Prosser Management Pty Ltd v City of Bunbury
[2013] WASC 319
•22 AUGUST 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PROSSER MANAGEMENT PTY LTD -v- CITY OF BUNBURY [2013] WASC 319
CORAM: MASTER SANDERSON
HEARD: 1-2 JULY & 13 AUGUST 2013
DELIVERED : 22 AUGUST 2013
FILE NO/S: CIV 2957 of 2012
BETWEEN: PROSSER MANAGEMENT PTY LTD (ACN 008 772 290)
Plaintiff
AND
CITY OF BUNBURY
RespondentTELSTRA CORPORATION LTD (ACN 251 775 056)
Intervener
Catchwords:
Application for writ of certiorari - Applicant claiming denial of natural justice - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr I A Morison
Respondent: Mr D W McLeod
Intervener: Mr K J Mony De Kerloy
Solicitors:
Plaintiff: John Mazza
Respondent: McLeods
Intervener: Herbert Smith Freehills
Case(s) referred to in judgment(s):
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Neilson v City of Swan [No 6] [2013] WASC 53
MASTER SANDERSON: The explosion in the use of mobile telephone devices over the last 10 or so years has been remarkable. It seems every man, woman and child has a smartphone or a tablet or an e‑reader or a laptop. There are now 'Apps' for anything and everything. The take‑up for new developments is swift. But while everyone wants mobile devices with maximum coverage and complete flexibility not everyone is so keen on the infrastructure necessary to support this technology. This case concerns objections by the applicant to the erection of a mobile telephone tower by the intervener within the boundaries of the respondent's municipality.
Procedural history
On 3 December 2012 the applicant issued a notice of originating motion for an order nisi for a writ of certiorari. The application was supported by an affidavit of Geoffrey Daniel Prosser sworn 29 November 2012. The matter proceeded through a number of procedural steps and the intervener as a party interested in the outcome was joined in the proceedings. Discovery was ordered and given by all parties. Eventually the matter was listed for trial on 1 ‑ 2 July 2013.
Prior to the matter being listed for trial the applicant brought on an interlocutory application to strike out two affidavits. The first was an affidavit of Gary Miller Fitzgerald sworn 31 January 2013 and filed on behalf of the respondent. The second was an affidavit of Lloyd Anthony Antulov sworn 31 January 2013. The applicant also applied for further discovery from the intervener. These applications were heard on 24 June 2013. Certain paragraphs of each affidavit were conceded. As to the remaining parts of the affidavits I dismissed the applicants interlocutory process and gave brief reasons for doing so. I also dismissed the application for further discovery. These decisions are now the subject of an appeal. That being so it is not appropriate I say anything more about the reasons why the applications were dismissed. The reasons I gave at the time speak for themselves.
The trial proceeded over two days on 1 ‑ 2 July 2013. There was cross‑examination of only one witness - Mr Fitzgerald. Counsel for the applicant then made his closing submissions. Counsel for the respondent commenced his submissions but I cut him short. I indicated I was satisfied the application should be dismissed without hearing further from the respondent's counsel. I had however taken into account his comprehensive written submissions. I did indicate there was an issue concerning the intervener which required consideration. Counsel for the intervener then made his submissions. Those submissions focused heavily on certain aspects of regulations made under the relevant Commonwealth telecommunications legislation. These rather complex submissions had not been committed to writing and filed prior to the hearing.
Counsel for the applicant properly made the point he was taken by surprise by the intervener's submissions. I then ordered counsel for the intervener to provide written submissions and I allowed counsel for the applicant the opportunity to respond. Counsel for the respondent indicated he did not believe the intervener's submissions would effect his client in any way but he wished to reserve his position. As he would be out of the jurisdiction for some time I set a timetable which would allow all parties to make such submissions as they wished.
So the position at the end of the trial was this. I had indicated to the parties so far as the application concerned matters other than those involving the intervener I was not satisfied an order absolute ought be made. However the application was not dismissed; rather it was held over pending further submissions. When all of those submissions were provided I would produce written reasons dealing with all outstanding matters.
In due course written submissions were provided by counsel for the intervener, counsel for the applicant responded and counsel for the intervener provided submissions in reply. All that was done by early August 2013. The applicant then filed an application seeking a stay of proceedings pending determination of the interlocutory appeal and an order seeking to reopen the hearing. By some mysterious process that application was listed in Master's General Chambers on 13 August 2013. The parties understood the application would be heard and determined at that time. I understood it was merely for mention with full argument reserved to a later date. In any event time was available to hear the application and although I had not had the opportunity to reacquaint myself completely with the file it seemed appropriate to deal with the matter then and there. At the conclusion of the hearing I indicated to the parties I would reserve my decision.
These reasons deal with both the originating process - that is, the application for the writ of certiorari - and the further orders sought by the applicant. In my view the applicant fails on all aspects of its claim.
Respondent's decision the subject of this application
At an ordinary meeting of the council of the respondent on 30 October 2012 the following resolution was passed:
That Council:
1.Pursuant to the Planning and Development Act 2005, hereby resolves to grant planning approval to Halsall and Associates for the proposed Telecommunications Infrastructure - Mobile Telephone Base Station at Lot 16, 9 Hennessy Road (facing Brashaw Street) subject to standard and applicable development conditions as determined by Manager Development Assessment and Building Certification and as determined by Council members as part of this deliberations on the matter.
2.Advise the applicant and submitters of its decision.
The background to that decision is set out most clearly in the affidavit of Mr Antulov sworn 31 January 2013. Mr Antulov is employed by the intervener as a senior acquisition specialist in the deployment of mobile networks. He is a longstanding employee of the intervener and has a Bachelor of Electronic Engineering from the University of Western Australia. Together with the site acquisition officers he is responsible for coordinating the day to day operations between the intervener and external contractors and ensuring that key milestones and documentation are completed. He and his team engage external contractors to project manage the leasing and design workstreams as well as applying for necessary consents on the intervener's behalf.
The mobile telephone tower the subject of this application is located in what the intervener designates the 'Bunbury East area'. Demand for mobile services meant the intervener needed additional mobile telecommunications infrastructure. Eventually application was made for planning approval for a mobile telephone base station at Lot 16, 9 Hennessy Road (the Brashaw Street site). At an earlier stage in the project the intervener had sought to co‑locate its proposed infrastructure on a 35 m monopole installed by Optus Pty Ltd at 7 Sandridge Road, Bunbury.
Mr Antulov says once a requirement for an additional site has been identified, and internal funding approval for supplementing the infrastructure has been granted, his team instructs a contractor to provide site investigation acquisition services. He says it is often cost effective and involves the least regulatory burden to expand mobile network infrastructure on existing infrastructure erected by or for another carrier. Co‑location then is generally explored as a first option if it meets the intervener's requirements.
Having determined further infrastructure was necessary the intervener approached Optus. On 26 February 2010 Optus responded to Telstra's inquiries stating they could accommodate antennas so long as the top of the antennas were not higher than 30.4 m. They also set out Optus' future requirements for the site. Prudently the intervener decided to undertake a structural analysis of the monopole to see whether it was feasible to add the intervener's antennas to the monopole along with Optus' present antennas allowing for Optus' future requirements.
Further investigation of the co‑location possibility was carried out through 2010. Expert opinion was sought. When that report was unfavourable the intervener instructed the experts to consider further the possibility and provide a revised report. The revised report was delivered on 13 December 2010 an appears as annexure LAA2 to Mr Antulov's affidavit. The technical aspects of the report are incomprehensible. But the conclusion reached was inescapable. The Optus monopole could not accommodate the needs of Optus and of the intervener. Another solution would have to be found.
At par 36 of his affidavit Mr Antulov outlines the options available to the intervener with respect to the Optus monopole. Mr Antulov says there were five possibilities. It is unnecessary to go through these possibilities in detail. By way of example one possibility was to replace the monopole with a more robust structure. Another possibility was for the intervener to occupy the monopole temporarily without an upgrade. It is clear Mr Antulov considered all these possibilities carefully. And he rejected the lot. He came to the conclusion a new site had to be found. All the while demand for the intervener's services was increasing and finding a suitable site was becoming more urgent.
On 4 January 2012 the intervener through the agency of a contractor known as Planning Solutions submitted an application for planning approval to the City of Bunbury for the Brashaw Street site. On 20 January 2012 Tesh Tadesse of the City of Bunbury sent a facsimile to Planning Solutions requesting specifically that the intervener explore the possibility of sharing the Optus monopole. On 23 January 2012 Planning Solutions responded to Mr Tadesse saying the possibility had been explored and was not an option.
Between 9 February and 24 February 2012 Mr Tadesse and Mr Laurie Chantry of Planning Solutions corresponded about the Brashaw Street site and other possible locations. The council made a number of recommendations. None were acceptable to the intervener. On 19 March 2012 Planning Solutions submitted a schedule of responses to matters raised at a meeting between the intervener and the respondent's representatives on 7 March 2012. These responses emphasised again the technical difficulties with the Optus monopole and the need for the intervener to have separate infrastructure.
On 12 April 2012 the City of Bunbury issued a notice of meeting and agenda for 17 April 2012. The notice of meeting and agenda recommended the council decline the intervener's planning application for reasons of visual amenity. The consideration of the intervener's planning application was adjourned from the meeting of 17 April 2012 because Planning Solutions had identified a potential conflict of interest. Mr Prosser of the applicant was a client of Planning Solutions. In response to Planning Solutions' request the item be withdrawn from the agenda of 17 April 2012 Kobi Halbert of the City of Bunbury indicated to Planning Solutions that the mayor requested attendance at a council briefing sessions to 'explain the issues further and to discuss alternative sites'.
Thereafter Halsall and Associates acted for the intervener in its interactions with the City of Bunbury. On 20 August 2012 Halsall and Associates wrote to Mr Tadesse providing further comments on the notice of meeting and agenda of 12 April 2012. Once again the technical unsuitability of co‑location was referred to. On 22 August 2012 Mr Antulov, Mr Marc Halsall, and Mr Bill James, a landscape architect contracted by the intervener to give a visual impact opinion, met with the respondent's planning staff to discuss the content of Halsall and Associates' letter of 20 August 2012. On 4 September 2012 Mr Antulov and Mr Halsall presented to a council briefing. Mr Halsall's presentation addressed the planning merits of the Brashaw Street site application and emphasised again co‑location was not possible. Mr Antulov dealt with the requirement of the intervener for additional facilities, the location of those facilities and other relevant matters. Mr Antulov also dealt with the possibility of putting panels on existing buildings. He said that was not technically feasible because buildings in the Bunbury East area did not provide the necessary elevation. Mr Antulov was asked about co‑location on the Optus monopole. He said the reservations by Optus were reasonable and co‑location was not technically feasible.
On 23 October 2012 there was a meeting of the Council (Standing) Committee. I will have more to say about this meeting below. However it is to be noted the intervener was represented at that meeting by its landscape architect, Mr James, and no one else.
There was a full meeting of the council on 30 October 2012. Mr Antulov attended that meeting and answered questions for approximately 20 minutes. Most of the questions related to the possibility of co‑location. Mr Antulov emphasised to council members Optus had not refused the intervener access to the Optus monopole, rather co‑location was not technically feasible. He confirmed his view Optus had acted reasonably when assessing its future requirements and the use it would make of the monopole.
Approval for the telecommunications infrastructure was governed by the provisions of the respondent's Town Planning Scheme 7 (TPS7). In conformity with TPS7 the proposal was advertised from 1 ‑ 22 February 2012 inclusive. It is not clear whether the applicant made written submissions to the respondent after the proposal was advertised. But the applicant's opposition to the proposal was made clear to the respondent. Mr Geoffrey Prosser was invited to attend the council committee meeting of 23 October 2012. He spoke against the proposal. A copy of the notes he relied upon when addressing the council appear as annexure GDP7 to his affidavit of 29 November 2012. A note of what he had to say appears in the minutes of the committee's meeting. A transcript of relevant parts of the meeting formed exhibit 9 at trial.
Mr Prosser did not attend and consequently did not speak at the full council meeting of 30 October 2012. He said he was never notified of the meeting and was not afforded the opportunity to speak. He was not aware Mr Antulov would be attending and would be speaking. During the course of his evidence Mr Fitzgerald said he understood a letter had been sent to the applicant notifying the applicant of the meeting. He produced a letter to that effect. This letter did not appear in the list of discovered documents and was only produced on the second day of the hearing. The question of whether the applicant was notified of the council meeting of 30 October 2012 provided the one point of controversy in relation to the facts of this case.
In my view it is proper to conclude the applicant was not notified of the meeting of 30 October 2012. Mr Prosser says he received no notice and there is no reason to doubt his evidence. There is no point in speculating why it was the letter addressed to the applicant was not received. For the purposes of this application I am content to assume the applicant received no notice of the meeting.
Grounds of the application
In its notice of originating motion the applicant listed six grounds any one of which justified quashing the respondent's decision. It is appropriate to deal with each of these in turn.
Ground 1
Ground 1 is in the following terms:
1.That a breach of the rules of natural justice occurred in connection with the making of the decision, in that the Applicant having made written and oral submissions to the Respondent was given no opportunity to reply to the following submissions relating to the Tower:
(a)written responses made to the Council of the Respondent ('Council') by the Respondent's senior planning officer on 26 October 2012;
(b)oral submissions made by a representative of Telstra (Lloyd Antulov) and oral answers given by the representative to questions of councillors during the meeting of Council on 30 October 2012 at which the decision was made.
In his written submissions counsel for the respondent when dealing with the content of the obligation of a decision‑maker to afford natural justice to a person whose rights and interests are likely to be affected by a decision referred to what was said by Allanson J in Neilson v City of Swan [No 6] [2013] WASC 53. His Honour said [137]:
Natural justice requires that a person be given a fair opportunity to be heard before a decision is made affecting him in his rights or interests. There is no universally valid test by which to ascertain what may constitute a fair opportunity, because of the infinite variety of circumstances that may exist, and the need to give full effect in every case to the particular statutory framework within which the decision is being made: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475, 504. The right to an oral hearing is not necessarily a requirement of natural justice: Local Government Board v Arlidge [1915] AC 120, 132 - 133, 137 - 138; Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551, 566 ‑ 567, 568 ‑ 569; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 628.
What constituted natural justice in this case is conditioned by the requirements of TPS7. The Planning and Development Act 2005 (WA) is the principle legislation conferring planning control powers on local governments. It does this through local planning schemes. The Act says nothing about local government planning decision‑making processes. Section 162 confirms the obligation to comply with local planning scheme requirements for approval but that really is the end of the matter. So as his Honour said the requirements of natural justice must be considered in a case by case context. Clause 5.11 of TPS7 contains special provisions for dealing with an application for planning consent for telecommunications infrastructure including mobile telecommunications towers. Clause 5.11.1 states that an application for planning consent for such infrastructure 'will be required ... for the purpose of protecting visual amenity, landscape or urban character of an area, as well as addressing safety concerns, and areas of landscape and environmental significance'.
Clause 5.11.2 provides that where council planning consent is required to be obtained 'Council may resolve to seek public comment, subject to advertising procedures as stipulated in clause 9.4, prior to considering the application for planning consent'. It is clear this clause gives a discretion to the council as to whether or not it will seek public comment. No obligation to advertise is imposed. That stands in contrast to other clauses of the scheme: see for example cl 9.4.1. In fact the respondent did give notice under cl 9.4.3 in this case. Once the notice was given then the council was required under cl 9.4.6 to consider and determine the application. So up to this point council had followed an entirely proper procedure.
Clause 5.11.3 of TPS7 sets out a list of information which is to accompany an application for approval of a telecommunications facility and which is to be considered. Clause 9.1.1 sets out those applications which are to be made in the form prescribed in sch 3, signed by the owner, and accompanied by 'such plans and other information as is required under the Scheme'. Item (c) in cl 9.1.1 refers to commencement of a 'D' use or an 'A' use 'as referred to in clause 4.3.2'. Clause 4.3.2 provides inter alia that the 'D' symbol 'means that the use is not permitted unless the local government has exercised its discretion by granting planning approval'.
In the zoning table of TPS7 the use class 'Telecommunications Infrastructure' shows a 'D' symbol in the mixed business zone. The Brashaw Street site is currently zoned 'mixed business' in TPS7. Clause 10.2.1 of TPS7 sets out a list of 26 specific and one general matter, and a requirement for local government to have due regard to such of those matters as 'are in the opinion of the local government relevant to the use or development the subject of the application'.
It was submitted on behalf of the respondent all the respondent had to do was permit the applicant to make written submissions in relation to the public advertising process. In my view that submission is correct. It is the process mandated by TPS7. It is also palpably fair and reasonable. The nature of any submissions made by a party objecting is in no way limited. They could refer to environmental concerns, technical considerations or dangers the infrastructure might present to the public. There is no limit to the length of the submissions. They could be accompanied by technical analysis - the report of an engineer or architect. The 21 day period is a reasonable timeframe. Where the town planning scheme itself requires the respondent to take into account a wide variety of matters the mandated regime provides adequate opportunity for a objector to express a view. The requirements of natural justice have been satisfied.
Even if that were not the case the respondent allowed the applicant through Mr Prosser to make oral submissions at the meeting of 23 October 2012. Those oral submissions were included in the minutes of the meeting and were available to all councillors at the meeting of 30 October 2012.
Against that background the failure to notify Mr Prosser of the meeting of 30 October 2012 could not be seen as a breach of the rules of natural justice. By the time that meeting took place Mr Prosser had been afforded natural justice. He had been provided with every opportunity to express his views and voice his opposition to the development. In his written submission counsel for the applicant contended natural justice was denied his client because no opportunity was given to the applicant to comment upon reports prepared by council officers. In the context of this case no obligation arose to give the applicant the right to comment on such reports. No authority for the proposition natural justice required the respondent to allow the applicant to comment on the reports of its officers was advanced. In my view there is no substance to that submission.
In summary then I am satisfied the applicant was afforded natural justice. Indeed I am satisfied the respondent went beyond what was strictly necessary. The applicant can have no complaint and this ground is without merit.
Ground 2
Ground 2 in the following terms:
2.That procedures required by law to be observed in connection with the making of the decision were not observed, in that:
(a)the application for development approval for the Tower ('application') was not signed by the owner of the land upon which the Tower is proposed to be built, as required by City of Bunbury Town Planning Scheme 7 ('TPS7') clause 9.1.1;
(b)The application was not accompanied by plans which comply with TPS7 in that:
(i)they did not show abutting sites showing locations of buildings, windows doors, adjacent room uses, floor levels and street number(s) as required by clause 9.2.1(a) (xii);
(ii)they were not of a scale more than 1:100 as required by clause 9.2.1(c).
Ground 2(a) can be disposed of quickly. The intervener's application was signed by the owner of the subject land consistently with the provisions of cl 9.1.1 of TPS7. This is apparent from the annexures GMF1 and GMF2 to Mr Fitzgerald's first affidavit. A consideration of the certificate of title and the application show the registered proprietors of Lot 16 signed the application.
It is the case the plans submitted to the respondent do not show abutting sites showing locations of buildings, windows, doors, adjacent room uses, floor levels and street numbers as required by cl 9.2.1(a)(xii) of TPS7. However cl 9.2.1 of TPS7 allows the council to waive any particular technical requirements of the clause including those technical requirements in cl 9.2.1(a)(xii). It is to be remembered in this case the application was for a monopole mobile telephone tower and equipment shelter only. All of the other requirements were either impractical or unnecessary. Although there is no direct evidence council waived these requirements I accept as submitted by the respondent there is a presumption of regularity: see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164 (McHugh JA).
In waiving strict compliance with the subclause the council was being no more or less than practical. The development in question was a monopole tower and the attached shelter would only be occasionally manned for maintenance purposes. On Mr Prosser's evidence the nearest residence was more than 90 m away. The zoning was mixed business and its apparent that the surrounding businesses were commercial or industrial. No one lost out as a consequence of the council acting as it did.
As to ground 2(b)(ii) plans were considered by council to be of an acceptable standard and including a site plan of scale 1:100. That was in strict compliance with cl 9.2.1(c) of TPS7 which required plans of a scale not more than 1:100.
If all this was not enough Mr Fitzgerald says in his affidavit additional information was requested as part of the application. A visual impact analysis consistent with the provisions of cl 9.2.2 of TPS7 was required. Council went above and beyond what was strictly necessary. Insofar as there may have been an irregularity on a ex post facto review of the application I accept the submission made on behalf of the respondent the presumption of regularity should be applied.
Ground 3
Ground 3 is in the following terms:
3.The Respondent took irrelevant considerations into account in the exercise of its power to approve the development.
Particulars of Irrelevant Considerations
1)That the Tower was less unsightly than older telecommunications towers.
2)That the issue of co-location was technical.
3)That the reduced setback of 5 metres (from 7.5 metres) was acceptable because it was less than the reduced setback originally proposed by the Respondent (2 metres).
4)That Telstra took a position that there was no possibility of co-locating with an existing tower at 7 Sandridge Road ('Optus Tower').
5)That the Optus Tower is a precedent for the Tower.
6)The opinion of a consultant who was the consultant and agent to and for the proponent Telstra in relation to the application. The opinion was that the Tower did not present an adverse visual impact.
The first thing to be said about this ground is that it is difficult to ascertain how it is said these 'irrelevant considerations' were taken into account. What can be said was the officers of the council looked at all the possibilities - put another way they analysed the proposal from almost every conceivable point of view. It is clear from the transcript of the meeting of 23 October 2012 and the subsequent council meeting of 30 October 2012 council did not particularly wish to erect this tower. No member of council and indeed no member of staff expressed unbridle enthusiasm. Rather they looked at the proposal, considered the pros and cons in the light of all the circumstances, measured that against the TPS7 and reluctantly gave approval.
It is difficult to find any definitive statement as to when a decision might be quashed because irrelevant considerations were taken into account. It is far easier to divine the circumstances when a decision will be quashed because relevant considerations were not taken into account: see Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, 39 ‑ 42 (Mason J). It certainly can be said if a decision‑maker takes into account irrelevant considerations and does not take into account relevant considerations the decision might be quashed. It is less clear whether if a decision‑maker takes into account relevant considerations and irrelevant considerations the decision will be quashed.
In his written submissions counsel for the applicant referred to the advice given to the council by its officer Mr Tadesse. This document appears as annexure GDP5 to Mr Prosser's affidavit of 29 November 2012. This document commences with an 'Executive Recommendation' to the effect the council approved the telecommunications tower. There then follows a series of headings commencing with 'Background' moving on to 'Council Policy Compliance' and then to 'Legislative Compliance'. Mr Tadesse notes the proposal is inconsistent with certain development standards. He also points out it is open to the council to exercise a discretionary power under TPS7 to vary the set‑back from 7.5 m to 5 m. It is difficult to see how anything that is irrelevant is addressed by Mr Tadesse or informs his decision.
There then follows a section under the heading 'Officer Comments'. Mr Tadesse commences by referring to the 'Statement of Planning Policy No. 5.2' which deals with telecommunications infrastructure. He then goes on to list all of the matters which are to be taken into account under this policy statement and under TPS7. Once again it is difficult to see how any irrelevant material informed his decision.
The report continues in a similar vein. There is reference to 'Community Consultation' and 'Relevant Precedents'. There is then a summary of the outcome of the meeting of the council on 23 October 2012. As part of that section Mr Tadesse summarises what was said by Mr Prosser at the meeting. It was not suggested Mr Prosser's comments should not be taken into account and given weight by the council. In fact no adverse comment is offered in relation to Mr Prosser's oral submissions.
What is striking about Mr Tadesse's report is its sheer professionalism. No one reading the document could be in any doubt as to the relevant considerations and the surrounding circumstances - including the fact there were ratepayers in the vicinity who opposed the tower. The report is fair and balanced. It comes down in favour of granting planning approval but there is nothing wrong with that. The report was such it allowed councillors to take into account all relevant matters.
In my view there is nothing in this ground which would lead to the quashing of the respondent's decision.
Ground 4
Ground 4 is in the following terms:
4.The Respondent failed to take relevant considerations into account in the exercise of its power to approve the development.
Particulars of relevant considerations not taken into account
1)The objective specified in TPS7 clause 1.6.3(g) to safeguard and enhance the character and amenity of the built and natural environment of the local government area.
2)The guiding principles in State Planning Policy 5.2 ('SPP 5.2') clause 5.1 (to which the Respondent must have regard):
(a)a telecommunications facility should be designed and sited to minimise any potential adverse visual impact on the character and amenity of the local environment, in particular, impacts on prominent landscape features, general views in the locality and individual significant views;
(b)telecommunications facilities should be designed and sited to minimise adverse impacts on the visual character and amenity of residential areas;
(c)co-location of telecommunications facilities should generally be sought, unless such an arrangement would detract from local amenities or where operation of the facilities would be significantly compromised as a result.
3)The consideration in SPP5.2 clause 2.4 requiring the Respondent alternatively Telstra to take all responsible steps to find out whether Telstra is able to co‑locate with the Optus Tower.
4)The objective specified in TPS7 clause 1.6.3(m) to promote aesthetic controls and the application of design guidelines at all levels of the land use and development control process.
5)The proposed reduced street setback (5m) from Brashaw Street is inconsistent with TPS7 clause 5.9 Table 3 (Development Standards) which specifies a 7.5m street setback in the Mixed Business Zone and that acceptance of that reduced setback will create an undesirable precedent to the three potential development sites (lots 13, 14 and 15,) Brashaw Street in the immediate locality fronting Brashaw Street.
6)Consideration as specified in TPS7 clause 5.10.3.41 of the building height and possible impacts on the use and amenity of any adjoining residential land in a mixed business zone. The proposed Tower would be located in a mixed business zone ('the Mixed Business Zone').
7)Consideration as specified in TPS7 clause 5.11.3 of consistency with the objectives of the zone or reserve, social and economic benefits, protection of the environment, safeguarding visual amenity and streetscape, and coordination with other services. (Clause 5.11 is the telecommunications infrastructure provision of TPS7.)
8)Due regard as specified in TPS7 clause 10.2.1(o) to the relationship of the Tower proposal to development on adjoining land or on other land in the locality including but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the proposal.
9)The Tower is to be located at the front of the Site and will face Brashaw Street.
10)In contrast the Optus Tower is located behind shops and is not close to a road.
11)The Tower is in the vicinity of the main arterial road and entry to the City and can be seen from most points along that road.
12)The height and circumference of the Tower.
13)The site is close to dwellings.
14)The Tower is of such a height that it will be seen from a distance from the Tower averaging approximately two kilometres.
15)The Tower is to be built facing Brashaw Street which is one or one of the last undeveloped area in the Mixed Business Zone, and which will when developed contain showroom and serviced commercial units connecting with other developments.
16)A cyclone chain meshed fenced with barbed wire will be built around the Tower and the adjoining hut and will be visible from the road and up and down the road and from Sandridge Road.
17)No engineering report has been presented to the Council certifying the structural strength of the Tower and the suitability of its design generally and also to withstand local winds and other weather conditions.
18)It was open to Telstra to affix its antennae to the Optus Tower instead of building the Tower, and thus co-location was available.
19)The 40 metre high Tower comes with equipment shelter, ancillary cabling, access and safety equipment shelter and will carry six (6) panel antennas and is not 'low-impact' for the purpose of the Telecommunication (Low-impact Facilities) Determination 1997.
20)Under the Telecommunications Act 1997 (Cth) Optus is obliged to give Telstra access to the Optus tower (Schedule 1 Part 5 clause 30) unless the ACCC issued a certificate stating that, in the ACCC's opinion, access is not technically feasible (clause 33(3)). No such certificate had been issued.
21)The cumulative effect on visual amenity of two mobile phone towers within 250 metres of each other (the Tower and the Optus Tower).
22)The suitability of alternative locations for a Telstra mobile phone tower.
This ground is really the other side of the coin from ground 3. Once again it would seem the applicant is referring to Mr Tadesse's report. As I have already commented in some detail on that report and found it was both thorough and professional there really is nothing more that needs to be said about this ground. In my view it fails.
During brief submissions counsel for the respondent pointed out the way the applicant approached this matter had a flavour of a merits review. The way ground 4 is structured supports that argument. Perhaps that is best illustrated by referring to subparagraph 7 of the particulars. There must necessarily be some value judgment in determining whether a telecommunications tower is consistent with the objectives found in TPS7. But councillors are uniquely placed to determine such questions. They live in the municipality and interact with the ratepayers. They have to answer voters on a regular basis. They may come to a conclusion which displeases a significant number of people. But it is they who are best placed to make the decision once they have to hand all relevant information. As the cases indicate the wider the discretion the less likely it is a court will quash a decision. Here there is wide discretion, there is no evidence the council failed to take into account relevant considerations and there is no basis for quashing the decision.
One particular subparagraph of the particulars does require comment. That is the reference to the Telecommunications Act 1977 (Cth) and the obligation of Optus to give Telstra access to the Optus tower. This was a point addressed in some detail by counsel for the intervener in his submissions and I will deal with this aspect of ground 4 when dealing with ground 6.
Ground 5
Ground 5 is in the following terms:
The Respondent's exercise of the power was so unreasonable that no reasonable person could have so exercised the power in that the Respondent knew or had the means to know that Telstra was able to co‑locate with the Optus Tower which was structurally strong enough to support the Optus antennae presently mounted on the Optus tower and the number of antennae proposed to be mounted by Telstra.
As counsel for the respondent pointed out in his written submissions it was necessary for the applicant to produce some evidence the council knew or ought to have known the Optus tower was capable of supporting the intervener's infrastructure. In fact no evidence to that effect - expert or otherwise - was led by the applicant. The intervener provided detailed technical advice from independent experts to officers of the council who clearly weighed it in the balance. There is nothing in this ground which would justify quashing the respondent's decision.
Ground 6
Ground 6 is in the following terms:
6.The decision was induced or affected by a misrepresentation in that Telstra by its agent and consultant informed the Respondent:
(a)that the Optus Tower did not have the structural integrity or capacity to hold Telstra infrastructure as well as Optus';
(b)that there was no possibility of co‑locating to the Optus Tower;
(c)that no other opportunities existed to co‑locate telecommunications infrastructure, or utilise existing buildings, which would satisfy Telstra's objectives,
when:
(d)it was known to Telstra that the Optus Tower does have the structural integrity and capacity to hold Optus' three existing antennae and Telstra's proposed antennae although not Optus' three existing antennae and Telstra's proposed antennae and a further fifteen antennae allegedly proposed by Optus;
(e)it was known to Telstra that Optus has added no more antennae to the Optus Tower; and
f)it was known to Telstra that the owner of the land being the Applicant, upon which the Optus Tower is constructed, has brought an action in the District Court of Western Australia among other things disputing Telstra's purported termination of negotiations due to 'the inability of the Optus facility on the site to support the proposed Telstra antennas'.
This ground effectively alleges the intervener indulged in a fraud on the council. That is a very serious allegation because it involves actual and active dishonesty on the part of the officers of the intervener. Such allegations are easy to make but difficult to establish. Without clear supporting evidence they should not be made. At the hearing on 24 June 2013 I drew to counsel for the applicant's attention what was being put against the intervener and the fact I could see no evidence to support the ground. I suggested to counsel he reconsider the position. Doubtless he did so but he persisted in arguing this ground. It is utterly without merit.
Given no evidence was led by the applicant which could remotely support the contention in ground 6 it is difficult to know how to frame the applicant's case. The only possibility is to say the intervener was aware of the statutory framework, it failed to adhere to the statutory framework, it did not advise the council it was not adhering to the statutory framework and therefore the council was actively misled. Even then it would be necessary to demonstrate the intervener, presumably through Mr Antulov, actually knew there had been no compliance with the statutory regime. Given counsel for the applicant did not cross‑examine Mr Antulov the task of showing actual dishonesty was all but impossible.
In fact it is clear the intervener did comply with the statutory and regulatory requirements.
The access to existing telecommunications infrastructure is covered by the Telecommunications Act sch 1 pt 5. Being Commonwealth legislation it is impossibly complicated and difficult. Counsel for the intervener worked his way through the labyrinthine regime in his oral submissions. This was picked up by counsel for the applicant in his written submissions filed 18 July 2013. What follows is taken almost directly from those submissions. The references below to 'the Code' is a reference to the 'Code of Access to Telecommunications Transmission Towers, Sites of Towers and Underground Facilities' promulgated by the Australian Competition and Consumer Commission (ACCC) under cl 37 of sch 1 of the Telecommunications Act. In summary the Code required:
1.Optus was obliged to keep an information package concerning its access to its tower. The information package had to be consistent with the Code, that is to say it had to be non‑discriminatory: see Code 3.1.
2.Optus and Telstra had to exchange information to assist Telstra to make preliminary assessment as to whether the tower would be suitable: Code A1.1.
3.Optus was obliged on request to let Telstra know whether Optus had any Currently Planned Requirements: Code A1.1(2). The term 'Currently Planned Requirements' is defined in effect as genuine plans for the future use of the facility by the first carrier commencing within 36 or 12 months of the date of a request by a second carrier. The ACCC is given some flexibility in this respect but the intent is clear.
4.Upon request by a second carrier the first carrier is obliged to provide its 'Currently Planned Requirements'. This allows the second carrier to determine whether there is available access for the second carrier's proposed application.
5.The Code does not impose an absolute obligation upon the second carrier to request co‑location. Nor does it impose an absolute obligation on the first carrier to grant access where access would be incompatible with the first carrier's 'Currently Planned Requirements': Code A2.3(2).
6.The Code requires nothing more than the second carrier explore the possibility of co‑location. It requires the first carrier to cooperate to allow an informed decision to be made. But it does not mandate co‑location and it does not require every decision not to co‑locate to be approved by the ACCC.
Looked at in this way it is clear the intervener did what it was required to do. Any doubts about the technical analysis of the limitations of the Optus tower were removed by the report of LeBLANC Communications Australia Pty Ltd report which appears as part of annexure LAA1 to Mr Antulov's affidavit. Put simply co‑location would not work and in the circumstances it was not mandated by the Telecommunications Act or the Code.
That leaves par (20) under the particulars to ground 4 of the application. With respect it is simply wrong to say Optus was obliged to give the intervener access to its tower unless the ACCC issued a certificate. If Telstra had asked Optus for access to its tower and had it been denied that access then it could have taken steps to have the decision reviewed. But no such request was made for the very proper reason the intervener realised co‑location was not feasible. There is no basis then for quashing the decision on that ground.
Applicant's application for stay, further discovery and leave to cross‑examine Mr Antulov
By an application filed 31 July 2013 the applicant sought the following orders:
1.The Applicant applies for an order that the proceedings be stayed until the hearing and determination of the appeal in CACV 86 of 2013.
2.The Applicant applies for an order that upon the determination of the appeal in CACV 86 of 2013, the hearing of the Originating Motion be re-opened for the purpose of:
(1)the Applicant applying for further discovery by the Respondent on the grounds that:
(a)Mr Fitzgerald, as emerged in his cross‑examination, attended none of the meetings of 17 April2012, September 2012, 23 October 2012 and 30 October 2012 and (with no disrespect to him) was unqualified alternatively less qualified than other of the Respondent's executive officers to verify the Respondent's discovery; and
(b)the Respondent's discovery was proven deficient by the production at trial of a document not discovered by it;
(2)the Applicant applying to renew its application for strike‑out of Mr Fitzgerald's affidavit on the grounds that Mr Fitzgerald, as emerged in his cross‑examination, attended none of the meetings of 17 April 2012, September 2012, 23 October 2012 and 30 October 2012 and (with no disrespect to him) was unqualified, alternatively less qualified than other of the Respondent's executive officers to give evidence as to the facts in the case;
(3)the Applicant applying for leave to cross‑examine Mr Antulov having regard to:
(a)oral submissions by the Intervener's counsel; and
(b)evidence brought to the Court's attention just prior to the hearing and during the hearing as to what Mr Antulov said to Council on 30 October 2012;
(4)the Applicant applying in any event:
(a)to make submissions upon the weight to be placed upon the affidavits of Mr Antulov and Mr Fitzgerald; and
(b)to reply to the written and oral submissions of the Respondent and the Intervener.
3.The Applicant applies for an order that the Respondent and the Intervener pay the costs of this application.
It is convenient to deal first with the application for further discovery. It is the case during the course of Mr Fitzgerald's evidence he referred to a document which was not discovered but which should have been discovered. I have dealt with that issue above and consequent upon the respondent's failure to discover the document I have made assumptions which favour the applicant. But there is nothing to suggest there are other documents which might relate to a matter in issue between the parties and which have not been discovered. The argument seemed to amount to this - the discovery was deficient because a document which should have been discovered was not discovered and on that basis the respondent should go back and ensure other such documents do not exist. With respect that could never be the basis for a further discovery order. There is nothing to suggest it would avail the applicant if further discovery was ordered and I would not be prepared to so order.
Insofar as the cross‑examination of Mr Antulov is concerned the applicant was given ample opportunity to determine whether such cross‑examination was required. As mentioned above I drew to counsel for the applicant's attention the difficulty in relation to ground 6 particularly if there was no cross‑examination of Mr Antulov. Having taken the forensic decision not to cross‑examine Mr Antulov counsel must live with the consequences. It is no answer to say prior to the hearing the intervener did not notify the applicant about the scheme of the Telecommunications Act and the Code. Counsel for the applicant had clearly looked at this issue because specific reference to it is made in ground 4(20). In any event it is difficult to know what evidence Mr Antulov could give which might undermine the intervener's position.
I have not found it necessary to rely at all on what was said by Mr Fitzgerald in his affidavit. I have relied upon parts of Mr Antulov's affidavit but really insofar as they provide a narrative and contain references to documents which in large measure speak for themselves. As far as the intervener's position is concerned this is not a review of the decision by the intervener not to proceed with co‑location. Consequently Mr Antulov's evidence must be seen as of limited importance in determining the application.
Having concluded there is nothing to justify effectively re‑opening the application and making further interlocutory orders it follows, as I am satisfied the application ought be dismissed, there is no grounds for a stay. Accordingly the application will be dismissed.
I will hear the parties as to the form of orders and as to costs.
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