Satellite & Wireless Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater
[2021] FCA 1018
•26 August 2021
FEDERAL COURT OF AUSTRALIA
Satellite & Wireless Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater [2021] FCA 1018
File number: QUD 457 of 2019 Judge: COLLIER J Date of judgment: 26 August 2021 Catchwords: COMMUNICATIONS LAW – Telecommunications Act 1997 (Cth) – Telemetry Access Permit entered by parties in resolution of previous litigation – interpretation of contractual provisions in Telemetry Access Permit – proposed installation of low impact facility on roof of reservoir tower – Telemetry Access Permit provided for access to “Permitted Area” – public health issues referable to supply of safe and clean drinking water – radiofrequency electromagnetic energy concerns – structural integrity of reservoir tower roof concerns – whether concerns valid –workplace health and safety improvement notices issued – Work Health and Safety Act 2011 (Qld) – whether applicant or respondent breached Telemetry Access Permit – whether residual rights remained under Telecommunications Act in light of agreement – claim for specific performance Legislation: Telecommunications Code of Practice 1997 (Cth) s 17(1)(a)
Telecommunications Act 1997 (Cth) sch 3 s 11
Work Health and Safety Act 2011 (Qld)
Work Health and Safety Regulations 2011 (Qld)
Cases cited: Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600
Factory 5 Pty Ltd (In Liq) v State of Victoria (No 2) [2012] FCAFC 150
JC Williamson Ltd v Lukey and Mulholland [1931] 45 CLR 282
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353
NBN Co Limited v Pipe Networks Pty Limited [2015] NSWSC 475
Price v Spoor [2021] HCA 20
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Date of hearing: 2 and 3 June 2020 and 10 July 2020 Registry: Queensland Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 251 Counsel for the Applicant: Mr T Matthews QC Solicitor for the Applicant: Barringer Leather Lawyers Counsel for the Respondent: Mr P Ambrose QC and Mr D Keane Solicitor for the Respondent: K&L Gates ORDERS
QUD 457 of 2019 BETWEEN: SATELLITE & WIRELESS PTY LTD ACN 103 881 303
Applicant
AND: QUEENSLAND BULK WATER AUTHORITY TRADING AS SEQWATER
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.The originating application filed on 26 July 2019 be dismissed.
2.The applicant pay the costs of the respondent, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
On 26 July 2019 the applicant in these proceedings filed an originating application seeking specific performance of a Telemetry Access Permit signed by the parties on or about 14 March 2018 (Access Permit). In summary, the applicant seeks access from the respondent to the Alexandra Hills Reservoir tower (Reservoir Tower) located in the outer Brisbane suburb of Alexandra Hills, in order to install and maintain a low impact facility (LIF) on the roof of that tower. The applicant claims that it has met its obligations under the Access Permit, but that in refusing the applicant access to install its equipment the respondent either has not met its obligations or has frustrated the Access Permit.
The respondent claims that the applicant has failed to comply with its obligations under the Access Permit, and that it (the respondent) has acted consistently with the Access Permit.
In my view the originating application should be dismissed. I have formed this view for the reasons that follow.
BACKGROUND
The applicant is a licenced telecommunications carrier within the meaning of the Telecommunications Act 1997 (Cth) (Telco Act), having Licence Number 136.
The respondent is a statutory authority of the State of Queensland, established 1 January 2013 pursuant to the South East Queensland Water (Restructuring) Act 2007 (Qld). It trades as “Seqwater”. The respondent provides bulk water storage, transport, treatment, water grid management and planning, catchment management and flood mitigation services to the South East Queensland region. The respondent is also a public utility as defined in Sch 3 of the Telco Act and the trustee of reserve 13921 (the Reserve) on which the Reservoir Tower is located.
The Reservoir Tower was constructed in 1966. The Redland City Council was the trustee of the Reserve from 6 June 1970 until 14 July 2008, when the Reserve was transferred to the Queensland Bulk Water Transport Authority trading as Linkwater.
Subsequently the Reserve and Reservoir Tower were transferred to the respondent on 4 September 2013.
Items of telecommunications equipment are affixed to the Reservoir Tower pre-dating the period when the respondent took possession of the site in September 2013. It appears that the respondent has no records concerning the manner in which that equipment was affixed, including whether the affixation was certified by a registered engineer. I further understand that the respondent has few records about the site generally, and note that the respondent claims this lack of records contributes to its safety concerns about the structural integrity of the Reservoir Tower and electro-magnetic energy (EME) radiation.
Schedule 3 of the Telco Act sets out powers and immunities of licensed telecommunications carriers, including the power to install a facility on land and the power to maintain a facility that is situated on land.
The applicant originally proposed to install its LIF, pursuant to Div 3, Pt 1 of Sch 3 of the Telco Act, to maintain existing telecommunications facilities on the roof of the Reservoir Tower. To effect this, the applicant served on the respondent a Land Access and Activity Notice (LAAN) dated 2 May 2017 pursuant to cl 17 of Pt 1, Div 5 of Sch 3 of the Act and s 17(1)(a) of Telecommunications Code of Practice 1997 (Cth) (Code).
The applicant commenced proceedings pursuant to Sch 3 of the Telco Act in this Court in July 2017. Those proceedings were subsequently resolved on 14 March 2018. The parties executed the Access Permit as part of the terms of settlement.
THE ACCESS PERMIT
The background to the Access Permit is described in that agreement as follows:
A.Seqwater is the trustee of the Land. The drinking water supply Reservoir Tower is situated on the Land (which is reserve land) and subject to the requirements of the Land Act 1994 (Qld).
B.Seqwater seeks to manage its built assets and lands in a sustainable manner and to improve catchment health and water quality. Seqwater has statutory obligations to provide safe, secure, resilient and reliable bulk drinking water for the general public.
C.The Permitted Area is located within a key operational and/or catchment area of Seqwater and Seqwater operates a 24 hours facility on the Land. A chemical dosing facility is also situated on the Land. The Land has located on it a mobile base station, identified as RFNSA Site No: 416001 with the RFNSA.
D.The Carrier is seeking access to the Permitted Area to install, operate and maintain the Carrier’s Equipment.
E.The Carrier has agreed to the conditions as set out in this Permit for the Carrier to have access to, and non-exclusive use of, the Permitted Area for the Permitted Use and for the subsequent removal of the Carrier’s Equipment.
For the purposes of the Access Permit the “Carrier” is defined in the Reference Schedule as Satellite and Wireless Pty Ltd, namely the applicant in these proceedings.
The right of access of the Carrier to the Permitted Area is described in cl 2 of the Access Permit as follows:
2. Permit
(a)Seqwater grants to the Carrier a permit to use the Permitted Area for the Permitted Use for the Term subject to the terms of this Permit.
(b)The Carrier acknowledges that:
(i) Seqwater is a:
A.Statutory Authority of the Queensland Government established under the SEQWRA;
B.registered service provider of critical infrastructure in South East Queensland; and
C.a ‘public utility’ as that term is defined in Schedule 3 of the Telecommunications Act 1997 (the Telco Act);
(ii)Seqwater uses the Land as a reservoir for the supply of drinking water for the general public in accordance with a Drinking Water Quality Management Plan and Seqwater must not, when assessing and using the Land or the Permitted Area, do anything which in any way poses a risk of Contamination of the drinking water contained in the reservoir. Where the Carrier causes Contamination to drinking water, this Permit may be terminated by Seqwater by written notice under clause 10.3;
(iii)the Carrier holds this Permit so that the Land may be used for the purpose for which it was reserved or granted in trust to Seqwater without undue interruption or obstruction in accordance with the requirement of the Land Act 1994 (Qld);
(iv)the Permitted Area is located within a key operational and/or catchment of Seqwater and Seqwater operates a 24 hour facility on the Land including a chemical dosing facility;
(v)the Carrier occupies the Permitted Area at its own risk;
(vi)due to the nature of Seqwater’s operational, catchment and strategic activities, the Carrier and/or the Permitted Area may experience power or electrical outages associated with Seqwater’s operations and other activities;
(vii)Seqwater may restrict or temporarily prohibit access to the Permitted Area for:-
A. safety or operational (including maintenance) reasons;
B.to protect people and property in the event of a natural disaster or for emergency response purposes;
(viii) Permitted Area may become inundated by water;
(ix)Seqwater may require the Permitted Area for future use in accordance with its operational, strategic or other planning;
(x)this Permit does not create in, or confer upon, THE Carrier any tenancy, estate or interest whatsoever in, or over the Permitted Area or the Land; and
(xi)except where expressly provided for in this Permit, the carrier has no right to object to or make any Claim against Seqwater in connection with the matters in this clause 2 (b).
(c)Despite anything else, Seqwater may use any part of the Land and Permitted Area for operational, catchment and strategic activities at any time.
(d)Seqwater makes no promise, representation or warranty in relation to:
(i)Permitted Area (including Seqwater’s Infrastructure) is free from defects or is safe, fit, suitable or adequate for the Permitted Use;
(ii)the residual life of Seqwater’s Infrastructure;
(iii)the quality of transmission or reception by the Carrier’s Equipment (including any interference to the Carrier’s Equipment that is caused or contributed to by Third Party Equipment);
(iv)the suitability of this Permit for the Permitted Use;
(v)the location of the Carrier’s Equipment on the Permitted Area;
(vi)the facilities or Services (including electrical) in or available to the Permitted Area or the Land;
(vii)the capacity of any riser or other part of the Permitted Area;
(viii)any additional space being made available to the Carrier in or near the Permitted Area; or
(ix)the suitability or compatibility to the Carrier’s Equipment of any equipment or service on or to the Lane or any other equipment or service of any other person on the Land.
(e)The Carrier has satisfied itself that the Permitted Area is suitable for the Permitted Use.
“Permitted Area” is defined by the cl 1.1 of the Access Permit as follows:
Permitted Area means the premises specified in item 6 of the Reference Schedule, being part of the Land under this Permit and includes the Carrier's improvements and facilities on those premises but does not include the internal area of Seqwater's Infrastructure.
Item 6 of the Reference Schedule to the Access Permit defines “Permitted Area” as
To be agreed by Seqwater.
“Seqwater’s Infrastructure” is defined by cl 1.1 of the Access Permit as:
…includes any building, structure such as water tower or water reservoir owned or control by Seqwater.
“Permitted Area” is distinguishable from “Access Area”, which is defined by Item 5 of the Reference Schedule as
As shown on the plan in Schedule 1 marked in Red.
“Permitted Use” is defined by Item 3 of the Reference Schedule as:
The operation, inspection, testing, replacement, renewal, upgrading, maintenance, repair and removal of the Carrier's Equipment in accordance with this Permit, and includes the Carrier's Works.
“Carrier’s Equipment” is defined by cl 1.1 of the Access Permit as:
… means the equipment specified in item 4 of the Reference Schedule.
Item 4 of the Reference Schedule identifies Carrier’s Equipment as
The Carrier’s telecommunication facility being the equipment identified in Schedule 2 and associated cabling
Schedule 2 to the Access Permit further refers to Carrier’s Equipment as follows:
•Location A - Exterior of Water Reservoir Tower – positioning to be agreed by Seqwater
1 x single parabolic dish antenna (650x650x304mm)
1 x single parabolic dish antenna (650x650x304mm)
Radio: Ubiquiti AF-5X
Frequency Range: 5745 - 5840 MHz
Antenna: Ubiquiti AF-5G30-S45 Parabolic dish
Dimensions: 650 x 650 x 304 mm
Gain: 30 dBi
Maximum combined Effective Isotropic Radiated Power (EIRP): 4W
Antenna pattern:
Azimuth, 5500 MHz
[DIAGRAM]
Elevation, 5500 MHz
[DIAGRAM]
•Location B - - Exterior of Water Reservoir Tower – positioning to be agreed by Seqwater
1 x single rectangle panel antenna (700x160x60mm)
1 x small radio connected to panel antenna (88x40x230)
Radio: Ubiquiti RP-5AC-Gen2
Frequency Range: 5745 - 5840 MHz
Antenna: ARC Wireless ARC-VS5821SD1 Sector antenna
Dimensions: 88 x 40 x 230 mm
Gain: 21 dBi
Maximum combined Effective Isotropic Radiated Power (EIRP): 4W
Antenna pattern:
[DIAGRAM]
[DIAGRAM]
•Wall mounted communication cabinet to be approved by Seqwater.
“Carrier’s Works” is defined by cl 1.1 of the Access Permit as:
means the installation, alteration or change of the Carrier’s Equipment (or installation of any additional equipment) in accordance with clause 3 of this Permit but does not include solar equipment or panels
“Carrier’s Works” are the subject of cl 3 of the Access Permit, including the following:
3.1 Pre-commencement
(a)Prior to any Carrier Work’s [sic] commencing, the Carrier must by giving no less than five (5) Business Days’ notice, arrange and attend a pre-start meeting on the Land with Seqwater’s Representative.
(b)The Carrier must first check the Permitted Area is suitable for the Permitted Use under this Permit before undertaking the Carrier’s Works.
(c)The carrier must deliver to Seqwater the following material at least 5 business Days before commencement of any Carrier’s Works:
(i) a timeline for the construction of the Carrier’s Works;
(ii)full detailed drawings and specification for the Carrier’s Works which includes the location of underground services;
(iii)particulars of the materials to be used; and
(iv)any other information reasonably requested in writing by Seqwater.
3.2 Certification by RPEQ
(a)If, upon provision of the material referred to [sic] clause 3.1 (c), Seqwater is satisfied on reasonable grounds that the Carrier’s Works as proposed under clause 3.1 in [sic] would materially affect the structural integrity or safety of Seqwater’s Infrastructure, then the Carrier must, before the commencement of any Carrier’s Works, and upon written request from Seqwater, give Seqwater an engineering assessment of Seqwater’s Infrastructure certified by a RPEQ confirming Seqwater’s Infrastructure is not materially structurally impacted by the Carrier’s Works, and that the Carrier’s Works do not:
(i)impede Seqwater’s ability to use Seqwater’s Infrastructure for Seqwater’s purposes; or
(ii)interfere with Seqwater’s telemetry equipment.
(b)Where any part of the Carrier’s Equipment requires drilling into any concrete structure owned by Seqwater, the Carrier will, at its cost, prepare drawings depicting the Carrier’s Equipment. The Carrier must ensure that:
(i)any reinforcement bars in the concrete structure are located;
(ii)any drilling is kept away from the reinforcement bars;
(iii)any penetration of any concrete structure be epoxy coated to protect reinforcement from corrosion (even if the reinforcing is not actually exposed by the penetration); and
(iv)all masonry fixings be 316 stainless steel chemset or similar epoxy based anchors to protect reinforcing steel from corrosion.
(c)The Carrier may continue to operate and maintain the Carrier’s Equipment on the Permitted Area in accordance with the reasonable conditions of Seqwater and plans and specifications approved by Seqwater.
(d)The Carrier’s Works including any improvements, alterations, changes or amendments (including electrical works) reasonably required by Seqwater for the Carrier’s Equipment to comply with clause 3.2, must be carried out:
(i) in accordance with clauses 3.6, 6 and 7.2;
(ii) to a high standard of workmanship;
(iii) at its own cost;
(iv) diligently; and
(v) in accordance with:
A.drawings, plans and specifications approved for use by Seqwater;
B.the terms of this Permit and to the [sic] Seqwater’s satisfaction;
C.all Approvals required for the Carrier’s Works.
(e)The Carrier’s Works are at the Carrier’s sole risk. The Carrier accepts responsibility for compliance with the WHS Act and WHS Regulations in respect of the Permitted Use.
(f)The Carrier must provide Seqwater with as constructed drawings for the Carrier’s Works within 20 Business Days after the completion of the Carrier’s Works. The As Constructed drawings must be provided to Seqwater in PDF and Auto-CAD formats.
3.3Completion of Carrier’s Works
…
3.4Rectification of defects
…
3.5Permitted Use
…
3.6Complying with laws and directions and obtaining Approvals
…
Induction requirements in respect of the applicant were set out at cl 6.1:
Contractor induction
(a) The Carrier must comply with Seqwater procedures for contractor induction (including work specific induction pertaining to the Land) located at " As a minimum the Carrier and its employees, contractor and agents must:
(i) complete the following training/inductions and submit a copy of each certificate of achievement:
A. Seqwater Contractor Induction (00001538):
B.Scheme Induction - Network - Chemical Dosing Facilities (00002287);
C. PASS- Overview (00005934);
(ii) either prepare:
A.a signed JSEA/SWMS in the form approved by Seqwater (Form 00013); or
B.in the Carrier's form which must be at least to the same standard as Seqwater's form.
(iii) obtain a High Risk Work Permit (and if required by Seqwater a Confined Space Permit) in the form approved by Seqwater (Form 00014, 00027, 00415);
(iv) provide Seqwater with a copy of Blue or White card, Work at Height training (including Climbing Ladders), First Aid/CPR;
(v) do Radiation Awareness (RADHAZ); and
(vi) do other relevant training.
Clauses 6.5, 9.10 and 9.17 were “catch-all” provisions in the following terms:
6.5 Carrier's Approval
The Carrier must, at its cost:
(a) obtain and maintain the necessary ACMA licences for the Carrier's Equipment and its use of the Carrier's Equipment for the Permitted Use;
(b) if requested by Seqwater, provide Seqwater with evidence of the necessary ACMA licences; and
(c) ensure the Carrier's Equipment uses licensed frequencies.
…
9.10 Seqwater’s rules
The Carrier must comply with all rules made by Seqwater relating to the use of the Permitted Area unless:
(a) the Carrier does not receive notification of them; or
(b) they are inconsistent with this Permit.
…
9.17 Other prohibited acts
The Carrier must not:
(a) paint or attach any signs or notices on or to the Permitted Area (except any signs required by law or safety signs) without Seqwater's prior written approval;
(b) bring onto the Land any explosive, radioactive, flammable or corrosive chemicals unless they are normally used by the Carrier in the course of its carrying on the Permitted Use and they are confined in suitable containers;
(c) do anything in the Permitted Area likely to make any insurance policy held by Seqwater void or voidable;
(d) use auxiliary electricity or gas supplies unless electricity or gas supplied to the Permitted Area has failed or is restricted;
(e) do anything which may interfere with the structural integrity, load capacity or other limitation of any part of the Land or Permitted Area;
(f) obstruct any fire equipment on the Permitted Area;
(g) obstruct access to any part of the Land or place any thing in the Land (except where otherwise permitted under this Permit); and
(h) use or access any plant room without Seqwater's prior written approval.
THE CASE BEFORE THE COURT
On 26 July 2019, the applicant filed an originating application, a statement of claim and a supporting affidavit. The originating application relevantly stated:
On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:
1. An order for specific performance of the Access Agreement between the parties dated 14 March 2018. Specifically, that the Applicant be granted access to the Land within 5 business days of an order of this Honourable Court to install its Facility in accordance with the terms of the Access Agreement and pursuant to its rights and powers set out in Division 3 of Part 1 of Schedule 3 of the Telecommunications Act 1997.
2. In the alternative, an order that the Respondent by itself, its employees, servants and/or agents, and/or representatives, is restrained from, and an injunction issue to restrain the Respondent by itself, its employees, servants and/or agents, and/or representatives, from interfering with the Applicant’s statutory rights under Division 3 of Part 1 of Schedule 3 of the Telecommunications Act 1997. Specifically, the Respondent by itself, its employees, servants and/or agents, and/or representatives will not interfere with the Applicant’s statutory right to:
(a) enter into the compound on which the infrastructure known as Alexandra Hills Reservoir is situated upon, located at 36A Alexandra Circuit, Alexandra Hills Queensland 4161 (“the Land”) for the purposes set out in Division 3 of Part 1 of Schedule 3 of the Telecommunications Act 1997; and
(b) engage in activities and exercise powers arising under Division 3 of Part 1 of Schedule 3 of the Telecommunications Act 1997; and
(c) carry out the installation of its low impact facility on the Land as specified in detail in the Applicant’s Land Access and Activity Notice dated 2 May 2017 on dates to be notified by the Applicant.
The term “interfere with” in this paragraph includes:
(a) Obstruct;
(b) Prohibit;
(c) Impede;
(d) Stall; and
(e) Prevent.
3. Damages in the sum of $75,000.00 and continuing at a rate of $5,000 per month.
4. The Respondent pay the Applicant’s costs of and incidental to this Application.
5. Such further or other order as may this Honourable Court deem fit.
In its statement of claim the applicant pleaded that it requested that it be granted access to the Reservoir Tower for the purposes of installing its LIF on multiple occasions but it was only permitted access to the land on 22 May 2018 (being 2 months after the Access Permit was signed) when it was able to partially install the facility. The applicant claimed that all other requests for access were denied by the respondent.
The applicant also contended that it had:
·fulfilled all its obligations pursuant to the Access Permit; and
·complied with all the respondent’s requests for documentation and information relating to the installation of the LIF.
The applicant pleaded in the alternative that, as a Carrier, it had rights under the Telco Act to:
·inspect land (Division 2 of Part 1 of Schedule 3);
·install low-impact facilities (Division 3 of Part 1); and
·maintain telecommunications facilities (Division 4 of Part 1).
In its Defence the respondent pleaded that, following entry by the parties into the Access Permit, that agreement governed any entitlement of the applicant to enter the land to the exclusion of the operation of the Telco Act. Alternatively, the respondent pleaded that the applicant was required to comply with s 11 of Sch 3 to the Telco Act, which provides:
11 Agreements with public utilities
(1) A carrier must make reasonable efforts to enter into an agreement with a public utility that makes provision for the manner in which the carrier will engage in an activity that is:
(a) covered by Division 2, 3 or 4; and
(b) likely to affect the operations of the utility.
(2) A carrier must comply with an agreement in force under subclause (1).
In relation to the requests made by the applicant to enter the land the respondent referred to clauses 3.1 (a), 3.1 (c), 3.2, 3.5 (b), 3.6, 7.4, 9.10, 9.17 and 11.1(b) of the Access Permit and claimed in summary:
·The respondent did not provide an email address for the service of notices under the Access Permit.
·The Permitted Area did not include the internal area of the respondent’s infrastructure.
·None of the requests particularised by the applicant complied with the obligations of notices in accordance with the Access Permit.
·The applicant did not comply with the requirements of the Access Permit in seeking access, in particular by providing:
(i)a timeline for the construction of the Applicant's works;
(ii)full detailed drawings and specifications of the Applicant's works, including the location of underground/ buried services and location of the battery housed outside the tower;
(iii)pre-installation certification by a registered professional engineer for the structural impact of each installation;
(iv)particulars of the materials to be used; and
(v)details for the end of life or decommissioning strategy for each proposed installation including buried infrastructure.
In its submissions, the respondent stated that it placed no reliance upon clause 11.1 of the Access Permit in response to the requests for entry.
The respondent further denied that it improperly refused the applicant access in respect of its requests of:
·14 August 2018, because operational issues existed (referable to cl 2 (b)(vii) of the Access Permit) and the respondent was in the process of complying with an Improvement Notice issued by Workplace Health and Safety Queensland (WHSQ);
·7 November 2018, because:
·operational issues existed (referable to cl 2 (b)(vii) of the Access Permit) and the respondent was in the process of complying with an Improvement Notice issued by WHSQ,
·the respondent had concerns with the structural integrity of the roof of the Reservoir Tower, however the applicant did not provide RPEQ certification in accordance with clauses 3.2 and 9.17 of the Access Permit; and
·the applicant failed to properly respond to the correspondence of the respondent’s lawyers dated 9 November 2018.
·12 January 2019, because the request did not comply with the requirements of cl 3.1 of the Access Permit as set out in the email of the respondent’s lawyers dated 18 January 2019; and
·1 July 2019, because:
·the applicant failed to comply with the requirements of cl 3.1 of the Access Permit as set out in the email of the respondent’s lawyers dated 18 January 2019 and
·the respondent had concerns with the structural integrity of the roof of the Reservoir Tower however the applicant did not provide RPEQ certification in accordance with clauses 3.2 and 9.17 of the Access Permit.
The respondent denied that there was any continuing entitlement in the applicant to access the land. The respondent further submitted that the applicant breached the Access Permit by leaving equipment on the site outside the Permitted Area, and did not comply with the National Construction Code in effecting the installation.
ISSUES FOR DETERMINATION
The parties agreed on a Joint Statement of Agreed Facts and Issues for Determination. In particular, they agreed that the following issues required determination in these proceedings:
(1)Did the applicant comply with the requirements for the Access Permit when seeking access on the dates particularised at para 11 of the Statement of Claim?
(2)Was the respondent entitled under the terms of the Access Permit to refuse the applicant access to the Reservoir Tower?
(3)Do the applicant and respondent have any residual rights under Sch 3 to the Act given the terms of the Settlement Agreement, the Access Permit and s 11 of Sch 3 to the Act?
(4)Has the applicant breached the Access Permit?
(5)Has the respondent breached the Access Permit?
(6)If the respondent has breached the Access Permit has the applicant sufficiently complied with the terms of the Access Permit to entitle it to an order for specific performance?
Before turning to these issues it is useful to examine set out the requests made by the applicant and correspondence between the parties relevant to those requests.
REQUESTS OF THE APPLICANT FOR ACCESS
Paragraph 11 of the Statement of Claim states
Following execution of the Access Agreement on or about 14 March 2018, and in accordance with the terms of that Agreement, the Applicant sought access to the Land on seven separate occasions, all of which were denied by the Respondent.
Particulars
The Applicant requested that it be granted access to the Land for the purposes of installing its Facility on the following dates:
(a) 30 April 2018 Email from the Applicant to the Respondent dated 23 April 2018
(b) 16 May 2018 Email from the Applicant to the Respondent dated 15 May 2018
(c) 31 May 2018 Email from the Applicant to the Respondent dated 24 May 2018
(d) 1 June 2018 Email from the Applicant to the Respondent dated 31 May 2018
(e) 22 August 2018 Email from the Applicant to the Respondent dated 14 August 2018
(f) 21 November 2018 Email from the Applicant to the Respondent dated 7 November 2018
(g) 21 January 2019 Email from the Applicant to the Respondent dated 12 January 2019
(h) 8 July 2019 Email from the Applicant to the Respondent dated 1 July 2019
Request dated 23 April 2018
The request of 23 April 2018 was by email sent Monday, April 23, 2018 at 1.19pm. The subject of the email was “Alexandra Hills Reservoir 30/07/2018”. The text of the email was as follows:
We would like to access the Alexandra Hills Reservoir to undertake the following.
1.Inspection of the reservoir to determine the specific locations for mast installations and cable route
2.Install our data cabinet in the base of the reservoir. No penetrations are necessary, the cabinet will be placed on the concret floor.
Staff have completed the following inductions:
– 00001538 – Seqwater contractor induction (All Visitors)
– 00002287 – Scheme Induction – Network – Chemical Dosing Facilities
– 00005934 – PASS – Overview
All staff hold the following certifications:
– RIIWHS204D – Work safely at heights
– HLTAID001 – Provide cardiopulmonary resuscitation
– HLTAID008 – Provide first aid
The rescue team hold the [sic] and additional tower rescue certifications which include:
– PUASAR022A – Participate in a rescue operation
– PUAEME0018 – Provide emergency care
– PUFIR215 – Prevent injury
Please find the attached JSEA, SWMS, Working at Heights Application, Rescue Plan and insurance certification of currency.
Please let me know if you require any further information.
Kind regards
Jarrod O’Connell
Polyfone Telecom Pty Ltd
On 27 April 2018 at 4.19pm the respondent emailed the applicant in the following terms:
Dear Jarrod,
We refer to your request of 23 April 2018 to access the Alexandra Hills High Level Reservoir Tower (Reservoir Tower) to undertake the following:
1. Inspection of the Reservoir Tower to determine the specific locations for mast installations and cable route; and
2. Installation of a data cabinet in the base of the Reservoir Tower.
The purpose of this correspondence is to notify you of our intention and requirement to engage in a consultation, co-operation and co-ordination process pursuant to section 46 of the Work Health and Safety Act 2011 (Qld) (WHS Act).
The requirement for this process under section 46 of the WHS Act arises because Seqwater and Satellite and Wireless Pty Ltd (Satellite) and Polyfone Telecom Pty Ltd (Polyfone) are duty holders in relation to health and safety matters at the Reservoir Tower. Those matters include, but are not limited to, the identification of hazards and assessment of risks to health and safety arising from works to be carried out by Polyfone on behalf of Satellite.
You provide that your staff have completed the following inductions: (00001538 – Seqwater contractor induction (All Visitors); 00002287 – Scheme Induction – Network – Chemical Dosing Facilities; 00005934 – PASS – Overview) and hold certifications (RIIWHS204D – Work safely at heights; HLTAID001 – Provide cardiopulmonary resuscitation; HLTAID003 – Provide first aid).
Our records confirm that Jarrod O’Connell and Pieter Delport (on behalf of Satellite) and Tim Samuels (on behalf of Polyfone) have completed (00001538 – Seqwater contractor induction (All Visitors); 00002287 – Scheme Induction – Network – Chemical Dosing Facilities; 00005934 – PASS – Overview.
That said, Seqwater has not been provided with copies of certification for (RIIWHS204D – Work safely at heights; HLTAID001 – Provide cardiopulmonary resuscitation; HLTAID003 – Provide first aid) for Jarrod O’Connell, Pieter Delport and Tim Samuels. Please forward copies of these certifications to us.
The Telemetry Access Permit also requires that Satellite shall provide to Seqwater full detailed drawings and specification for the works at least 5 business days before the commencement of any works: [please refer to clause 3.1 (c)(ii)]. These are yet to be provided. Could you please provide them urgently.
There are also two further matters that remain outstanding or unaddressed and are important from a work health and safety perspective:
1. There is an absence of an effective rescue plan and no height rescue equipment or methodology has been identified in the materials you have provided;
2. The potential risk of RF EME and any steps to be taken to address this (e.g. PPE equipment, RF monitors) have not been considered in the Safe Work Method (SWMS) provided.
In light of the issues raised above, Seqwater considers that there are health and safety risks with the works proposed to be conducted on 30 April 2018 and that these matters need to be addressed by way of the consultation process referred to above. We also note that Clause 2 (vii) of the Telemetry Access Permit provides that “Seqwater may restrict or temporarily prohibit access to the Permitted Area for safety or operational (including maintenance) reasons…”
Please find link to document identifying known site risk… these must be considered Arcadia valley escape, Arcadia Valley S Rd, Beilba QLD 4702 as a part of your risk assessment.
We request that Satellite and Polyfone engage in the process of consultation, co-operation and co-ordination to address the outstanding safety issues so that Polyfone can safely access the Reservoir Tower on Monday 30 April 2018.
Regards
Martin Leung
Asset Protection Officer
On 30 April 2018 at 10.09am the applicant emailed the respondent in the following terms:
Hi Martin
Please find the attached:
– Updated SWMS to include RF EME risk
– Updated Rescue Plan to include rescue methodology
– Working at Heights Certifications
– First Aid Certificates – Please note HTLTAID001 Provide cardiopulmonary resuscitation has elapsed, a refresh course has been booked for staff with a date TBA.
Kind regards
Jarrod O’Connell
Polyfone Telecom Pty Ltd
Mr O’Connell forwarded the “attached SWMS” to Third Party Engineering Consent at 12.06pm on 30 April 2018.
On 30 April 2018 at 3.42pm the respondent emailed the applicant in the following terms:
Hi Jarrod,
Can you please confirm the purpose of the next visit. If the visit is for an inspection only, access could be granted once all safety documents have been accepted.
If you still plan on installing equipment on the same day we will need drawings detailing the proposed installation and methodologies for review and acceptance.
Regards
Third Party Engineering Consent
Request dated 15 May 2018
On 11 May 2018 at 7.01pm the respondent emailed the applicant in the following terms:
Hi Jarrod,
We refer to our engagement in consultation, co-operation and co-ordination pursuant to section 46 of the Work Health and Safety Act 2011 (Qld) (WHS Act) as initiated by Seqwater in our email to you dated 27 April 2018.
In accordance with that process, please find below our comments regarding the instillation of the proposed cabinet within the High Level Reservoir.
1.The Cabinet will need to be secure, enclosed and locked;
2.The Cabinet must not obstruct the ingress/egress to and from the Reservoir Tower and stairway with minimum requirements as per the National Construction Code - provision of 800mm appears deficient and non-compliant with the National Construction Code (it is noted that we have not been provided with any detail as to how the Cabinet is to be affixed. If drilling of the concrete wall is contemplated then Seqwater's specific permission is required);
3.The Cabinet classification is required to be specified - if the Cabinet is deemed to be electrical, a minimum clearance from the open door will need to be 600mm in accordance with the National Construction Code;
4.The Cabinet must not obstruct other users of the Reservoir tower (please provide evidence that other site users have been consulted and their consent provided);
5.Seqwater has consulted with Redlands City Council (RCC), who is the owner of sewerage and water radio control and monitoring equipment in the Reservoir Tower for the purpose of notifying RCC as to Satellite's/Polyfone's proposed works and to seek their input as to any impact this may have on RCC's sewage and water radio communications equipment. To the extent that Seqwater has been able to consult with RCC (because Seqwater has not yet been provided with detailed drawings or a design of the proposed works), RCC has notified Seqwater that:
(a)A clearance of 1.2 metres around RCC's cabinet is required to allow for a future upgrade of its cabinet and communication system. RCC requires clear access to its cabinet so that it is able to maintain and repair its equipment;
(b)Polyfone's proposed works should in no way interfere with RCC's equipment or RCC's ability to maintain it. This includes but is not limited to ensuring that there are no adverse impacts on the reliability of the power supply or by way of injection of harmonics, electromagnetic interference (EMI) or radio interference;
(c)RCC's radio equipment in the Tower is primary to the control and operation of its sewerage network and potable water network. If RCC's radio equipment is inadvertently disabled this could result in RCC's inability to control its network, which RCC advises could have high environmental and hygiene risks associated with it which would have grave consequences. RCC itself without access the detailed design drawings is not in a position to implement control measures to mitigate these risks.
For all of the reasons above, and specifically the potential for Polyfone's proposed works to impact upon other users of the Reservoir Tower, Seqwater will need detailed drawings of the whole of the facility to properly assess the impact on the site and existing users. In this respect Seqwater is particularly mindful of paragraph S(c) above. This should include:
6.Details on the electrical design (including details of route and equipment);
7. Location and material of equipment including all fixtures and fittings;
8.Details on the placement and installation of antennas, poles and mounts;
9.Details on the EME exclusion zones created by any installation in relation to existing equipment and/or accessible areas including updating the Site Safety document.
Please advise us when Polyfone will be in a position to address the matters that we have identified above.
Martin Leung
Asset Protection Officer
At this point the applicant made a further request for access, being in the form of an email from its lawyer Mr Gregory Leather sent 15 May 2018 at 12.56pm. The email was as follows:
Dear Carmel
I refer to the email below from Martin Leung at Seqwater.
Our client accepts that such an email would be appropriately given to a carrier at the LAAN stage. However it is entirely inappropriate in this matter when directed to a carrier that holds Orders from the Federal Court.
Our client requires access to the site to be granted by 12.00pm tomorrow, Wednesday 16 May 2018 and further requires Seqwater to cease interfering with our client's rights pursuant to the Act and the Orders.
If access is not granted by 12.00pm tomorrow as required, we will bring an application before His Honour, Logan J and we remind you that an application for orders for contempt will be available along with an indemnity costs order.
Kindly confirm by return that access will be granted as required.
The lawyers for the respondent, K&L Gates, responded to this email on 16 May 2018, in turn by email, in the following terms:
Dear Mr Leather
Alexandra Hills Reservoir Site: Site Access
We act for Queensland Bulk Water Supply Authority trading as Seqwater (Seqwater) and have been provided with a copy of your email to Carmel Serratore dated 15 May 2018 sent at 12.56pm (Email) regarding access to the Alexandra Hills Reservoir Site (Site).
We are instructed as follows:
1.Our client rejects any suggestion that it has acted inconsistently with the consent orders entered in the Federal Court on 14 March 2018 including any assertion that it has acted in contempt;
2.Our client has sought to engage with your client (and your client's related entity Polyfone Telecom Pty Ltd) in a process of consultation, cooperation and coordination under section 46 of the Work Health and Safety Act 2011 (WHS Act). This section not only applies to our client, but imposes obligations on your client (and your client's related entity) as a person that has work health and safety duties at the Site within the meaning of the WHS Act;
3.In light of the demands that are made in your Email and in an attempt to avoid litigation, our client proposes as follows:
(a)Access to the Site will be granted to your client and its related entity. Please advise the date that your client or your client's related entity proposes to access the Site noting clause 3.1 of the Telemetry Access Permit executed by Seqwater and Satellite and Wireless Pty Ltd which provides that 5 days' notice must be provided by a Carrier prior to commencing works.
(b)Seqwater proposes to refer this matter to Work Health and Safety Queensland (WHSQ) and to request WHSQ to appoint an inspector to attend the Site for the purpose of assisting the parties to engage in further consultation to resolve the work health and safety issues identified by Seqwater, and made known to your client, pursuant to section 82 of the WHS Act.
(c)Seqwater proposes to notify the Redland City Council (RCC) of your client's (and its related entity) access to the Site (when the date for that that access is provided by you) so that the RCC can engage in any consultation if it so requires. We have previously notified your client (and its related entity) of the concerns raised by the RCC in terms of its sewerage and water radio communications equipment at the Site and the potential for your client's works to impact .upon its operation, resulting in environmental and public hygiene risks,
(d)Our client otherwise reserves all of its rights including those under the WHS Act and the Telemetry Access Permit.
A further letter was sent by email by K&L Gates to the applicant on 16 May 2018 as follows:
Dear Mr Leather
Alexandra Hills Reservoir Site
We refer to the above matter, our previous letter to you dated 16 ·May 2018 and your telephone conversation with Paul Hardman 16 May 2018.
We have just been advised by our client that representatives of Polyfone Telecom Pty Ltd have arrived at the Site in the last 30 minutes (approximately). Our client’s position was set out in our correspondence of today's date, sent this morning, and in compliance with the request in your email of 15 May 2018.
For the sake of clarity our client is not refusing your clients’ access to the Site but requires sufficient notice. The notice period, as provided by the Telemetry Access Permit is 5 business days. We are instructed to confirm that access to the Site will be given to your clients on Tuesday 22 May 2018.
If you have any questions please contact Paul Hardman.
On 16 May 2018 at 1.14pm an email was sent by the applicant to various recipients including the respondent, in the following terms:
WITHOUT PREJUDICE - SAVE AS TO COSTS
Dear Parties -
I refer to the below request from Greg Leather, as well as the long string of communications between the parties in addition to the delays now approaching three months that have passed since the Orders were made by His Honour Logan J.
I can report that SEQ Water has again denied us access today.
S&W staff attended the related site pursuant to the below but have been denied access.
I can further report that, embarrassingly, SEQ unfortunately treated our staff with contempt by making them wait at sight for over one hour (for no apparent reason) to culminate in the mentioned negative outcome.
We will rely on this communications in relation to Costs.
Paul Wallace
Satellite & Wireless Pty Ltd
On 21 May 2018 at 5.10pm an email was sent by K&L Gates on behalf of the respondent to the applicant as follows:
Dear Colleagues
We refer to the email from Polyfone Telecom Pty Ltd below. We also refer to our previous correspondence to you and confirm that we act for Seqwater.
We advise that access will be provided tomorrow at 9.30am (it is not practicable for our client to provide access at 8.30am).
We also note that a number of requests by our client for information and documents including detailed drawings for the work proposed with respect to the installation of the rack remain unanswered.
Mr Leather we have taken the liberty of including your client in this email in light of the timing issues for tomorrow.
I understand that, on 22 May 2018, the applicant gained access to the Reservoir Tower and placed the radio cabinet inside the Reservoir Tower.
Request dated 24 May 2018
By email dated 24 May 2018 at 9.12am the applicant wrote to the respondent in the following terms:
Good Morning,
We would like to give 5 days notice to install equipment into our rack at the Alexandra Hills reservoir, the equipment we are installing inside the cabinet does not emit RF EME.
We plan to plug into the spare GPO as shown in the attached picture (AlexHills_GPO.jpg).
As per the telemetry agreement, S&W will compensate SEQWater for the power used, the expected power draw of the S&W facility is between 1.5 & 2 Amps.
Jarrod O’Connell
Polyfone Telecom Pty Ltd
Attached to this email was material detailing the proposed works.
Later that day at 11.28am the applicant emailed the respondent in the following terms:
Hi Martin,
The locked cabinet is placed on the reservoir floor in the position shown in the attached document previously sent to [email protected]. Attached is a photo of the rack in-place along with a floor plan of the reservoir.
The cabinet location does not obstruct ingress/egress to the reservoir nor access to the stairwell.
For the sake of clarity, can you please provide information in regards to cabinet classification under the NCC?
Kind regards
Jarrod O’Connell
Polyfone Telecom Pty Ltd
On the same date the applicant wrote a letter of complaint to Mr John Wilson, Operations Manager at Queensland Workplace Health and Safety (Government) in response to a complaint made against it by the respondent on 16 May 2018.
On 24 May 2018 at 2018 at 4.00pm the respondent emailed the applicant in the following terms:
Hi Jarrod,
Polyfone should make its own enquiries through its own its own engineers to ensure compliance with the NCC. Once you have done this please provide appropriate evidence to Seqwater of compliance with the NCC. Seqwater will then advise you of its position.
In relation to the positioning of the cabinet, Seqwater has already advised Polyfone to the contrary. RCC concerns with positioning has also been provided to Polyfone.
Regards
Third Party Engineering Consent
On 25 May 2018 at 8.30am the applicant emailed the respondent in the following terms:
Dear Martin -
I refer to the attached floor plan inclusive of a representation of our rack as well as your objection.
1.In response to your complaint that the space between our rack & the stairs is not great enough, I refer you to the space in the diagram between your staircase/ ladder & the wall. You can see our separation is greater than your own.
2. I trust this satisfies your objection on this point?
3.If this does not satisfy your abjection then I'd be grateful of you could kindly advise the precise legal basis upon which you rely in failing to accept our response?
Sincerely
PAUL WALLACE
Polyfone Telecom Pty Ltd
On 30 May 2018 at 11.33am the applicant emailed the respondent ([email protected]) in the following terms:
Hi Team
I have not had a response to this request for the works scheduled for tomorrow. Can you please let me know the status?
Kind regards
Jarrod O’Connell
Request dated 31 May 2018
On 31 May 2018 at 4.44pm the applicant emailed the respondent in the following terms:
Hi Martin,
Thanks for speaking with me today, can you confirm we will be able to access the reservoir for these works tomorrow given that we have already provided 5 days notice as set out in the telemetry agreement.
These works include:
1. Installing networking equipment inside the rack only
2. Connecting the power source to the rack
Kind regards
Jarrod O’Connell
Polyfone Telecom Pty Ltd
I understand that the applicant was denied access to the Reservoir Tower on 1 June 2019.
On 31 May 2018 an Improvement Notice was issued by the Queensland Government to Queensland Bulk Water Supply Authority in respect of the Reservoir Tower. The contravention was described in terms of a reasonable belief that the Authority had contravened sections 19(3)(b) and 33 of the Work Health and Safety Act 2011 (Qld) (WHS Act) in circumstances that made it likely that the contravention would continue or be repeated. It was further particularised as follows:
The person conducting a business of undertaking has not ensured so as far as is reasonably practicable the provision and maintenance of a safe structure, namely the Alexandra Hills High Level Reservoir. (The Reservoir)
The handrail on top of The Reservoir is in an unsafe condition and has the potential for fai8lure. This is evidenced by the independent engineer’s report which includes photographic evidence and states “this handrail was in very poor condition with isolated areas of advanced corrosion” which has resulted in a “complete section loss and failure at one location of the handrail”.
On 18 June 2018 at 11.15am the respondent emailed the applicant as follows:
Hi Jarrod,
Further to your emails of 7 and 14 June 2018, we advise as follows:
1.As you are aware, an Improvement Notice has been issued as against Seqwater (copy attached) in respect of the Reservoir Tower.
2. The Improvement Notice requires Seqwater to address the hazard of the safety handrail on the Reservoir Tower roof. It is described in the Improvement Notice as being in an unsafe condition and has the potential for failure.
3. Affixed to the safety handrail are various telecommunications fixtures. To repair the handrail the telecommunications fixtures will need to be removed from the safety handrail. Seqwater is in the process of engaging with various carriers and other 3rd parties (including Regulators) to identify the owners of those fixtures and to facilitate their removal so that the safety handrail can be replaced. This will be a substantial project which will also likely involve removal of other equipment from the Reservoir Tower roof itself (i.e. not just the safety handrail).
4.Once the safety handrail is replaced then the fixture of any telecommunications equipment to the safety handrail will not be permitted as this compromises the purpose and effectiveness of the safety handrail as a control measure to reduce the safety risk of working at heights.
5.In addition on Thursday 7 June 2018 a further site inspection of the Reservoir Tower was undertaken by Work Health and Safety Queensland, the Electrical Safety Office and Fire and Emergency Services. A number of issues were identified regarding ingress and egress from the Reservoir Tower and the internal control rooms in the Reservoir Tower. Following this inspection Seqwater developed a Work Instruction that is now affixed to the Site front gate, the temporary barrier surrounding the Reservoir Tower and the front door of the Reservoir Tower (we attach a copy to this email). Seqwater is also in the process of consulting further (in conjunction with the Regulators) with the owners/operators of the internal control rooms so that fire and electrical risks in relation to those control rooms can be addressed.
6. These are matters which obviously will impact upon Satellite and Wireless' proposed plans in terms of installation of its equipment, especially in relation to the Reservoir Tower Roof.
7. Firstly we request that you review the attached Work Instruction so that you can take the appropriate steps to comply with it.
8. Secondly we ask you to consider the utility of you proceeding with your works now in light of the substantial work that needs to be undertaken at the Reservoir Tower roof and the disruption and re-location that this will cause to the existing infrastructure on the Reservoir Tower roof. In this respect Seqwater is of the view that until the safety issues (identified in the Improvement Notice and the Work Instruction) are resolved no further work of the kind that involves the installation of new telecommunications equipment at the Reservoir Tower should proceed. We are willing and able to consult with you further on these issues. If you would like to do so please contact Darren Hayman, Manager Property Fleet and Facilities ([email protected]).
Regards
Third Party Engineering Consent
Request dated 14 August 2018
On 14 August 2018 at 1.41pm the applicant emailed the respondent in the following terms:
We would like to access the Alexandra Hills Reservoir to undertake an inspection of the reservoir roof to determine the specific locations for mast installations and cable route
Staff have completed the following inductions:
– 00001538 - Seqwater contractor induction (All Visitors)
– 00002287 - Scheme Induction - Network- Chemical Dosing Facilities
– 00005934 - PASS - Overview
All staff hold the following certifications
– RIIWHS204D - Work safely at heights
– HLTAID00l - Provide cardiopulmonary resuscitation
– HLTAID003 - Provide first aid
– RADHAZ - Radiation Awareness
The rescue team hold the and additional tower rescue certifications which include
– PUASAR022A - Participate in a rescue operation
– PUAEME00lB - Provide emergency care
– PUAFIR215 - Prevent injury
Please find the attached SWMS including Working at Heights Rescue Plan, Working at Heights Application, staff certifications and insurance certificate of currency. Staff will also complete a TAKES onsite prior to commencing work.
Please let me know if you require any further information.
Kind Regards,
Jarrod O'Connell
On 21 August 2018 at 8.05am the applicant emailed the respondent in the following terms:
Good Morning
Can you please advise the access procedures for Tomorrow’s site visit?
Kind Regards
Jarrod O’Connell
On 24 August 2018 the respondent emailed the applicant in the following terms:
Dear Jarrod,
Thank you for your email.
Your request for access cannot be accommodated.
Pursuant to section 2(b)(vii) of the Telemetry Access Permit, safety and operational reasons exist which prevent access to the site until further notice.
Seqwater is in the process of undertaking works to comply with the Improvement Notice issued by Workplace Health and Safety Queensland. Until those works are complete, Seqwater does not consider access to the Reservoir can safely be provided. The Improvement Notice requires compliance with the rectification works by 30 September 2018.
Regards
Martin Leung
Request dated 7 November 2018
By email sent 7 November 2018 at 3.19pm, Mr Leather on behalf of the applicant wrote to the respondent as follows:
Dear Ms Serratore and Mr Harpham,
We refer to the email of 17 June 2018 from Third Party Engineering Consent to our client attaching an Improvement Notice and a Work Instruction.
We note that the Improvement Notice addressed the handrail on the roof of the water tower and required the issue to be remedied by 30 June 2018.
The Work Instruction referenced the Improvement Notice and referred to hazards including the handrail and a fire hazard arising from equipment within the tower. It requires any person seeking access to undertake a comprehensive risk assessment and develop safe work method statements, which must be provided at least five days prior to the requested access.
Steps were set out in the Work Instruction that must be undertaken both prior to and after accessing the tower.
We refer you to Jarrod O'Connell's email of 14 August 2018. In that email, the following information was provided:
Staff have completed the following inductions:
- 00001538 - Seqwater contractor induction (All Visitors)
- 00002287 - Scheme Induction - Network - Chemical Dosing Facilities
- 00005934 - PASS - Overview
All staff hold the following certifications
- R1IWHS204D - Work safely at heights
- HL TAID00 1 - Provide cardiopulmonary resuscitation
- HL TAID003 - Provide first aid
- RADHAZ - Radiation Awareness
The rescue team hold the and additional tower rescue certifications which include
- PUASAR022A- Participate in a rescue operation
- PUAEME00lB-Provide emergency care
- PU AFIR215 - Prevent injury
In addition, attached to the email were our client's SWMS including Working at Heights Rescue Plan, Working at Heights Application, staff certifications and insurance certificate of currency. Confirmation was given that Satellite & Wireless staff will also complete a TAKE5 onsite prior to commencing work.
The date specified for access was 22 August 2018, which was more than 5 days after provision of the above information and attachments, as requested by the Work Instruction.
On 22 August 2018, SEQ Water Access Control Centre advised Mr O'Connell that it had been specifically instructed that access to the tower for Satellite & Wireless was not granted.
On 24 August 2018, Third Party Engineering Consent sent an email to Mr O'Connell referencing Clause 2(b)(vii) of the Telemetry Access Agreement and advising that Seqwater was in the process of undertaking works to comply with the Improvement Notice. The email asserted that the Improvement Notice required compliance with the rectification works by 30 September 2018. We note that this is not the date specified in the Notice. Nevertheless, on Monday, 5 November 2018, Mr O'Connell telephoned Mr Errol George (who has been cc'd into all of the abovementioned correspondence) to enquire whether the rectification works have been completed and has been advised that works are still ongoing.
In the circumstances, our client has made arrangements to have an Elevated Work Platform attend at the water tower so that access to the roof of the tower is not dependent on internal access. Our client does not rely on safety handrails when working at heights. Rather it attaches its safety harnesses to the safety anchors at the centre of the roof. The still incomplete works to the handrail are of no consequence to our client's access to the roof, nor would the state of the handrail have ever been of any relevance.
Our client nominates Wednesday, 21 November 2018 for access to the site to inspect the roof of the tower to inspect and nominate alternate positions for its two antennas, noting that they must be at least two metres from the access hatch to the reservoir. We confirm as has been previously advised that our client does not propose to affix any equipment to the handrail.
Kindly confirm by no later than 5pm on Friday, 9 November 2018 that access will be granted on that date for our client to conduct its inspection. Should we not receive confirmation by that time, we are instructed to apply to have the matter relisted before His Honour Logan J for further orders. We note that the reference on 24 August 2018 to Clause 2(b)(vii) cannot be sustained given that it is now four months since the date specified on the Improvement Notice for compliance works to be completed and over a month since the subsequently nominated date of 30 September. Despite that, the advice given on Monday, 5 November 2018 that works are ongoing is at odds with the acknowledgement in clause 2(b)(vii) that Seqwater may restrict or temporarily prohibit access to the site.
Yours faithfully
Gregory Leather | Partner
BARRINGER LEATHER LAWYERS
On 8 November 2018 at 1.30pm the respondent emailed the applicant in the following terms:
Hi Jarrod,
Seqwater has been granted an extension for compliance with the Improvement Notice by Work Health and Safety Queensland. I have attached a copy of the new notice with a compliance date of 30 November 2018.
Unfortunately, structural concerns have been identified regarding the roof's structural integrity which has resulted in Seqwater shutting down all access to the roof in the interim. This decision has been made in consultation with Work Health and Safety Queensland.
At this stage, we don't have an intended commencement date. Seqwater however is continuing to work with Work Health and Safety Queensland to achieve this.
Regards,
Martin Leung
On 9 November 2018 K&L Gates on behalf of the respondents wrote a detailed letter to the applicant’s lawyer Mr Leather. Relevantly, K&L Gates stated:
·The applicant’s proposal to access the Reservoir Tower roof as set out in its email of 7 November 2018 rendered the activity unsafe.
·A First Improvement Notice was issued by Workplace Health and Safety Queensland on 31 May 2018 requiring compliance by 30 June 2018 in respect of the Reservoir Tower.
·The First Improvement Notice was revised and reissued 28 June 2018 in the same terms albeit with a compliance date of 30 September 2018 (Revised Improvement Notice).
·The respondent engaged in a process of consultation within the meaning of s 46 of the WHS Act for the removal of telecommunications equipment to facilitate the extensive works required to replace the safety handrail on the roof of the Reservoir Tower so that it could comply with the Revised Improvement Notice.
·It became apparent that additional time was required to facilitate the required rectification works, including that it would be necessary to remove all telecommunications equipment on the Reservoir Tower roof so that rectification works could be properly and safely undertaken.
·Seqwater identified the need to carry out repairs and maintenance work (as identified in the Reservoir Condition Assessment Report prepared by engineering company GHD Pty Ltd (GHD) dated 14 December 2017) concurrently with the handrail rectification works to minimise disruption to other carriers with telecommunications equipment on the Reservoir Tower roof and to ensure the work could be done safely without exposing workers to the risk of EME exposure.
·Following consultation with WHSQ a further Improvement Notice was issued on 2 October 2018 in the same terms as previously, albeit requiring compliance by 30 November 2018 (Second Improvement Notice).
·As at 9 November 2018 the rectification works had not commenced for reasons including discussions with the carriers and Redlands City Council concerning (inter alia) removal/shutdown of equipment, the protracted process of identifying the ownership of telecommunications equipment on the Reservoir Tower, and further concerns identified by WHSQ in respect of the structural integrity of the Reservoir Tower.
·Structural integrity concerns raised by WHSQ included the ability of the Reservoir Tower to withstand additional weight (including the weight of telecommunications equipment, personnel and equipment) being placed on the roof in circumstances where it was not designed (circa 1966) to accommodate these loads and forces. WHSQ identified a concern that the Reservoir Tower roof could catastrophically fail.
·At the request of WHSQ, Seqwater made enquiries, and on 8 November 2018 provided information relating to issues of host loads, wind loads and the combined weight of infrastructure on the Reservoir Tower roof.
·WHSQ recommended that access to the Reservoir Tower be prohibited until enquiries had been concluded and an appropriate assessment made as to the capacity of the Reservoir Tower to withstand the load to which it was currently subject as well as the limit of additional loads.
·Seqwater as the operator and occupier of Reservoir Tower owed obligations under the WHS Act, and to discharge those obligations Seqwater was required to ensure the safety of workers and other persons. Seqwater was required to manage the risks in accordance with Regulation 35 of the Work Health and Safety Regulations 2011 (Qld).
·As a result, and in consultation with WHSQ, Seqwater had amended its procedure “PRO-02258 Corporate Safety – Work Instruction, Accessing Alexandra Hills Reservoir Work Instruction” to prevent any access to the roof by anyone. A copy of this procedure was provided to the applicant on 8 November 2018.
·While the safety handrail may be of no consequence to safe access of the Reservoir Tower roof by the applicant, the related structural integrity of the safe anchors in the centre of the roof and its ability to withstand additional loads (of personnel accessing the roof and their equipment) were very serious concerns.
·The applicant was on notice that the structural integrity of the Reservoir Tower roof and the safety anchors could not be assured, and the structure may be at risk of collapse in the event of additional load being placed on the Reservoir Tower roof.
·The material issue was not means of access to the roof, but being on the roof itself. The applicant’s proposal to access the Reservoir Tower roof by EWP did not in any way eliminate or minimise that hazard.
·As a result of s 272 of the WHS Act, the legislative obligations imposed under the WHS Act must be discharged irrespective of any contractual agreement between the parties.
·In any event, Seqwater maintained that under the Access Agreement it was permitted to rely on clause 2 (b)(vii) to deny access.
·Seqwater has provided requested information to WHSQ but had no control over the length of time WHSQ required to review the information and assess the suitability of the Reservoir Tower to withstand loads. While that consideration was being undertaken the Procedure would remain in force, preventing access by anyone including Seqwater personnel.
·Seqwater declined the applicant’s request for access on 21 November 2018 – access could not be permitted in circumstances where permitting such access could amount to a contravention of obligations imposed on it under the WHS Act.
On 12 November 2018 Mr Leather for the applicant responded, in summary as follows:
·The applicant did not rely on safety handrails when working at heights;
·The reference in the respondent’s letter to work being done without exposing workers to the risk of EME exposure was “entirely disingenuous” as was apparent from the RF EME Measurement Survey conducted for the respondent by Corearth Pty Ltd (Corearth), the results of which were set out in its report dated 5 October 2017. That report found that the highest level of radiofrequency electromagnetic energy (RF EME) present on site was 16.84% of the General Public Exposure Limit set out in ARPANSA RPS3, which was 3.368% of the Occupational Limit set out in that standard. It followed that the levels recorded presented no unusual risk to workers following ordinary RF EME safety procedures.
·The references to structural integrity concerns were not supported by any evidence. The suggestion that the Reservoir Tower roof could catastrophically fail was disingenuous.
·There was no evidence that WHSQ had recommended that access to the Reservoir Tower be prohibited until enquiries had been concluded.
By letter to Barringer Leather Lawyers for the applicant dated 14 November 2018 from K&L Gates, the respondent stated (inter alia) that the matters set out in its letter of 8 November 2018 related to its safety concerns were entirely genuine, that relevant matters had to a significant extent arisen out of continuing investigations being carried out by WHSQ, and that proposed safe work method documents relied on by the applicant for the purpose of its access could not be accepted for use until the WHSQ review was completed. The respondent stated that it would refer the matter to WHSQ for its assistance in resolving issues in accordance with s 82 of the WHS Act. The respondent attached a copy of its letter to WHSQ dated 14 November 2018 in which it requested WHSQ to urgently appoint an Inspector to attend the Reservoir Tower to assist in resolving the issue between it and the applicant pursuant to s 82(2) of the WHS Act.
On 16 November 2018 Mr Daniel Anstice of GHD wrote to the respondent as follows:
Dear Carmel,
Reservoir Condition Assessments 16/17
Addendum to GHD Memorandum dated 14th February 2018 - Correction and Update
I am writing this addendum to provide a correction and update to GHD's memorandum entitled 'Preliminary Report on the Implications of the Proposed Antenna Installations at Alexandra Hills High Level Reservoir', dated 14th February 2018.
Under section 2.2 of the memorandum, GHD state the following:
"The structural capacity of the reservoir is deemed likely to be sufficient to support the installed telecommunications as well as future installations."
We have since become aware that the reservoir was designed in accordance with Standards Association Australia (1952) Minimum Design Loads on Buildings - SM Interim 350. Seqwater believe that the 1955 reprint was the current reprint at the time of the design of this reservoir and was not superseded until the release of AS CA34.1-1969.
Upon consideration of the designed intent, we now remove the above sentence from the memorandum, by way of this addendum letter.
Should you have any queries regarding this letter please contact the undersigned.
Sincerely
GHD Pty Ltd
On 10 December 2018 at 7.03pm K&L Gates emailed Mr Leather for the applicant, informing him that the rectification works the subject of the WHSQ improvement notice had commenced, and subsequently on 14 December 2018 to inform Mr Leather that the rectification works were nearing completion. On 9 January 2019 at 10.04am K&L Gates emailed Mr Leather that the respondent was awaiting confirmation from WHSQ that the improvement notice in the matter had been discharged.
Request dated 12 January 2019
On 12 January 2019 at 5.52pm Mr Leather emailed K&L Gates as follows:
Dear Mr Uren
As has been previously advised on a number of occasions, the status of the improvement notice is of no consequence to our client’s installation. As the improvement works are now complete, there is no further need to delay commencement of our client’s installation since there is no longer any risk of multiple personnel on the roof of the tower. Our client accordingly nominates 21 January 2019 to attend and commence its installation. Kindly ensure that your client grants access for the purpose.
On 18 January 2019 at 9.25am K&L Gates emailed Mr Leather as follows:
Dear Mr Leather
We refer to your email below of 12 January 2019.
It will not be possible for your client's workers to access the roof of the Alexandra Hills Reservoir Tower (Reservoir) on 21 January 2019.
As per our email to you of 9 January 2019, officers of Workplace Health and Safety Queensland (WHSQ) are attending the site today Friday, 18 January 2019, in order to confirm compliance with the Improvement Notice, and we anticipate that WHSQ will confirm such compliance, or advise otherwise, in the following week.
Proposed Installation
In accordance with clause 3.1 of the Telemetry Access Permit relating to your client's access to the Reservoir (Permit), please have your client deliver the following material to Seqwater:
•Timeline for construction of your client's works;
•Full detailed drawings and specification of your client's works which includes the location of underground/buried services and location of the battery housed outside of the tower; Drawings must provide for method of attachment. Please also provide pre-installation certification by a registered professional engineer (RPEQ) with the Board of Professional Engineers Queensland in the relevant discipline for the structural impact of each installation. Certification should include:
•specification for each proposed installation including supporting structures (poles and mounting frames and cabling) and weights for this equipment;
•engineering specifications for each proposed installation including RPEQ registration of the certifying engineer or manufacturer's instructions for each installation;
•Particulars of the materials to be used; and
•Please provide details for the end of life/decommissioning strategy for each proposed installation including buried infrastructure.
Our client will then assess the information.
Please note that prior to your client commencing any activity Seqwater will also require your client to provide evidence of relevant insurance in accordance with clause 9.6 of the Permit. Our client will also require your client to attend a pre-start meeting on site before works are to begin once your client's works have been approved.
Regards
Request dated 1 July 2019
On 1 July 2019 at 12.30pm Mr Leather for the applicant emailed Mr Hardman of K&L Gates for the respondent as follows:
Dear Mr Hardman,
We refer to previous correspondence.
We are instructed to advise that our client intends to complete its installation commencing on Monday 8 July 2019. To that end, please confirm by close of business on Wednesday, 3 July 2019 that your client will allow access to the tower for that purpose.
We note that our client has previously provided all necessary documentation required by the Telemetry Access Permit.
Should we not receive confirmation that your client will provide access to the tower by 5pm on 3 July, we advise that we hold instructions to commence proceedings without further notice. We note that you previously advised that you hold instructions to accept service.
Kind regards
On 3 July 2019 at 4.14pm K&L Gates for the respondent emailed Mr Leather for the applicant as follows:
Dear Mr Leather
Further to your email below, we are instructed that the Alexandra Hills High-Level Reservoir has undergone a structural assessment so that Seqwater could more fully understand its remaining availability with load bearing capacity.
As a consequence of this assessment, Seqwater has implemented a number of control measures and weight restrictions including Seqwater's Work Instruction for Accessing Alexandra Hills Reservoir. A copy of Seqwater's Work Instructions is attached. From this assessment, no new equipment can be installed to the roof.
Seqwater is shortly to notify the Telecommunication Regulator and the Department of Communication and the Arts of these control measures.
We confirm that we have instructions to accept service.
Kind regards
The respondent’s Work Instruction (attached to that email) entitled “Accessing Alexandra Hills Reservoir” was in the following terms:
1. Purpose
This Work Instruction informs a Person Conducting a Business or Undertaking (PCBU) and workers of the risk of undertaking work at the Alexandra Hills High Level Water Tower (Reservoir Tower). In addition to this Work Instruction, PCBUs and workers must undertake a comprehensive risk assessment and complete SWMS or JSEA prior to commencing work
2. Scope
This Work Instruction applies to all PCBUs and workers who undertake work on, around the base of, or inside the Reservoir Tower. This Work Instruction remains in place until further notice by Seqwater.
Restricted entry to Reservoir Tower
Until further notice, entry to the Reservoir Tower ls restricted due to a number of hazards that have been identified by Seqwater. Accordingly, no person is permitted to access the Reservoir Tower without Seqwater's consent (see the required steps in Section 3 below to obtain Seqwater's consent to access).
Hazards include (but are not limited to) the following:
•Seqwater has not been provided with RPEQ certification that the telecommunications equipment affixed to the reservoir roof or surrounds have been installed to the relevant Australian Standards. There may also be loose objects from carrier installation. Accordingly, there is a risk of falling objects from height, particularly during high wind events. An exclusion barrier has been installed to restrict access to the area around the base of the Reservoir Tower (Fall Zone). JSEA and SWMS should identity control measures regarding access to and through the Fall Zone (for example, the use of spotters).
•A potential fire hazard arising from electrical equipment in telecommunications equipment control rooms inside the Reservoir Tower. JSEA and SWMS should identify an emergency response plan in the event of fire.
•The Reservoir Tower roof has recently undergone a structural assessment so that Seqwater can more fully understand its remaining available load bearing capability. At a minimum the following control measures MUST be complied with:
•No more than 600 kg total weight is permitted on the Reservoir Tower roof at any given time.
•o No more than 185 kg of weight over any 5 square metre area is permitted on the Reservoir Tower roof (equivalent to a 2.5 m diameter circle).
•Equipment other than hand tools is to be kept a minimum of 2.5m away from the work zone on the Reservoir Tower roof.
•Two persons can only work side by side providing their combined weight including hand tools is less than 185 kg and excess equipment and other personnel are located a minimum of 2.5 m away.
•No new equipment shall be installed on the roof.
•New penetration into the concrete are to be avoided wherever possible. Where Seqwater consents to the drilling of new penetrations into the concrete, it will be conditional on meeting the following requirements aimed at protecting the concrete structure:
•Prior to undertaking any drilling into the concrete, ground-penetrating radar (GPR) shall be used to accurately locate the reinforcing bars withln the existing structure in order to avoid drlllings and fixings coming into contact with reinforcing bars during or after installation. Documentary evidence to be provided to Seqwater.
•Use of stainless-steel fasteners with chemical anchors is mandatory (mechanical anchors shall not be used).
•A grout pad or suitable epoxy coating shall be placed between the concrete surface and the equipment base plate to form a seal between the base plate and the fixing to prevent stormwater ingress.
•Installations must ensure no contact between the stainless-steel anchor and galvanised steel base plate. This will require the use of insulating washers or similar devices between dissimilar metals.
•Nothing shall be installed such that it will impede free drainage of stormwater from the roof towards and over the sides of the roof causing ponding of stormwater on the roof.
•No equipment shall be installed on the handrail or any other existing fixtures, or in a location that obstructs safe movement within the reservoir tower, on the Reservoir Tower roof, into the reservoir tank, or any access ways provided for allowing safe access to these areas.
•Masts and antenna installations are classified as Class 1 Ob structures under the Queensland Building Act and National Construction Code. All work in connection with installations or modification to these structures will therefore require independent third-party certification in the form of a Form 15 (Compliance Certificate for building Design or Specification) and a Form 16 (Inspection Certificate) certified by an appropriately qualified and experienced Registered Professional Engineer of Queensland.
•Falling objects. JSEA and SWMS should include the following control measures:
•Tool lanyards to be attached when working near an exposed edge.
•Tools not in use are to be stored in the appropriate tool bag or attached to a lanyard.
•All equipment to be secured to anchor points whilst not in use.
•EME hazard. Current EME compliance certificate and environmental EME Site Safety Report (dated 09/10/2018) are available at person seeking access to the site MUST contact the Seqwater Consents Team on (07) 3035 5677 & the Seqwater Operations Control Room on (07) 3270 4049 before attempting to, or making any arrangements to, access the site. In addition, any person seeking access to the internal shell of the structure (but not roof) will need to undertake a comprehensive risk assessment and develop safe work method statements to address relevant hazards and risks as directed by this work instruction. The risk assessments and safe work method statements will be required to be provided to Seqwater at least five (5) business days prior to the requested access date for review and approval.
You MUST contact Seqwater if you have any concerns with these control measures before proceeding with any access/work.
3. Actions/responsibilities
When undertaking work on or in the Reservoir Tower, a PCBU MUST:
…
Detailed evidence was given by Mr Joseph Meissner in respect of requirements of the respondent concerning all carriers accessing the Reservoir Tower roof. I note in particular the following:
41.To coordinate activities and ensure security of the site and its water, Seqwater requests the Carriers to contact Seqwater's 24 hour control room and apply for site access in accordance with our Permit Access Safety System (PASS).
42.If one of the Carriers wishes to access the Reservoir Site, Seqwater requests the owner of the equipment to ensure its employees and/or contractors undertake Seqwater's general contractor induction, site-specific induction and induction on its PASS system. The site specific induction details the specific features of the site, which is particularly important at the Reservoir Site as it includes a chemical dosing facility.
43.Seqwater asks any of the Carriers accessing the Reservoir Tower to provide evidence that the required inductions by each worker intending to access the Reservoir Site has been completed and provide a job safety and environmental analysis (JSEA) or safe work method statement (SWMS) to detail the work that is to be undertaken and the protocols that will be adopted. Seqwater requires the Carriers to reflect any requirements of Seqwater's work instructions for the site in the JSEA and SWMS.
44.Seqwater reviews this information to ensure that the workers performing that work will be safe and that work will not adversely affect the safety of any other Seqwater workers or contractors performing work at the Reservoir Site. This is done in order to comply with Seqwater's obligations under the Work Health and Safety Act 2011 (WHS Act) and its 'Safe for Life' commitment.
45. Permission to access the Reservoir Site by the Carriers is conditional on their agreement to:
(a)comply with any direction issued by Seqwater, including any work instructions issued for the Reservoir Site;
(b)contact the control room by phone on entry and exit to the Reservoir Site, referring their PASS details; and
(c) secure and lock the Reservoir Tower and Reservoir Site upon exiting.
46. The Reservoir Site is secured by a padlocked gate. The site is unmanned.
47.The Carriers have keys to the gate and can access the Reservoir Site. These keys were provided to the Carriers by RCC, the previous occupier of the Reservoir Site. The effect of this is that despite the protocols Seqwater has put in place for safety and security, access by the Carriers can occur without Seqwater's knowledge. Seqwater is currently reviewing its security and access protocols for the Reservoir Site.
I do not understand this evidence to be contested. I also understand that these requirements of the respondent were “directions” of the respondent within the meaning of cl 6.4, to which the applicant did not object. Indeed the evidence before the Court was that the applicant provided evidence to the respondent at various points of its completion of various safe work method statements (SWMS) to detail the work proposed to be undertaken.
I have also noted uncontested and detailed evidence of Mr Hester concerning the serious public health and safety issues pertinent to the safe operation of the Reservoir Tower by the respondent.
Earlier in this judgment I set out the sequence of events commencing with the issue of the First Improvement Notice by WHSQ on 31 May 2018 requiring compliance on 30 June 2018, the issue of a Revised Improvement Notice by WHSQ on 28 June 2018 requiring compliance by 30 June 2018, and then the issue of the Second Improvement Notice by WHSQ on 2 October 2018 requiring compliance by 30 November 2018. I noted the uncontested evidence of Mr Meissner as to the significantly deteriorated state of the safety rail on the roof, the difficulties experienced by the respondent in identifying the owners of telecommunications equipment located on the roof of the Reservoir Tower, and the further difficulties experienced by the respondent in endeavouring to obtain agreement from owners of the telecommunications equipment to arrange the shut down of that equipment to then arrange repair of the safety rail.
I infer from the evidence of Mr Meissner that, for unknown reasons, over a period of years the respondent had permitted installation of telecommunications equipment on the roof of the Reservoir Tower in an apparently uncontrolled fashion (including without maintaining records of the owners of that equipment to allow the respondent to contact owners to arrange shut down of equipment and maintenance of the Reservoir Tower). I further infer that it was only since around 2017 that the respondent (in particular Mr Meissner) recognised the deteriorated state of the roof, and the potential risks:
·In relation to the safety rail collapsing from, inter alia, age-related deterioration;
·To employees of and other workers engaged by the respondent who would need to repair the safety rail, but could be exposed to RF EME because of the volume of telecommunications equipment on the roof of the Reservoir Tower;
·To the structural integrity of the Reservoir Tower roof by reason of any additional weight at all being placed on it, including by equipment the applicant sought to place on it;
·To employees of and other workers engaged by the respondent in respect of future maintenance of the Reservoir Tower, if the structural integrity of the Reservoir Tower roof was compromised;
·To public health and safety given the primary use of the Reservoir Tower as infrastructure in the supply of fresh and clean drinking water to residents of south east Queensland by the respondent.
I find from the evidence of Mr Meissner, and the extensive correspondence tendered as evidence, that the respondent was very concerned about safety and operational issues arising in respect of the repair of the safety rail, and the impact on the structural integrity of the roof of the Reservoir Tower by an increase in the weight of telecommunications equipment installed there.
The evidence before the Court is that the respondent dealt with these concerns in a conservative fashion, including by endeavouring to liaise and negotiate with the owners of telecommunications equipment and by refusing access to the roof while it endeavoured to investigate and resolve its concerns. In my view it was not only reasonable for the respondent to approach its concerns in the manner that it did – insofar as concerned its contractual arrangements with the applicant under the Access Permit it was entitled to do so by cl 2 (b)(vii) of the Access Permit.
Third, and relevantly, there is incontrovertible evidence before the Court that WHSQ was concerned about safety issues in relation to the Reservoir Tower safety rail, to the point of multiple Improvement Notices. It is not submitted, and indeed I would not accept, that WHSQ did so otherwise than because the relevant WHSQ inspector who issued the Improvement Notices reasonably believed that the respondent was contravening or had contravened the WHS Act such as to make it likely that the contravention would continue or be repeated.
Fourth, the applicant submitted, in essence, that the respondent was “perfectly happy for other carriers to access the roof throughout the period while denying access to the applicant”. In my view this submission is unsubstantiated, and indeed contrary to the evidence before the Court that the respondent was unwilling to allow anyone on the roof of the Reservoir Tower (including to repair the safety rail on the roof) until it could satisfactorily address issues of RF EME.
Fifth, delays in the repair of the safety rail appear to have been, at least in significant part, attributable to the respondent’s concerns about levels of RF EME on the roof of the Reservoir Tower. The applicant submitted that the Corearth Report did not support the respondent’s concerns, however as the Corearth Report plainly concluded:
The highest total power density level measured was 0.844 W/m2 (16.84% of the General Public limit), measured at location 6. This is equivalent to a reading more than 6 times lower than the limit specified in the ARPANSA Standard for the General Public.
This value (0.844 W/m2) is based on actual transmitter power of all active antennas on site at the time of measurement. This does not reflect a worst case scenario, where all transmitters on site are powered at their maximum capacity.
(emphasis added)
In such circumstances it was clearly open to Mr Meissner to be concerned that the level of radiation on the roof of the Reservoir Tower was higher than understood. This was particularly so in circumstances where, 12 months after its report, Corearth issued its further report EME Guide for Site Safety advising that there were “exclusion zones” on the roof of the Reservoir Tower, and where this approach was similarly endorsed by the WaveForm report procured by Telstra which declared that the facility cited was unable to be declared compliant with the applicable Australian Standard due to unidentified radio systems. The fact that Corearth and WaveForm both recommended “exclusion zones” on the roof of the Reservoir Tower strongly indicated a view that there were potentially dangerous levels of RF EME to which persons on the roof could be exposed.
Sixth, and very importantly, I note the conflict of opinion between Mr Vose and Mr Wolski in respect of the capacity of the roof of the Reservoir Tower to support workers, additional equipment, and in particular the equipment the applicant sought to install on the roof in addition to that already permanently located on the roof.
I found both experts helpful and credible, however on balance I preferred the evidence of Mr Wolski in relation to the structural capacity of the Reservoir Tower roof, for the following reasons:
·I considered that Mr Wolski’s expertise was more specifically relevant to the issues before the Court. In particular I note that Mr Wolski had extensive and length experience in relation to maintenance inspections of damaged buildings, concrete decay and floor strengthening, all of which arose in respect of the Reservoir Tower roof. In comparison, although Mr Vose was clearly an experienced engineer of many years standing, his was a broader range of more general experience in relation to such matters as the design of deep underground rail shafts, large retail and commercial projects, low and high-rise buildings, tourism developments, hospitals and health projects, industrial buildings, institutional buildings, residential dwellings, independent verification, asset inspection and dilapidation reports, bridge design and associated road structures. In my view the specific expertise of Mr Wolski was such that he could speak more directly and authoritatively in relation to the structural integrity of the roof of the Reservoir Tower. Accordingly I gave his evidence greater weight.
·Mr Vose gave evidence that he did not actually sight the Reservoir Tower roof, and was unable to comment on aspects of the GHD reports because of illegible drawings. Dr Anstice, Mr Wolski and other GHD staff inspected the Reservoir on 13 September 2017, as well as an on foot external reservoir structure inspection, and were able to comment authoritatively on the any defects, staining, cracking, roof penetrations, vermin proofing, drainage and overall appearance of the Reservoir Tower.
·Mr Wolski’s evidence built upon the earlier report of GHD, of which he was a Technical Director.
·While both experts recommended testing of the roof in order to obtain data concerning its load bearing capacity:
·I consider reasonable Mr Wolski’s opinion that non-destructive testing of the concrete and reinforcement in the roof would not account for major variables such as placement of the reinforcement within the slab and the actual load pattern of equipment on the roof;
·I note Mr Wolski’s recognition of the serious risks associated with compromise to the structural integrity of the roof slab, and prefer his recommendation of the most direct means of performance measurement.
·In circumstances where I find that a conservative approach to management of public health and safety risks was reasonable, Mr Wolski himself took a very conservative approach to calculations concerning allowable live load on the roof. In my view this was appropriate. Mr Vose opined that the GHD approach was overly conservative, however in the circumstances I do not accept this.
Finally the applicant claims that the respondent was, in essence, filibustering in its refusal to allow the applicant access to the Permitted Area. In my view, when all relevant facts (including communications between the parties and the views of WHSQ) are taken into account, there is no basis for this contention, nor the supposition that for unknown reasons the respondent refused the applicant access to the Reservoir Tower simply because the respondent did not like the applicant.
Conclusion
The respondent operates a major public utility in Queensland, with critical risks referable to public health and safety. The Access Permit entitled the respondent to refuse access, not only where the applicant failed to comply with the terms of the Access Permit, but in appropriate cases for safety and operational reasons. I consider that the respondent was entitled to refuse the applicant access to the Permitted Area in response to the applicant’s requests as identified.
ISSUE 3: DO THE APPLICANT AND RESPONDENT HAVE ANY RESIDUAL RIGHTS UNDER SCHEDULE 3 TO THE ACT GIVEN THE TERMS OF THE SETTLEMENT AGREEMENT, THE ACCESS PERMIT AND SECTION 11 OF SCHEDULE 3 TO THE ACT?
Section 11 of the Sch 3 to the Telco Act provides:
11 Agreements with public utilities
(1) A carrier must make reasonable efforts to enter into an agreement with a public utility that makes provision for the manner in which the carrier will engage in an activity that is:
(a) covered by Division 2, 3 or 4; and
(b) likely to affect the operations of the utility.
(2) A carrier must comply with an agreement in force under subclause (1).
It is not contentious that the Access Permit is an agreement within the scope of s 11, or that it represented the contractual basis on which the respondent was required to allow access by the applicant to the Permitted Area.
The parties made minimal submissions in respect of the question whether either of them had residual rights under Sch 3 of the Telco Act in relation to access by the applicant to the Permitted Area.
The applicant acknowledged that it originally proposed to exercise its statutory rights in accordance with Sch 3 of the Telco Act to install its equipment on the Reservoir Tower and for that purpose served a LAAN on the respondent dated 2 May 2017. With resolution of litigation between the parties and the execution of the Access Permit however, it appears that both parties understood that any access by the applicant was from that point regulated by the Access Permit. The applicant submitted however that there were applicable residual rights under Sch 3 of the Telco Act, for example:
·The applicant is bound to act in accordance with good engineering practice, to protect the safety of persons and property; and to ensure that the activity interferes as little as practicable with the operations of a public utility: s 10 of the Sch 3 of the Telco Act; and
·By s 42 of Sch 3 of the Telco Act, if a person suffers financial loss or damage because of anything done by a carrier under Div 2, 3 or 4 in relation to any property owned by the person or any property in which the person has an interest, there is payable to the person by the carrier such reasonable amount of compensation as is agreed between the, or failing agreement as determined by a Court of competent jurisdiction.
Even if these residual rights existed however, it is not apparent how they are relevant to the present dispute between the parties.
The respondent submitted that, by operation of s 11 (2) of Sch 3, all rights of entry were restricted by the terms of the Access Permit.
In my view any right of access by the applicant was governed by the Access Permit. In this respect:
·Section 11 (2) of Sch 3 is specific in its application to agreements between carriers and public utilities. The section reflects the standing of public utilities in the provision of services to the community, and the desirability of enforceable agreements being reached between carriers and those public utilities;
·In light of the entry by the parties into the Access Permit (with which the applicant is required to comply pursuant to s 11 (2)), the only source of the applicant’s entitlement to enter the Permitted Area was the Access Permit;
·It is plain from the evidence that the applicant requested access to the Permitted Area pursuant to the terms of the Access Permit, not by LAAN addressed to the respondent pursuant to s 17 of Sch 3 to the Telco Act; and
·I accept the submission of the respondent that the decision of Kunc J in NBN Co Limited v Pipe Networks Pty Limited [2015] NSWSC 475 is of no assistance in respect of issues currently before the Court, in circumstances where the parties in NBN Co had not entered an agreement of the kind presently before the Court.
The applicant does not have a residual right of access, for inspection or installation purposes, or to engage in such activity as usage of power supplies of the respondent, under Sch 3 to the Telco Act.
ISSUE 4: HAS THE APPLICANT BREACHED THE ACCESS PERMIT?
As I have already explained, requests for access made by the applicant on 23 April 2018, 15 May 2018, 24 May 2018, 31 May 2018, 12 January 2019 and 1 July 2019 failed to comply with the Access Permit. Although there was some discussion of compliance by the applicant with cl 3.2 of the Access Agreement, in my view this clause was not relevant, because at no point in respect of installation of its equipment (being commencement of Carrier’s Works) did the applicant comply with cl 3.1 such that an obligation under cl 3.2 (a) to provide an engineering assessment to the respondent was enlivened.
ISSUE 5: HAS THE RESPONDENT BREACHED THE ACCESS PERMIT?
For reasons I have already explained – no.
ISSUE 6: IF THE RESPONDENT HAS BREACHED THE ACCESS PERMIT HAS THE APPLICANT SUFFICIENTLY COMPLIED WITH THE TERMS OF THE ACCESS PERMIT TO ENTITLE IT TO AN ORDER FOR SPECIFIC PERFORMANCE?
As Dixon J explained in JC Williamson Ltd v Lukey and Mulholland [1931] 45 CLR 282 at 297:
Specific performance, in the proper sense, is a remedy to compel the execution in specie of a contract which requires some definite thing to be done before the transaction is complete and the parties rights are settled and defined in the manner intended. Moreover, the remedy is not available unless complete relief can be given, and the contract carried into full and final execution so that the parties are put in the relation contemplated by their agreement.
Where there is a breach of a contractual promise, specific performance of the contract may be ordered where damages would be inadequate: Gageler and Gordon JJ in Price v Spoor [2021] HCA 20 at [51]; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 per Mason CJ and Wilson J at 119, Brennan J at 138, Gaudron J at 173.
In circumstances where I find that the respondent has not breached the Access Permit, it is unnecessary for me to answer the question posed by Issue 6.
CONCLUSION
The applicant has not demonstrated an entitlement to access the Permitted Area in terms of the Access Permit, or that it has been wrongfully denied access contrary to the terms of the Access Permit. The applicant is not entitled to the relief it has sought in these proceedings.
It is appropriate that costs should follow the event.
I certify that the preceding two hundred and fifty one (251) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 26 August 2021
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