that “[a]ll land is capable of and must fit within at least one of the clauses of Part 2”. Specifically, Ms Jagot submits that “where the land does not have a principal designated use [of either residential (cl 2.3(1)) or rural (cl 2.4(1))], the default provisions of cll 2.3(2) and 2.4(2) come into play”. She notes that the applicable legislation depends upon the factual determination of firstly, what the “principal designated use” of the land is, and secondly, whether or not the land is part of a “built up area”. She concludes that the “[t]he Park … is part of a built up area – hence, cl 2.3(2) operates and the land is taken to be a residential area” and as such “the Determination authorises the installation of the facility”.

13 Ms Jagot supports this submission by reference to the Explanatory Statement to the Determination. In particular, she refers the Court to the explanation of Pt 2 of the Determination, as follows:

Part 2 - Areas
In the Schedule, the location of a facility in a particular kind of area can in some cases determine whether or not it is to be regarded as a low impact facility. This Part sets out the rules for determining the status of such “areas”. In effect, the Part establishes a hierarchy of such areas which, in descending order of sensitivity are:

· residential
· commercial
· industrial
· rural

The part relies on the concept of “principal designated use” set out in clause 1.4. The safety net provided by subclauses 2.3(2) and 2.4(2) means that any area must be capable of falling into one of these four categories. (Emphasis added.)

14 Ms Jagot also relies upon the explanation of cl 1.4 at pages 3-4 of the statement, which provides:

Clause 1.4: Principal Designated Use
The clause sets out a procedure which is intended to have the effect of determining one PDU for any given area. A deterministic procedure is necessary because State and Territory planning laws may vary widely in the way they describe permitted land uses and the effect of those uses. Some laws, for example, use the term “zoning” while other do not. Some laws allow multiple uses of land, even where one use predominates.
…the subclause sets out a hierarchy by which the PDU is to be determined. In descending order, these are:

· residential
· commercial
· industrial

(Note: if a use cannot be classified as residential, commercial or industrial, then clauses 2.3(2) and 2.4(2) will take over ) (emphasis added).

15 In my opinion, the Explanatory Statement clearly supports the submission of Ms Jagot.

16 Section 15AB of the Acts Interpretation Act 1901 (Cth) (“the AI Act”) allows consideration to be given to any explanatory statement relating to the Determination to either confirm the ordinary meaning conveyed by the text or to determine the meaning if the provision is ambiguous or obscure. This is because the AI Act applies not only to Acts but also to any legislative instrument, and the Determination, being an instrument made in exercise of a power delegated by the parliament, is such a legislative instrument: Legislative Instruments Act 2003 (Cth), ss 6(d), 13(1).

17 From the Explanatory Statement, it is obvious that the Determination was intended to “cover the field” and apply to all land in Australia. Moreover, it is apparent that cll 2.3(2) and 2.4(2) were intended by the legislature as “catch all” provisions. Considering the surrounding context of the land as shown on the Heritage Conservation Map (Exhibit 1), it is clear that it is within a “built up area”. As such, the land is subject to cl 2.3(2) and may be considered to be a residential area. I conclude, therefore, that the facility the subject of these proceedings is to be installed in “an area mentioned in column 3 of the item” and is thus a “low impact facility” within s 3.1(1) of the Determination.

Characterisation of the Land as an “Area of Environmental Significance”

18 The second issue which the court must determine is whether the land on which the facility is to be installed may be properly characterised as an “area of environmental significance”, so that the facility will not be a “low-impact facility” pursuant to s 3.1(2) of the Determination.

19 To answer this question, the court must decide whether the land is “a place or thing entered in a register relating to heritage conservation” within s 2.5(7) of the Determination.

20 The parties agree that as the word “register” is not defined in the Determination, it should take its ordinary meaning: Canada Bay City Council v Optus Mobile Pty Ltd [2004] NSWLEC 611 (at [54]). Both Mr Hemmings and Ms Jagot refer to the Macquarie Dictionary (3rd Edition) which defines “register” as:

1. a book in which entries of acts, occurrence, names or the like are made for record. 2. any list of such entries; a record of acts, occurrences, etc. 3. an entry in such a book, record or list.

21 On behalf the Council, Mr Hemmings submits that the land is an “area of environmental significance” within s 3.1(2) based on the following submissions:

a The whole of Leichhardt Park is identified on Council’s Heritage Conservation Map as a “ Heritage Item: Landscape ”.
b The Glossary contained in Schedule 3 of the LEP provides:

Heritage item means a building, work, relic, tree or place identified in Schedule 2 as a heritage item or shown as such on the Heritage Conservation Map.

c “ Heritage Conservation Map ” is also defined in the LEP as:

the map marked “Leichhardt Local Environmental Plan 2000 Heritage Conservation map issued June 2003”, incorporating any relevant amendment made to that map by the following plans:

Leichhardt Local Environmental Plan 2000 (Amendment 1)

Leichhardt Local Environmental Plan 2000 (Amendment 10)

Leichhardt Local Environmental Plan 2000 (Amendment 11)


d Noting the definition of “ register ”, the inclusion of the land in the LEP is an entry in a register relating to heritage conservation pursuant to s 2.5(7) of the Determination .
e The land is therefore an “ area of environmental significance ” and so any facility to be installed on the Land is not a “ low-impact facility ” and is subject to the provisions of the LEP.

22 Ms Jagot submits, however, that the entire park is not an “area of environmental significance” within s 3.1(2) of the Determination.

23 In Ms Jagot’s submission, the definitions of “heritage item” and “Heritage Conservation Map” have no substantive operation themselves and are “no more than an aid to the construction of the [LEP] and do not operate in any other way” (Barwick CJ, McTiernan and Taylor JJ in Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635). She argues the effect and operation of the term “heritage item” must be found in the context of the substantive provisions of the LEP, in particular cll 15 and 16. Clause 15(a) provides that cultural heritage may include “trees”, and cl 16 refers to “site of a heritage item” (cl 16(1)), “in respect of a heritage item” (cl 16(2)), “site of a heritage item identified in Schedule 2” and “place listed in Schedule 2” (cl 16(3)). Ms Jagot submits that the term “heritage item” must be construed by reference to these clauses and the broader context of the LEP.

24 Clause 16 requires consent for development on the site of a heritage item (cl 16(1)) and prescribes obligations in respect of the development in respect of a heritage item (cl 16(2)). In addition, cl 16(3) provides:

16 General provisions for the development of land
Heritage items

….
(3) Unless the consent authority has considered a conservation management plan, it must not grant consent for development on land which is:

(a) the site of a heritage item identified in Schedule 2 as having State significance,

(b) the site of a heritage item that pre-dates 1840, or

(c) a place identified in Schedule 2 as having archaeological significance.

Items listed on the State Heritage Register for the time being are taken to have State significance for the purposes of the Plan, whether or not that listing is recorded in Schedule 2.

….

25 Ms Jagot then refers to Sch 2 to the LEP which relevantly provides the following listing:

Street/ Suburb	Street Number	Type	Description	Location/Additional Information	Level of Significance
….
Mary Street, Leichhardt	Landscape	Four Fig Trees at entrance to Leichhardt Park (“the Four Fig Trees”)	Local
….

26 Ms Jagot acknowledges however, that on the Heritage Conservation Map (Exhibit 1) the entire Park is shaded bright green, which is the colour designated to indicate a “heritage item-landscape” (cl 25 LEP). There is thus a prima facie discrepancy between the words of the Schedule and the extent of the colour on the Heritage Conservation Map. This discrepancy also occurs in relation to other heritage items described as landscape in Sch 2. For example, Sch 2 identifies avenues of trees and individual trees as such items and precisely establishes the location of the trees as either in the carriageway, in the “centre” of the road, on a corner of two roads or as avenue plantings. Similarly, the locations of these trees are indicated on the Heritage Conservation Map by shading the entire carriageway bright green.

27 Ms Jagot submits that the discrepancy (between the listing in Sch 2 and the depiction on the Heritage Conservation Map) should be resolved by considering the LEP in its substantive operation and applying the principal decided by the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355. In that case, McHugh, Gummow, Kirby and Hayne JJ relevantly held (at par [70] - [71]):

Conflicting statutory provisions should be reconciled so far as is possible

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals [49]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions [50]. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" [51]. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision [52]. In The Commonwealth v Baume [53] Griffith CJ cited R v Berchet [54] to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
….

[49] Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J.
[50] See Australian Alliance Assurance Co Ltd v Attorney-General of Queensland [1916] St R Qd 135 at 161 per Cooper CJ; Minister for Resources v Dover Fisheries (1993) 43 FCR 565 at 574 per Gummow J; 116 ALR 54 at 63.
[51] Institute of Patent Agents v Lockwood [1894] AC 347 at 360 per Lord Herschell LC.
[52] The Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ, 419 per O'Connor J; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12-13 per Mason CJ.
[53] (1905) 2 CLR 405 at 414.
[54] (1688) 1 Show KB 106 [89 ER 480].

28 Thus, in this case, the discrepancy may be resolve by determining which is the leading provision and which is the subordinate provision, and which must give way to the other.

29 Ms Jagot submits that there are several indicators, both textual and factual which indicate, “that Schedule 2 is the leading provision to which, in the event of inconsistency, the Heritage Conservation Map must give way”.

30 Ms Jagot identifies the following textual indicators to support this submission:

a The structure of the definition lists the Schedule first and refers to the Map in the alternative. Further, it uses the words “ shown as such ”, therefore, if the item is “ shown as such ”, then the map must depict the item as it is described in the Schedule. However, if the item is not “ shown as such ” then the part of the provision referring to the map is not triggered.
b The terms of the key to the Map (including “ landscape ”), are the same as those used in Column 4 Description of Sch 2, and thus to construe the Map, reference must be made back to the lead provision – Sch 2.
c Considering that cl 15(1)(a) provides that trees may have cultural heritage significance and are part of “landscape”, the Sch 2 listing of the Four Fig Trees as “landscape”, and the shading of the Park as “landscape” on the Map, it is the trees themselves which are to be considered a heritage item – landscape within the Park, not the entire Park.
d The commonsense approach to the interpretation of the Map requires the court to “ have regard to the whole of the planning instrument to determine in accordance with well-established principles what the underlying purpose of the LEP is in order to achieve a practical result ”: Lee and Anor v Pittwater Council , NSWLEC, 20 June 1996, unreported, per Talbot J at p 2. To achieve a practical result in this case, the Map must be read in conjunction with Sch 2. Otherwise, for example, any road works limited to the vehicular carriageway of a road would constitute development on the site of and in respect of a heritage item merely because the road has a tree or avenue of trees listed in Sch 2 on the footpath or in a centre island.
e Section 25(3) of the Environmental Planning and Assessment Act 1979 (NSW) also supports this construction, stating:


25 Statement of aims etc in environmental planning instruments
...

(3) Where a provision of an environmental planning instrument is genuinely capable of different interpretations, that interpretation which best meets the aims, objectives, policies and strategies stated in that instrument shall be preferred.

…
In this case, it would be contrary to the purpose of the LEP to accommodate the existing and future needs of the locality (cl 13(2)(g)), to construe the Map as including the entire Park as a heritage item, rather than limiting the designation to the Four Fig Trees as provided in Sch 2. Similarly, the broader designation would not be within the general objectives of the LEP, “ to protect conserve and enhance the area’s heritage ” (cl 13(2)(b)), as the entire Park is not identified in Sch 2 as having heritage significance.

31 Ms Jagot also refers to the following factual indicators to support the submission:

a The park is held in one title. The Heritage Conservation Map is based on digital cadastral information which is lot based and does not show items, thus reference to other documents is required to identify items – namely, Sch 2.
b The park is very large and the Four Fig Trees exist at one extremity of the park; therefore “ it is simply incongruous to infer that the entirety of the Park is the item for the purposes of the substantive operation of the LEP ”.
c The Leichhardt Municipality Heritage Study dated May 1990 prepared by McDonald McPhee Pty Ltd (the “Heritage Study”) formed the basis for the listings contained in Sch 2 of the LEP and shows that the item of heritage significance within the park is the Four Fig Trees. In particular, the Annexure to Volume 1 of the Heritage Study headed “ Draft Inventory of Heritage Items ” refers to the park on page 266 under the heading “Landscape Items – Leichhardt; Parks and Reserves” as follows:

Item No.	Item	Address	Level of Significance
….
L1-L	Four Fig Trees	at entrance to Leichhardt Park	L
….

Further, Volume 3 of the Heritage Study contains a detailed description of the inventory listings including this statement regarding the Four Fig Trees:

Environmental Amenity.
Trees mark the entrance into Leichhardt Park and oval. Last remnants of 19th Century treatment of the park.

d The Council’s interpretation and administration of the LEP in relation to its own development applications indicates that only the Four Fig Trees are heritage items – landscape, not the entire park. For example, a development application lodged by the Council with itself to erect signage in the park stated that the Statement of Heritage Impact which accompanied the application “ identified the significance of the Park as being the trees at the Mary Street entrance to the Park signifying early plantings in the Park ”. Further the application noted that as the signs were not proposed within the immediate vicinity of the trees at the entrance to the park off Mary Street, they would have no noticeable impact on the significance of that heritage item.
e Correspondence between the Council, Parliamentary Counsel and the Department also supports the finding that it is not the entire park which is the heritage item – landscape, but only the Four Fig Trees. In particular, in response to a comment by Parliamentary Counsel that the items marked in green on the Map required further details to make the descriptions clearer, the Council clarified the position thus:

A description of each landscape item is provided in the list of heritage items, included in the written part of the plan [that is, Sch 2]. All items shown on the Heritage Map are identified this way.
In addition, when queried by Parliamentary Counsel to clarify whether the descriptions of “avenues” of trees was intended to include things other than the trees themselves as part of the heritage item, the Council stated that “ in the LEP [the] heritage listed “avenues” of trees refers solely to the trees, not the road reservation or other items within in ”, even though the entire road reservation was shaded on the Heritage Conservation Map.

32 I accept Ms Jagot submissions, which are compelling and which I adopt. Both the textual and factual indicators identified by Ms Jagot form a comprehensive evidentiary basis supporting the finding that only the Four Fig Trees are to be considered heritage items – landscape and not the entire park. Accordingly, I also find generally that, Sch 2 is the leading provision and the Heritage Conservation Map is the subordinate provision, and thus in the event of an inconsistency, the Heritage Conservation Map must give way to Sch 2.

33 Importantly, this approach is consistent with the language and purpose of all the provisions of the LEP and the substantive operation of the LEP as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381; Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449 per Isaacs and Rich JJ at 455; Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165, Mason P at 172. Furthermore, it is also supported by the statutory presumptions of expressio unius est exclusio alterius (an express reference to one matter indicates that other matters are excluded) and generalia specialibus non derogant (where there is a conflict between general and specific provisions, the specific provisions prevail).

34 Considering the whole of Sch 2, it is clear that the heritage item listings in the Schedule are intended to be limited to the description and location of items as specified. At several locations listed in the Schedule there are multiple heritage items precisely described and located. For example, at Bicentennial Park in Rozelle Bay, Sch 2 identifies an Avenue of Figs adjacent to former Tram sheds, as well as Federal Park, Jubilee Park and Pope Paul IV Reserve, as heritage items: landscape. Similarly, in relation to Glassop Street, Balmain, Sch 2 lists Elkington Park as a heritage item: landscape, though also identifies Dawn Fraser Swimming Pool as a heritage item: built. In the same way, an Avenue of Morton Bay figs and parkland at Wenworth Park in Glebe are also listed as a heritage items: landscape, although the listing specifically excludes the stadium in the park.

35 In contrast, some of the listings in Sch 2 contain only one heritage item. For example, under the listing of Birchgrove Park, Balmain, Sch 2 identifies Birchgrove Park as a heritage item: landscape. Likewise, at Donnelly Street, Balmain, White Bay Park is identified as being a heritage item: landscape, and similarly, at Ewenton Park, Balmain, Ewenton Park including two fig trees is listed as a heritage item: landscape.

36 In applying the statutory presumption of expressio unius est exclusio alterius, it is clear that the listings provided in Sch 2 are limited to the precise descriptions contained in the Schedule. For example, at Wenworth Park, the listing of an Avenue of Morton Bay figs and parkland, and express exclusion of the stadium, must be read to exclude any other matters, in particularly the inclusion of the entire Park. Thus, likewise in this case, the express listing of the Four Fig Trees must also be construed to exclude the entire of Leichhardt Park from being a heritage item: landscape. If it was the intention that the whole of the park was the heritage item, then there would have been no need to list in Sch 2 the Four Fig Trees within the park.

37 Importantly, in construing Sch 2 as the leading provision and the map as the subordinate provision, discrepancies which occur in relation to Sch 2 heritage items and depicted on the Heritage Conservation Map, as in this case, may also be resolved in accordance with the statutory presumption generalia specialibus non derogant. In this case, accepting the superiority of the precise description of the “Four Fig trees” in the Schedule and the need to favour this specific provision as it is in conflict with the general provision of the map, it is clear that the whole of Leichhardt Park is not intended to be regarded as heritage item: landscape. A similar discrepancy occurs in relation to the Sch 2 listing of “Street trees – Avenue of Brush Box planted in the carriageway of Campbell Avenue” as they are depicted on the Heritage Conservation Map by the entire carriageway of Campbell Avenue being shaded. Consistently, by recognising the superiority of precise description in the Schedule, it is clear that the listing only refers to the specified avenue of trees and not to the entire carriageway of Campbell Avenue.

38 Having regard to the indicators identified by Ms Jagot and construing the term “heritage impact” in accordance with the broader substantive context of the LEP and the relevant statutory presumptions, I find that the land is not a heritage item: landscape listed in Sch 2 of the LEP or shown as such on the Heritage Conservation Map, and thus, is not characterised as an “area of environmental significance”. Therefore, the facility is a “low-impact facility” and is not subject to the provisions of the LEP.

Conclusion

39 Despite its zoning as Open Space, I find that pursuant to cl 2.3(2) of the Determination, the land on which the facility is to be installed may properly be characterised as residential, which is “an area mentioned in column 3 of the Item” for the purposes of cl 3.1(1) of the Determination. Further, I find that the land cannot be properly characterised as an “area of environmental significance” for the purposes of the s 3.1(2) of the Determination as it is not a “a place or thing entered in a register relating to heritage conservation” within s 2.5(7) of the Determination.

40 Therefore, I determine that the facility is a “low-impact facility” under s 3.1.(1) of the Determination and the respondent is authorised to install this facility under Sch 3 (Div 3, cl 6(1)(b)) of the Telco Act.

Orders

41 The Court orders that:

1. The application is dismissed.
2. The question of costs is reserved.
3. The exhibits may be returned.




I hereby certify that the preceding 41 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

Dated: 14 April 2005