Leichhardt Council v Telstra Corporation

[2005] NSWLEC 100

Reported Decision: (2005) 141 LGERA 355

Land and Environment Court

of New South Wales

CITATION:

Leichhardt Council v Telstra Corporation [2005] NSWLEC 100

PARTIES:

APPLICANT:
Leichhardt Council

RESPONDENT:
Telstra Corporation

FILE NUMBER(S):

41155 of 2005

CORAM:

Lloyd J

KEY ISSUES:

Construction and Interpretation :- subordinate legislation - Telecommunications (Low Impact Facilities) Determination 1997 - characterisation of antenna and mounting poles - relevance of context - use of s 15AB Acts Interpretation Act 1901 (Cth)

LEGISLATION CITED:

Acts Interpretation Act 1901 (Cth), s15AB
Commonwealth of Australia Constitution Act 1901 (Imp), s 109
Environmental Planning and Assessment Act 1979 (NSW)
Legislative Instruments Act 2003 (Cth), ss 6(d) and 13(1)
Telecommunications Act 1997 (Cth), ss 7, 484; Sch 3, sub-cll 6(1) and (3)

CASES CITED:

Hurstville City Council v Hutchison 3G Australia Pty Limited (2003) 124 LGERA 425;
Hurstville City Council v Hutchison 3G Australia Pty Limited (2003) 127 LGERA 95;
Hutchison 3G Australia Pty Limited v Director of Housing [2004] VSCA 99;
Telstra Corporation Limited v City of Onkaparinga [2001] SAERDC 55

DATES OF HEARING:

01/03/05

 
DATE OF JUDGMENT: 

03/11/2005

LEGAL REPRESENTATIVES:

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

RESPONDENT
Ms J M Jagot (barrister)
SOLICITOR
Blake Dawson Waldron

JUDGMENT:

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IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

LLOYD J

Friday, 11 March 2005

No. 41155 of 2004
LEICHHARDT COUNCIL v TELSTRA CORPORATION [2004] NSWLEC 100

JUDGMENT

1 LLOYD J: The respondent, Telstra Corporation, proposes to erect a number of telecommunication antennas and an equipment structure on the roof of an existing building at No. 55 Norton Street, Leichhardt. The Applicant, Leichhardt Council, claims that the proposal requires development consent. Telstra says that it does not. The question for determination requires consideration of what precisely Telstra proposes to erect and the relevant legislation which applies to it.

The Proposal

2 Telstra proposes to erect six panel antennas on pole mounts. As I understand it, a panel antenna is capable of both sending and receiving radio waves from one direction. An omni-directional antenna, on the other hand, can receive or transmit radio waves from all directions. Telstra also proposes to erect an equipment shelter to house equipment used to assist in providing a service by means of the antennas.

3 The panel antennas are each a standard length (that is, height) of 2.4 metres, however the poles supporting them are of varying lengths (that is, heights). Antennas 3 and 4, together with their supporting poles, are 3 metres high. That is, the height of the pole from the roof structure to the underside of the antenna is 0.6 metres and the height of the antenna itself is 2.4 metres. The Council does not contend that these two antennas require development consent. The remaining antennas 1, 2, 5 and 6 are also 2.4 metres high, although they are to be mounted on longer poles: the height of the pole from the roof structure to the underside of the antenna is 3 metres – that is, the total height of both the pole together with the antenna is 5.4 metres.

The Legislation

4 Telstra is a “carrier” within the meaning of the Telecommunications Act 1997 (Cth) (“the Telco Act”). That Act provides for a regulatory framework by which a carrier may provide and install telecommunications services and facilities. To the extent that the Telco Act may be inconsistent with the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act), the former prevails by dint of s 109 of the Commonwealth of Australia Constitution Act 1900 (Imp).

5 Section 484 of the Act gives effect to Sch 3 of that Act. Clause 6(1) 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 Telco 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 subcl 6(3) of Sch 3 to the Act, made the Telecommunications (Low-impact Facilities) Determination 1997 (“the Determination”). In 1999, the Minister made a further determination under subcl 6(3) amending the Determination – the Telecommunications (Low-impact Facilities) Determination 1997 (Amendment No. 1 of 1999). Part 3 of the Determination, as amended, 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.

7 The Schedule to Part 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

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

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 ….

Agreed Facts

8 The parties agree that the proposal for the erection of the antennas together with their supporting poles and the equipment structure are all for the supply of a “carriage service” as defined in the Telco Act and are within the definition of a “facility” as defined in the Telco Act.

9 The parties also agree that the building at No. 55 Norton Street is within a Business Zone under the Leichhardt Local Environmental Plan 2000 and is thus within a “commercial area” as described in Column 3 of the Schedule.

The Dispute

10 The Council submits that the proposed antennas and their supporting poles do not qualify as a “low-impact facility” within the description under Column 2 of the Schedule, properly construed. It claims that Antennas 1, 2, 5, and 6 protrude from the structure by more than 3 metres. Accordingly, it is submitted that they do not qualify as a “low-impact facility”. Moreover, the equipment structure only qualifies as a “low-impact facility” if it is “used to assist in providing a service by means of a facility mentioned in Pt 1” of the Schedule. Thus, it also fails to qualify as a “low-impact facility” as the proposal is not a facility mentioned in Pt 1. As none of the proposal qualifies as a “low-impact facility”, its installation is not authorised by the Telco Act. Accordingly, it is submitted that the proposal is one which cannot be carried out without a development consent granted under the EP&A Act.

11 Telstra claims however, that the proposed antennas and their supporting poles do qualify as a “low-impact facility” within the description under Column 2 of the Schedule, properly construed. Thus, it submits that the antennas and their supporting poles and the equipment structure may be installed pursuant to the power to do so under s 484 and Sch 3, cl 6(1) of the Telco Act.

Conclusion

12 The dispute is resolved by first construing and then applying the description in Item 3 of the Schedule to the facts in the present case.

13 Mr I J Hemmings, appearing for the Council, submits that under Item 3 of the Schedule, a panel antenna must be not more than 2.8 metres long (par (a)), and the total length (or height) of the antenna and its supporting pole must not exceed 3 metres (par (b)). A plain reading of paragraphs (a) and (b) of Item 3, however, does not support this submission. If it was the intention that the total length (or height) of both the antenna and its support should be not more than 3 metres, then there would be no need for paragraph (a).

14 In construing the meaning of any provision regard must be had to the context. The context includes the terms of the whole of the Determination. When that is done the meaning becomes clear if it is not already clear. The context includes Item 4 of the Schedule which follows a similar form to Item 3, but refers to an omni-directional antenna or an array of omni-directional antennas. It sets a maximum length (or height) for the antenna or antennas of 4.5 metres (par (a)); and if the array is attached to a structure the maximum protrusion from the structure is 2 metres (par (c)). If the same reasoning urged by Mr Hemmings were to be applied to Item 4, it would be a nonsense – the antennas on their own would have a length of 4.5 metres, but if attached to a structure the combined length could be only 2 metres. It is clear that the two dimensions are intended to be cumulative. So, too, with Item 3 – the two dimensions in paragraphs (a) and (b) are intended to be cumulative.

15 The clear meaning of the Schedule has the consequence that it is not necessary to refer to extrinsic material to either confirm the meaning or resolve any ambiguity or obscurity in the language. Nevertheless, if recourse is had to extrinsic material it confirms the clear meaning.

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 As noted above, the Determination was amended in 1999, which included amendments to the Schedule. The relevant explanatory statement includes the following:

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

18 The explanatory statement thus confirms the meaning I have given to the Schedule. Moreover, the meaning I have given to the Schedule is consistent with the meaning given to it in other cases. In Telstra Corporation Limited v City of Onkaparinga [2001] SAERDC 55 Judge Trenorden of the Environment Resources and Development Court of South Australia, held that the words “protruding from the structure by not more than 3 metres” used in Item 3 of Pt 1 of the Schedule meant that “the distance between the nearest point of the antenna to the existing structure, and the existing structure should not exceed 3 metres” (at [18]). In so holding, her Honour said that “[i]t is preferable that the same words [in the Schedule] be given the same meaning” (at [18]). Her Honour said that a reading of the term “protruding from the structure” in Item 4 as the maximum distance allowable between the top of the antenna and the existing structure would result in a nonsense (at [15]). Her Honour also noted that the meaning provided by the explanatory statement renders a sensible result in every case (at [18]).

19 In this court, Pain J, despite being strongly urged not to do so, adopted the approach of Judge Trenorden in Onkaparinga (see Hurstville City Council v Hutchison 3G Australia Pty Limited (2003) 124 LGERA 425 (at 439-440)). Her Honour did not find any compelling reason why the word “protrusion” in Item 3 should be considered differently from Item 4. Although, her Honour’s overall decision was reversed on appeal (Hurstville City Council v Hutchison 3G Australia Pty Limited (2003) 127 LGERA 95), this part of her judgment was left undisturbed.

20 Mr Hemmings further submits that the poles supporting the antennas are not part of the antennas, that what is proposed for each antenna is a tower and an antenna, and the tower is not a “low-impact facility”. Moreover, Mr Hemmings submits that an antenna on a tower does not fit with any relevant item in the Determination and is an entirely different facility.

21 This submission must be rejected. It is inconsistent with the explanatory statement described above. Moreover, in Hutchison 3G Australia Pty Limited v Director of Housing [2004] VSCA 99, the Court of Appeal of Victoria was required to consider whether supporting poles comprising mounts for antennas to be installed on the roof of a building could be installed as “low-impact facilities”. Morris AJA, Buchanan JA and Coldrey AJA concurring, held that on a proper interpretation of the Schedule to the Determination, the poles supporting each antenna was an essential part of the installation.

22 I now turn to consider the equipment shelter. The shelter would be a “low-impact facility” if it comes within Item 5 of Pt 3 of the Schedule. In the present case, the only issue is whether it satisfies paragraph (a) of Item 5 – the parties agree that paragraphs (b), (c) and (d) are satisfied in the present case. The Council’s argument depends upon an acceptance of its submission that the antennas and their supporting poles are not “a facility mentioned in Part 1”. Having found that the antennas and their supporting poles satisfied the description of a facility mentioned in Part 1, it follows that the equipment shelter is also a “low-impact facility”.

Orders

23 The court orders that:

1. The application is dismissed.

2. The question of costs is reserved.

I hereby certify that the preceding 23 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

Dated: 11 March 2005

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