Argument 2
Council's submissions
40 The Council submitted that there is a need to look at the substance of the whole development. If this is done it demonstrates that what is proposed is really the installation of a new facility and it is a facility which is not authorised by cl 6 of Sch 3 to the Act as a low-impact facility. That is, the Respondent cannot rely on cl 6 to install it. The Respondent is building a new tower purpose-built for their low-impact facility to be installed on top. The tower cannot be a low-impact facility. This argument appears to overlap with arguments put in relation to Ground 4.
41 The Council made the following submissions to argue that the replacement pole is not a low-impact facility. The Council argued that, pursuant to Sch 3 cl 6(3) and 6(5)(b), the relevant Federal Minister does not have power to make a determination to authorise the carrier to carry out the installation of a tower which exceeds 5 metres, or authorising an extension to a tower unless the height of the extension does not exceed 5 metres (it being assumed that in the present case there have been no previous extensions to the tower). In order to form a view as to whether cl 6(5) applies it is important to understand what is meant by "tower…attached to a building" in cl 6(5). For the purposes of cl 6(5), a reference to a "tower" does not include a reference to an antenna. It was further argued that unless the footpad for the tower as it existed prior to removal can be considered a "building" cl 6(5) is inapplicable. Adopting a common sense meaning of "building", the footpad is not a building and cl 6(5) does not apply to allow the tower in this case (that is, the new pole) to be construed as a low-impact facility.
42 The Council submitted that failure to comply with detailed height and space restrictions set out in the Determination must be considered a non-compliance which renders the action invalid. Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 249-50, Telstra Corporation Ltd v City of Marion [2000] SAERDC 70 (Judge Trenorden, 6 October 2000) were relied on in support of this submission.
43 The decision of Marion was particularly referred to because Trenorden J in the Environmental Resources and Development Court of South Australia relied on the explanatory section included in the Determination which refers to certain facilities that could not be low-impact facilities. The Council relies on Marian to submit that Trenorden J concluded that the Act contemplates that facilities are attached to existing structures and does not authorise the destruction and replacement of existing structures (see par 19 set out below). The Council relies on Marion (at [18] - [19]) to argue that the Court must determine the purpose of the development. Her Honour had stated:
17 It seems to me that the appropriate course is to proceed to deal with the proposed development as if one were considering an application under the Development Act, taking care, at each stage, to assess whether the Telecommunications Act provisions override the Development Act. Adopting this course, the Court should determine the nature of what is proposed. Is it merely the construction or installation of a number of items, namely the pole, the antennae, the equipment hut and the fence? Alternatively, is it the construction and operation of a telecommunications network station, or as Mr Manos for Council would have it, a transmitting station? (It is to be noted that I am using the term "telecommunications network station" as a term of art, drawn from the Telecommunications Act, in preference to the term "transmitting station", but nothing should be read into the choice of terms.)
18 In my view, one has to look at the purpose of the building work to determine the nature of what is proposed. Telstra seeks to construct a pole, install antennae on that pole, construct an equipment hut in which equipment for the network system would be installed, and surround the site with the fence, for the purpose of establishing a telecommunications network station. It should be noted that this is not the approach taken by the Telecommunications Act, which seeks to exempt each of these facilities required for the establishment of a telecommunications network station based, inter alia, on assumptions about the impact of the facility in the planning area or zone.
19 It would appear that the approach of the Commonwealth Government through the Telecommunications Act and the 1997 Determination has been to facilitate the development of low-impact facilities attached to an existing building, by exempting them from the application of State planning laws, in the interests of the objects of the Telecommunications Act, but to allow a wholly new telecommunications network station, wherever located, to be subject to State planning laws.
44 The Council submits that in this case the Respondent's purpose is to build a tower and put a facility on top. This is not the carrier using an existing tower but rather the carrier building a new tower, which is not a low-impact facility.