CORP CITY OF MARION v NETWORK DESIGN & CONSTR LTD No. SCGRG-00-403 [2000] SASC 185

OLSSON J: I have had the advantage of reading, in draft, the reasons published by Gray J in this matter.

I agree both with his reasoning and also the conclusion to which he has come.

WICKS J I agree with the order proposed by Gray J for the reasons he gives. I have nothing to add.

GRAY J: Network Design and Construction ("Network Design") has designed for One Tel, a cellular mobile system which it has described as a telecommunications facility. It proposes to construct the facility at Majors Road, O'Halloran Hill and has lodged a development application with the City of Marion. The site is within the Hills Face Zone as set out in the Development Plan for the City of Marion ("the Development Plan").

The question to be decided on this appeal is whether the facility the subject of the development application is a Transmitting Station and hence a non complying development in the Marion Council area.

The Development Plan specifies objectives and principles of development control for the Hills Face Zone. The objectives include:-

"A zone in which the natural character is preserved and enhanced or in which a natural character is re-established in order to: (a) provide a natural backdrop to the Adelaide plains and a contrast to the urban area; ... A zone accommodating low-intensity agricultural activities and public/private open space and one where structures are located and designed in such a way as to: (a) preserve and enhance the natural character or assist in the re-establishment of a natural character in the zone; (b) limit the visual intrusion of development in the zone, particularly when viewed from roads within the zone or from the Adelaide plains. ..."

"Each development should be assessed on the extent to which it preserves and enhances the natural character or, more importantly, assists in the re-establishment of a natural character, rather than on the basis of a comparison with existing development in its locality."

The Principles of Development Control provide that structures "should be located in unobtrusive locations and, in particular, should:

(a) be located well below the ridge line; ... (c) be located in such a way as to not be visible against the skyline when viewed from the roads within the zone or from the metropolitan area particularly the Adelaide Plains; ... (g) be located in such a way as to be screened by existing native vegetation when viewed from the roads within the zone or from the metropolitan area particularly the Adelaide Plains;..." and provide (by Principle 18) that :- "Communication towers and masts should be sited and designed in such a way so as to minimize their visual impact. The number of masts should be contained by shared use of facilities."

The Principles specify a number of non complying developments including a "Transmitting Station".

The proposed development involves the construction of a 30 metre high triangular lattice tower and an associated colourbond clad equipment hut at ground level. The tower has a three metre triangular headframe to which are attached GSM antennae, Microwave Antennae and dishes.

Section 35 of the Development Act 1993 provides that a development of a kind described as a non-complying development must not be granted provisional consent unless the Council in whose area the development is to be undertaken concurs in the granting of consent.

On receipt of a development application, the City of Marion is required to determine the nature of the proposed development and then to form an opinion as to whether the application relates to a kind of development that is described as non-complying under its development plan. If it forms the opinion that it does, and the applicant has not so identified the development, then the City of Marion must give notice informing the applicant of its opinion.[1]

13 The City of Marion considered the proposed development to be a Transmitting Station and hence a non complying development. The formal determination of the Council was made on 29 February 2000 as follows:-

"Please be advised that the abovementioned application is a non complying use for the Hills Face Zone as per the City of Marion's Development Plan, therefore Council requires the additional information before proceeding with the assessment of the application. ..."

14. An appeal lodged by Network Design against the determination was heard by Judge Trenorden of the Environment Resources and Development Court on 11 April 2000.

15. It was agreed that the tower and headframe were proposed to form part of the One Tel mobile telephone network to transmit signals from tower to tower (station to station). They were designed to provide coverage over a limited area, due to the limitations of local topography and the power of the equipment used. Both the antennae and the microwave dishes were designed to receive and transmit radio frequency waves and beams and would be used for the purpose of both receiving and transmitting radio signals to and from mobile telephone handsets connected to the One Tel Network.

16. Mr Allen, a construction manager, gave evidence that the proposed development would create a cell site "that has the function of transmitting and receiving signals from the mobile phone system in and out of the electronic equipment" on site. Mr Allen suggested that the development had another function, that of a hub site. He said that, "hub site terminology is used for the signal transferrence from this site to the switching centre." This was to allow transmission to a more distant location.

17. The function of the proposed development is that of transmission involving the use of equipment designed for the task. The transmitting function is critical to the operation of the proposed site.

"It is clear that part of the function of the proposed development is to transmit, but it would be inappropriate to determine the nature of the proposed development by characterising it by reference to the separate activities that make up the function of the whole: ..." and concluded:- "... that the proposed development is best described as a telecommunications station or facility. Development thus described is not a kind of development that is listed as non-complying in the Hills Face Zone."

Her Honour rejected the submission of the City of Marion that a telecommunications station was but one example of a Transmitting Station.

Judge Trenorden delivered judgment on 17 April 2000 and allowed the appeal. The formal orders of the Court were:-

(1) "The appeal by Network Design & Construction Ltd is upheld. (2) Development Application No. 100/2000/248 dated 7 February 2000 is declared not to be a kind of development that is listed as non-complying in the Hills Face Zone. (3) Development Application No. 100/2000/248 dated 7 February 2000 is remitted to the City of Marion for further consideration pursuant to the Development Act 1993."

The City of Marion has appealed to this Court, pursuant to leave granted by a single judge.

As observed, the issue on appeal is whether the proposed development is a Transmitting Station within the meaning of the Development Plan. Judge Trenorden posed the wrong question when she said, "... the question is not whether the proposed development is a transmitting station, but what is the nature of the proposed development?" As I have observed there must first be an assessment of the nature of the proposed development and then a determination of whether the development so assessed is a Transmitting Station within the meaning of the Development Plan.

Transmission is defined by the Oxford English Dictionary (2nd edition) to include "the act of transmitting" or "the fact of being transmitted;" and "transmit" is defined as "to convey or pass along; to cause (light, heat, sound, etc) to pass through a medium." The definition of station includes a place where apparatus is set up for a particular purpose.

The Macquarie Dictionary (3rd edition) defines the noun transmission as "... the broadcasting of electromagnetic waves from the transmitting station to the receiving station... " and the verb transmit as, "to pass on ...; to broadcast ...; to cause (light, heat, sound, etc) to pass through a medium. ..."

The McGraw-Hill Dictionary of Science and Engineering (3rd edition) defines transmit as meaning:

"To send a message, program, or other information to a person or place by wire, radio, or other means. To move data from one location to another." and transmission as: "The process of transferring a signal, message, picture, or other form of intelligence from one location to another location by means of wire lines, radio, light beams, infrared beams, or other communication systems."

The Larousse Dictionary of Science and Technology (1995) defines transmission as:

"The process of transferring information (speech, code or data, still or moving pictures, control instructions etc.) from one location to another, or to several others (as in broadcasting) by electronic or optical means."

A Transmitting Station is a place where apparatus (or equipment) is set up to allow the process of transferring a signal from one place to another by means of a communication system. The proposed development will perform this function.

Counsel for the respondent accepted that the function of the proposed development was to transmit and that in practical terms it was a Transmitting Station. In my view this concession was properly made.

The submission advanced by the respondent to this Court was that "telecommunications facility" was a term of general usage and had acquired a particular meaning within the community. Accordingly, the proposed development should not be treated as a Transmitting Station. He was unable to identify any evidence to support the asserted usage, but cited as authority for the proposition the decision of Optus Mobile Pty Ltd v City of Tea Tree Gully[2]

. That case concerned a Development Plan of the City of Tea Tree Gully and raised issues with respect to a District Commercial Zone and not a Hills Face Zone. The relevant Development Plan specifically identified a telecommunications station as a complying use within a District Commercial Zone. The Environmental Resources and Development Court considered the proposed development to be a Telecommunications Station. The issue as to whether it was a Transmitting Station did not arise. The remarks of the Court as to general usage would appear to relate to the use of the word station. The case did not establish that a Telecommunications Station was a phrase of general usage so as to exclude such a development from being a Transmitting Station. The decision does not assist in the determination of the issue before this court.

30 The other contention advanced by the respondent was that as the proposed development involved a communications mast it was within Principle 18 and was accordingly not a Transmitting Station. I reject this submission. The purpose of Principle 18 was not to circumscribe the meaning of Transmitting Station.

31 The purpose of the proposed development is to allow transmission to occur by use of the equipment and structures to be built on the site. But for the function of transmission the development would not occur. The evidence and agreed facts establish that once built, the development would in every sense be a Transmitting Station.

32 In my opinion, the facility the subject of the development application is a Transmitting Station and hence a non complying development in the Marion Council area. I would allow the appeal and set aside the orders and declaration of the Environment Resources and Development Court of 11 April 2000. The development application should be dealt with in accordance with the determination of the City of Marion of 29 February 2000.

1 Regulation 16 of the Development Regulations 1993

2 (1998) EDLR 298

[2] (1998) EDLR 298