Canada Bay City Council v Optus Mobile Pty Limited

Introduction 1 The respondent, Optus Mobile Pty Limited, erected a telecommunications facility on the roof top area of an existing building at No. 97 Majors Bay Road, Concord ("the subject site"). The respondent did not lodge a development application prior to installing this facility. The applicant, Canada Bay City Council ("the council"), claims that development consent was required for the installation of the facility. Background 2 The respondent is a carrier within the meaning of the Telecommunications Act 1997 (Cth) ("the Telco Act"). That Act enables a carrier to install certain telecommunications facilities. To the extent that the Telco Act is inconsistent with the Environmental Planning and Assessment Act 1979 (NSW) ("the EP&A Act") the former prevails (s 109 of the Commonwealth of Australia Constitution Act 1900 (Imp)). 3 Section 484 of the Telco Act gives effect to Sch 3 of that Act. Clause 6(1)(b) to Sch 3 of the Telco Act states: ( 1) A carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if: … (b) the facility is a low-impact facility (as defined by subclause (3)); … 4 Under cl 6(3) to Sch 3 of the Telco Act, the Minister may, by written instrument, determine that a specified facility is a low-impact facility. Pursuant to that subclause, the Minister for Communications and the Arts made the Telecommunications (Low-Impact Facilities) Determination 1997 ("the Low Impact Facilities Determination"). Part 3, s 3.1 of the Low Impact Facilities Determination states: (1) A facility described in column 2 of an item in the Schedule is a low-impact facility only if it is installed, or to be installed, in an area mentioned in column 3 of the item. (2) However, the facility is not a low-impact facility if the area is also an area of environmental significance. 5 An area of environmental significance was initially defined in s 2.5(7) of the Low Impact Facilities Determination as follows: An area is an area of environmental significance if it is registered under a law of a State or a Territory relating to heritage conservation. 6 That section was subsequently amended on 12 August 1999 under the Telecommunications (Low Impact Facilities) Determination 1997 (Amendment No. 1 of 1999). Section 2.5(7) of the Low Impact Facilities Determination currently states: An area is an area of environmental significance if, under a law of the Commonwealth, a State or a Territory, it consists of a place, building or thing that is entered in a register relating to heritage conservation. 7 The fundamental issue in this case is whether the facility has been installed on a building or in a place that has been validly entered in a register relating to heritage conservation and hence would not qualify as a low impact facility, in which case development consent was required. The relevant facts 8 The subject site is part of the Majors Bay Road special character area under the Concord Local Environmental Plan No. 103 (Heritage) ("the Heritage LEP"). In determining a development application for development in a special character area, the council must consider, among other things, the measures proposed to conserve the heritage character of the area. The Statement of Significance in the "Concord Heritage Study Review: Majors Bay Road" is as follows: Notable neighbourhood commercial centre in Central Concord, associated with the area's major development in the Inter-War period. Despite some loss of integrity a fine period streetscape persists. These include rows of tow-storey [sic] commercial buildings, stepping with the slope, as well as a number of buildings of individual interest. 9 As early as 21 November 2002, the respondent investigated the subject site as a potential location for the installation of its telecommunications facility. On 16 May 2003, the council became aware of the respondent's plans when the respondent submitted a community consultation plan to the council. The respondent formally notified Councillor Woods of its intention to construct the facility in a letter dated 25 June 2003. The council responded to this letter on 15 July 2003 indicating its objection to the facility. The respondent subsequently conducted community consultation concerning the site and notified council of the results in due course. On 18 November 2003, the council adopted the City of Canada Bay Council Telecommunications and Radiocommunications Development Control Plan ("the DCP"), which came into effect on 3 December 2003. 10 On 3 February 2004, the respondent lodged a report with the council entitled "Optus Mobile Pty Ltd: Low Impact Classification Report: Site Address 97 Majors Bay Road". Mr Patrick Robinson, Manager of Assessments and Regulatory Services at the council, sent a letter in reply to the respondent's consultants, Connell Wagner, on 5 February 2004. That letter stated: Council considers Concord LEP No 103 (Heritage) to have been made under a law of the State, being the Environmental Planning and Assessment Act 1979 . Accordingly, the proposal requires a Development Application (DA) to be lodged for Council's determination. A DA form is attached for your convenience. 11 In response the respondent sent a letter advising the council that the subject site was not listed on the LEP Heritage Register. On 16 February 2004 the council sent a letter to Connell Wagner requesting work to cease for a week to enable it to seek advice. The council subsequently sought advice from its solicitors. On 20 February 2004, Ms Intan Aziz, a town planner employed by the council, acted upon Mr Robinson's instructions in preparing a report entitled "Potential Heritage Items - Majors Bay Road Special Character Area" for the Mayor and General Manager of the council. That report recommended the listing of Nos. 21-103 Majors Bay Road and Nos. 34-114 Majors Bay Road on the council's register of potential heritage items in accordance with cl 22 of the Heritage LEP. Mr Robinson endorsed this recommendation and stated in his affidavit his reasons for doing so: Whilst the respondent's notification in relation to the facility at 97 Majors Bay Road, Concord raised the concern of proliferation of this type of development in a Special Character Area, I was concerned with the general character of the area and the impact of this type of development on the subject property and those surrounding it. It was for this reason that I endorsed the recommendation made to the Mayor and the General Manager in the report of 20 February 2004, in good faith, taking into consideration the need to protect those properties collectively, whilst an assessment of their individual heritage significance is undertaken in accordance with the Heritage LEP. 12 Under cross-examination, Mr Robinson indicated that in considering the subject site to be a potential heritage item he had regard to the impact of the scale, form and contribution of the building to the general character of the streetscape and noted that the contribution of the group of buildings upon the streetscape could constitute a heritage item. Additionally, Mr Robinson stated that he viewed the Majors Bay area as a precinct of special character and importance that needed to be studied to review the implications of the proliferation of telecommunications facilities in that area. 13 Clause 22 of the Heritage LEP provides for the creation of a register of potential heritage items and states: Register of potential heritage items (1) The Council may list potential heritage items on a register held in the office of the Council. (2) Having listed a potential heritage item on the register, the Council: (a) must immediately cause notice of that fact to be given to the owner of the land on which the item is situated, and (b) within 12 months after it is listed, must make an assessment of the heritage significance of the item and, if its heritage significance is confirmed, take steps to cause a local environmental plan to be made for the purpose of including the item in Schedule 1 and on the heritage map. (3) An item listed on the register under this clause ceases to be a potential heritage item at the end of 12 months after it is listed in the register. …. 14 On 20 February 2004, the Mayor and the General Manager of the council passed a resolution ("the February resolution") purporting to list the properties known as Nos. 21-103 Majors Bay Road and Nos. 34-114 Majors Bay Road, Concord on its register of potential heritage items. The February resolution states: The General Manager and The Mayor acting under authority delegated by the Council at its meeting of 9 December 2003, pursuant to S378 [sic] of the Local Government Act, 1993, having considered the report dated 20 February 2004 in respect of Potential Heritage Items - Majors Bay Road Special Character Area, in accordance with the relevant provisions of the Environmental Planning and Assessment Act, 1979 , resolved that the report be adopted as recommended. 15 The previous resolution of 9 December 2004 ("the December resolution") states: ADDITIONAL ITEM: DELEGATIONS - CHRISTMAS/NEW YEAR RECESS That authority be delegated to the General Manager to act in consultation with the Mayor, or in their absence, the persons acting in these roles, to determine those matters which cannot be held over until the first scheduled meeting for Council in 2004. Such authority does not include those matters specifically listed in Section 377 of the Local Government Act, 1993. 16 That resolution expired when the first scheduled meeting of the council took place on 3 February 2004. On 15 September 2004, the council passed a resolution acknowledging that the reference to the delegated authority in the February resolution was an error and that the mayor relied upon his general decision making authority, delegated on 20 November 2001. In particular the mayor relies on paragraph 3.C.1 of the general delegation, which states: Subject to the limitations contained in Sections 377 and 379 of the Local Government Act 1993 and subject to all the other provisions of that Act and any other Act, Statute, regulation, by-law, ordinance or rules pursuant to which functions are conferred upon Council to deal with and finalise such matters as the Mayor in his or her wisdom may consider it wisest and most expedient to deal with PROVIDED ALWAYS that such matters have not been otherwise delegated by Council. 17 By letter dated 23 February 2004, the council advised the respondent that the subject site had been listed on the council's register of potential heritage items. Mr Desmond Brady, a town planner and principal of Connell Wagner, stated in his affidavit that he subsequently made investigations in relation to the register: he spoke with duty planners and a town planner on various occasions, all of whom were not aware of the register. On 24 February 2004, Mr Brady telephoned the council's duty planner who informed him that they had not heard of the register. A file note prepared by Mr Phil Taylor, an employee of Connell Wagner, states that on 1 March 2004, Ms Aimee Lee, a town planner of the council, informed him that the subject site was not listed on any register. Mr Brady searched the council's minutes of meetings on the internet and found no mention of the register in the meetings between 11 February and 8 June 2004. On 21 July 2004, Mr Brady had telephone conversations with another two duty planners employed by the council, both of whom informed him that they were not aware of the register. 18 On 30 June 2004, a planning certificate was issued under s 149 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in relation to the subject site but it omitted information relating to the listing of the site on the register. On 22 July 2004, the respondent's solicitors advised the council's solicitors that it did not believe the subject site was listed on a heritage register. On 26 July 2004, the council's solicitors advised the respondent's solicitors that the listing had been omitted from the planning certificate. On the same day a replacement planning certificate was issued which included information on the properties in the Majors Bay Road special character area that were listed on the register. Also on the same day, Ms Aziz created a document entitled "Register of Potential Heritage Items", in which the subject site was listed. On 27 August 2004, the respondent completed installation of the facility on the subject site. On 15 September 2004, council sent a letter to Ms Teresa Simonetti and Mr Salvatore Simonetti, the owners of the subject site, advising them of council's resolution of 20 February 2004 listing the property on the register. The council sent a replacement planning certificate to Connell Wagner on 16 September 2004. Questions for Determination 19 I invited the parties to identify the issues, that is, the questions which the Court is asked to determine. As I understand it, the following questions were identified: (i) Did the mayor have the power to make the resolution? (ii) Was that power exercised for an improper purpose? (iii) Were irrelevant considerations taken into account? (iv) Was the decision manifestly unreasonable? (v) Are the subject premises registered under a law of a State relating to heritage conservation? (vi) Discretionary considerations. 20 I shall consider those questions in turn. Consideration Did the mayor have power to make the resolution? 21 Mr T S Hale SC, the respondent's senior counsel, submits that the mayor did not have power to make the resolution because any delegation under the resolution of 9 December 2003 had expired. The council conceded the expiry of that resolution. Alternatively, however, the council relies upon the general delegation of 20 November 2001. Under s 377 of the LG Act, the council has power to delegate functions of the council by resolution to the general manager or any other person or body. By resolution dated 21 November 2001, the council delegated power to the mayor to deal with and finalise any such matters which the mayor in his wisdom, considers it wisest and most expedient to deal with. This delegation is subject to ss 377 and 379 of the LG Act which limit delegation of non-delegable functions and regulatory functions, respectively. The function of listing properties on a register of potential heritage items does not fall within any of the functions listed in ss 377 and 379 of the LG Act as being non-delegable. 22 The terms of the delegation to the mayor, which I have previously noted, are relevant: Subject to the limitations contained in Sections 377 and 379 of the Local Government Act 1993 and subject to all the other provisions of that Act and any other Act, Statute, regulation, by-law, ordinance or rules pursuant to which functions are conferred upon Council to deal with and finalise such matters as the Mayor in his or her wisdom may consider it wisest and most expedient to deal with PROVIDED ALWAYS that such matters have not been otherwise delegated by Council. 23 There is no evidence before the Court to show that there is any relevant exception to the delegation. Mr Hale submits that the council bears the additional onus of proving that there is no relevant exception. I do not agree. The council having established the making of the resolution granting the general delegation to the mayor, the Court can only proceed upon that evidence: that is, on balance of probabilities it must be concluded that the mayor had delegated power by which to pass the February resolution. 24 Mr Hale submits that it can be inferred from the manner in which the resolution of 20 February 2004 was made, that the mayor did not consider that he had any delegation other than that under the December resolution. For that reason, Mr Hale submits that the mayor cannot rely on the general delegation: in passing the resolution, the mayor purported to act under the December resolution. Although the February resolution incorrectly identified the December resolution as the mayor's source of power, this does not invalidate the mayor's exercise of power. In Cowra v Minister for Urban Affairs and Planning (2001) 113 LGERA 399, I stated (at 404): A mistake in the source of power does not invalidate the exercise of power, provided any alternative source of power is available. I extensively discussed the ability to rely upon an available source of power in Holster v Director-General National Parks and Wildlife [1999] NSWLEC 102 at [86]-[111]. In Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 it was accepted by Cole JA (at 85-89), with whom Handley JA (at 36) and Sheller JA (at 98) agreed, that it is a clear law that a mistake in the source of power works no invalidity. Validity depends simply on whether a relevant power existed. 25 In this instance, a relevant power did exist, namely the general delegated authority under the resolution of 21 November 2001. The mayor is able to rely upon this power as an alternative and proper source of power. I am thus satisfied that the mayor had the power to make the February resolution listing the subject site on the register of potential heritage items. Was that power exercised for an improper purpose? 26 Mr Hale submits that the council exercised its power for an improper purpose, namely to circumvent the effect of Sch 3 cl 6(1)(b) of the Telco Act. In addition, Mr Hale submits that the council listed the site on the register to stop the proliferation of telecommunications facilities in the special character area and to thereby circumvent the intent of the Telco Act. 27 The respondent bears the onus of establishing that the council acted for an improper purpose: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649. The leading case in New South Wales on improper purpose is Thompson v Randwick Corporation (1950) 81 CLR 87, which concerned the resumption of land under a scheme passed by a council resolution. In that case, the High Court held that the council resumed more land than was required for the purposes of constructing a road, and in doing so, acted substantially for the purpose of obtaining profit from the resale of the unused land. In reaching this conclusion, Williams, Webb and Kitto JJ formulated the following test (at 105-106): In our opinion, for the reasons already stated, the Local Government Act does not authorize the defendant Council to implement the scheme approved of at the meeting of 20th January 1948. If it does, we are of opinion that the Council, in attempting to resume more land than is required to construct the road, is not acting in good faith. By that we do not mean that the Council is acting dishonestly. All that we mean is that the Council is not exercising its powers for the purposes for which they were granted but for what is in law an ulterior purpose. It is not necessary that this ulterior purpose be the sole purpose. ….. But in our opinion it is still an abuse of the Council's powers if such a purpose is a substantial purpose in the sense that no attempt would have been made to resume this land if it had not been desired to reduce the cost of the new road by the profit arising from its re-sale. 28 In applying that test to this case, the respondent must show that circumvention of the exemptions under the Telco Act was a substantial purpose of the council, in that the listing of the subject site on the register would not have occurred but for that purpose. 29 In Warringah Shire Council v Pittwater Provisional Council (1992) 27 NSWLR 491, Kirby P set out the following principles for determining whether a council has acted for an improper purpose (at 508-509): · a local government authority has wide powers and those powers must be construed in the context of the statutory scheme granting them and the council's duty to its ratepayers; · the council must exercise those powers for the purposes they have been given; · good general intentions or misguided philanthropy will not validate an exercise of power for an improper purpose; · the test is whether the improper purpose was a substantial purpose such that the decision-maker would not have exercised that power but for that purpose. 30 In determining whether a material purpose of the council was to circumvent the Telco Act, I must first consider the statutory scheme under which the council purported to act. 31 Clause 22 of the Heritage LEP provides that the council may list potential heritage items on a register. The Heritage LEP was made pursuant to s 24 of the EP&A Act. Section 26(1) of that Act sets out what may be included in a local environmental plan: (1) Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following: (a) protecting, improving or utilising, to the best advantage, the environment, (b) controlling (whether by the imposing of development standards or otherwise) development, …. 32 Section 25 of the EP&A Act requires a local environmental plan to state the aims, objectives, policies and strategies whereby the plan is designed to achieve the objects of the EP&A Act. The objects are set out in s 5 of the EP&A Act as follows: ( 5) The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, town and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and co-ordination of the orderly and economic use and development of land; (iii) the protection, provision and co-ordination of communication and utility services; (iv) the provision of land for public purposes; (v) the provision and co-ordination of community services and facilities; and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats; and (vii) ecologically sustainable development; and (viii) the provision and maintenance of affordable housing; and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State; and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment. 33 Clause 2 of the Heritage LEP contains the plan's aims and objectives and states: The aims, objectives, policies and strategies of this plan are as follows: (a) to integrate heritage conservation objectives into the planning and development control processes that apply within the Concord local government area, (b) to recognise the special heritage significance and character of those precincts that were established in the Concord local government area during the nineteenth and early twentieth centuries, (c) to maintain the Mid and Late Victorian, Federation and Inter-War character of the Concord local government area, (d) to provide for public involvement in the conservation of environmental heritage, (e) to identify heritage items and areas having priority for conservation, (f) to ensure that development does not adversely affect the heritage significance of heritage items, heritage conservation areas, special character areas and their settings. 34 The subject site is also part of the Majors Bay Road special character area. The significance of this area can be ascertained by reference to cl 12 of the Heritage LEP: (1) This clause applies to development for which development consent is required by this or any other environmental planning instrument. (2) When determining a development application for development in a special character area, the consent authority must make an assessment of the extent to which the carrying out of the development could adversely affect the character of the area. (3) For the purposes of subclause (2), the consent authority must consider: (a) the proportion of any surviving early fabric to be retained, (b) the measures proposed to conserve the heritage character of the area, (c) the design, form, size, height, bulk, scale, setback, style, colours and materials of any building, (d) the pitch, form, construction and shadowing effect of any verandah, balcony or porch, (e) the style, size, proportion and position of any window or door openings, (f) the colour, texture, style, size and type of finish of any external materials, (g) the appropriateness of any proposed fencing, (h) the amount of landscaping to be provided and the quality of that landscaping, (i) the extent to which the carrying out of the development could adversely affect an historic subdivision pattern, and (j) any other matters specified in any guidelines adopted by the Council. 35 The proposed construction of a telecommunications facility by the respondent may have acted as a catalyst for the council to list the Majors Bay Road properties on the register. I am not satisfied, however, that the council would not have listed the properties on the register but for the proposed development by the respondent. The subject site was already part of the Majors Bay Road special character area. The council's heritage study review stated that the area was a major development in the inter-war period and contains a "fine period streetscape". When determining a development application for a property in the special character area, the council is required to consider the measures to conserve the heritage character of the area. As such, the Heritage LEP contemplates that a special character area may have heritage significance. Moreover, Mr Robinson said in his evidence that he had regard to the scale, form and contribution of the subject site to the Majors Bay precinct of which it forms a part. 36 Mr Hale submits that the council cannot list an item as a potential heritage item unless it forms the view that is has a level of heritage significance at such a level that it is capable of being included as a heritage item after further assessment. Mr Hale submits that the council made no assessment of the potential heritage significance of the subject site and further argues that matters of form, scale and contribution to streetscape do not relate to the heritage significance of the item, but rather relate to the special character area under cl 12 of the Heritage LEP. Clause 22(1) of the Heritage LEP states that a council may list a property on the register. Clause 22(2) of the Heritage LEP expressly contemplates that any assessment of the property will take place in the period of 12 months after the property has been listed on the register. At the end of this period the decision-maker must be satisfied of the heritage significance of the listed property in determining whether to allow the listing to lapse or to take steps to cause a local environmental plan to be made for the purpose of including the item in Sch 1 to the Heritage LEP and on the heritage map. The Heritage LEP did not require the council to make any preliminary assessment of the site prior to listing it on the register. Neither was the council required to assess the heritage significance of the subject site under cl 10 of the Heritage LEP at that stage. If the council fails to prepare an assessment report by 20 February 2005, the listing will lapse, and the exemptions under the Telco Act will apply. The subsequent conduct of the council, including the delay in creating the physical register and notifying the owners of the subject site, and the initial omission of the register from the s 149 certificate, does not alter the validity of its decision to list the subject site on the register. 37 In any event, the council had already conducted a heritage study review on the Majors Bay Road special character area (on 25 February 1999) and Mr Robinson was already familiar with the area. Moreover, the objects of the Heritage LEP specifically mention the aims of identifying heritage items and areas and ensuring that development does not adversely affect the heritage significance of those areas. 38 In seeking to demonstrate the improper purpose behind council's conduct, Mr Hale submits that the subject site is obviously not a potential heritage item and does not fall within the definition of heritage items under the Heritage LEP. Additionally, he submits that the group of properties on Majors Bay Road, of which the subject property is a part, does not satisfy the definition either. 39 Clause 6 of the Heritage LEP states: heritage item means a building, work, relic, tree or place (which may or may not be situated within a heritage conservation area) identified in Schedule 1 and situated on land shown coloured orange or dark green on the heritage map, and includes: (a) any archaeological site, and (b) any potential heritage item described in a register kept in accordance with clause 22. 40 As I mentioned earlier, it was not necessary for the council to make any assessment of the subject property before listing it on the register of potential heritage items. The subject property could fall within the definition as a building. Whether it becomes a heritage item is a matter to be determined after the assessment has been carried out. The subject property was listed on the register as part of a group of properties. In particular, Mr Robinson had regard to the subject property as part of the Majors Bay Road special character area and the group of properties therein. This group of properties could be considered as a "place" under the definition of heritage item. The word place has a broad meaning as evidenced by the Macquarie Dictionary (3rd ed.), which relevantly states: place … 1. a particular portion of space, of definite or indefinite extent. .. 3. the portion of space occupied by anything. .. 11. a short street, a court, etc.: Martin Place . .. 17. a region. .. 19. an area, especially one regarded as an entity and identifiable by name, used for habitation, as a city, town, or village. 20. a building. 22. a. a residence, dwelling, or house. b. a property (def. 3) comprising land, buildings, residence, etc. … 41 Both the subject site and the group of Majors Bay Road properties could fall within these definitions. For these reasons I am not satisfied that the consideration of the subject site alone or in the context of the Majors Bay Road special character area as a potential heritage item necessarily amounts to an improper purpose. 42 I am thus not satisfied that the council acted for an improper purpose in resolving to place two groups of properties from the Majors Bay Road special character area in a register of potential heritage items. By doing so, the council set in motion the procedure by which the properties could be properly assessed for heritage significance. This is a course of action that the council could have embarked on at any time, regardless of the respondent's proposed installation, albeit at a later date. The council's conduct was in accordance with the objectives of the Heritage LEP and the EP&A Act and was consistent with the council's powers under cl 22 of the Heritage LEP. Any purpose of the council to circumvent the exemptions under the Telco Act in listing the subject site on the register was not a substantial purpose, but was, it seems, incidental to the objective of preserving the special character area and its potential heritage significance. I am not satisfied that the respondent has provided sufficient evidence to establish such an improper purpose. I am not satisfied, therefore, that the council acted for an improper purpose. 43 Mr Hale did not advance any submissions in support of a separate ground of bad faith. In any event that has already been considered as part of my finding on the allegation of improper purpose. Mr Hale also submitted that the council took irrelevant considerations into account and that the decision was manifestly unreasonable. I consider these submissions in turn. Did the decision-maker take irrelevant considerations into account? 44 The respondent submits that the council took into consideration the circumvention of the exemptions under the Telco Act in reaching its decision and thus took an irrelevant consideration into account. 45 The principles concerning relevant and irrelevant considerations, set out by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-42, may be summarised as follows: · where a statute confers an unconfined discretion on the decision-maker, the matters that may be taken into account will only be confined by an implied limitation in the subject-matter, scope and purpose of the statute; · where an irrelevant consideration has been taken into account and is so insignificant that it could not have materially affected the decision, the court should not set the decision aside nor require the discretion be re-exercised according to law; · the court has a limited role in reviewing administrative decisions and must not substitute its own decision for that of the decision-maker. Rather, the court is to identify the limits on the decision-maker's discretion. 46 Having regard to the subject matter, scope and purpose of the EP&A Act and the Heritage LEP, it is at least arguable that the consideration of circumventing the exemptions in the Telco Act would be an irrelevant consideration. The respondent has not, however, adduced evidence to establish that this was a substantial consideration which the mayor took into account in making the February resolution, or that it was a substantial motivation behind the mayor's conduct. Although the Court may have regard also to the report prepared by Ms Azis and the conduct of Mr Robinson, I am not satisfied that the respondent has shown that either of those persons took the circumvention of the Telco Act into account in recommending that the subject site be listed in the register together with other properties in the Majors Bay Road area. Even if the erection of the respondent's proposed facility was taken into account by the decision-maker this does not necessarily imply that the council had regard to the circumvention of the Telco Act as a substantial purpose in resolving to list the property on the register. 47 Moreover, although Mr Hale was critical of the merits of the decision, it is not the role of this Court to exceed its supervisory role by reviewing the merits of the decision. In considering the statutory scheme under which the decision was made, the evidence does not go so far as to satisfy me that the mayor and the council officers took into account considerations that were irrelevant to the listing of the property on the register. 48 This conclusion is based on an assumption that circumventing the Telco Act is an irrelevant consideration. This may not, however, be a correct assumption in the circumstances where the object is to ensure that the erection of any structure in a special character area or in an area of potential heritage significance must be first assessed in the light of its impact upon such an area. The circumvention of the Telco Act may be a valid consideration if it has the consequence of achieving that object. Was the decision manifestly unreasonable? 49 Mr Hale submits that the decision to list the subject site on the register was manifestly unreasonable because the building was not a potential heritage item. I have already considered this argument in paras [38]-[41] above. Mr Hale also submits that the decision was manifestly unreasonable due to the process by which the decision was reached and the applicant's failure to undertake any property inquiry or assessment. 50 The commonly accepted test is that a decision will be manifestly unreasonable where it can be shown that the decision was so unreasonable that no reasonable person could have come to it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234. As mentioned earlier, cl 22(2)(b) of the Heritage LEP contemplates an assessment of the subject site after the listing of the site on the register. This is a purely administrative function. A preliminary heritage assessment need not be made, neither does the decision-maker need to form an opinion in relation to the properties listed. The mayor resolved to list the subject site on the register in accordance with a recommendation contained in a report on the Majors Bay Road area. The area listed also forms part of a special character area under the Heritage LEP and had previously been identified in the Concord Heritage Study Review on 25 February 1999 for its "fine period streetscape" and its association with the area's development in the inter-war period. In these circumstances, the mayor's decision could not be described as so unreasonable that no reasonable person could have come to it. 51 Mr Hale also submits that the decision was manifestly unreasonable due to the discriminatory manner in which cl 22 was exercised against the proliferation of telecommunications facilities in the Concord local government area, by circumventing the exemptions provided under the Telco Act. Mr Hale relies on Bayside City Council v Telstra Corporation Ltd (2004) 78 ALJR 704. That case involved local authorities imposing charges on telecommunications carriers in relation to the installation and use of cabling. Other service providers, such as rail, road and electricity providers, were not subject to this charge. The High Court held that the charge amounted to discrimination under cl 44 of the Telco Act. The decision in that case cannot, however, be applied to the current circumstances. The council has not sought to place a greater burden on telecommunications providers than upon others. Any person or entity seeking to carry out development that requires consent on the subject site must lodge a development application. In considering the development application the council must have regard to the matters listed in cl 10 of the Heritage LEP, regardless of whether the development is for telecommunications or for some other purpose. Mr Hale also relies on National Trust of Australia (Vic) v Australian Temperance and General Mutual Life Assurance Society Ltd [1976] VR 592, where the council exercised its power to make an interim development order to prohibit any use or development on particular land. That case cannot be applied to the current circumstances. The listing of the subject site on the register does not prohibit development but merely requires the lodging of a development application. Neither of those cases supports the submission that the decision of the mayor was manifestly unreasonable. Is the subject site registered under a law of a State relating to heritage conservation? 52 Mr Hale submits that the register upon which the subject site is listed is not a register within s 2.5(7) of the Low Impact Facilities Determination for various reasons. Firstly, Mr Hale contends that the document itself is not sufficient to constitute a register and that it must be electronically recorded. In particular, Mr Hale points to the requirements for councils relating to registers of development consents under s 100 of the EP&A Act and cll 264-268 of the Environmental Planning and Assessment Regulation 2000 ("the EP&A Regulation") and notes that under cl 22 of the Heritage LEP only the owners of the subject property have been notified of the register. Mr Hale submits that greater recording requirements are necessary since the listing of the item on the register could significantly affect the development potential of the properties listed due to the additional assessment criteria that apply under cl 10 of the Heritage LEP. 53 I cannot accept this submission. The register is a single page document listing the following properties: 21-103 Majors Bay Road, Concord (Council resolution 20 February 2004) 34-114 Majors Bay Road, Concord (Council resolution 20 February 2004) 12-24 Leicester Avenue, Strathfield (Council resolution 6 July 2004) 28 Leicester Avenue, Strathfield (Council resolution 6 July 2004) 54 A documentary computer record in evidence indicates that the register was in existence as at 26 July 2004. Mr Brady of Connell Wagner gave evidence of difficulty in obtaining information about the register and in inspecting the document. Mr Robinson, however, stated that this was due to an administrative error by council staff, which has since been rectified. Regardless of those events, it is clear that the register was in existence at the time the respondent commenced and completed installation of the facility on the subject site. Neither the EP&A Act nor the Heritage LEP prescribe any requirements for the form or manner in which the register must be held. The register is not a register of development consents and is, therefore, not subject to the requirements under s 100 of the EP&A Act and cl 264 of the EP&A Regulation. The term "register" is not defined in either the EP&A Act or the Heritage LEP. Therefore, the ordinary meaning of that term applies. The Macquarie Dictionary (3rd ed.) defines "register" as: register … 1. a book in which entries of acts, occurrences, names, or the like are made for record. 2. any list of such entries; a record of acts, occurrences, etc. 3. An entry in such a book, record, or list. … 55 The document entitled "Register of Potential Heritage Items" clearly falls within that definition as a list of properties made for record. I am satisfied that the document tendered constitutes a register for the purposes of cl 22 of the Heritage LEP and s 2.5(7) of the Low Impact Facilities Determination. 56 Secondly, Mr Hale submits that the register is not a register made under the law of a State, but is instead an administrative act carried out under the executive arm of government. Additionally, Mr Hale submits that "register" is limited only to those registers created under statute. As previously noted, s 2.5(7) of the Low Impact Facilities Determination states: An area is an area of environmental significance if, under a law of the Commonwealth, a State or a Territory, it consists of a place, building or thing that is entered in a register relating to heritage conservation. 57 This paragraph amended an earlier definition of "area of environmental significance". An explanatory memorandum accompanied the amendment. Section 15AA of the Acts Interpretation Act 1901 (Cth) states: In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. 58 Section 15AB of the Acts Interpretation Act states that extrinsic material may be considered in the interpretation of an Act. Those sections apply to the Telco Act but not to the Low Impact Facilities Determination. Nevertheless, the same approach may be taken to the interpretation of a delegated statutory instrument as to the interpretation of the statute itself, as acknowledged by Drummond, Cooper and Finkelstein JJ in Whittaker v Comcare (1998) 86 FCR 532 at 543. Therefore, it is appropriate to consider the explanatory memorandum for the purpose of construing s 2.5(7) of the Low Impact Facilities Determination. The Explanatory Statement to the Telecommunications (Low-Impact Facilities) Determination 1997 (Amendment No. 1 of 1999) relevantly states: Subsection 2.5(7) The reference to an area registered under a law relating to heritage conservation in the current Determination has been interpreted in its broadest sense to mean all areas of heritage conservation value. It is the intention of the Determination to exempt places, building or things entered on a heritage register under Commonwealth, State or Territory laws (which includes interim registers and planning schemes subordinate to those laws) from installation of low-impact facilities. This amendment clarifies this intent through specification of the meaning of the word ' register '. 59 Clearly, the explanatory statement expressly states that the intention is to include registers made under environmental planning instruments, including interim registers, as registers within the definition of an area of environmental significance. Mr Hale conceded that a law of the State must include an environmental planning instrument made under the EP&A Act. Therefore, the council's register of potential heritage items, established under the Heritage LEP, constitutes a register under a law of the State. Although the creation of the register is an administrative act, both the register itself, and the act of listing properties in it, satisfies the description within s 2.5(7) of the Low Impact Facilities Determination. Therefore, the respondent's second submission cannot be accepted. 60 Thirdly, Mr Hale submits that since the register relates only to potential heritage items and only lists properties for a 12-month period, it is not a register relating to heritage conservation. Having regard to the explanatory statement, it is clear that the draftspersons intended s 2.5(7) of the Low Impact Facilities Determination to include interim registers. The council's register lists properties for a 12-month period and thus constitutes an interim register. Additionally, the objects of the Heritage LEP demonstrate that the register relates to heritage conservation in that it seeks to (1) identify heritage items and areas having priority for conservation; and (2) ensure that development does not adversely affect the heritage significance of heritage items, heritage conservation areas, special character areas and their settings. The register serves these objectives by setting in motion the process by which properties may be assessed for their heritage significance, affording them interim protection whilst this assessment takes place. 61 I conclude, therefore, that the council's register of potential heritage items falls within the description in s 2.5(7) of the Low-Impact Facilities Determination. Therefore, the subject site constitutes an area of environmental significance. Under Part 3, s 3.1 of the Low Impact Facilities Determination, a facility will not be a low-impact facility if it is installed in an area of environmental significance. Therefore, the respondent is not afforded the immunities and powers under Sch 3 of the Telco Act and the New South Wales planning regime applies. 62 This conclusion means that it is not necessary to consider the applicant's further submission that the use of the facility is not covered by the exemptions under the Telco Act. Breach of the EP&A Act 63 Development consent is required for development for the purpose of a telecommunications facility under Part III, cl 23 of the Concord Planning Scheme Ordinance. The respondent installed the facility without first obtaining development consent. Therefore, the respondent is in breach of s 76A(1) of the EP&A Act which states: If an environmental planning instrument provides that a specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. Exercise of the Court's discretion 64 Mr Hale submits that as a matter of discretion, the Court should not make the orders sought by the applicant as there is no adverse environmental impact, the facility has already been installed, and on account of the council's conduct. 65 Section 124(1) of the EP&A Act gives the Court power to make such orders as it thinks fit to remedy of restrain a breach of the Act, where it is satisfied that a breach has been committed. In particular, Mr Hale submits that orders should be made in accordance with s 124(3) of the EP&A Act, which states: (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. 66 In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341, Kirby P helpfully sets out the considerations to be applied in the exercise of the court's discretion. Those considerations, relevantly summarised, include: · whether the breach is purely technical; · any delay by the applicant in bringing the action; · that the breach may be shown to have a beneficial effect; · that the restraint sought is the enforcement of a public duty imposed by statute in which there is a public interest in the orderly development and use of the environment; · that the obvious purpose of the EP&A Act is that the integrated and co-ordinated nature of planning law will be upheld and that those involved in the development and use of the environment will comply with the planning law; · that an unjust result may be avoided by postponing the effect of injunctive relief. 67 The breach in this instance is not a mere technicality. Neither has there been any delay in the applicant bringing proceedings in this Court. The respondent did not contend that there was any beneficial effect arising from the installation of the facility. The respondent submits that there is no adverse environmental impact from the facility and notes that the facility has already been installed. Since the installation has not been the subject of a development application, however, the council has not had the opportunity to assess the facility to determine whether there is any adverse environmental impact. 68 A breach of the planning laws has occurred in that the respondent failed to apply for and obtain development consent for its facility. The respondent conducted investigations into the existence of the register, and although there were some initial doubts as to its existence, it was aware of the listing of the subject site on the register prior to installing the facility. Although the respondent has complied with all the relevant Commonwealth codes and has conducted community consultation, this does not alter its disregard for the planning laws of the State. Development on land which is prohibited by an environmental planning instrument without consent should not be permitted to continue in the absence of such consent. As Kirby P noted in Sedevcic (at 340), if unlawful exceptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the EP&A Act could be undermined; and a sense of inequity could then be felt by those who complied with the requirements of the Act. In these circumstances, it is appropriate for the Court to make orders to restrain the continuance of the breach. Since the facility has already been installed, however, it is appropriate in accordance with s 124(3) of the EP&A Act for the Court to adjourn proceedings as requested by Mr Hale to allow the respondent to lodge a development application and seek to obtain development consent for the facility. In the interim the respondent must cease the operation of the facility, including the transmission of telecommunications signals from the facility, unless or until such time as it obtains development consent from the council. Orders 69 The formal orders of the Court are: (1) The proceedings are adjourned to Friday, 4 March 2005 for mention at 9:30 am to enable the respondent to make a development application under Pt 4 of the Environmental Planning and Assessment Act 1979 and for such development application to be considered and determined. (2) The respondent cease the transmission of telecommunications signals from the facility installed at No. 97 Majors Bay Road, Concord until further order. (3) The question of costs is reserved. (4) The exhibits may be returned. I hereby certify that the preceding 69 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.