CLAUSE 6 AND "LAND"
95 PIPE contended that clause 6(1) of Schedule 3 provided it with authority, limited only by the description of the types of facility which a carrier is entitled to install, to enter buildings in order to install a low-impact facility. It further contended that clause 6(2) "should be interpreted as accommodating the installation of any facility which a carrier is authorised to install pursuant to the authority granted by clause 6(1), wherever that facility is to be installed", including in high rise office buildings. Such buildings, it was submitted in the alternative, were comprehended by the word "land" in clause 6(2).
96 The respondents countered that no such authority was conferred by clause 6. Any entitlement conferred by clause 6 was said to be limited to entry by PIPE on and occupation of "land" and then only for the purpose of installing the facility on over or under that land. As neither the building, the MDF room or the communications riser were "land" within the meaning of clause 6(2) PIPE had no right to enter and occupy the building without the consent of one or more of the respondents.
97 In my view clause 6(1)(b) authorised PIPE to carry out the installation of the IBSCE system whether or not the building, the MDF room or the communications riser constituted "land" within the meaning of clause 6(2).
98 The language of clause 6(1)(b) is clear and unambiguous. It empowers a carrier to "carry out" the installation of such a facility. This power is unconfined as to time and place. It is available if the facility is one which (as here) falls within the meaning of a "low-impact facility". Certain of the facilities, including IBSCE, which the carrier is empowered to install and maintain, are facilities which can only be installed within buildings.
99 The carrier's purposes must, however, be connected (as is presently the case) with the supply of a carriage service.
100 As the prefatory words of clause 6(2) make clear the authority to perform a particular activity (in this case the carrying out of installation of the low-impact facility) is to be found in clause 6(1). It does not depend on clause 6(2).
101 The power to carry out the installation of a facility assumes that such installation may involve the attachment of the facility to a building: see clause 2. The attachment of a facility "to" a building is not, as the respondents rightly submitted, the same thing as an invasive installation "within" a building. Nonetheless, in order to attach the facility it would be necessary for the carrier to have access to the relevant part of the building which may or may not be an external part. Notwithstanding the general presumption that, in the absence of express provision, legislation will not be taken to authorise interference with vested property interests (see Clissold v Perry (1904) 1 CLR 363 at 373), the work involved in attaching a facility to a building must necessarily interfere with the proprietary interests of the owner of the building.
102 Once installation has occurred a carrier has authority, pursuant to clause 7(1), to maintain and replace the facility. Specific conditions are imposed on the exercise of the power. Those conditions proceed on the statutory assumption that installation may have occurred in a building. Thus, conditions are prescribed when the replacement facility is located inside a fully enclosed building and the facility which is being replaced was also located in such a building: see clause 7(5)(c)(ii).
103 The construction which I have placed on clause 6(1) serves to promote the objects of the Act. The Act seeks to promote the long term interests of the end-users of telecommunications services. This is to be achieved, in part, by promoting competition between carriers in order to secure higher quality services at less cost to the consumer.
104 End-users include those engaged in commercial activity. Such activity includes the provision of private banking services of the kind undertaken by Macquarie. Businesses engaged in commercial activities are often owners of, or tenants in, high rise office buildings such as 101 Collins Street. The objects of the Act would not be promoted by restricting the range of licensed carriers who could perform services for clients within such buildings.
105 This was an issue which was identified when the Ministerial Determination was amended, in 1999, to prescribe IBSCE as a low-impact facility. The explanatory statement which accompanied the amending instrument recorded (at 10) that:
"Under the current Determination, it has been suggested that in-building consumers experience a restriction of access to alternative services because carriers have a limited ability to enter buildings and install new infrastructure. Building owners currently retain unregulated control of carrier entry to install competitive infrastructure. There is the potential for building owners to engage in conduct which unreasonably exploits this control, and there is some suggestion that this may have already taken place. Such conduct can have a negative impact on the over-arching Commonwealth policy framework that aims to promote the efficiency and competitiveness of the telecommunications industry while benefiting the end-user."
It is also notable that, elsewhere in the explanatory statement, reference was made to the addition of IBSCE as a facility being necessary in order to ensure that carriers, including newly licensed carriers, have access to "multi-tenant buildings" in order to connect "residents and businesses" to their networks: see at 4, 7. The residents and businesses were to be given "greater access to the carrier of their choice and to the full range of information and telecommunications services available …": see at 10.
106 Clause 6(2) is facilitative. It is not engaged unless a carrier is authorised by clause 6(1) to carry out installation work. If it is the carrier may deal with "land" in any of the ways provided for in this sub-clause.
107 PIPE's alternative submission, that the word "land" in clause 6(2) comprehends high rise buildings and facilities within them such as the MDF room and the communications riser, was advanced relying on a combination of statutory provision, common law doctrine and principles of statutory construction. This aspect of the dispute between the parties was fully argued. Although, having regard to the view I have formed as to the operation of clause 6(1), it is not strictly necessary to do so, I am prepared to deal with those submissions.
108 PIPE first drew attention to the provisions of s 2B of the Acts Interpretation Act 1901 (Cth) which provides that any reference to "land" appearing in a Commonwealth Act includes: "messuages [that is houses], tenements and hereditaments, corporeal and incorporeal, of any tenure or description." This provision also applies to legislative instruments made under an Act: see s 13(1) of the Legislative Instruments Act 2003 (Cth). This, and other definitions, is subject to any contrary intention appearing in another Act or statutory instrument: see s 2(2) of the Acts Interpretation Act 1901 (Cth).
109 Reference was made to the definition of "tenement" in Butterworths Australian Legal Dictionary 1997 where a tenement was said "formerly [to be] any property that could be the subject of tenure" but is now understood usually to refer "to a property holding of a permanent nature."
110 PIPE next called in aid the common law understanding of "land" as defined in the Butterworths Legal Dictionary 1997 as including "all things growing on or affixed to the soil including buildings".
111 PIPE relied on the decision of the New South Wales Supreme Court in The Boy Scouts' Association (New South Wales Branch) v Sydney City Council (1959) 4 LGRA 260 in which the question was whether a four storey building, owned by the Association, was "land" for the purposes of s 132 of the Local Government Act 1919 (NSW). This section provided that land was exempt from local government rating if it was owned by a public charity (of which the Association was one). Hardie J held that the Association was entitled to the benefit of s 132. He did so by applying s 21(e) of the Interpretation Act 1897 (NSW) which defined "land" in any Act in the same terms as are employed in s 2B of the Commonwealth Act. His Honour said (at 268) that:
"The language of the statutory definition contained in the Interpretation Act is clearly wide enough to include buildings and other structures on land … It is apparent, in my view, having regard to the statutory definition and the generally accepted meaning of the word, that 'land' in s 132 means the land and any building or other structure on it."
112 PIPE also referred to a second decision of the New South Wales Supreme Court which dealt with the common law definition of "land" and the expansion of that concept effected by s 21(e) of the Interpretation Act 1897 (NSW). That case was Re Lehrer and Real Property Act 1900 [1960] NSWR 570. It dealt with the meaning of the word "land" in another provision of the Local Government Act 1919 (NSW) which regulated the sub-division of land. The question which fell to be determined was "whether a part of a building or the air space taken up by that part of a building is, distinctly from the soil upon which the building rests, 'land' within the meaning of the Local Government Act …" (at 573). Jacobs J held that a lease for more than five years of part of a building, as distinct from the soil on which the building rested, was not an interest in "land" within the meaning of the Act. In the course of his reasons his Honour (at 574) explained the common law meaning of land as follows:
"The word "land" comprehends in law any ground, soil or earth whatsoever: Coke on Littleton, 4a: even though it originally meant only arable land: Sheppard's Touchstone, 92. Coke further says that land "legally includeth also all castles, houses and other buildings for castles, houses, etc., consist upon two things, viz. land or ground, as the foundation or structure thereupon … passeth there with" (4a). Thus, primarily, the ownership of land carries with it everything both above and below the surface, the maxim being "cujus est solum, ejus est usque ad coelum et ad inferos". This maxim, however, is not a presumption of law applicable in all cases and under all circumstances; hence the possibility of a freehold in an upper chamber; but at common law it is the presumption. If there is found the word "land" and no statutory definition governs the context, the word "land" includes all buildings on the land and the maxim applies. To say this, however, is different from saying that an upper floor of a building, even though capable of being the subject of an estate in fee and the subject of separate holding as realty, can be properly described as "land". To describe the upper floor as "land" would be to deny the application of the presumption that prima facie land includes buildings. My conclusion is that the word "land" at common law prima facie includes buildings on the soil, but is not appropriate to describe the building alone or any part thereof, even if it be the subject of an interest in realty separate from the soil itself." (Emphasis added).
His Honour acknowledged that, if it was open to apply the definition of "land" in s 21(e) of the Interpretation Act 1897 (NSW) in the relevant parts of the Local Government Act 1919 (NSW), a separate estate in a part of a building would fall within that definition. Such a construction was not, however, open in the context of the Local Government Act 1919 (NSW) because there were numerous provisions which distinguished between land and the buildings thereon. For this, and other reasons, a contrary intention could be discerned.
113 These authorities establish that, if the definition of "land" which appears in s 2B of the Acts Interpretation Act 1901 (Cth) can be applied to the word "land" appearing in clause 6(2), the word must comprehend a building (including a high rise office building).
114 In the context of clause 6(2) and other provisions of Schedule 3, however, a narrower meaning is suggested.
115 Clause 6(2) empowers a carrier to do anything necessary or desirable for the purpose of installing a facility "on, over or under the land." Various examples of such activities are then provided. They include erecting or placing any "plant, machinery, equipment and goods" on the land, "felling and lopping trees and clearing and removing other vegetation and undergrowth", "making cuttings and excavations", "restoring the surface of the land … removing and disposing of soil, vegetation and other material", "erecting temporary workshops, sheds and other buildings" and "levelling the surface of the land and making roads."
116 Collectively, these activities all involve work at ground level rather than in structures built on the ground.
117 Similarly, clause 5 empowers a carrier to undertake the inspection of land in order to determine whether such land is suitable for its purposes. To this end the carrier may, for example, fell and lop trees, close a road or a bridge, install a facility in, over or under a road or bridge and move water, sewerage or gas pipes. Similar activities are authorised to facilitate surveying of land: see clause 5(2). Again, the activities to which specific reference is made are all confined to intrusions on, under or immediately above ground level.
118 Reference has already been made to the provisions of clause 7. A distinction is there made between the maintenance of a facility on land (clause 7(2)) and maintenance of a facility inside a fully-enclosed building (clause 7(5)).
119 Further examples of the distinction between facilities, and the land or structures to which they are affixed appear, as was pointed out by Mason P in Hurstville City Council v Hutchison 3G Australia Pty Ltd (2003) 200 ALR 308 at 319, in the definition of "installation" in clause 2 and in clause 47 which provides that an installed facility remains the property of its owner whether or not it has become a fixture in the premises in which it is installed.
120 Mention should also be made of the provisions of clause 17(5) of Schedule 1. In the course of defining the word "facility" for the purposes of clause 17 this subclause draws clear distinctions between a building or structure and the land on which a "facility", as defined in s 7 of the Act, is located.
121 For these reasons I do not consider that clause 6(2) provided authority for PIPE to undertake the installation work it wished to pursue in the building including in the MDF room and the communications riser within it.