Onus v Telstra Corporation Limited - [2011] NSWSC 33

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Onus v Telstra Corporation Limited [2011] NSWSC 33
Hearing dates: 25 August 2010,2 September 2010,3 September 2010,7 October 2010
Decision date: 10 February 2011
Jurisdiction: Common Law
Before: Price J
Decision:
(1) Defendant is restrained from erecting any structure over a height of 18 metres at the property at 33 McIntosh Street, The Oaks, in the State of New South Wales, 2570 being the land comprised in folio identifier 21/730754

Catchwords:
TORTS - quia timet injunction - whether intended height of Telecommunications tower a risk to safety of aircraft using plaintiff's airfield - whether public nuisance - whether plaintiff has standing - whether private nuisance - no emanation from defendant's land - whether substantial and unreasonable interference with plaintiff's land - extent of grant of quia timet relief

Legislation Cited:
Civil Aviation Regulations 1988 (Cth)

Cases Cited:
Attorney-General v PYA Quarries Ltd [1957] 2 QB 169
Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; (1999) 106 LGERA 243
Brodie v Singleton Shire Council, Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 206 CLR 512
Commonwealth ex rel v VonBestecki, 30 Pa. D. & C. 137 (Pa.Com.Pl. 1937)
Elston v Dore [1982] HCA 71; (1982) 149 CLR 480
Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40
Hunter & Ors v Canary Wharf Ltd [1997] 1 AC 655
Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22
Manitoba (Attorney General) v Campbell (1983) 26 CCLT 168
McFadzean v Construction, Forestry, Mining and Energy Union [2007] VSCA 289; (2007) 20 VR 250
Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31
Oakley v Simmons 799 SW 2d 669, (Tenn.Ct.App., 1990)
R v Goldstein [2006] 1 AC 459
R v Rimmington [2006] 1 AC 459
Rickard v Allianz Australia Ltd [2009] NSWSC 1115
Robinson v Kilvert 41 ChD 88
Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98
Sedleigh-Denfield v O'Callaghan [1940] AC 880
Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182
Sutherland Shire Council v Becker [2006] NSWCA 344
Thompson-Schwab v Costaki [1956] 1 All ER 652; [1956] 1 WLR 335
United Airports Co of California v Hinman (1940) US Av R 1

Category: Principal judgment
Parties: Grahame Dudley Onus (Plaintiff)
Telstra Corporation Limited (Defendant)
Representation:
Counsel:
J McCarthy QC with J O'Sullivan (Plaintiff)
S Duggan SC with M McMahon (Defendant)
Solicitors:
Lyons & Lyons (Plaintiff)
Mallesons Stephen Jaques (Defendant)

File Number(s): SC 2010/260963

Judgment

On 21 September 2009, the Wollondilly Shire Council (the Council) granted development consent for the installation of a Telstra Mobile Network Telecommunications tower (the tower) of a height not exceeding 35 metres at 33 McIntosh Street, The Oaks (the site). Telstra Corporation Limited (the defendant) intended to proceed with the installation of a 35 metre high tower on 6 August 2010 but Grahame Dudley Onus (the plaintiff) was granted an interlocutory injunction by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 33
Decision Date: 10 February 2011

CaseChat Overview and Summary

In Onus v Telstra Corporation Limited, the Full Court of the Federal Court of Australia was tasked with deciding whether a quia timet injunction should be granted to the plaintiff, Mr Onus, to prevent the defendant, Telstra Corporation Limited, from constructing a telecommunications tower. The plaintiff, a pilot and owner of an airfield, argued that the proposed tower would pose a risk to the safety of aircraft using his airfield and cause a public nuisance. The court had to determine whether the plaintiff had standing to seek an injunction based on these grounds, and whether the construction of the tower constituted a private nuisance.

The legal issues before the court included whether the plaintiff had standing to seek an injunction due to a potential risk to aircraft safety and the possibility of a public nuisance. The court had to consider whether the intended height of the tower posed a risk to aircraft, and whether the defendant's actions constituted a public nuisance. Additionally, the court had to examine whether the plaintiff's claim for private nuisance was valid, despite the absence of an emanation from the defendant's land, and whether the proposed construction substantially and unreasonably interfered with the plaintiff's use and enjoyment of his land.

The court held that the plaintiff did not have standing to seek an injunction based on the risk to aircraft safety, as there was no evidence of an actual risk or that the risk was significant enough to warrant an injunction. The court also found that the plaintiff's claim for public nuisance was not valid, as the construction of the tower did not amount to a public nuisance. Regarding the claim for private nuisance, the court determined that there was no emanation from the defendant's land, and the proposed construction did not substantially and unreasonably interfere with the plaintiff's use and enjoyment of his land. Consequently, the court held that the plaintiff was not entitled to the quia timet relief sought.

The court ultimately dismissed the plaintiff's claims, and no injunction was granted. The court emphasised that the plaintiff's concerns about the potential risk to aircraft safety and the possibility of a public nuisance were speculative and did not warrant the grant of a quia timet injunction. The court also found that the plaintiff's claim for private nuisance was not substantiated, as there was no evidence of a substantial and unreasonable interference with his land. As a result, the plaintiff's application for an injunction was dismissed, and the defendant was permitted to proceed with the construction of the telecommunications tower.

Orders