Telstra Corporation Ltd v Corporation of the City of Marion No. Scciv-00-1191

[2001] SASC 350

TELSTRA CORPORATION LTD v CORPORATION OF THE
CITY OF MARION
[2001] SASC 350

Land and Valuation Division

1. DEBELLE J.          On 27 November 2001 the appellant (“Telstra”) appealed to this Court from a decision of the Environment, Resources and Development Court (“the Environment Court”) dismissing Telstra’s appeal from an enforcement notice issued by the respondent Council. The appeal was set down for hearing. It was intended that the appeal be listed with another appeal in which Telstra was the appellant, namely, Telstra Corporation Ltd v Corporation of City of Mitcham [2001] SASC 166. The appellant asked the matter not be listed and the matter was removed from the list. In the circumstances to which I will refer in a moment, Telstra has not prosecuted the appeal.

2. In the result, there are two applications before the court. The first is an application by Telstra dated 4 October 2000 in which it seeks an order that the appeal be stayed permanently and that each party bear its own costs of the appeal. The second is an application by the Council dated 16 October 2001 which seeks an order dismissing the appeal as well as an order that Telstra pay the Council’s costs of and incidental to the appeal.

3. As both applications seek orders which do not involve deciding the issues in the appeal. I deal with them exercising the power vested in a judge by Rule 95.12. It is clearly not appropriate to burden the Full Court with applications of this kind.

4. The circumstances leading to the appeal and to its being removed from the list are as follows. In late 1999 Telstra applied to the Council for development approval to construct a 25 metre tower and mobile telephone base station on certain land adjacent to the Tonsley Hotel on South Road. The application was classified by the Council as a non-complying development and was refused.

5. On 19 June 2000 Telstra commenced construction of a 10 metre tower and mobile telephone base station on the same land. It did so believing that the 10 metre tower did not constitute development and that, in any event, the construction of this tower was authorised by the Telecommunications Act 1997 and, in particular, by a determination made under that Act called Telecommunications (Low Impact Facilities) Determination 1997.

6. On 20 June the Council issued an enforcement notice pursuant to s 84 of the Development Act 1993 requiring Telstra to stop work on the ground that it was engaged in a development for which development approval had not been obtained under the Development Act. On 28 June Telstra appealed to the Environment Court against the issue of the enforcement notice. The appeal was dismissed on 6 October 2000 but the Environment Court did not make its formal order until 13 November 2000. By notice of appeal dated 27 November 2000 Telstra appealed against the order of the Environment Court. In the meantime, Telstra had instituted an appeal to the Environment Court against the refusal of the Council to approve construction of the 25 metre tower. On 6 October 2000 the Environment Court held that the construction of the 25 metre tower was not to be classified as a non-complying development and remitted the matter for further consideration by the Council. On 13 November 2000 the Council refused the application. Telstra appealed against that decision. On 23 February 2001 the Environment Court informed the parties by written memorandum that it would be prepared to allow the appeal and approve the development of the 25 metre tower. In consequence of the publication of that memorandum, Telstra asked that this appeal, which had been set down and listed for hearing, be taken out of the list on the ground that the issues had become hypothetical and, therefore, academic.

7. On 4 April 2001 the Environment Court upheld Telstra’s appeal and made orders approving the construction of the 25 metre tower. Telstra has now proceeded with the construction of that tower.

8. As this narrative indicates, Telstra instituted the appeal for the purpose of preserving its position, pending the outcome of its appeal to the Environment Court in respect of the construction of the 25 metre tower. Once it had an indication of a favourable decision, Telstra decided to ask this Court that the appeal be removed from the list. It has not prosecuted the appeal, given that it was able to proceed with the construction of the 25 metre tower.

9. Both the appellant and respondent bring their respective applications for the purpose of bringing some finality to the appeal and to resolve questions of costs which they have been unable to agree.

10. Telstra seeks a stay because it is concerned that at some later time it may wish to litigate questions arising out of the Telecommunications Act and the Telecommunications Low Impact Facilities Determination. It also has a concern that an order dismissing the appeal will create a perception among local authorities that this issue has been resolved by the court. I do not think that Telstra can press the question of perception amongst local authorities. The issues on these applications must be determined according to law. If Telstra has any concern about perceptions, it will be able to refer to these reasons.

11. I do not think it is appropriate that a permanent stay be ordered. Whilst a stay may be appropriate in other kinds of proceedings, I do not believe it is appropriate in respect of an appeal. In my view, the better course is that the appeal be dismissed for want of prosecution. Plainly, there has been a want of prosecution and there are understandable reasons for that. Telstra is not to be criticised. Instead, it is to be commended for having arranged to have the appeal taken out of the list because the issues had become academic. The fact remains that the appeal is not being prosecuted and there is no intention to prosecute. In all the circumstances, the appropriate course is to order that the appeal be dismissed. Any perception among local authorities that the dismissal of the appeal has resolved the matter would plainly be expelled by an examination of these reasons.

12. I turn to the question of costs. As the above narrative indicates, the appeal had been set down for hearing and steps had been taken to have the appeal listed with another appeal. That, of course, meant that appeal books had been prepared and a brief to Counsel had been delivered by the Council’s solicitor. The appeal was withdrawn from the list at a relatively late stage. It was open to Telstra to have acted earlier and prevented any unnecessary incurring of costs.

13. Furthermore, I do not think that an appellant can institute an appeal without incurring the risk of a liability as to costs, if the appeal is not prosecuted. The institution of the appeal puts the respondent to cost and expense.  In this case, the matter went beyond the mere institution of the appeal to the point of being set down for hearing. It was intended that the appeal be heard with another matter and at a relatively late stage it was withdrawn from the list.

14. In Boscaini Investments Pty Ltd & Ors v The Corporation of the City of Kensington and Norwood [1999] SASC 327 the court examined the issue whether costs should be ordered in respect of an application for judicial review, which had reached an advanced stage but which was ultimately not prosecuted. The relevant decisions are there examined. It was held that no order for costs should be made. Telstra relies on that decision in this instance.

15. In my view, different considerations obtain on an appeal from those which obtain in relation to an application at first instance, which does not proceed to a determination. On an appeal the parties have had the determination of a court and the respondent is entitled to the benefit of that determination. If an appeal against that determination is not prosecuted for any reason, the respondent should, as a general rule, be entitled to its costs. There are, I think, no circumstances which take this matter outside the general rule. I believe, therefore, that the appellant should pay the respondent’s costs of and incidental to the appeal, as well as the costs of and incidental to the respective applications which have been made.

16. For these reasons, there will be orders as follows:

    1.     The appeal be dismissed for want of prosecution.

    2.The appellant shall pay the respondent’s costs of and incidental to the appeal and of and incidental to the application of the appellant dated 4 October 2001 and of the application for the respondent dated 16 October 2001.