Hutchison 3G Australia Pty Ltd v Director of Housing & Anor [2004] VSCA 99

Court of Appeal (Vic)|2004-06-03|Before: BUCHANAN, J.A. and COLDREY and MORRIS, A.JJ.A.

Telecommunications facility - Clause 52.19-2 of the Port Phillip Planning Scheme - Characterisation of antennas, poles, cabling and equipment under the scheme - Telecommunications (Low-impact Facilities) Determination 1997 - Characterisation of antennas, poles, cabling and equipment under the determination.

I agree with Morris, A.J.A. that, for the reasons he has stated, the appeal should be allowed and the proceeding remitted to the Victorian Civil and Administrative Tribunal.

For the reasons stated by Morris, A.J.A., the appeal should be allowed and the proceeding remitted to the Victorian Civil and Administrative Tribunal.

Since 7 August 2001 the appellant has been a carrier under the Telecommunications Act 1997 (Cth) and has been establishing its telecommunications network in the Melbourne region. As part of this, between August 2002 and October 2002, it installed telecommunications equipment on the roof of the first respondent's building located at 150 Inkerman Street, St Kilda ("the building") and partly within the building. The building is a 12 storey building built by the former Housing Commission and is used for public housing.

The building is subject to the Port Phillip Planning Scheme ("the scheme"), a planning scheme made pursuant to the Planning and Environment Act 1987.

The telecommunications equipment which was installed consisted of:

(a) six panel antennas on the roof of the building (with each antenna being mounted on a supporting pole);

(b) one parabolic antenna on the roof of the building (with this antenna also being mounted on a supporting pole);

(c) supporting equipment for the appellant's network, and a separating wall, within the existing plant room on the roof of the building; and

(d) cables connecting the supporting equipment and the seven antennas (the cables being covered by cable trays that are fixed to the parapet on the roof of the building).

The appellant has not obtained a planning permit pursuant to the scheme authorising the installation of the equipment.

On 14 August 2002 the first respondent applied to the Victorian Civil and Administrative Tribunal ("the tribunal") pursuant to s. 149A of the Planning and Environment Act for declarations that the installed equipment was not a "low impact facility" and that, as a consequence, the installation required a planning permit pursuant to the scheme. On 11 September 2002 the first respondent also applied to the tribunal for an enforcement order pursuant to s. 114 of the Planning and Environment Act to restrain the appellant from proceeding with the installation without first obtaining a planning permit.

The appellant opposed the two applications to the tribunal on a number of grounds, including:

(a) that the equipment did constitute "low impact facilities";

(b) that some of the equipment was ancillary to low impact facilities;

(c) that some of the equipment constituted buildings and works associated with low impact facilities (for the purposes of cl. 52.19-2 of the scheme); and

(d) that some of the equipment was described in "A Code of Practice for Telecommunications Facilities in Victoria" and complied with that code.

On 24 March 2003 the tribunal gave its decision, rejecting the first respondent's claims, and, instead, made the following declarations:

"A The proposal by Hutchison 3G Australia Pty Ltd for a telecommunications facility which includes various ancillary components [at the subject building] is a low impact facility as described in the Telecommunications (Low-Impact Facilities) Determination 1997. B The proposal by Hutchison 3G Australia Pty Ltd for a telecommunications facility which includes various ancillary components [at the subject building] does not require a planning permit under the Port Phillip Planning Scheme."

The first respondent appealed to the Supreme Court of Victoria against the decision of the tribunal. On 27 August 2003 a trial judge held that the tribunal had erred in law in concluding that the installed equipment was a "low impact facility". The trial judge ordered that the decision of the tribunal be set aside and that the matter be remitted to the tribunal, differently constituted, to be heard and decided again in the light of her reasons for judgment.

The appellant has now obtained leave to appeal to this court. It effectively argues that, except for one matter, the decision of the tribunal was correct and should not have been set aside.

Before summarising the reasons of the tribunal and the trial judge, it is desirable to set out relevant parts of the State planning provisions, the Commonwealth telecommunications provisions, and the State telecommunications code.

The building is contained within a Residential 1 Zone under the scheme. Clause 32.01 of the scheme sets out the provisions concerning the use and development of land in this zone and contains a table which sets out various land uses for which a permit is not required, for which a permit is required or which are prohibited (as the case may be). One of the land uses for which a permit is not required is "telecommunications facility". However this use is required to comply with a mandatory condition which is that "buildings and works must meet the requirements of Clause 52.19".

Clause 74 of the scheme contains a table which lists terms which may be used in the scheme in relation to the use of land. The term "telecommunications facility" is defined to mean:

"Land used to accommodate any part of the infrastructure of a Telecommunications network. It includes any telecommunications line, equipment, apparatus, telecommunications tower, mast, antenna, tunnel, duct, hole, pit, pole, or other structure or thing used, or for use in or in connection with a Telecommunications network."

It was common ground that all of the equipment installed by the appellant was a telecommunications facility within the meaning of this land use term.

Clause 52.19 of the scheme applies to the construction of a building, or the construction or carrying out of works, associated with the use of land for a telecommunications facility. Clause 52.19-1 specifically states that the provisions of the clause apply to the extent permitted under the Telecommunications Act 1997 (Cth) and determinations made under that Act; but this is possibly stating what would otherwise be the case by reason of s. 109 of the Constitution of the Commonwealth of Australia.

The key provision is cl. 52.19-2 of the scheme. This provides:

"A permit is required to construct a building or construct or carry out works for a Telecommunications facility.

* A low-impact facility as described in the Telecommunications (Low-impact) Facilities Determination 1997.

* The inspection and maintenance of a Telecommunications facility as defined in the Telecommunications Act 1997 (Cwth).

* A facility authorised by a Facilities Installation Permit issued under the Telecommunications Act 1997 (Cwth).

* The connection of a building, structure, caravan or mobile home to a Telecommunications line forming part of a Telecommunications network.

* Any Telecommunications facility described in A Code of Practice for Telecommunications Facilities in Victoria which complies with the requirements of the code.

* Buildings and works associated with activities which are:

* Authorised under Clause 6(2) of Division 3 of Schedule 3 of the Telecommunications Act 1997 (Cwth).

* Carried out by bodies listed in Sections 46 to 51 (inclusive) of the Telecommunications Act 1997 (Cwth) pursuant to legislation applying to those bodies."

The Planning and Environment Act defines the word "building" to include a structure and part of a building or a structure. It also includes walls, service installations and other appurtenances of a building.[1]

The expression "buildings and works associated with", which is used twice in clause 52.19-2, is also used in other parts of the scheme[2] and ought generally be given a similar meaning wherever it is used. The words "associated with" are not defined in either the Planning and Environment Act or the scheme. In their context, they refer to a building or structure that is connected with, or related to, one or more of the matters set out. Further, in my opinion, the words should be read as if they included a building which was described in the matters set out, as well as buildings associated with the matters set out.

The Telecommunications (Low-impact Facilities) Determination 1997 ("the determination") has been made under the Telecommunications Act 1997 (Cth). In particular, cl. 6(3) of Schedule 3 of that Act provides that the Minister may, by written instrument, determine that a specified facility is a low impact facility for the purposes of cl. 6; and such a determination has effect accordingly.[3]

The significance of a facility being a low impact facility goes beyond the question of whether a planning permit is required to install the facility. This is because cl. 6(1)(b) of Schedule 3 of the Act provides that a carrier may, for purposes connected with the supply of a service, carry out the installation of a low impact facility. Further, cl. 6(2) of Schedule 3 of the Act authorises a carrier to enter on, and occupy any land (and erect any equipment on the land) for purposes in connection with the installation of the low impact facility. The existence of this power may be relevant to the appropriate interpretation of the determination.

Clause 6(2) of the determination is relevant, not only in this context, but also by reason of the last part of cl. 52.19 of the scheme. The clause provides (in part):

"If subclause (1) authorises a carrier to carry out a particular activity, the carrier may, for purposes in connection with the carrying out of that activity:

(a) enter on, and occupy any land; and

(b) on, over or under the land, do anything necessary or desirable for those purposes, including, for example:

(i) constructing, erecting and placing any plant, machinery, equipment and goods;"

Turning to the determination, cl. 3.1 provides:

"(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. (3) For subsection (1), trivial variations for a facility mentioned in column 2 are to be disregarded. (4) A facility that is ancillary to a facility covered by subsection (1) is also a low-impact facility only if it is installed, or to be installed, solely to ensure the protection or safety of: (a) the low-impact facility; or (b) persons or property in close proximity to the low-impact facility."

The building in this case is located in a residential area, but it is not located within an area of environmental significance as that term is defined in the determination.

The schedule to cl. 3.1 of the determination is lengthy. It is sufficient to set out the following extracts:

Part 1 - Radio Facilities

(b) if the antenna is attached to a structure - protruding from the structure by not more than 3 metres; and

(ii) in a colour agreed in writing between the carrier and the relevant local authority

An omnidirectional antenna or an array of omnidirectional antennas:

(ii) in a colour agreed in writing between the carrier and the relevant local government authority; and

Part 3 - Above Ground Housing

(a) used solely to house equipment used to assist in providing a service by means of a facility mentioned in Part 1; and

(ii) in a colour agreed in writing between the carrier and the relevant local authority

Part 7 - Co-Located Facilities

(a) Part 1, 5 or 6; or

(b) item 3 of Part 4;

(a) Part 1, 5 or 6; or

(b) item 3 of Part 4;

(e) the total volume of the co-located facilities is no more than 25 per cent greater than the volume of the original facility or the original infrastructure; and

(f) the levels of noise that are likely to result from the operation of the co-located facilities are less than or equal to the levels of noise that resulted from the operation of the original facility or the public utility structure

Clause 1.3 of the determination sets out a number of definitions, including:

"Co-located facilities means one or more facilities installed on or within:

"In-building subscriber connection equipment means a facility installed within a building with the aim of managing and maintaining the supply of carriage services to a customer of the carrier;" "Subscriber connection means an installation for the sole purpose of connecting premises to a telecommunications network;" "Tower means a tower, pole or mast;"

The Telecommunications Act 1997 also contains a number of definitions in section 7, which apply in the interpretation of the determination. Specifically section 7 contains the following definition:

"Facility means: (a) any part of the infrastructure of a telecommunications network; or (b) any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network."

The telecommunications facility code of practice

In March 1999 the Victorian Government published "A Code of Practice for Telecommunications Facilities in Victoria" ("the Code"). Amongst other things, the Code sets out various types of telecommunications facilities which may be developed without the need to obtain a planning permit. Having regard to the manner in which the case has been argued before the tribunal and the trial judge, it is unnecessary to set out the provisions of the Code in any detail. However the following two types of telecommunications facilities are listed as facilities which may be constructed without the need for a planning permit provided that the specified requirements set out are met:

"5.9 A telecommunications facility located inside a building, structure or tunnel

A telecommunications facility located inside a building, structure or tunnel is a facility located so that it is not visible from outside the building, structure or tunnel or which is included in or integrated with the building, structure or tunnel in such a way as to have the appearance of being part of the building, structure or tunnel.

1. The design, location, installation and operation must be in accordance with the principles set out in section 4 of this Code.

2. The facility must be located wholly within the building, structure or tunnel or must be integrated with the building, structure or tunnel in such a way as to have the appearance of being part of the structure."

Clause 5 of the Code also provides that if a telecommunications facility falls into more than one type described in the section, the facility complies with the Code if it meets the requirements of at least one type.

The tribunal considered the telecommunications equipment in four separate categories: the equipment room, the poles, the cables installed on the rooftop and protrusion of the antennas.

In relation to the equipment room, the tribunal concluded that it fell into the category of an equipment shelter described in item 5 of Part 3 of the Schedule to cl. 3.1 of the determination ("the schedule"). It also found that the equipment room fell within the description of "in-building subscriber connection equipment" as it assisted the respondent in managing and maintaining the supply of services for which it was a carrier. Further, the tribunal found that the equipment room contained equipment that was ancillary to item 5 of Part 1 of the Schedule (radio communications dish) and that the location of such equipment within the equipment shelter resulted in the protection of the facility and the safety of persons likely to come in close proximity to the facility.

In relation to the poles, the tribunal rejected the first respondent's contention that the poles on which the antenna are attached, and which are attached to the building, were not specifically referred to as a low impact facility. The tribunal concluded that the poles formed part of the definition of "facility" and were ancillary to the facility described in item 5 of Part 1 of the Schedule.

In relation to the cables installed on the rooftop, the tribunal found that the cabling fell within the provisions of cl. 3.1(4) of the determination in that it was ancillary to a facility covered by the schedule and was installed to ensure the protection of the facility and safety for users of the roof area. The tribunal also accepted that the installation of the cabling around the perimeter of the parapet of the building could also fall within the description of buildings and works "associated" with a low impact facility (namely the antennas) and would thus fall within the language used in cl. 52.19(2) of the scheme. But the tribunal did not make its decision on this basis.

In relation to the protrusion of antennas, the tribunal found that the degree of protrusion was not such that the antennas were not low impact facilities.

The trial judge held that the tribunal had made an error of law. She did so for two reasons. The principal reason was, in summary, that:

* the conclusion to be drawn from the evidence before the tribunal was that what had been installed at the building was one facility - namely a base station with antennas; and

* that one facility did not fall within any of the relevant items of "low impact facility" in the schedule to the determination; and

* accordingly, what had been installed was not a "low impact facility" under the determination.

The trial judge's second reason was, in summary, assuming that her principal reason was wrong, that none of the fit-out room, the equipment in the fit-out room, the connecting cables or the poles that had been installed constituted a "low impact facility" under the determination.

The trial judge's detailed reasons in relation to her principal ground are contained in paragraphs 24 to 32 of her judgment. Essentially she found that the word "facility", where used in the Telecommunications Act and the determination, should, where there was doubt, be interpreted narrowly rather than widely, given that its interpretation is related to the power of a carrier to invade the property of another person for the installation of a facility. In this regard she also considered that a balance was required between the need for an efficient roll out of telecommunications facilities and the community concern about the impact of the installation of those facilities. She then said:

"Paragraph (b) of the definition of `facility' in the Act specifies a number of individual objects, any of which, standing separately, may need to be regarded as a separate `facility' for the purposes of any one of the various provisions of the Act in which that word appears. However, where, as here, the evidence is that a group of such objects are installed together, in one place, physically connected to each other as described by Mr Bell, in order to carry out one single purpose, it does not appear to me that the legislation is intended to have the effect that each of those objects is to be considered separately, in order to ascertain whether it is a `low-impact facility'. It is not necessary to strain the meaning of the definition to find that together the group of objects constitutes a `part of the infrastructure of a telecommunications network' in terms of paragraph (a) of the definition of `facility'; or `any equipment' in terms of paragraph (b) of that definition."

The level of abstraction in assessing whether a facility is a low impact facility

The appellant challenged the principal reason underpinning the decision of the trial judge. It submitted that both cl. 52.19-2 of the scheme and cl. 3.1 of the determination directed attention to the terms of the schedule to the determination to resolve the issue of whether or not the various items of equipment installed on the building were low impact facilities. It contended that the schedule, in its terms, listed a series of specific facilities as low impact facilities; and separated into classes facilities that could also be regarded as parts of a broader class or a broader abstraction. Thus, whilst acknowledging that at one level of abstraction the equipment installed on the building could be classified as a "base station with antennas", it contended that this was not a proper classification for the purposes of cl. 52-19-2 of the scheme and cl. 3.1 of the determination. Rather it was said that on a proper construction and application of those provisions (having regard to cll. 6(1)(b) and 6(3) of Schedule 3 to the Telecommunications Act), the various items of equipment must be considered separately, in the context of the classes used in the schedule, to determine whether each of them was a low impact facility.

The first respondent submitted that there was nothing in the determination or the Telecommunications Act which required a single installation to be treated as a collection of individual components. He submitted that in interpreting the provisions of the determination, both the purpose of the determination and the legislative context needed to be considered. In particular he emphasised that the classification of an installation as a low impact facility would entitle the appellant to disregard State law, including the common law as to trespass. He contended that if the scope of low impact facilities was not tightly confined it would be possible for the determination to be used to authorise large and intrusive installations which were never intended to be covered by the instrument.

In my opinion, the answer to this question is to be found in the schedule to the determination and, in particular, in the manner in which different types of telecommunications facilities are described in that schedule. It is obvious enough that the concept of a "facility" under the Telecommunications Act is capable of being considered at different levels of abstraction: starting at individual elements such as a pole or a line, moving to elements that form a component (such as an antenna), moving to a collection of elements that form a component of the network on a local basis (such as a base station), to part of a network as such (for example, the Melbourne metropolitan network) and, possibly, even extending to the whole of the telecommunications network. But the fact that there can be various levels of abstraction does not answer the question of what level of abstraction was intended to be adopted in determining whether a facility is a low impact facility under the determination. That must be principally determined by examining the schedule to the determination. It is for this reason that, unlike the trial judge, I regard the definition of "facility" to be of little assistance in resolving the question.[4]

An examination of the facilities referred to in column 2 of the schedule suggests that it would be commonplace for more than one such facility to be installed at the same location in order to form an effective part of the telecommunications network. For example, where an antenna was installed it would be commonplace for some form of equipment, contained in either underground housing or above ground housing, to be also installed to process signals received by or to be sent by the antenna. If such a combination of facilities was to be characterised at a higher level of abstraction, this could defeat the intention of the schedule that the facilities be regarded as low impact facilities. The provisions of Part 7 of the schedule concerning co-located facilities confirms this. Hence the correct approach is to examine the various items installed, or to be installed, in the context of the facilities referred to in the schedule and to determine whether those elements are low impact facilities on this basis. Assuming that some of the elements are low impact facilities, it will then be necessary to consider whether there are other elements, which are not themselves low impact facilities, which are ancillary to a low impact facility, having regard to the provisions of cl. 3.1(4) of the determination, or something which is "necessary or desirable" for the purpose of installing a low-impact facility, having regard to cl. 6(2) of the Schedule 3 of the Telecommunications Act.[5]

The appropriate level of abstraction is set by the level of abstraction used in the schedule. But it is also supported by cl. 3.1(3) and (4) of the determination. Sub-clause 3.1(3) requires trivial variations for a facility mentioned in column 2 of the schedule to be disregarded. Sub-clause 3.1(4) of the determination requires consideration of a facility that is ancillary to a facility described in column 2 in the schedule. These provisions direct attention to, and rely upon, the level of abstraction used in the schedule.

In my opinion, little is to be gained from focusing upon the apparent purpose of the determination. This purpose was found by the trial judge to be to reconcile the need for an efficient roll out of telecommunications facilities with community concern for the impact of the installation of those facilities. This implies that there is a need for some type of balancing process. But in order to determine where the balance between the competing considerations is to be found, it is necessary to examine the words of the determination and, in particular, the schedule to the determination.

The conclusion reached in previous paragraphs receives some support from the decision of the New South Wales Court of Appeal in Hurstville City Council v Hutchison 3G Australia Pty Ltd[6]. Although that case was concerned with the maintenance, not the installation, of a facility, the court commented:

"It is now common ground that the three panel antennae, the radiocommunications dish, the equipment shelter, underground cabling, conduits and draw pits that were proposed for the installation ... were of a type, size and location that complied with the determination. Accordingly, their installation standing alone would have complied with cl. 6(1). The exemption from state planning and other laws conferred by Div, 7 cl. 37 was broad enough to authorise the respondents to act in the teeth of the council's opposition as regards those components."[7]

It is true, as the court in the Hurstville case held, that in interpreting the determination it is necessary to be conscious of the consequences of a particular interpretation. Mr Dreyfus, QC, who appeared with Mr Connor on behalf of the first respondent, emphasised that classifying an installation as a low impact facility would entitle the appellant to disregard the common law as to trespass. He submitted that the principle explained in Coco v R[8] should be applied. In that case, the High Court of Australia, in the context of a judge approving the use of a listening device in premises frequented by a person suspected of having committed an offence, said:

"Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakeable and unambiguous language."

But cl. 6(2) of Schedule 3 of the Act does express, in unmistakeable and unambiguous language, the intent that a carrier may enter on and occupy land for purposes in connection with installing a low impact facility.[9] Sub-clauses 6(4), (5) and (7) of Schedule 3 of the Act specify that certain types of facilities must not be specified in a determination as a low impact facility: examples are free standing towers higher than 5 metres and overhead lines where the maximum external cross-section of the line exceeds 13 millimetres. It is also to be noted that if a telecommunications carrier does enter on and occupy any land, this not only carries with it obligations to do as little damage as practicable, to restore the land and to responsibly manage the land, but also to pay compensation.[10]

Mr Dreyfus relied upon the decisions of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority[11] and Malika Holdings Pty Ltd v Stretton[12]. In the latter case McHugh, J., said, in the context of the earlier decision of the court in Bropho v Western Australia[13]:

"Speaking generally, a much surer guide to the legislative intention in areas of legislation dealing with ordinary rights or the general system of law is to construe the language of the enactment in its natural and ordinary meaning, having regard to its context - which will include other provisions of the enactment, its history and the state of the law - as well as the purpose which the enactment seeks to achieve."

But, for the reasons given above, applying this approach to the determination, and in particular to cl. 3.1(1) and the schedule of the determination, offers greater support to the approach advocated by the appellant than to the principal approach adopted by the trial judge.

Mr Dreyfus emphasised that an interpretation of the schedule which allowed a combination of facilities, all specified in the schedule of the determination, could result in the installation of a huge, single facility (such as a base station) which would be contrary to the legislative scheme. He challenged the appellant to identify the parameters of an installation which could be regarded as low impact facilities; and suggested that the authors of the determination and the scheme could not have envisaged that a combination of hundreds of antennas might be regarded as low impact facilities, as these would clearly have an impact on the visual amenity of the community. But the authors of the determination and the scheme should be taken to be cognisant of telecommunications realities. For example, a major transmitting station may contain many antennas; but it will only be a collection of low impact facilities, not requiring a planning permit, if all the antennas are of a type, and have the parameters, which are described in the schedule to the determination. This is unlikely to be the case with a major transmitting station. The authors of the legislative instruments should be credited with an understanding of probabilities. The meaning of the provisions is not be determined by extreme examples.

I now turn to consider the secondary bases for the decision of the trial judge. Although the tribunal separately considered the fit-out room, the poles on the roof to which the various antennas were attached, the cables installed on the rooftop, the handrails and walkways on the roof, and the antennas, the trial judge was only concerned with the fit-out room (and the equipment within it), the poles and the cables.

The tribunal initially found that the fit-out room fell within item 5 of part 3 of the schedule. However the appellant conceded, both before the trial judge and before us, that this was an error as the size of the fit-out room exceeded the prescribed size for that item. The tribunal also found that the fit-out room would fall within item 6 of Part 3 of the Schedule as "in-building subscriber connection equipment". The trial judge referred to the definition of "in-building subscriber connection equipment" and concluded that it was intended to describe equipment installed within a building for the sole purpose of connecting the premises of a single customer, not necessarily limited to premises in that building, to a telecommunications network. It was clear from the evidence before the tribunal that the equipment had not been installed for this purpose, but rather to supply services to users of mobile handsets generally.

The definition of "in-building subscriber connection equipment" is, as the trial judge observed, not without its difficulties. In my view, it is not possible to import the definition "subscriber connection" into the definition "in-building subscriber connection equipment", but it is permissible to have regard to this in interpreting the latter expression. Further, it is appropriate to interpret the expression in its context and so as to avoid anomalous outcomes. Thus I would read the expression "in-building subscriber connection equipment" to mean a facility installed within a building with the aim of managing and maintaining the supply of carriage services to a customer or customers of the carrier who occupy the building or part of the building.[14] On this basis, I agree with the conclusion, if not the reasoning, of the trial judge that the tribunal misconstrued the expression "in-building subscriber connection equipment" and erred in finding that the fit-out room would fall within item 6 of the schedule.

It is possible that the fit-out room falls within cl. 5.9 of the Code and would thus not require a planning permit under the scheme. It may also be possible that the fit-out room could be reconfigured, so that the base area was not more than 7.5 square metres, so it would then fall within item 5 of Part 3 of the Schedule. It may be that the extent to which the area of the fit-out room exceeds 7.5 square metres is a trivial variation for the purposes of cl. 3.1(3) of the determination. Or it may be that the fit-out room could be regarded as a building "associated with" other facilities that are low impact facilities.[15] None of these matters has been considered by the tribunal. Thus it would appear to me to be necessary that the matter be remitted to the tribunal to be further considered in the light of these reasons.

The tribunal also found that the equipment in the fit-out room was ancillary to the antennas, which were low impact facilities. The trial judge observed that it may be arguable that the equipment in the fit-out room was ancillary to the antennas, but on the evidence before the tribunal it was clear that it was not solely, if at all, installed in order to ensure the protection or safety of the antennas or of persons or property. The trial judge thus held that equipment did not become "low impact", in terms of the test for an ancillary facility, and the tribunal had misconstrued the relevant test. This holding by the trial judge was not challenged on the appeal. But some of the questions set out in the previous paragraph may also apply to the equipment within the fit-out room, hence it would appear to me to be necessary that this matter also be remitted to the tribunal to be further considered in the light of these reasons.

In relation to the poles, upon which the antennas were fixed, the trial judge concluded that the tribunal had misunderstood the provisions of the determination. She formed a similar conclusion in relation to the cabling. In both cases the trial judge concluded that although the items might be regarded as ancillary, in the ordinary sense, they did not fall within cl. 3.1(4) of the determination because they were not solely installed to ensure the protection or safety of either the antennas or persons or property in close proximity to the antennas.

The appellants contended that, on a proper interpretation of the schedule, the pole supporting each antenna, and the connecting cables, were an essential part of the antennas. Alternatively it was said that, on a proper interpretation of cl. 6(2)(b)(i) of Schedule 3 of the Telecommunications Act the pole supporting each antenna and the cables were "necessary or desirable" for the purpose of carrying out the installation of a low impact facility. The latter argument is relevant by reason of the provision in cl. 52.19-2 of the scheme that the requirement to obtain a planning permit does not apply to a building associated with activities which are authorised under cl. 6(2) of Schedule 3 of the Telecommunications Act.

An examination of the description of various antennas in the schedule to the determination indicates that this concept is intended to include a pole which is attached to a structure. This intention is shown by the specification of the number of metres by which the antenna may protrude from a structure to which an antenna is attached. The reasoning used by the tribunal to reach this conclusion is indirect and unsatisfactory. But I agree with its effective conclusion that the poles were part of low impact facilities described in the determination.

Cabling may be in a different category. A small amount of cabling, attached to an antenna, might be regarded as part and parcel of the antenna; but the extent of cabling installed on the building, and the fact that it is connected to a base station, may mean that it must be considered separately from the antennas. I agree with the conclusion of the trial judge that the cabling could not fit within cl. 3.1(4) of the determination, for the reasons she gave. However it would remain open for the tribunal to find, as it indicated it was prepared to, that the cabling consisted of "buildings and works associated with" the antennas. It would also appear to be open for the tribunal to conclude that the cabling was "buildings and works associated with" a telecommunications facility described in the Code, which complies with the requirements of the Code. Further it would be possible for the tribunal to decide that the cables were "buildings and works associated with" activities which are "necessary or desirable" for the purpose of carrying out the installation of a low impact facility, in the context of cl. 6(2)(b)(i) of Schedule 3 of the Telecommunications Act. As it would seem necessary to remit the matter to the tribunal, the tribunal should consider, and make findings, on these questions.

In the circumstances it is not necessary to consider ground 6 of the appeal. This ground contends that the tribunal made a finding of fact that the poles were ancillary to the antennas within the meaning of cl. 3.1(4) of the determination and that, as this finding was reasonably open to be made, the trial judge should not have overturned it.

I would allow the appeal and set aside the orders made by the trial judge on 27 August 2003. In lieu thereof I would allow the appeal from the tribunal on a limited basis only. I would remit the proceeding to the tribunal, to be constituted by the same member, to be further heard and determined in the light of the reasons of this Court and the provisions of the scheme. I would order that on the remittal the tribunal may receive further evidence. I would order the first named respondent to pay the costs of the appeal before the trial judge.

[1] See s. 3(1) of the Planning and Environment Act 1987. This definition applies to the scheme by reason of cl. 71 of the scheme and s. 23 of the Interpretation of Legislation Act 1984.

[2] See, for example, cl. 62.02 of the scheme.

[3] Section 484 of the Telecommunications Act 1997 (Cth) provides that Schedule 3 of the Act has effect. This provision was described by the High Court of Australia in Bayside City Council v Telstra Corporation Ltd [2004] HCA 19, at [12], as "a single, proleptic, provision" of Pt. 24 of the Act.

[4] The explanatory statement to the determination, issued by the Minister for Communications and the Arts, states that the schedule "contains a list of facilities and the circumstances under which they are to be regarded as being "low-impact." This reinforces the reasoning used in this paragraph.

[5] The first respondent argued that cl. 6(2) of Schedule 3 is not designed to authorise the permanent placement of components, but, rather, the activity of installing the components. But, in this respect, it is little different than cl. 6(1), which authorises the installation of a facility (in the circumstances set out in that provision). In my opinion, if a carrier is authorised to install a facility, or erect equipment or goods, on particular land, it may continue to occupy the land, after the installation or erection, and maintain the facility, equipment or goods in place. This approach not only makes sense of cl. 6(1) and (2), but also is consistent with cl. 7 of Schedule 3.

[9] Clause 7 of schedule 3 of the Telecommunications Act, concerning the maintenance of a facility, is of a different character because it can potentially operate in respect of both an original facility and a structure that will only become a "facility" when it is repaired: see Hurstville City Council v Hutchison 3G Australia Pty Ltd [2003] NSWCA 179, (2003) 200 ALR 308, at [59].

[10] See cll. 8, 9, 10 and 42 of schedule 3 of the Telecommunications Act. The requirement that compensation be paid means that the principle in Coco v R must operate with less force than would be the case if no compensation was payable.

[14] This interpretation is consistent with, and supported by, the regulation impact statement to the Telecommunications (Low-impact Facilities) Determination 1997 (Amendment No. 1 of 1999), where it discusses in-building subscriber equipment and internal equipment shelters (at p. 4).

[15] The expression "associated with" involves some connection between the building being considered and the permitted facility or facilities. The degree of connection which is adopted should be that which best carries out the objects of the scheme: see Kia Australia Pty Ltd v Chief Executive Officer of Customs {1998) 86 FCR 473, at 480.

At a glance

Court

Decision date

Before

Source

Judgment (130 paragraphs)

Parties

Cases Cited (4)