Satellite & Wireless Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater

The Access Permit 12 The background to the Access Permit is described in that agreement as follows: A. Seqwater is the trustee of the Land. The drinking water supply Reservoir Tower is situated on the Land (which is reserve land) and subject to the requirements of the Land Act 1994 (Qld). B. Seqwater seeks to manage its built assets and lands in a sustainable manner and to improve catchment health and water quality. Seqwater has statutory obligations to provide safe, secure, resilient and reliable bulk drinking water for the general public. C. The Permitted Area is located within a key operational and/or catchment area of Seqwater and Seqwater operates a 24 hours facility on the Land. A chemical dosing facility is also situated on the Land. The Land has located on it a mobile base station, identified as RFNSA Site No: 416001 with the RFNSA. D. The Carrier is seeking access to the Permitted Area to install, operate and maintain the Carrier's Equipment. E. The Carrier has agreed to the conditions as set out in this Permit for the Carrier to have access to, and non-exclusive use of, the Permitted Area for the Permitted Use and for the subsequent removal of the Carrier's Equipment. 13 For the purposes of the Access Permit the "Carrier" is defined in the Reference Schedule as Satellite and Wireless Pty Ltd, namely the applicant in these proceedings. 14 The right of access of the Carrier to the Permitted Area is described in cl 2 of the Access Permit as follows: 2. Permit (a) Seqwater grants to the Carrier a permit to use the Permitted Area for the Permitted Use for the Term subject to the terms of this Permit. (b) The Carrier acknowledges that: (i) Seqwater is a: A. Statutory Authority of the Queensland Government established under the SEQWRA; B. registered service provider of critical infrastructure in South East Queensland; and C. a 'public utility' as that term is defined in Schedule 3 of the Telecommunications Act 1997 (the Telco Act); (ii) Seqwater uses the Land as a reservoir for the supply of drinking water for the general public in accordance with a Drinking Water Quality Management Plan and Seqwater must not, when assessing and using the Land or the Permitted Area, do anything which in any way poses a risk of Contamination of the drinking water contained in the reservoir. Where the Carrier causes Contamination to drinking water, this Permit may be terminated by Seqwater by written notice under clause 10.3; (iii) the Carrier holds this Permit so that the Land may be used for the purpose for which it was reserved or granted in trust to Seqwater without undue interruption or obstruction in accordance with the requirement of the Land Act 1994 (Qld); (iv) the Permitted Area is located within a key operational and/or catchment of Seqwater and Seqwater operates a 24 hour facility on the Land including a chemical dosing facility; (v) the Carrier occupies the Permitted Area at its own risk; (vi) due to the nature of Seqwater's operational, catchment and strategic activities, the Carrier and/or the Permitted Area may experience power or electrical outages associated with Seqwater's operations and other activities; (vii) Seqwater may restrict or temporarily prohibit access to the Permitted Area for:- A. safety or operational (including maintenance) reasons; B. to protect people and property in the event of a natural disaster or for emergency response purposes; (viii) Permitted Area may become inundated by water; (ix) Seqwater may require the Permitted Area for future use in accordance with its operational, strategic or other planning; (x) this Permit does not create in, or confer upon, THE Carrier any tenancy, estate or interest whatsoever in, or over the Permitted Area or the Land; and (xi) except where expressly provided for in this Permit, the carrier has no right to object to or make any Claim against Seqwater in connection with the matters in this clause 2 (b). (c) Despite anything else, Seqwater may use any part of the Land and Permitted Area for operational, catchment and strategic activities at any time. (d) Seqwater makes no promise, representation or warranty in relation to: (i) Permitted Area (including Seqwater's Infrastructure) is free from defects or is safe, fit, suitable or adequate for the Permitted Use; (ii) the residual life of Seqwater's Infrastructure; (iii) the quality of transmission or reception by the Carrier's Equipment (including any interference to the Carrier's Equipment that is caused or contributed to by Third Party Equipment); (iv) the suitability of this Permit for the Permitted Use; (v) the location of the Carrier's Equipment on the Permitted Area; (vi) the facilities or Services (including electrical) in or available to the Permitted Area or the Land; (vii) the capacity of any riser or other part of the Permitted Area; (viii) any additional space being made available to the Carrier in or near the Permitted Area; or (ix) the suitability or compatibility to the Carrier's Equipment of any equipment or service on or to the Lane or any other equipment or service of any other person on the Land. (e) The Carrier has satisfied itself that the Permitted Area is suitable for the Permitted Use. 15 "Permitted Area" is defined by the cl 1.1 of the Access Permit as follows: Permitted Area means the premises specified in item 6 of the Reference Schedule, being part of the Land under this Permit and includes the Carrier's improvements and facilities on those premises but does not include the internal area of Seqwater's Infrastructure. 16 Item 6 of the Reference Schedule to the Access Permit defines "Permitted Area" as To be agreed by Seqwater. 17 "Seqwater's Infrastructure" is defined by cl 1.1 of the Access Permit as: …includes any building, structure such as water tower or water reservoir owned or control by Seqwater. 18 "Permitted Area" is distinguishable from "Access Area", which is defined by Item 5 of the Reference Schedule as As shown on the plan in Schedule 1 marked in Red. 19 "Permitted Use" is defined by Item 3 of the Reference Schedule as: The operation, inspection, testing, replacement, renewal, upgrading, maintenance, repair and removal of the Carrier's Equipment in accordance with this Permit, and includes the Carrier's Works. 20 "Carrier's Equipment" is defined by cl 1.1 of the Access Permit as: … means the equipment specified in item 4 of the Reference Schedule. 21 Item 4 of the Reference Schedule identifies Carrier's Equipment as The Carrier's telecommunication facility being the equipment identified in Schedule 2 and associated cabling 22 Schedule 2 to the Access Permit further refers to Carrier's Equipment as follows: • Location A - Exterior of Water Reservoir Tower - positioning to be agreed by Seqwater 1 x single parabolic dish antenna (650x650x304mm) 1 x single parabolic dish antenna (650x650x304mm) Radio: Ubiquiti AF-5X Frequency Range: 5745 - 5840 MHz Antenna: Ubiquiti AF-5G30-S45 Parabolic dish Dimensions: 650 x 650 x 304 mm Gain: 30 dBi Maximum combined Effective Isotropic Radiated Power (EIRP): 4W Antenna pattern: Azimuth, 5500 MHz [DIAGRAM] Elevation, 5500 MHz [DIAGRAM] • Location B - - Exterior of Water Reservoir Tower - positioning to be agreed by Seqwater 1 x single rectangle panel antenna (700x160x60mm) 1 x small radio connected to panel antenna (88x40x230) Radio: Ubiquiti RP-5AC-Gen2 Frequency Range: 5745 - 5840 MHz Antenna: ARC Wireless ARC-VS5821SD1 Sector antenna Dimensions: 88 x 40 x 230 mm Gain: 21 dBi Maximum combined Effective Isotropic Radiated Power (EIRP): 4W Antenna pattern: [DIAGRAM] [DIAGRAM] • Wall mounted communication cabinet to be approved by Seqwater. 23 "Carrier's Works" is defined by cl 1.1 of the Access Permit as: means the installation, alteration or change of the Carrier's Equipment (or installation of any additional equipment) in accordance with clause 3 of this Permit but does not include solar equipment or panels 24 "Carrier's Works" are the subject of cl 3 of the Access Permit, including the following: 3.1 Pre-commencement (a) Prior to any Carrier Work's [sic] commencing, the Carrier must by giving no less than five (5) Business Days' notice, arrange and attend a pre-start meeting on the Land with Seqwater's Representative. (b) The Carrier must first check the Permitted Area is suitable for the Permitted Use under this Permit before undertaking the Carrier's Works. (c) The carrier must deliver to Seqwater the following material at least 5 business Days before commencement of any Carrier's Works: (i) a timeline for the construction of the Carrier's Works; (ii) full detailed drawings and specification for the Carrier's Works which includes the location of underground services; (iii) particulars of the materials to be used; and (iv) any other information reasonably requested in writing by Seqwater. 3.2 Certification by RPEQ (a) If, upon provision of the material referred to [sic] clause 3.1 (c), Seqwater is satisfied on reasonable grounds that the Carrier's Works as proposed under clause 3.1 in [sic] would materially affect the structural integrity or safety of Seqwater's Infrastructure, then the Carrier must, before the commencement of any Carrier's Works, and upon written request from Seqwater, give Seqwater an engineering assessment of Seqwater's Infrastructure certified by a RPEQ confirming Seqwater's Infrastructure is not materially structurally impacted by the Carrier's Works, and that the Carrier's Works do not: (i) impede Seqwater's ability to use Seqwater's Infrastructure for Seqwater's purposes; or (ii) interfere with Seqwater's telemetry equipment. (b) Where any part of the Carrier's Equipment requires drilling into any concrete structure owned by Seqwater, the Carrier will, at its cost, prepare drawings depicting the Carrier's Equipment. The Carrier must ensure that: (i) any reinforcement bars in the concrete structure are located; (ii) any drilling is kept away from the reinforcement bars; (iii) any penetration of any concrete structure be epoxy coated to protect reinforcement from corrosion (even if the reinforcing is not actually exposed by the penetration); and (iv) all masonry fixings be 316 stainless steel chemset or similar epoxy based anchors to protect reinforcing steel from corrosion. (c) The Carrier may continue to operate and maintain the Carrier's Equipment on the Permitted Area in accordance with the reasonable conditions of Seqwater and plans and specifications approved by Seqwater. (d) The Carrier's Works including any improvements, alterations, changes or amendments (including electrical works) reasonably required by Seqwater for the Carrier's Equipment to comply with clause 3.2, must be carried out: (i) in accordance with clauses 3.6, 6 and 7.2; (ii) to a high standard of workmanship; (iii) at its own cost; (iv) diligently; and (v) in accordance with: A. drawings, plans and specifications approved for use by Seqwater; B. the terms of this Permit and to the [sic] Seqwater's satisfaction; C. all Approvals required for the Carrier's Works. (e) The Carrier's Works are at the Carrier's sole risk. The Carrier accepts responsibility for compliance with the WHS Act and WHS Regulations in respect of the Permitted Use. (f) The Carrier must provide Seqwater with as constructed drawings for the Carrier's Works within 20 Business Days after the completion of the Carrier's Works. The As Constructed drawings must be provided to Seqwater in PDF and Auto-CAD formats. 3.3 Completion of Carrier's Works … 3.4 Rectification of defects … 3.5 Permitted Use … 3.6 Complying with laws and directions and obtaining Approvals … 25 Induction requirements in respect of the applicant were set out at cl 6.1: Contractor induction (a) The Carrier must comply with Seqwater procedures for contractor induction (including work specific induction pertaining to the Land) located at "http://www.seqwater.om.au/contractor-information-0". As a minimum the Carrier and its employees, contractor and agents must: (i) complete the following training/inductions and submit a copy of each certificate of achievement: A. Seqwater Contractor Induction (00001538): B. Scheme Induction - Network - Chemical Dosing Facilities (00002287); C. PASS- Overview (00005934); (ii) either prepare: A. a signed JSEA/SWMS in the form approved by Seqwater (Form 00013); or B. in the Carrier's form which must be at least to the same standard as Seqwater's form. (iii) obtain a High Risk Work Permit (and if required by Seqwater a Confined Space Permit) in the form approved by Seqwater (Form 00014, 00027, 00415); (iv) provide Seqwater with a copy of Blue or White card, Work at Height training (including Climbing Ladders), First Aid/CPR; (v) do Radiation Awareness (RADHAZ); and (vi) do other relevant training. 26 Clauses 6.5, 9.10 and 9.17 were "catch-all" provisions in the following terms: 6.5 Carrier's Approval The Carrier must, at its cost: (a) obtain and maintain the necessary ACMA licences for the Carrier's Equipment and its use of the Carrier's Equipment for the Permitted Use; (b) if requested by Seqwater, provide Seqwater with evidence of the necessary ACMA licences; and (c) ensure the Carrier's Equipment uses licensed frequencies. … 9.10 Seqwater's rules The Carrier must comply with all rules made by Seqwater relating to the use of the Permitted Area unless: (a) the Carrier does not receive notification of them; or (b) they are inconsistent with this Permit. … 9.17 Other prohibited acts The Carrier must not: (a) paint or attach any signs or notices on or to the Permitted Area (except any signs required by law or safety signs) without Seqwater's prior written approval; (b) bring onto the Land any explosive, radioactive, flammable or corrosive chemicals unless they are normally used by the Carrier in the course of its carrying on the Permitted Use and they are confined in suitable containers; (c) do anything in the Permitted Area likely to make any insurance policy held by Seqwater void or voidable; (d) use auxiliary electricity or gas supplies unless electricity or gas supplied to the Permitted Area has failed or is restricted; (e) do anything which may interfere with the structural integrity, load capacity or other limitation of any part of the Land or Permitted Area; (f) obstruct any fire equipment on the Permitted Area; (g) obstruct access to any part of the Land or place any thing in the Land (except where otherwise permitted under this Permit); and (h) use or access any plant room without Seqwater's prior written approval.

THE CASE BEFORE THE COURT 27 On 26 July 2019, the applicant filed an originating application, a statement of claim and a supporting affidavit. The originating application relevantly stated: On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims: 1. An order for specific performance of the Access Agreement between the parties dated 14 March 2018. Specifically, that the Applicant be granted access to the Land within 5 business days of an order of this Honourable Court to install its Facility in accordance with the terms of the Access Agreement and pursuant to its rights and powers set out in Division 3 of Part 1 of Schedule 3 of the Telecommunications Act 1997. 2. In the alternative, an order that the Respondent by itself, its employees, servants and/or agents, and/or representatives, is restrained from, and an injunction issue to restrain the Respondent by itself, its employees, servants and/or agents, and/or representatives, from interfering with the Applicant's statutory rights under Division 3 of Part 1 of Schedule 3 of the Telecommunications Act 1997. Specifically, the Respondent by itself, its employees, servants and/or agents, and/or representatives will not interfere with the Applicant's statutory right to: (a) enter into the compound on which the infrastructure known as Alexandra Hills Reservoir is situated upon, located at 36A Alexandra Circuit, Alexandra Hills Queensland 4161 ("the Land") for the purposes set out in Division 3 of Part 1 of Schedule 3 of the Telecommunications Act 1997; and (b) engage in activities and exercise powers arising under Division 3 of Part 1 of Schedule 3 of the Telecommunications Act 1997; and (c) carry out the installation of its low impact facility on the Land as specified in detail in the Applicant's Land Access and Activity Notice dated 2 May 2017 on dates to be notified by the Applicant. The term "interfere with" in this paragraph includes: (a) Obstruct; (b) Prohibit; (c) Impede; (d) Stall; and (e) Prevent. 3. Damages in the sum of $75,000.00 and continuing at a rate of $5,000 per month. 4. The Respondent pay the Applicant's costs of and incidental to this Application. 5. Such further or other order as may this Honourable Court deem fit. 28 In its statement of claim the applicant pleaded that it requested that it be granted access to the Reservoir Tower for the purposes of installing its LIF on multiple occasions but it was only permitted access to the land on 22 May 2018 (being 2 months after the Access Permit was signed) when it was able to partially install the facility. The applicant claimed that all other requests for access were denied by the respondent. 29 The applicant also contended that it had: fulfilled all its obligations pursuant to the Access Permit; and complied with all the respondent's requests for documentation and information relating to the installation of the LIF. 30 The applicant pleaded in the alternative that, as a Carrier, it had rights under the Telco Act to: inspect land (Division 2 of Part 1 of Schedule 3); install low-impact facilities (Division 3 of Part 1); and maintain telecommunications facilities (Division 4 of Part 1). 31 In its Defence the respondent pleaded that, following entry by the parties into the Access Permit, that agreement governed any entitlement of the applicant to enter the land to the exclusion of the operation of the Telco Act. Alternatively, the respondent pleaded that the applicant was required to comply with s 11 of Sch 3 to the Telco Act, which provides: 11 Agreements with public utilities (1) A carrier must make reasonable efforts to enter into an agreement with a public utility that makes provision for the manner in which the carrier will engage in an activity that is: (a) covered by Division 2, 3 or 4; and (b) likely to affect the operations of the utility. (2) A carrier must comply with an agreement in force under subclause (1). 32 In relation to the requests made by the applicant to enter the land the respondent referred to clauses 3.1 (a), 3.1 (c), 3.2, 3.5 (b), 3.6, 7.4, 9.10, 9.17 and 11.1(b) of the Access Permit and claimed in summary: The respondent did not provide an email address for the service of notices under the Access Permit. The Permitted Area did not include the internal area of the respondent's infrastructure. None of the requests particularised by the applicant complied with the obligations of notices in accordance with the Access Permit. The applicant did not comply with the requirements of the Access Permit in seeking access, in particular by providing: (i) a timeline for the construction of the Applicant's works; (ii) full detailed drawings and specifications of the Applicant's works, including the location of underground/ buried services and location of the battery housed outside the tower; (iii) pre-installation certification by a registered professional engineer for the structural impact of each installation; (iv) particulars of the materials to be used; and (v) details for the end of life or decommissioning strategy for each proposed installation including buried infrastructure. 33 In its submissions, the respondent stated that it placed no reliance upon clause 11.1 of the Access Permit in response to the requests for entry. 34 The respondent further denied that it improperly refused the applicant access in respect of its requests of: 14 August 2018, because operational issues existed (referable to cl 2 (b)(vii) of the Access Permit) and the respondent was in the process of complying with an Improvement Notice issued by Workplace Health and Safety Queensland (WHSQ); 7 November 2018, because: operational issues existed (referable to cl 2 (b)(vii) of the Access Permit) and the respondent was in the process of complying with an Improvement Notice issued by WHSQ, the respondent had concerns with the structural integrity of the roof of the Reservoir Tower, however the applicant did not provide RPEQ certification in accordance with clauses 3.2 and 9.17 of the Access Permit; and the applicant failed to properly respond to the correspondence of the respondent's lawyers dated 9 November 2018. 12 January 2019, because the request did not comply with the requirements of cl 3.1 of the Access Permit as set out in the email of the respondent's lawyers dated 18 January 2019; and 1 July 2019, because: the applicant failed to comply with the requirements of cl 3.1 of the Access Permit as set out in the email of the respondent's lawyers dated 18 January 2019 and the respondent had concerns with the structural integrity of the roof of the Reservoir Tower however the applicant did not provide RPEQ certification in accordance with clauses 3.2 and 9.17 of the Access Permit. 35 The respondent denied that there was any continuing entitlement in the applicant to access the land. The respondent further submitted that the applicant breached the Access Permit by leaving equipment on the site outside the Permitted Area, and did not comply with the National Construction Code in effecting the installation.

issues for determination 36 The parties agreed on a Joint Statement of Agreed Facts and Issues for Determination. In particular, they agreed that the following issues required determination in these proceedings: (1) Did the applicant comply with the requirements for the Access Permit when seeking access on the dates particularised at para 11 of the Statement of Claim? (2) Was the respondent entitled under the terms of the Access Permit to refuse the applicant access to the Reservoir Tower? (3) Do the applicant and respondent have any residual rights under Sch 3 to the Act given the terms of the Settlement Agreement, the Access Permit and s 11 of Sch 3 to the Act? (4) Has the applicant breached the Access Permit? (5) Has the respondent breached the Access Permit? (6) If the respondent has breached the Access Permit has the applicant sufficiently complied with the terms of the Access Permit to entitle it to an order for specific performance? 37 Before turning to these issues it is useful to examine set out the requests made by the applicant and correspondence between the parties relevant to those requests.

REQUESTS OF THE APPLICANT FOR ACCESS 38 Paragraph 11 of the Statement of Claim states Following execution of the Access Agreement on or about 14 March 2018, and in accordance with the terms of that Agreement, the Applicant sought access to the Land on seven separate occasions, all of which were denied by the Respondent. Particulars The Applicant requested that it be granted access to the Land for the purposes of installing its Facility on the following dates: (a) 30 April 2018 Email from the Applicant to the Respondent dated 23 April 2018 (b) 16 May 2018 Email from the Applicant to the Respondent dated 15 May 2018 (c) 31 May 2018 Email from the Applicant to the Respondent dated 24 May 2018 (d) 1 June 2018 Email from the Applicant to the Respondent dated 31 May 2018 (e) 22 August 2018 Email from the Applicant to the Respondent dated 14 August 2018 (f) 21 November 2018 Email from the Applicant to the Respondent dated 7 November 2018 (g) 21 January 2019 Email from the Applicant to the Respondent dated 12 January 2019 (h) 8 July 2019 Email from the Applicant to the Respondent dated 1 July 2019

Request dated 23 April 2018 39 The request of 23 April 2018 was by email sent Monday, April 23, 2018 at 1.19pm. The subject of the email was "Alexandra Hills Reservoir 30/07/2018". The text of the email was as follows: We would like to access the Alexandra Hills Reservoir to undertake the following. 1. Inspection of the reservoir to determine the specific locations for mast installations and cable route 2. Install our data cabinet in the base of the reservoir. No penetrations are necessary, the cabinet will be placed on the concret floor. Staff have completed the following inductions: - 00001538 - Seqwater contractor induction (All Visitors) - 00002287 - Scheme Induction - Network - Chemical Dosing Facilities - 00005934 - PASS - Overview All staff hold the following certifications: - RIIWHS204D - Work safely at heights - HLTAID001 - Provide cardiopulmonary resuscitation - HLTAID008 - Provide first aid The rescue team hold the [sic] and additional tower rescue certifications which include: - PUASAR022A - Participate in a rescue operation - PUAEME0018 - Provide emergency care - PUFIR215 - Prevent injury Please find the attached JSEA, SWMS, Working at Heights Application, Rescue Plan and insurance certification of currency. Please let me know if you require any further information. Kind regards Jarrod O'Connell Polyfone Telecom Pty Ltd 40 On 27 April 2018 at 4.19pm the respondent emailed the applicant in the following terms: Dear Jarrod, We refer to your request of 23 April 2018 to access the Alexandra Hills High Level Reservoir Tower (Reservoir Tower) to undertake the following: 1. Inspection of the Reservoir Tower to determine the specific locations for mast installations and cable route; and 2. Installation of a data cabinet in the base of the Reservoir Tower. The purpose of this correspondence is to notify you of our intention and requirement to engage in a consultation, co-operation and co-ordination process pursuant to section 46 of the Work Health and Safety Act 2011 (Qld) (WHS Act). The requirement for this process under section 46 of the WHS Act arises because Seqwater and Satellite and Wireless Pty Ltd (Satellite) and Polyfone Telecom Pty Ltd (Polyfone) are duty holders in relation to health and safety matters at the Reservoir Tower. Those matters include, but are not limited to, the identification of hazards and assessment of risks to health and safety arising from works to be carried out by Polyfone on behalf of Satellite. You provide that your staff have completed the following inductions: (00001538 - Seqwater contractor induction (All Visitors); 00002287 - Scheme Induction - Network - Chemical Dosing Facilities; 00005934 - PASS - Overview) and hold certifications (RIIWHS204D - Work safely at heights; HLTAID001 - Provide cardiopulmonary resuscitation; HLTAID003 - Provide first aid). Our records confirm that Jarrod O'Connell and Pieter Delport (on behalf of Satellite) and Tim Samuels (on behalf of Polyfone) have completed (00001538 - Seqwater contractor induction (All Visitors); 00002287 - Scheme Induction - Network - Chemical Dosing Facilities; 00005934 - PASS - Overview. That said, Seqwater has not been provided with copies of certification for (RIIWHS204D - Work safely at heights; HLTAID001 - Provide cardiopulmonary resuscitation; HLTAID003 - Provide first aid) for Jarrod O'Connell, Pieter Delport and Tim Samuels. Please forward copies of these certifications to us. The Telemetry Access Permit also requires that Satellite shall provide to Seqwater full detailed drawings and specification for the works at least 5 business days before the commencement of any works: [please refer to clause 3.1 (c)(ii)]. These are yet to be provided. Could you please provide them urgently. There are also two further matters that remain outstanding or unaddressed and are important from a work health and safety perspective: 1. There is an absence of an effective rescue plan and no height rescue equipment or methodology has been identified in the materials you have provided; 2. The potential risk of RF EME and any steps to be taken to address this (e.g. PPE equipment, RF monitors) have not been considered in the Safe Work Method (SWMS) provided. In light of the issues raised above, Seqwater considers that there are health and safety risks with the works proposed to be conducted on 30 April 2018 and that these matters need to be addressed by way of the consultation process referred to above. We also note that Clause 2 (vii) of the Telemetry Access Permit provides that "Seqwater may restrict or temporarily prohibit access to the Permitted Area for safety or operational (including maintenance) reasons…" Please find link to document identifying known site risk… these must be considered Arcadia valley escape, Arcadia Valley S Rd, Beilba QLD 4702 as a part of your risk assessment. We request that Satellite and Polyfone engage in the process of consultation, co-operation and co-ordination to address the outstanding safety issues so that Polyfone can safely access the Reservoir Tower on Monday 30 April 2018. Regards Martin Leung Asset Protection Officer 41 On 30 April 2018 at 10.09am the applicant emailed the respondent in the following terms: Hi Martin Please find the attached: - Updated SWMS to include RF EME risk - Updated Rescue Plan to include rescue methodology - Working at Heights Certifications - First Aid Certificates - Please note HTLTAID001 Provide cardiopulmonary resuscitation has elapsed, a refresh course has been booked for staff with a date TBA. Kind regards Jarrod O'Connell Polyfone Telecom Pty Ltd 42 Mr O'Connell forwarded the "attached SWMS" to Third Party Engineering Consent at 12.06pm on 30 April 2018. 43 On 30 April 2018 at 3.42pm the respondent emailed the applicant in the following terms: Hi Jarrod, Can you please confirm the purpose of the next visit. If the visit is for an inspection only, access could be granted once all safety documents have been accepted. If you still plan on installing equipment on the same day we will need drawings detailing the proposed installation and methodologies for review and acceptance. Regards Third Party Engineering Consent

Request dated 15 May 2018 44 On 11 May 2018 at 7.01pm the respondent emailed the applicant in the following terms: Hi Jarrod, We refer to our engagement in consultation, co-operation and co-ordination pursuant to section 46 of the Work Health and Safety Act 2011 (Qld) (WHS Act) as initiated by Seqwater in our email to you dated 27 April 2018. In accordance with that process, please find below our comments regarding the instillation of the proposed cabinet within the High Level Reservoir. 1. The Cabinet will need to be secure, enclosed and locked; 2. The Cabinet must not obstruct the ingress/egress to and from the Reservoir Tower and stairway with minimum requirements as per the National Construction Code - provision of 800mm appears deficient and non-compliant with the National Construction Code (it is noted that we have not been provided with any detail as to how the Cabinet is to be affixed. If drilling of the concrete wall is contemplated then Seqwater's specific permission is required); 3. The Cabinet classification is required to be specified - if the Cabinet is deemed to be electrical, a minimum clearance from the open door will need to be 600mm in accordance with the National Construction Code; 4. The Cabinet must not obstruct other users of the Reservoir tower (please provide evidence that other site users have been consulted and their consent provided); 5. Seqwater has consulted with Redlands City Council (RCC), who is the owner of sewerage and water radio control and monitoring equipment in the Reservoir Tower for the purpose of notifying RCC as to Satellite's/Polyfone's proposed works and to seek their input as to any impact this may have on RCC's sewage and water radio communications equipment. To the extent that Seqwater has been able to consult with RCC (because Seqwater has not yet been provided with detailed drawings or a design of the proposed works), RCC has notified Seqwater that: (a) A clearance of 1.2 metres around RCC's cabinet is required to allow for a future upgrade of its cabinet and communication system. RCC requires clear access to its cabinet so that it is able to maintain and repair its equipment; (b) Polyfone's proposed works should in no way interfere with RCC's equipment or RCC's ability to maintain it. This includes but is not limited to ensuring that there are no adverse impacts on the reliability of the power supply or by way of injection of harmonics, electromagnetic interference (EMI) or radio interference; (c) RCC's radio equipment in the Tower is primary to the control and operation of its sewerage network and potable water network. If RCC's radio equipment is inadvertently disabled this could result in RCC's inability to control its network, which RCC advises could have high environmental and hygiene risks associated with it which would have grave consequences. RCC itself without access the detailed design drawings is not in a position to implement control measures to mitigate these risks. For all of the reasons above, and specifically the potential for Polyfone's proposed works to impact upon other users of the Reservoir Tower, Seqwater will need detailed drawings of the whole of the facility to properly assess the impact on the site and existing users. In this respect Seqwater is particularly mindful of paragraph S(c) above. This should include: 6. Details on the electrical design (including details of route and equipment); 7. Location and material of equipment including all fixtures and fittings; 8. Details on the placement and installation of antennas, poles and mounts; 9. Details on the EME exclusion zones created by any installation in relation to existing equipment and/or accessible areas including updating the Site Safety document. Please advise us when Polyfone will be in a position to address the matters that we have identified above. Martin Leung Asset Protection Officer 45 At this point the applicant made a further request for access, being in the form of an email from its lawyer Mr Gregory Leather sent 15 May 2018 at 12.56pm. The email was as follows: Dear Carmel I refer to the email below from Martin Leung at Seqwater. Our client accepts that such an email would be appropriately given to a carrier at the LAAN stage. However it is entirely inappropriate in this matter when directed to a carrier that holds Orders from the Federal Court. Our client requires access to the site to be granted by 12.00pm tomorrow, Wednesday 16 May 2018 and further requires Seqwater to cease interfering with our client's rights pursuant to the Act and the Orders. If access is not granted by 12.00pm tomorrow as required, we will bring an application before His Honour, Logan J and we remind you that an application for orders for contempt will be available along with an indemnity costs order. Kindly confirm by return that access will be granted as required. 46 The lawyers for the respondent, K&L Gates, responded to this email on 16 May 2018, in turn by email, in the following terms: Dear Mr Leather Alexandra Hills Reservoir Site: Site Access We act for Queensland Bulk Water Supply Authority trading as Seqwater (Seqwater) and have been provided with a copy of your email to Carmel Serratore dated 15 May 2018 sent at 12.56pm (Email) regarding access to the Alexandra Hills Reservoir Site (Site). We are instructed as follows: 1. Our client rejects any suggestion that it has acted inconsistently with the consent orders entered in the Federal Court on 14 March 2018 including any assertion that it has acted in contempt; 2. Our client has sought to engage with your client (and your client's related entity Polyfone Telecom Pty Ltd) in a process of consultation, cooperation and coordination under section 46 of the Work Health and Safety Act 2011 (WHS Act). This section not only applies to our client, but imposes obligations on your client (and your client's related entity) as a person that has work health and safety duties at the Site within the meaning of the WHS Act; 3. In light of the demands that are made in your Email and in an attempt to avoid litigation, our client proposes as follows: (a) Access to the Site will be granted to your client and its related entity. Please advise the date that your client or your client's related entity proposes to access the Site noting clause 3.1 of the Telemetry Access Permit executed by Seqwater and Satellite and Wireless Pty Ltd which provides that 5 days' notice must be provided by a Carrier prior to commencing works. (b) Seqwater proposes to refer this matter to Work Health and Safety Queensland (WHSQ) and to request WHSQ to appoint an inspector to attend the Site for the purpose of assisting the parties to engage in further consultation to resolve the work health and safety issues identified by Seqwater, and made known to your client, pursuant to section 82 of the WHS Act. (c) Seqwater proposes to notify the Redland City Council (RCC) of your client's (and its related entity) access to the Site (when the date for that that access is provided by you) so that the RCC can engage in any consultation if it so requires. We have previously notified your client (and its related entity) of the concerns raised by the RCC in terms of its sewerage and water radio communications equipment at the Site and the potential for your client's works to impact .upon its operation, resulting in environmental and public hygiene risks, (d) Our client otherwise reserves all of its rights including those under the WHS Act and the Telemetry Access Permit. 47 A further letter was sent by email by K&L Gates to the applicant on 16 May 2018 as follows: Dear Mr Leather Alexandra Hills Reservoir Site We refer to the above matter, our previous letter to you dated 16 ·May 2018 and your telephone conversation with Paul Hardman 16 May 2018. We have just been advised by our client that representatives of Polyfone Telecom Pty Ltd have arrived at the Site in the last 30 minutes (approximately). Our client's position was set out in our correspondence of today's date, sent this morning, and in compliance with the request in your email of 15 May 2018. For the sake of clarity our client is not refusing your clients' access to the Site but requires sufficient notice. The notice period, as provided by the Telemetry Access Permit is 5 business days. We are instructed to confirm that access to the Site will be given to your clients on Tuesday 22 May 2018. If you have any questions please contact Paul Hardman. 48 On 16 May 2018 at 1.14pm an email was sent by the applicant to various recipients including the respondent, in the following terms: WITHOUT PREJUDICE - SAVE AS TO COSTS Dear Parties - I refer to the below request from Greg Leather, as well as the long string of communications between the parties in addition to the delays now approaching three months that have passed since the Orders were made by His Honour Logan J. I can report that SEQ Water has again denied us access today. S&W staff attended the related site pursuant to the below but have been denied access. I can further report that, embarrassingly, SEQ unfortunately treated our staff with contempt by making them wait at sight for over one hour (for no apparent reason) to culminate in the mentioned negative outcome. We will rely on this communications in relation to Costs. Paul Wallace Satellite & Wireless Pty Ltd 49 On 21 May 2018 at 5.10pm an email was sent by K&L Gates on behalf of the respondent to the applicant as follows: Dear Colleagues We refer to the email from Polyfone Telecom Pty Ltd below. We also refer to our previous correspondence to you and confirm that we act for Seqwater. We advise that access will be provided tomorrow at 9.30am (it is not practicable for our client to provide access at 8.30am). We also note that a number of requests by our client for information and documents including detailed drawings for the work proposed with respect to the installation of the rack remain unanswered. Mr Leather we have taken the liberty of including your client in this email in light of the timing issues for tomorrow. 50 I understand that, on 22 May 2018, the applicant gained access to the Reservoir Tower and placed the radio cabinet inside the Reservoir Tower.

Request dated 24 May 2018 51 By email dated 24 May 2018 at 9.12am the applicant wrote to the respondent in the following terms: Good Morning, We would like to give 5 days notice to install equipment into our rack at the Alexandra Hills reservoir, the equipment we are installing inside the cabinet does not emit RF EME. We plan to plug into the spare GPO as shown in the attached picture (AlexHills_GPO.jpg). As per the telemetry agreement, S&W will compensate SEQWater for the power used, the expected power draw of the S&W facility is between 1.5 & 2 Amps. Jarrod O'Connell Polyfone Telecom Pty Ltd 52 Attached to this email was material detailing the proposed works. 53 Later that day at 11.28am the applicant emailed the respondent in the following terms: Hi Martin, The locked cabinet is placed on the reservoir floor in the position shown in the attached document previously sent to consents@seqwater.com.au. Attached is a photo of the rack in-place along with a floor plan of the reservoir. The cabinet location does not obstruct ingress/egress to the reservoir nor access to the stairwell. For the sake of clarity, can you please provide information in regards to cabinet classification under the NCC? Kind regards Jarrod O'Connell Polyfone Telecom Pty Ltd 54 On the same date the applicant wrote a letter of complaint to Mr John Wilson, Operations Manager at Queensland Workplace Health and Safety (Government) in response to a complaint made against it by the respondent on 16 May 2018. 55 On 24 May 2018 at 2018 at 4.00pm the respondent emailed the applicant in the following terms: Hi Jarrod, Polyfone should make its own enquiries through its own its own engineers to ensure compliance with the NCC. Once you have done this please provide appropriate evidence to Seqwater of compliance with the NCC. Seqwater will then advise you of its position. In relation to the positioning of the cabinet, Seqwater has already advised Polyfone to the contrary. RCC concerns with positioning has also been provided to Polyfone. Regards Third Party Engineering Consent 56 On 25 May 2018 at 8.30am the applicant emailed the respondent in the following terms: Dear Martin - I refer to the attached floor plan inclusive of a representation of our rack as well as your objection. 1. In response to your complaint that the space between our rack & the stairs is not great enough, I refer you to the space in the diagram between your staircase/ ladder & the wall. You can see our separation is greater than your own. 2. I trust this satisfies your objection on this point? 3. If this does not satisfy your abjection then I'd be grateful of you could kindly advise the precise legal basis upon which you rely in failing to accept our response? Sincerely PAUL WALLACE Polyfone Telecom Pty Ltd 57 On 30 May 2018 at 11.33am the applicant emailed the respondent (consents@seqwater.com.au) in the following terms: Hi Team I have not had a response to this request for the works scheduled for tomorrow. Can you please let me know the status? Kind regards Jarrod O'Connell

Request dated 31 May 2018 58 On 31 May 2018 at 4.44pm the applicant emailed the respondent in the following terms: Hi Martin, Thanks for speaking with me today, can you confirm we will be able to access the reservoir for these works tomorrow given that we have already provided 5 days notice as set out in the telemetry agreement. These works include: 1. Installing networking equipment inside the rack only 2. Connecting the power source to the rack Kind regards Jarrod O'Connell Polyfone Telecom Pty Ltd 59 I understand that the applicant was denied access to the Reservoir Tower on 1 June 2019. 60 On 31 May 2018 an Improvement Notice was issued by the Queensland Government to Queensland Bulk Water Supply Authority in respect of the Reservoir Tower. The contravention was described in terms of a reasonable belief that the Authority had contravened sections 19(3)(b) and 33 of the Work Health and Safety Act 2011 (Qld) (WHS Act) in circumstances that made it likely that the contravention would continue or be repeated. It was further particularised as follows: The person conducting a business of undertaking has not ensured so as far as is reasonably practicable the provision and maintenance of a safe structure, namely the Alexandra Hills High Level Reservoir. (The Reservoir) The handrail on top of The Reservoir is in an unsafe condition and has the potential for fai8lure. This is evidenced by the independent engineer's report which includes photographic evidence and states "this handrail was in very poor condition with isolated areas of advanced corrosion" which has resulted in a "complete section loss and failure at one location of the handrail". 61 On 18 June 2018 at 11.15am the respondent emailed the applicant as follows: Hi Jarrod, Further to your emails of 7 and 14 June 2018, we advise as follows: 1. As you are aware, an Improvement Notice has been issued as against Seqwater (copy attached) in respect of the Reservoir Tower. 2. The Improvement Notice requires Seqwater to address the hazard of the safety handrail on the Reservoir Tower roof. It is described in the Improvement Notice as being in an unsafe condition and has the potential for failure. 3. Affixed to the safety handrail are various telecommunications fixtures. To repair the handrail the telecommunications fixtures will need to be removed from the safety handrail. Seqwater is in the process of engaging with various carriers and other 3rd parties (including Regulators) to identify the owners of those fixtures and to facilitate their removal so that the safety handrail can be replaced. This will be a substantial project which will also likely involve removal of other equipment from the Reservoir Tower roof itself (i.e. not just the safety handrail). 4. Once the safety handrail is replaced then the fixture of any telecommunications equipment to the safety handrail will not be permitted as this compromises the purpose and effectiveness of the safety handrail as a control measure to reduce the safety risk of working at heights. 5. In addition on Thursday 7 June 2018 a further site inspection of the Reservoir Tower was undertaken by Work Health and Safety Queensland, the Electrical Safety Office and Fire and Emergency Services. A number of issues were identified regarding ingress and egress from the Reservoir Tower and the internal control rooms in the Reservoir Tower. Following this inspection Seqwater developed a Work Instruction that is now affixed to the Site front gate, the temporary barrier surrounding the Reservoir Tower and the front door of the Reservoir Tower (we attach a copy to this email). Seqwater is also in the process of consulting further (in conjunction with the Regulators) with the owners/operators of the internal control rooms so that fire and electrical risks in relation to those control rooms can be addressed. 6. These are matters which obviously will impact upon Satellite and Wireless' proposed plans in terms of installation of its equipment, especially in relation to the Reservoir Tower Roof. 7. Firstly we request that you review the attached Work Instruction so that you can take the appropriate steps to comply with it. 8. Secondly we ask you to consider the utility of you proceeding with your works now in light of the substantial work that needs to be undertaken at the Reservoir Tower roof and the disruption and re-location that this will cause to the existing infrastructure on the Reservoir Tower roof. In this respect Seqwater is of the view that until the safety issues (identified in the Improvement Notice and the Work Instruction) are resolved no further work of the kind that involves the installation of new telecommunications equipment at the Reservoir Tower should proceed. We are willing and able to consult with you further on these issues. If you would like to do so please contact Darren Hayman, Manager Property Fleet and Facilities (Darren.Hayman@seqwater.com.au). Regards Third Party Engineering Consent

Request dated 14 August 2018 62 On 14 August 2018 at 1.41pm the applicant emailed the respondent in the following terms: We would like to access the Alexandra Hills Reservoir to undertake an inspection of the reservoir roof to determine the specific locations for mast installations and cable route Staff have completed the following inductions: - 00001538 - Seqwater contractor induction (All Visitors) - 00002287 - Scheme Induction - Network- Chemical Dosing Facilities - 00005934 - PASS - Overview All staff hold the following certifications - RIIWHS204D - Work safely at heights - HLTAID00l - Provide cardiopulmonary resuscitation - HLTAID003 - Provide first aid - RADHAZ - Radiation Awareness The rescue team hold the and additional tower rescue certifications which include - PUASAR022A - Participate in a rescue operation - PUAEME00lB - Provide emergency care - PUAFIR215 - Prevent injury Please find the attached SWMS including Working at Heights Rescue Plan, Working at Heights Application, staff certifications and insurance certificate of currency. Staff will also complete a TAKES onsite prior to commencing work. Please let me know if you require any further information. Kind Regards, Jarrod O'Connell 63 On 21 August 2018 at 8.05am the applicant emailed the respondent in the following terms: Good Morning Can you please advise the access procedures for Tomorrow's site visit? Kind Regards Jarrod O'Connell 64 On 24 August 2018 the respondent emailed the applicant in the following terms: Dear Jarrod, Thank you for your email. Your request for access cannot be accommodated. Pursuant to section 2(b)(vii) of the Telemetry Access Permit, safety and operational reasons exist which prevent access to the site until further notice. Seqwater is in the process of undertaking works to comply with the Improvement Notice issued by Workplace Health and Safety Queensland. Until those works are complete, Seqwater does not consider access to the Reservoir can safely be provided. The Improvement Notice requires compliance with the rectification works by 30 September 2018. Regards Martin Leung

Request dated 7 November 2018 65 By email sent 7 November 2018 at 3.19pm, Mr Leather on behalf of the applicant wrote to the respondent as follows: Dear Ms Serratore and Mr Harpham, We refer to the email of 17 June 2018 from Third Party Engineering Consent to our client attaching an Improvement Notice and a Work Instruction. We note that the Improvement Notice addressed the handrail on the roof of the water tower and required the issue to be remedied by 30 June 2018. The Work Instruction referenced the Improvement Notice and referred to hazards including the handrail and a fire hazard arising from equipment within the tower. It requires any person seeking access to undertake a comprehensive risk assessment and develop safe work method statements, which must be provided at least five days prior to the requested access. Steps were set out in the Work Instruction that must be undertaken both prior to and after accessing the tower. We refer you to Jarrod O'Connell's email of 14 August 2018. In that email, the following information was provided: Staff have completed the following inductions: - 00001538 - Seqwater contractor induction (All Visitors) - 00002287 - Scheme Induction - Network - Chemical Dosing Facilities - 00005934 - PASS - Overview All staff hold the following certifications - R1IWHS204D - Work safely at heights - HL TAID00 1 - Provide cardiopulmonary resuscitation - HL TAID003 - Provide first aid - RADHAZ - Radiation Awareness The rescue team hold the and additional tower rescue certifications which include - PUASAR022A- Participate in a rescue operation - PUAEME00lB-Provide emergency care - PU AFIR215 - Prevent injury In addition, attached to the email were our client's SWMS including Working at Heights Rescue Plan, Working at Heights Application, staff certifications and insurance certificate of currency. Confirmation was given that Satellite & Wireless staff will also complete a TAKE5 onsite prior to commencing work. The date specified for access was 22 August 2018, which was more than 5 days after provision of the above information and attachments, as requested by the Work Instruction. On 22 August 2018, SEQ Water Access Control Centre advised Mr O'Connell that it had been specifically instructed that access to the tower for Satellite & Wireless was not granted. On 24 August 2018, Third Party Engineering Consent sent an email to Mr O'Connell referencing Clause 2(b)(vii) of the Telemetry Access Agreement and advising that Seqwater was in the process of undertaking works to comply with the Improvement Notice. The email asserted that the Improvement Notice required compliance with the rectification works by 30 September 2018. We note that this is not the date specified in the Notice. Nevertheless, on Monday, 5 November 2018, Mr O'Connell telephoned Mr Errol George (who has been cc'd into all of the abovementioned correspondence) to enquire whether the rectification works have been completed and has been advised that works are still ongoing. In the circumstances, our client has made arrangements to have an Elevated Work Platform attend at the water tower so that access to the roof of the tower is not dependent on internal access. Our client does not rely on safety handrails when working at heights. Rather it attaches its safety harnesses to the safety anchors at the centre of the roof. The still incomplete works to the handrail are of no consequence to our client's access to the roof, nor would the state of the handrail have ever been of any relevance. Our client nominates Wednesday, 21 November 2018 for access to the site to inspect the roof of the tower to inspect and nominate alternate positions for its two antennas, noting that they must be at least two metres from the access hatch to the reservoir. We confirm as has been previously advised that our client does not propose to affix any equipment to the handrail. Kindly confirm by no later than 5pm on Friday, 9 November 2018 that access will be granted on that date for our client to conduct its inspection. Should we not receive confirmation by that time, we are instructed to apply to have the matter relisted before His Honour Logan J for further orders. We note that the reference on 24 August 2018 to Clause 2(b)(vii) cannot be sustained given that it is now four months since the date specified on the Improvement Notice for compliance works to be completed and over a month since the subsequently nominated date of 30 September. Despite that, the advice given on Monday, 5 November 2018 that works are ongoing is at odds with the acknowledgement in clause 2(b)(vii) that Seqwater may restrict or temporarily prohibit access to the site. Yours faithfully Gregory Leather | Partner BARRINGER LEATHER LAWYERS 66 On 8 November 2018 at 1.30pm the respondent emailed the applicant in the following terms: Hi Jarrod, Seqwater has been granted an extension for compliance with the Improvement Notice by Work Health and Safety Queensland. I have attached a copy of the new notice with a compliance date of 30 November 2018. Unfortunately, structural concerns have been identified regarding the roof's structural integrity which has resulted in Seqwater shutting down all access to the roof in the interim. This decision has been made in consultation with Work Health and Safety Queensland. At this stage, we don't have an intended commencement date. Seqwater however is continuing to work with Work Health and Safety Queensland to achieve this. Regards, Martin Leung 67 On 9 November 2018 K&L Gates on behalf of the respondents wrote a detailed letter to the applicant's lawyer Mr Leather. Relevantly, K&L Gates stated: The applicant's proposal to access the Reservoir Tower roof as set out in its email of 7 November 2018 rendered the activity unsafe. A First Improvement Notice was issued by Workplace Health and Safety Queensland on 31 May 2018 requiring compliance by 30 June 2018 in respect of the Reservoir Tower. The First Improvement Notice was revised and reissued 28 June 2018 in the same terms albeit with a compliance date of 30 September 2018 (Revised Improvement Notice). The respondent engaged in a process of consultation within the meaning of s 46 of the WHS Act for the removal of telecommunications equipment to facilitate the extensive works required to replace the safety handrail on the roof of the Reservoir Tower so that it could comply with the Revised Improvement Notice. It became apparent that additional time was required to facilitate the required rectification works, including that it would be necessary to remove all telecommunications equipment on the Reservoir Tower roof so that rectification works could be properly and safely undertaken. Seqwater identified the need to carry out repairs and maintenance work (as identified in the Reservoir Condition Assessment Report prepared by engineering company GHD Pty Ltd (GHD) dated 14 December 2017) concurrently with the handrail rectification works to minimise disruption to other carriers with telecommunications equipment on the Reservoir Tower roof and to ensure the work could be done safely without exposing workers to the risk of EME exposure. Following consultation with WHSQ a further Improvement Notice was issued on 2 October 2018 in the same terms as previously, albeit requiring compliance by 30 November 2018 (Second Improvement Notice). As at 9 November 2018 the rectification works had not commenced for reasons including discussions with the carriers and Redlands City Council concerning (inter alia) removal/shutdown of equipment, the protracted process of identifying the ownership of telecommunications equipment on the Reservoir Tower, and further concerns identified by WHSQ in respect of the structural integrity of the Reservoir Tower. Structural integrity concerns raised by WHSQ included the ability of the Reservoir Tower to withstand additional weight (including the weight of telecommunications equipment, personnel and equipment) being placed on the roof in circumstances where it was not designed (circa 1966) to accommodate these loads and forces. WHSQ identified a concern that the Reservoir Tower roof could catastrophically fail. At the request of WHSQ, Seqwater made enquiries, and on 8 November 2018 provided information relating to issues of host loads, wind loads and the combined weight of infrastructure on the Reservoir Tower roof. WHSQ recommended that access to the Reservoir Tower be prohibited until enquiries had been concluded and an appropriate assessment made as to the capacity of the Reservoir Tower to withstand the load to which it was currently subject as well as the limit of additional loads. Seqwater as the operator and occupier of Reservoir Tower owed obligations under the WHS Act, and to discharge those obligations Seqwater was required to ensure the safety of workers and other persons. Seqwater was required to manage the risks in accordance with Regulation 35 of the Work Health and Safety Regulations 2011 (Qld). As a result, and in consultation with WHSQ, Seqwater had amended its procedure "PRO-02258 Corporate Safety - Work Instruction, Accessing Alexandra Hills Reservoir Work Instruction" to prevent any access to the roof by anyone. A copy of this procedure was provided to the applicant on 8 November 2018. While the safety handrail may be of no consequence to safe access of the Reservoir Tower roof by the applicant, the related structural integrity of the safe anchors in the centre of the roof and its ability to withstand additional loads (of personnel accessing the roof and their equipment) were very serious concerns. The applicant was on notice that the structural integrity of the Reservoir Tower roof and the safety anchors could not be assured, and the structure may be at risk of collapse in the event of additional load being placed on the Reservoir Tower roof. The material issue was not means of access to the roof, but being on the roof itself. The applicant's proposal to access the Reservoir Tower roof by EWP did not in any way eliminate or minimise that hazard. As a result of s 272 of the WHS Act, the legislative obligations imposed under the WHS Act must be discharged irrespective of any contractual agreement between the parties. In any event, Seqwater maintained that under the Access Agreement it was permitted to rely on clause 2 (b)(vii) to deny access. Seqwater has provided requested information to WHSQ but had no control over the length of time WHSQ required to review the information and assess the suitability of the Reservoir Tower to withstand loads. While that consideration was being undertaken the Procedure would remain in force, preventing access by anyone including Seqwater personnel. Seqwater declined the applicant's request for access on 21 November 2018 - access could not be permitted in circumstances where permitting such access could amount to a contravention of obligations imposed on it under the WHS Act. 68 On 12 November 2018 Mr Leather for the applicant responded, in summary as follows: The applicant did not rely on safety handrails when working at heights; The reference in the respondent's letter to work being done without exposing workers to the risk of EME exposure was "entirely disingenuous" as was apparent from the RF EME Measurement Survey conducted for the respondent by Corearth Pty Ltd (Corearth), the results of which were set out in its report dated 5 October 2017. That report found that the highest level of radiofrequency electromagnetic energy (RF EME) present on site was 16.84% of the General Public Exposure Limit set out in ARPANSA RPS3, which was 3.368% of the Occupational Limit set out in that standard. It followed that the levels recorded presented no unusual risk to workers following ordinary RF EME safety procedures. The references to structural integrity concerns were not supported by any evidence. The suggestion that the Reservoir Tower roof could catastrophically fail was disingenuous. There was no evidence that WHSQ had recommended that access to the Reservoir Tower be prohibited until enquiries had been concluded. 69 By letter to Barringer Leather Lawyers for the applicant dated 14 November 2018 from K&L Gates, the respondent stated (inter alia) that the matters set out in its letter of 8 November 2018 related to its safety concerns were entirely genuine, that relevant matters had to a significant extent arisen out of continuing investigations being carried out by WHSQ, and that proposed safe work method documents relied on by the applicant for the purpose of its access could not be accepted for use until the WHSQ review was completed. The respondent stated that it would refer the matter to WHSQ for its assistance in resolving issues in accordance with s 82 of the WHS Act. The respondent attached a copy of its letter to WHSQ dated 14 November 2018 in which it requested WHSQ to urgently appoint an Inspector to attend the Reservoir Tower to assist in resolving the issue between it and the applicant pursuant to s 82(2) of the WHS Act. 70 On 16 November 2018 Mr Daniel Anstice of GHD wrote to the respondent as follows: Dear Carmel, Reservoir Condition Assessments 16/17 Addendum to GHD Memorandum dated 14th February 2018 - Correction and Update I am writing this addendum to provide a correction and update to GHD's memorandum entitled 'Preliminary Report on the Implications of the Proposed Antenna Installations at Alexandra Hills High Level Reservoir', dated 14th February 2018. Under section 2.2 of the memorandum, GHD state the following: "The structural capacity of the reservoir is deemed likely to be sufficient to support the installed telecommunications as well as future installations." We have since become aware that the reservoir was designed in accordance with Standards Association Australia (1952) Minimum Design Loads on Buildings - SM Interim 350. Seqwater believe that the 1955 reprint was the current reprint at the time of the design of this reservoir and was not superseded until the release of AS CA34.1-1969. Upon consideration of the designed intent, we now remove the above sentence from the memorandum, by way of this addendum letter. Should you have any queries regarding this letter please contact the undersigned. Sincerely GHD Pty Ltd 71 On 10 December 2018 at 7.03pm K&L Gates emailed Mr Leather for the applicant, informing him that the rectification works the subject of the WHSQ improvement notice had commenced, and subsequently on 14 December 2018 to inform Mr Leather that the rectification works were nearing completion. On 9 January 2019 at 10.04am K&L Gates emailed Mr Leather that the respondent was awaiting confirmation from WHSQ that the improvement notice in the matter had been discharged.

Request dated 12 January 2019 72 On 12 January 2019 at 5.52pm Mr Leather emailed K&L Gates as follows: Dear Mr Uren As has been previously advised on a number of occasions, the status of the improvement notice is of no consequence to our client's installation. As the improvement works are now complete, there is no further need to delay commencement of our client's installation since there is no longer any risk of multiple personnel on the roof of the tower. Our client accordingly nominates 21 January 2019 to attend and commence its installation. Kindly ensure that your client grants access for the purpose. 73 On 18 January 2019 at 9.25am K&L Gates emailed Mr Leather as follows: Dear Mr Leather We refer to your email below of 12 January 2019. It will not be possible for your client's workers to access the roof of the Alexandra Hills Reservoir Tower (Reservoir) on 21 January 2019. As per our email to you of 9 January 2019, officers of Workplace Health and Safety Queensland (WHSQ) are attending the site today Friday, 18 January 2019, in order to confirm compliance with the Improvement Notice, and we anticipate that WHSQ will confirm such compliance, or advise otherwise, in the following week. Proposed Installation In accordance with clause 3.1 of the Telemetry Access Permit relating to your client's access to the Reservoir (Permit), please have your client deliver the following material to Seqwater: • Timeline for construction of your client's works; • Full detailed drawings and specification of your client's works which includes the location of underground/buried services and location of the battery housed outside of the tower; Drawings must provide for method of attachment. Please also provide pre-installation certification by a registered professional engineer (RPEQ) with the Board of Professional Engineers Queensland in the relevant discipline for the structural impact of each installation. Certification should include: • specification for each proposed installation including supporting structures (poles and mounting frames and cabling) and weights for this equipment; • engineering specifications for each proposed installation including RPEQ registration of the certifying engineer or manufacturer's instructions for each installation; • Particulars of the materials to be used; and • Please provide details for the end of life/decommissioning strategy for each proposed installation including buried infrastructure. Our client will then assess the information. Please note that prior to your client commencing any activity Seqwater will also require your client to provide evidence of relevant insurance in accordance with clause 9.6 of the Permit. Our client will also require your client to attend a pre-start meeting on site before works are to begin once your client's works have been approved. Regards

Request dated 1 July 2019 74 On 1 July 2019 at 12.30pm Mr Leather for the applicant emailed Mr Hardman of K&L Gates for the respondent as follows: Dear Mr Hardman, We refer to previous correspondence. We are instructed to advise that our client intends to complete its installation commencing on Monday 8 July 2019. To that end, please confirm by close of business on Wednesday, 3 July 2019 that your client will allow access to the tower for that purpose. We note that our client has previously provided all necessary documentation required by the Telemetry Access Permit. Should we not receive confirmation that your client will provide access to the tower by 5pm on 3 July, we advise that we hold instructions to commence proceedings without further notice. We note that you previously advised that you hold instructions to accept service. Kind regards 75 On 3 July 2019 at 4.14pm K&L Gates for the respondent emailed Mr Leather for the applicant as follows: Dear Mr Leather Further to your email below, we are instructed that the Alexandra Hills High-Level Reservoir has undergone a structural assessment so that Seqwater could more fully understand its remaining availability with load bearing capacity. As a consequence of this assessment, Seqwater has implemented a number of control measures and weight restrictions including Seqwater's Work Instruction for Accessing Alexandra Hills Reservoir. A copy of Seqwater's Work Instructions is attached. From this assessment, no new equipment can be installed to the roof. Seqwater is shortly to notify the Telecommunication Regulator and the Department of Communication and the Arts of these control measures. We confirm that we have instructions to accept service. Kind regards 76 The respondent's Work Instruction (attached to that email) entitled "Accessing Alexandra Hills Reservoir" was in the following terms: 1. Purpose This Work Instruction informs a Person Conducting a Business or Undertaking (PCBU) and workers of the risk of undertaking work at the Alexandra Hills High Level Water Tower (Reservoir Tower). In addition to this Work Instruction, PCBUs and workers must undertake a comprehensive risk assessment and complete SWMS or JSEA prior to commencing work 2. Scope This Work Instruction applies to all PCBUs and workers who undertake work on, around the base of, or inside the Reservoir Tower. This Work Instruction remains in place until further notice by Seqwater. Restricted entry to Reservoir Tower Until further notice, entry to the Reservoir Tower ls restricted due to a number of hazards that have been identified by Seqwater. Accordingly, no person is permitted to access the Reservoir Tower without Seqwater's consent (see the required steps in Section 3 below to obtain Seqwater's consent to access). Hazards include (but are not limited to) the following: • Seqwater has not been provided with RPEQ certification that the telecommunications equipment affixed to the reservoir roof or surrounds have been installed to the relevant Australian Standards. There may also be loose objects from carrier installation. Accordingly, there is a risk of falling objects from height, particularly during high wind events. An exclusion barrier has been installed to restrict access to the area around the base of the Reservoir Tower (Fall Zone). JSEA and SWMS should identity control measures regarding access to and through the Fall Zone (for example, the use of spotters). • A potential fire hazard arising from electrical equipment in telecommunications equipment control rooms inside the Reservoir Tower. JSEA and SWMS should identify an emergency response plan in the event of fire. • The Reservoir Tower roof has recently undergone a structural assessment so that Seqwater can more fully understand its remaining available load bearing capability. At a minimum the following control measures MUST be complied with: • No more than 600 kg total weight is permitted on the Reservoir Tower roof at any given time. • o No more than 185 kg of weight over any 5 square metre area is permitted on the Reservoir Tower roof (equivalent to a 2.5 m diameter circle). • Equipment other than hand tools is to be kept a minimum of 2.5m away from the work zone on the Reservoir Tower roof. • Two persons can only work side by side providing their combined weight including hand tools is less than 185 kg and excess equipment and other personnel are located a minimum of 2.5 m away. • No new equipment shall be installed on the roof. • New penetration into the concrete are to be avoided wherever possible. Where Seqwater consents to the drilling of new penetrations into the concrete, it will be conditional on meeting the following requirements aimed at protecting the concrete structure: • Prior to undertaking any drilling into the concrete, ground-penetrating radar (GPR) shall be used to accurately locate the reinforcing bars withln the existing structure in order to avoid drlllings and fixings coming into contact with reinforcing bars during or after installation. Documentary evidence to be provided to Seqwater. • Use of stainless-steel fasteners with chemical anchors is mandatory (mechanical anchors shall not be used). • A grout pad or suitable epoxy coating shall be placed between the concrete surface and the equipment base plate to form a seal between the base plate and the fixing to prevent stormwater ingress. • Installations must ensure no contact between the stainless-steel anchor and galvanised steel base plate. This will require the use of insulating washers or similar devices between dissimilar metals. • Nothing shall be installed such that it will impede free drainage of stormwater from the roof towards and over the sides of the roof causing ponding of stormwater on the roof. • No equipment shall be installed on the handrail or any other existing fixtures, or in a location that obstructs safe movement within the reservoir tower, on the Reservoir Tower roof, into the reservoir tank, or any access ways provided for allowing safe access to these areas. • Masts and antenna installations are classified as Class 1 Ob structures under the Queensland Building Act and National Construction Code. All work in connection with installations or modification to these structures will therefore require independent third-party certification in the form of a Form 15 (Compliance Certificate for building Design or Specification) and a Form 16 (Inspection Certificate) certified by an appropriately qualified and experienced Registered Professional Engineer of Queensland. • Falling objects. JSEA and SWMS should include the following control measures: • Tool lanyards to be attached when working near an exposed edge. • Tools not in use are to be stored in the appropriate tool bag or attached to a lanyard. • All equipment to be secured to anchor points whilst not in use. • EME hazard. Current EME compliance certificate and environmental EME Site Safety Report (dated 09/10/2018) are available at https://www.rfnsa.com.au/4161001 Any person seeking access to the site MUST contact the Seqwater Consents Team on (07) 3035 5677 & the Seqwater Operations Control Room on (07) 3270 4049 before attempting to, or making any arrangements to, access the site. In addition, any person seeking access to the internal shell of the structure (but not roof) will need to undertake a comprehensive risk assessment and develop safe work method statements to address relevant hazards and risks as directed by this work instruction. The risk assessments and safe work method statements will be required to be provided to Seqwater at least five (5) business days prior to the requested access date for review and approval. You MUST contact Seqwater if you have any concerns with these control measures before proceeding with any access/work. 3. Actions/responsibilities When undertaking work on or in the Reservoir Tower, a PCBU MUST: … 77 On 4 July 2019 at 3.00pm Mr Leather for the applicant emailed Mr Hardman of K&L Gates for the respondent, and requested a copy of the structural assessment to which Mr Hardman had referred in his email of 3 July 2019. K&L Gates emailed a copy of this report to Mr Leather on 9 July 2019 at 9.14am.

ISSUE 1: Did the Applicant comply with the requirements for the Access Permit when seeking access on the dates particularised at paragraph 11 of the Statement of Claim?

Submissions 78 The respondent denied that it improperly refused the applicant access in light of this request, on the basis that, contrary to cl 3.1 of the Access Permit, the request (in summary): did not provide for 5 business days' notice; sought to place the applicant's equipment in an area other than the Permitted Area; and did not provide drawings or specifications for the works to be completed. 79 The respondent also submitted that it at no time consented to the "installation" of a data cabinet by the applicant inside the Reservoir Tower - rather on 22 May 2018 it permitted the applicant to place a data cabinet on the internal ground floor of the Reservoir Tower pending satisfaction of requirements for installation including: satisfaction of the minimum requirements of the National Construction Code; confirmation that the data cabinet did not obstruct other users of the Reservoir Tower, including sufficient clearance from the Redland City Council equipment; details of the electrical design; and the location and material of the equipment. 80 The applicant refuted these submissions, contending rather that: The request was sent by email on Monday 23 April 2018 requesting access on Monday 30 April 2018. Arguably, the request ought to have nominated Tuesday, 1 May 2018 as the date on which access was sought. However, as access on 30 April 2018 was refused (for other reasons) the respondent was thereafter on notice of the request and had been afforded more than five business days' notice. The respondent requested that drawings include the location of underground/buried services. However, the applicant's request explicitly stated that the cabinet was to be placed on the concrete floor (on the ground floor of the Reservoir Tower) and that no penetrations would be necessary (that isn there were no underground/buried services). After some correspondence back and forth between the parties, the respondent advised the applicant on 30 April 2018 that it could arrange access for inspection only once all safety documents had been accepted, but that if the applicant still planned on installing equipment, the respondent still required drawings detailing the proposed installation and methodologies for review and acceptance. On 1 May 2018, the applicant responded that it was prepared to limit its request for entry to inspection only and requested access that day. The respondent responded by email the same day advising that entry could not be arranged before Friday, 4 May 2018 and that it was still reviewing safety documentation, and subsequently on 3 May 2018 sought further safety documentation. By 11 May 2018 the applicant was limiting its request for access to inspection only, however the respondent sought information concerning installation of the applicant's data cabinet in the Reservoir Tower. The imposition by the respondent of a requirement for installation of the data cabinet, that could not be met until or unless the respondent allowed access for inspection of the roof of the Reservoir Tower, was an unreasonable basis for refusal of consent to install the data cabinet. Moreover, given that the applicant was not seeking access for that purpose by 11 May 2018, it constituted an unreasonable basis for refusal of consent to inspect the roof of the Reservoir Tower.

Permitted Area 81 Earlier in this judgment I set out relevant provisions of the Access Permit, including the definition of "Permitted Area". The terms of the Access Permit are somewhat confusing, particularly to the extent that "Permitted Area" is stated by Item 6 of the Reference Schedule as "To be agreed by Seqwater". This ambiguity is surprising, given that certainty in respect of the "Permitted Area" must have been a key issue whereby the parties resolved their previous dispute and reached this agreement. 82 Insofar as I can understand from the material before the Court, there was no subsequent agreement between the parties updating the definition of "Permitted Area" to further define it. 83 As Gibbs CJ, Murphy and Wilson JJ observed in Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600 at 604, it is established by authority, both ancient and modern, that the courts will not lend their aid to the enforcement of an incomplete agreement, being no more than an agreement of the parties to agree at some time in the future. (see also for example Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360 and Factory 5 Pty Ltd (In Liq) v State of Victoria (No 2) [2012] FCAFC 150 at [60]. 84 Ultimately, was the Access Permit drafted in such a fashion to leave unresolved the key issue of "Permitted Area" such that the Access Permit was "an agreement to agree", or was the "Permitted Area" identified with sufficient certainty to give it meaning in the context of the Access Permit? The parties have not identified this as an issue, however in my view it arises on the material before me and warrants examination. 85 Having considered the material before me I am satisfied that, while of dubious clarity, nonetheless "Permitted Area" was identified with sufficient particularity in the Access Permit such that the Access Permit was not "an agreement to agree". 86 Specifically, I am satisfied that "Permitted Area" meant the exterior of the Reservoir Tower. In this respect I note: "Permitted Area" is further defined in cl 1.1 as "includes the Carrier's improvements and facilities on those premises but does not include the internal area of Seqwater's Infrastructure." Insofar as I can ascertain from the material before the Court, prior to the execution of the Access Permit there was no equipment of the applicant installed in or on the Reservoir Tower (indeed much of the argument of the parties involves access for inspection as distinct from installation). "Seqwater's Infrastructure" is defined by cl 1.1 as "includes any building, structure such as water tower or water reservoir owned or control [sic] by Seqwater". It is apparent from the terms of Schedule 2 that the parties anticipated that equipment of the applicant was to be installed on the exterior of the Reservoir Tower. Having examined the Reservoir Tower with the parties in a site visit during the course of the proceedings, it is apparent that the focus of the parties' interest in respect of the installation of equipment by the applicant was the roof of the Reservoir Tower. The roof of the Reservoir Tower is exterior to the Reservoir Tower. Schedule 2 also states that the "positioning [is] to be agreed by Seqwater" (emphasis added). While no evidence is before the Court as to why this was the case in the Access Permit, there is expert evidence before the Court that structural impact of installing an individual piece of equipment depends on its weight and location, in particular its juxtaposition to existing equipment on the roof slab (p 4 para 3.2 (c)(i) of the memorandum from Messrs Daniel Anstice and Alan Wolski of GHD, provided to Mr Geoff Simmers and Ms Carmel Serratore of the respondent, dated 8 March 2019). To that extent, I am satisfied that the parties agreed that equipment of the applicant would be installed on the roof of the Reservoir Tower subject to final confirmation of location by the respondent, because of the potential structural implications. 87 It follows that the exterior of the Reservoir Tower, including the roof, fell within the "Permitted Area" within the meaning of the Access Permit. 88 As to whether "Permitted Area" also included the interior of the Reservoir Tower, para 9 (n) of the Defence pleads that the Permitted Area did not include the internal area of the respondent's infrastructure. However, as the applicant pleaded in its reply filed 30 September 2019: As to the allegation in paragraph 9.n. of the Defence, the Applicant admits that this is within the definition of Permitted Area, and says further: (a) despite the definition in the Access Agreement, the meaning of Permitted Area, per Item 6 of the Reference Schedule, is "to be Agreed". To the extent that the Respondent permitted the installation of part of the Applicant's facility inside a building, the Access Agreement does include the internal area of a building (at least the part where the cabinet was installed) in the Permitted Area. (b) alternatively, to the extent that the Respondent permitted the installation of part of the Applicant's facility in the internal area of a building, if this is outside the Permitted Area of the Access Agreement, then the installation of the cabinet must have been permitted pursuant to Schedule 3 of the Act. 89 It does not appear to be in dispute that the respondent permitted the applicant access to the interior of the Reservoir Tower on 22 May 2018. There is dispute however as to what actually occurred on that date. 90 In particular: The applicant contends that the respondent permitted the installation of its cabinet on 22 May 2018 inside the Reservoir Tower. However the respondent contends (as reflected in its letter dated 9 November 2018) that the applicant had been granted access on 22 May 2018 for the purpose of placing its data cabinet on the internal ground floor of the Reservoir Tower pending satisfaction of particular requirements for installation. 91 Evidence was given by Mr Joseph Meissner, Manager Operations Southern Region for Seqwater in his affidavit dated 18 February 2020, as follows: 205. On 22 May 2018, the Applicant was permitted access to the Reservoir Tower to drop off its data cabinet and communication rack inside and at the base of the Reservoir Tower but not to connect it. 206. This equipment, in its current location, blocks access to cables and a ventilation area. The electrical cabinet does not have 600mm clearance for a worker to be in front of it. The door also cannot open due to its proximity to the stairs and I believe that it breaches the Electrical Safety Act due to the proximity to the stairs. The location of the cabinet is unsuitable because it is in close proximity to a low point in the structure where water pools and therefore it is electrically unsafe for anyone to be performing work in that environment. The water above it can leak and rain can ingress from a penetration point behind the cabinet exposing the electrical equipment to rain ingress. 92 Insofar as I can ascertain this evidence of Mr Meissner was not contested. 93 The definition of "Permitted Area" in cl 1.1 of the Access Permit specifically excluded "the internal area of Seqwater's Infrastructure." I consider that the "internal area of Seqwater's Infrastructure" includes the interior of the Reservoir Tower. 94 In such circumstances, I am not persuaded that the permission granted by the respondent to allow the applicant to place its equipment inside the Reservoir Tower meant that the definition of "Permitted Area" had been varied to include the interior of the Reservoir Tower, or alternatively that the respondent had waived any restriction confining the location of equipment of the applicant to the exterior of the Reservoir Tower such that the applicant could install its equipment inside the Reservoir Tower. 95 Accordingly, I am satisfied that "Permitted Area" meant only the exterior of the Reservoir Tower.

Compliance otherwise with the Access Permit 96 However, even if the applicant sought to place its equipment in the Permitted Area, the respondent contended that the applicant's request dated 23 April 2018 did not provide for 5 business days' notice, and did not provide drawings or specifications for the works to be completed. 97 Clause 3.1 specifically sets out the pre-commencement requirements of the applicant. The applicant made detailed submissions concerning its conduct in respect of those requirements, however: In respect of the notice given, the applicant appeared to accept that it gave inadequate notice in its request dated 23 April 2018 (although only short by one day). Cl 3.1 requires the applicant to give the respondent "full detailed drawings and specification for the Carrier's Works which includes the location of underground services" five days in advance. Although the applicant submitted that it sought to place its cabinet on the concrete ground floor of the Reservoir Tower and there were no underground or buried services in respect of which drawings were required, cl 3.1 is not limited to underground or buried services. It appears that, in its request of 23 April 2018, the applicant provided no drawings or specifications for the works it proposed in that request. There is no provision made in the Access Permit in respect of pre-commencement requirements for the respondent to allow the applicant access in order for the applicant to comply with the pre-commencement requirements in cl 3.1 of the Access Permit. Clause 3.1 plainly states that the applicant complete the tasks identified in that clause prior to commencing Carrier's Works. The closest such provision appears to be cl 3.1 (a), which contemplates the parties attending a "pre-start meeting on the Land" prior to any Carrier's Works commencing, albeit with 5 business day notice. I do not accept the applicant's submission that the respondent somehow prevented the applicant from complying with cl 3.1 by refusing some form of "preliminary" access. Even accepting that the access requested by the applicant on 23 April 2018 evolved from "inspect and installation" to merely "inspect" over the course of several weeks following 23 April 2018, this does not detract from the fact that the applicant's original request for access was for inspection and installation. To the extent that the applicant agreed to seek to limit its access to inspection only, that was itself a new request for access for which notice was required. 98 In my view the applicant's request dated 23 April 2018 failed to comply with the requirements of the Access Permit.

Submissions 99 Although the respondent granted access to the applicant to place its data cabinet inside the Reservoir Tower on 22 May 2018, the respondent contended that the applicant's request of 15 May 2018 did not comply with the terms of the Access Permit, in that (in summary) the request: did not provide for 5 business days' notice (in that it sought access on 16 May 2018); did not respond to the respondent's reasonable requests as set out in the email of 11 May 2018; and did not provide drawings or specifications for the works to be completed. 100 The applicant however contended that the request for access dated 15 May 2018 was not a fresh request for access but rather part of a chain of correspondence dating back to 23 April 2018, and that - for the same reason as in respect of the request dated 23 April 2018 - it was unnecessary for it to provide detailed drawings.

Consideration 101 To the extent that the applicant did make a request on 15 May 2018, it does not appear to have complied with the Access Permit for the reasons submitted by the respondent. While there was ongoing correspondence between the parties after 23 April 2018, it appears that the applicant updated its request for access on 15 May 2018, requesting access the following day. I consider this was a fresh request for access, which did not give 5 business days' notice. Notwithstanding that the parties had been corresponding since 23 April 2018, the Access Permit did not entitle the applicant to make a request that access be granted the following day. 102 I also do not accept the applicant's submission that it was unnecessary for the applicant to provide drawings and/or specifications of its proposal to install the cabinet. A request for installation must comply with cl 3.1 of the Access Permit. 103 Finally, although the respondent permitted the applicant to place its equipment inside the Reservoir Tower, I accept the respondent's characterisation of this action as being in the nature of the applicant "dropping off" equipment rather than installing it in an area outside the Permitted Area as defined by the Access Permit. 104 In my view the applicant's request dated 15 May 2018 failed to comply with the requirements of the Access Permit.

Submissions 105 The respondent submitted that the applicant's request dated 24 May 2018 failed to comply with the terms of the Access Permit because, although 5 business days' notice was given, in summary: the applicant sought access to install equipment outside of the Permitted Area; the applicant sought to use the respondent's electrical services contrary to the terms of the Access Permit; the applicant did not propose to provide any electrical supply meter in accordance with the terms of the Access Permit; and the applicant did not provide drawings and specifications as required by the Access Permit. 106 The applicant submitted in summary: There was no question that the data cabinet was installed in the Permitted Area, given that the respondent had granted permission to do so; In respect of the use of the respondent's electrical services, cl 7.4 of the Access Permit contemplated in its terms that the respondent would or may provide electricity as a service to the applicant. Accordingly, as a basis for refusing access to the applicant, reliance on this ground was an improper refusal by the respondent and a breach of the Access Permit; In relation to the applicant's failure to propose to provide any electrical supply meter, this was an explicit acknowledgment of the obligation in cl 7.4 (a) of the Access Permit; The applicant did not provide drawings or specifications for the works to be completed, because the request for access explicitly stated that the proposed works were for equipment to be installed into the data cabinet. It was unnecessary for the applicant to provide drawings or specifications in respect of equipment it proposed to place inside its own data cabinet.

Consideration 107 The request of 24 May 2018 was for the applicant to install equipment into the cabinet placed on the floor of the Alexandra Hills reservoir on 22 May 2018. 108 For reasons I have already given I am satisfied that the access requested was not in a Permitted Area within the meaning of the Access Permit. I am also not satisfied that equipment of the applicant had been "installed" on 22 May 2018, as distinct from being placed inside the Reservoir Tower pending further developments. 109 In relation to the issue of the use of Services, Clause 7.4 of the Access Permit relevantly provided: Charges for Services (a) Seqwater has no obligation to supply Services to the Permitted Area and the Carrier acknowledges that it must provide its own electricity supply meter. (b) The Carrier must not impact on Seqwater's ability to reenergised/isolate Seqwater's electrical supply from the energy network during the Term. Seqwater will (unless in an emergency) give reasonable notice (at least 3 days) of an isolation or reenergisation at the site impacting the Carrier. (c) The Carrier must pay the cost of Services consumed by the Carrier on the Permitted Area: (i) if the Services are supplied by Seqwater, to the Carrier within 10 Business Days of receiving an invoice for that cost Seqwater; or (ii) if the Services are supplied by an entity other than Seqwater, directly to, and as and when required by, that entity. (d) For clause 7.3(c), a Service consumed by, and directly supplied to, the Carrier includes any cleaning or refuse service supplied by a local government exclusively for the Permitted Area. (e) At its cost, the Carrier must: (i) keep and leave the Permitted Area in a clean, safe and tidy condition; (ii) remove all of its rubbish and waste from the Permitted Area and the Land. (f) Despite any implication or rule of law to the contrary, Seqwater will not be liable to the Carrier in any circumstances for any loss or damage suffered by the Carrier for any malfunction, failure to function or interruption of, or to, the Services or any of the appurtenances contained in the Permitted Area or the Land. 110 "Services" was defined by cl 1.1 as meaning: electricity, gas, water, refuse, cleaning or any other service or utility 111 It follows from cl 7.4 that: The respondent had no obligation to supply any Services (including electricity) to the Permitted Area for the use of the applicant (cl 7.4 (a)); The applicant was required to provide its own electricity supply meter, presumably in order to measure the amount of electrical energy its equipment consumed (cl 7.4 (a)); and If the applicant sourced its Services from the respondent - presumably, with the respondent's consent - the applicant was required to pay the respondent for those Services within 10 business days (cl 7.4 (c)(i)). 112 To the extent that the applicant intended to draw power from the respondent for the purposes of installing its equipment pursuant to the request of 24 May 2018, and compensate the respondent later for the power used, the respondent was entitled to refuse to permit this, and to refuse access to the applicant on this basis. Further, it appears uncontentious that the applicant had not arranged for its own meter in accordance with cl 7.4 of the Access Permit. 113 In respect of the provision of drawings by the applicant, I do not accept that it was nonsensical for the respondent to plead that the applicant could or should have supplied drawings or specifications of equipment it proposed to place inside its own data cabinet, in circumstances where the respondent in correspondence had expressed concerns about the positioning of the cabinet. 114 In my view the applicant's request dated 24 May 2018 failed to comply with the requirements of the Access Permit.

Submissions 115 The respondent submitted that it improperly refused the applicant access following the request of 31 May 2018, in circumstances where the request: did not provide for 5 business days' notice; sought access to install equipment outside of the Permitted Area; sought to use the respondent's electrical services contrary to the terms of the Access Permit; did not propose to provide an electrical supply meter in accordance with the terms of the Access Permit; and did not provide drawings and specifications as required by the Access Permit. 116 The Applicant submitted that its request for access on 31 May 2018 was a repeat of the request made on 24 May 2018. It repeated and relied on its submissions relating to the request made on 24 May 2018.

Consideration 117 For the same reasons as I gave in respect of the request dated 24 May 2018, I consider that the applicant's request dated 31 May 2018 failed to comply with the requirements of the Access Permit.

Submissions 118 Materially, the respondent submitted that safety and operational issues existed in respect of the Reservoir Tower within the meaning of cl 2 (b)(vii)(A) of the Access Permit, and those issues prevented access by the respondent to the roof of the Reservoir Tower. The respondent also submitted that the applicant's request for access did not attach any drawings or specifications for the works proposed by the applicant, and to that extent it was non-compliant. 119 The applicant submitted in summary that the First Work Instruction did not preclude access to the Reservoir Tower roof, and that in refusing the applicant access the respondent had discriminated against the applicant.

Consideration 120 On 14 August 2018 the applicant sought access to the Reservoir Tower to undertake an inspection of the Reservoir Tower roof, and to determine specific locations for mast installations and cable route. I note that, on 18 June 2018, the respondent had notified the applicant that the respondent had been issued with an Improvement Notice in relation to the handrail on the roof of the Reservoir Tower, and that it had issued the First Work Instruction in response. 121 In its request for access dated 14 August 2018 the applicant did not specify the date it sought access, however in a subsequent email dated 21 August 2018 the applicant referred to the "site visit tomorrow". I accept that, in its request dated 14 August 2018, the applicant sought to (and did) give 5 business days' notice. 122 I also consider that the applicant sought access to the Permitted Area within the terms of the Access Permit. 123 In circumstances where the applicant had sought access to the roof of the Reservoir Tower for the specific purpose of inspection of the roof and determination of specific locations for mast installations and cable route, no Carrier's Works within the meaning of cl 1.1 were proposed by the applicant. In such circumstances no drawings or specifications were required. 124 Although the Access Permit does not specifically refer to the applicant having a right of "inspection" (other than inspection of its equipment in accordance with the Access Permit referable to Item 3 of the Reference Schedule, and the obligation on the applicant imposed by cl 7.1 (f) to regularly inspect the Carrier's Equipment and investigate them), nonetheless: prior to any Carrier's Works commencing, cl 3.1 (a) of the Access Permit requires the applicant to arrange and attend a pre-start meeting on the Land with the respondent's representative by giving no less than 5 business days notice, and cl 3.1 (b) of the Access Permit requires the applicant to first check the Permitted Area is suitable for the Permitted Use under the Access Permit before undertaking the Carrier's Works. 125 In my view these provisions give the applicant a right (giving 5 business days notice) to seek access for the purposes of inspection of the Permitted Area, preparatory to undertaking the Carrier's Works. 126 I am satisfied that the request for access dated 14 August 2018 complied with the cl 3.1 (a) of the Access Permit, and prima facie cl 3.1(c). However cl 3.2 entitles the respondent, if satisfied on reasonable grounds that the Carrier's Works as proposed under cl 3.1 would materially affect the structural integrity or safety of the Reservoir Tower, to request in writing that the Carrier provide the respondent an engineering assessment of the infrastructure certified by a RPEQ confirming (inter alia) that the infrastructure would not be materially structurally impacted by the Carrier's Works. The parties at cl 2 (b)(iv) of the Access Permit also agree that the Permitted Area is located "within a key operational and/or catchment of Seqwater", and that (cl 2 (b)(vii)) the respondent could restrict or temporarily prohibit access to the Permitted Area for safety or operational reasons. 127 I shall turn to these provisions later in this judgment in considering Issue 2.

Submissions 128 The respondent submitted (in summary) that at the time of this request for access the respondent was in the process of complying with an Improvement Notice to repair the safety rail, and had further concerns with the structural integrity of the roof of the Reservoir Tower. 129 The applicant submitted (in summary) that: Its request for access was met for the first time with concerns about the structural integrity of the roof of the Reservoir Tower; No evidence has been adduced by the respondent that WHSQ had made any recommendation that access to the Reservoir Tower be prohibited pending further assessment of the structural capacity of the roof - rather the Second Work Instruction states that the respondent made the decision "in consultation" with WHSQ; and Despite the prohibition declared in the Second Work Instruction, it was clear from paras [135]-[136] of the affidavit of Mr Meissner that the respondent allowed contractors between 10 December 2018 and 14 December 2018 to access the roof for the purpose of remediating the safety handrail.

Consideration 130 In the request dated 7 November 2018 the applicant sought access to the roof of the Reservoir Tower on 21 November 2018. The applicant noted the Improvement Notice and the Work Instruction issued in relation to the hand rail in the Reservoir Tower, but relevantly stated: In the circumstances, our client has made arrangements to have an Elevated Work Platform attend at the water tower so that access to the roof of the tower is not dependent on internal access. Our client does not rely on safety handrails when working at heights. Rather it attaches its safety harnesses to the safety anchors at the centre of the roof. The still incomplete works to the handrail are of no consequence to our client's access to the roof, nor would the state of the handrail have ever been of any relevance. 131 The respondent took no issue with the compliance of the applicant's request with the terms of the Access Permit. Rather, the respondent informed the applicant that structural concerns had been identified regarding the roof's structural integrity resulting in the respondent shutting down all access to the roof of the Reservoir Tower in the interim, and further that a Revised Improvement Notice from WHSQ had meant that the time during which access to the roof was denied would be extended. 132 The applicant's request for access gave more than 5 business days' notice. The relevance of drawings and specifications in respect of this request for access was not addressed by the parties, however the request dated 7 November 2018 included the following: Our client nominates Wednesday, 21 November 2018 for access to the site to inspect the roof of the tower to inspect and nominate alternate positions for its two antennas, noting that they must be at least two metres from the access hatch to the reservoir. We confirm as has been previously advised that our client does not propose to affix any equipment to the handrail. 133 It follows that, as the purpose of the requested access was to inspect the roof, there were no proposed Carrier's Works in respect of which drawings or specifications were required by the Access Permit. 134 I am satisfied that the request for access dated 7 November 2018 complied with the terms of cl 3.1 of the Access Permit. Again, however, the key question is whether the respondent was entitled to refuse access to the applicant for reasons relevant to safety and/or operational issues. I will examine this issue further in the context of Issue 2.

Submissions 135 The respondent submitted, in summary, that this request was for installation of Carrier's Works, but did not attach drawings or specifications as required by the Access Permit. 136 The applicant submitted, in summary: The respondent denied access despite knowing that access was sought for the purpose of inspecting the roof to determine where equipment would be situated; and The respondent knew or ought to have known that the applicant could not provide drawings until it was provided access, and refusing access until the applicant provided drawings was an improper refusal that constituted a breach of the Access Permit.

Consideration 137 In its request for access dated 12 January 2019 the applicant nominated 21 January 2019 to attend and commence its installation at the Reservoir Tower. 138 The applicant characterised this request as a request for access to inspect only, however this characterisation is not supported by the terms of the request of 12 January 2019 where the applicant sought access "to commence its installation" of its equipment. 139 It may be that the applicant meant access to inspect, preparatory to commencing its installation, however the applicant did not state that. The respondent could only, and was entitled to, rely on the language used by the applicant in its request. This is particularly the case in circumstances where the request of 12 January 2019 was made by the lawyer for the applicant. 140 The request dated 12 January 2019 was to "[commence] Carrier's Works" for installation purposes. Clause 3.1 required a request of this nature to be accompanied by a timeline for construction and full detailed drawings and specification. It was not. 141 In my view the applicant's request dated 12 January 2019 failed to comply with the requirements of the Access Permit. To the extent that the respondent further relied on its right to refuse access for safety or operational reasons, I will examine that issue in the context of Issue 2.

Submissions 142 The respondent submitted, in summary, that the applicant failed to comply with the requirements of cl 3.1 of the Access Permit, including provision of drawings or specifications. The respondent also submitted that it had concerns regarding the live load of the Reservoir Tower. 143 The applicant submitted, in summary, that: Despite the respondent's claim that access was refused partly because the applicant did not provide RPEQ certification, no such reason was advanced in the respondent's solicitor's email of 3 July 2019; and In the email of 3 July 2019 the respondent did not refuse access on the basis of failure of the applicant to provide drawings or specifications.

Consideration 144 In this request for access the applicant stated that it intended to complete its installation commencing on 8 July 2019, and sought confirmation by 3 July 2019 that the respondent would allow access to the Reservoir Tower for that purpose. 145 The request for access sought installation of equipment, being Carrier's Works within the meaning of the Access Permit. The issue for consideration is whether the request for access complied with the Access Permit, not whether the respondent's reasons for refusal of access were adequate or comprehensive. Clause 3.1 of the Access Permit required the request to be accompanied by a timeline, and drawings and specifications. 146 In default of these requirements the request for access dated 1 July 2019 did not comply with the terms of the Access Permit. To the extent that the respondent further relied on its right to refuse access for safety or operational reasons, I will examine that issue in the context of Issue 2.

Conclusion 147 The requests of the applicant for access dated 23 April 2018, 15 May 2018, 24 May 2018, 31 May 2018, 12 January 2019 and 1 July 2019 did not comply with the terms of the Access Permit.

ISSUE 2: Was the Respondent entitled under the terms of the Access Permit to refuse the Applicant access to the Reservoir Tower? 148 I have found that the requests for access dated 23 April 2018, 15 May 2018, 24 May 2018, 31 May 2018, 12 January 2019 and 1 July 2019 did not comply with the terms of the Access Permit. It follows that the applicant had no entitlement to access the Permitted Area pursuant to those requests, and that the respondent was entitled to refuse access. 149 In respect of the requests for access dated 14 August 2018 and 7 November 2018 the respondent refused access on the basis of safety and operational issues. The respondent also gave reasons referable to safety and operational issues for refusing access to the applicant on 12 January 2019 and 1 July 2019. I now turn to the question whether the respondent was entitled to refuse access for the reasons it gave on those dates.

Evidence of the applicant 150 The applicant relied on the affidavit of its lawyer, Mr Leather, dated 18 July 2019, to which was annexed relevant correspondence between the parties. I have already set out, in detail, much of that correspondence. 151 The applicant also relied on the affidavit of expert witness Mr Antony Vose.

Evidence of Mr Antony Vose 152 Mr Vose swore an affidavit on 19 February 2020, to which he attached a report entitled "Expert report on acceptable loading on the 'High Level Water Tower' Roof Slab" dated 1 October 2019. 153 Mr Vose deposed that he was a Registered Professional Engineer of Queensland with the Board of Professional Engineers in Queensland, employed by Arcadis Pty Ltd as a Principal Engineer. He also stated, inter alia, that his experience included understanding of the structural engineering principles and detailing adopted in the design of reinforced concrete structures, and that he had 33 years' experience in the design of deep underground rail shafts, large retail and commercial projects, low and high-rise buildings, tourism developments, hospitals and health projects, industrial buildings, institutional buildings, residential dwellings, independent verification, asset inspection and dilapidation reports, and also was proficient in bridge design and associated road structures. 154 In his expert report, Mr Vose stated that he had been asked to consider statements of GHD and Dr Daniel Anstice in their assessment of the capacity of the Reservoir Tower roof slab to support or otherwise the 41 pieces of telecommunications equipment it previously housed. Mr Vose further stated in summary that: he had provided comment as to the capacity of the roof slab to support additional telecommunications equipment and further opinions on other items raised in their reports; and he had provided justification for an allowance of 1074kg of telecommunications equipment to be placed around the 1 m wide annulus in from the extremities of the roof slab. 155 Mr Vose stated that he relied on the following facts and assumptions: 11. Standards Association Australia (1952) Minimum Design Loads on Buildings - SAA Interim 350 is relevant to the design of the 'high-level water tower' roof slab at the time it was designed. I have made inquiries to obtain a copy of this Standard via SAI Global but to no avail. 12. The structural drawings for the 'high-level water tower' referenced in the Affidavit of Daniel James Anstice are illegible due to the low resolution of the drawings. Hence, I have not been able to assess the structural capacity of the 'high-level water tower' roof slab based on these drawings. 13. I have not been able to visit the site and perform my own inspections. I understand that access to the site is restricted by the owner. 14. The current condition of the 'high-level water tower' roof slab is serviceable and is consistent with the description of the condition contained in the GHD "Reservoir Condition Assessment" report dated 14 February 2018 156 In writing his report Mr Vose relied on the following documents: Email received from Barringer Leather Lawyers dated on 16th September 2019; Email received with the attachment of the aerial view of the Alexandra Hills Water Tower dated on 17th September 2019; Affidavit of Dr Daniel James Anstice dated 5 March 2018; Exhibit "DJA2: to Affidavit of Dr Daniel James Anstice sworn on 5 March 2018; Letter titled "Reservoir Condition Assessment 16/17 Addendum to GHD Memorandum dates 14th February 2018 - Correction and Update"; GHD Memorandum "Instructions Response" dated 8 March 2019; Various photographs of telecommunications equipment installed at the Alexandra Hills Water Tower and site audit spreadsheet taken and produced by Satellite & Wireless Pty Ltd; AS/NZS 1170.0: 2002 Structural design actions Part 0: General principles; and AS/NZS 1170.1: 2002 Structural design actions Part 1: Permanent, imposed and other actions. 157 In his expert report Mr Vose opined, in summary, as follows. 158 In relation to the statement of GHD that "no structural analysis had taken place, and as such no assertion could be made in relation to the structural capacity", Mr Vose opined: 18. This statement indicates that there are no supporting calculations to conclude that the 'high level water tower' roof slab does not have sufficient capacity to carry or support extra loads. It seems that GHD have used the minimum imposed load for roof requirements from the Interim Code as the sole basis of their assessment. 19. I have based my structural capacity assessment on the following information from GHD's report: • "Telecommunications equipment is placed within a one-meter anulus inwards from the extremity of the roof slab. From the aerial photos this would be a conservative assumption as most of the existing equipment appears to be located closer to the edge. • The diameter of the roof slab based on the tank wall centreline is 6.5 m. • The weight of 41 items of telecommunications equipment is 1074 kg. This load is spread over an anulus of 1 m width inwards from a circle of 6.5 m. Hence the equivalent uniform load is 1074/17.3 = 62.1 kg/m2 or 0.62 kPa. • The roof slab has capacity to support a live load of 41 kg/m2 or 0.41 kPa. • The uniform weight of maintenance men and their equipment is 600 kg/16 m2= 37.5 kg/m2 or 0.38 kPa". 159 Mr Vose set out load diagrams for two loading scenarios, being Diagram 1, with proposed increase in loading, 600kg of load in the centre area of the roof area of 16m2 (0.38 kPa), with 41 pieces of equipment installed within the outside 1 m annulus carrying 1074 kg of load (0.62 kPa), and Diagram 2, being the GHD Advised Capacity Condition, being a total load of 1674kg uniformly distributed across the whole slab area (resulting in 41kg/m2 or 0.41 kPa uniformly distributed load). 160 Mr Vose stated that he had used Finite Element methods of analysis to determine the bending effects on a circular plate pinned at its edges, for the two load scenarios in the diagrams, and continued: 20. … A limit state load combination of dead plus live load results in an ultimate bending moment in the middle of the tank roof slab of similar magnitude for both Diagram 1 and Diagram 2. There is less than 2% difference in bending moment from Diagram 2 to Diagram 1. Hence, based on GHD's inputs and nominated roof capacity, from my analysis it can be concluded that 1074 kg of telecommunications equipment spread over an anulus of 1 m width, in combination with allowance for 600 kg of maintenance personnel plus equipment (over the internal17 m2) is still within the structural capacity of the roof slab. 161 Mr Vose continued: 21. A recent audit by Satellite & Wireless Pty Ltd of equipment has determined that there are 13 installations on the roof and 3 installations fixed to the side of the tank walls (total 16 installations). Some of these installations are only masts without equipment, however, to be conservative each item is considered to weigh 26 kg as per the GHD report. Hence the mass of current equipment on the roof has an upper limit of 13 * 26 kg = 338 kg. I conclude that based on the above analysis (paragraph 20), that an additional mass of 736 kg (ie 1074 kg - 338 kg) of installations can be installed in the 1 m wide perimeter anulus. 162 At [22]-[24] Mr Vose queried the basis on which GHD concluded that the total live load that could be supported by the roof of the Reservoir Tower was 1674kg. He continued: 25. Section 3.2 (e) (ii), page 8 states" It must be stressed that this calculation is simply a maximum lower bound estimate". 26. The method that has been used is based on an assumed minimum loading which may not be representative of the original design. This approach has not attempted to take into account the actual capacity of the concrete structure and therefore is overly conservative and doesn't present a reasonable basis for an assessment of the structural capacity of the slab. 163 Mr Vose agreed with a number of conclusions of GHD, however disagreed with GHD's statement that the total allowable load on the roof could be less than the design value. He continued: 32. GHD suggests that the construction quality of the tower is unknown, and that unknown effects of past telecommunications installations are a valid reason for asserting that indeterminate levels of damage has occurred to the structure and justifies preventing the installation of additional equipment. This is inconsistent with the results of the GHD Reservoir Condition Assessment which concludes that the tower is in fair condition, has no delamination to suggest corrosion of embedded reinforcement, and indicates a carbonation depth of only 5 mm (for a tower that is over 50 years old). 33. The condition assessment report suggests that the original construction quality of the tower was satisfactory. No evidence was presented in the GHD Condition Assessment to suggest that anchors from installations may have compromised the structural adequacy and durability of the slab, and in my opinion it is unlikely that the installation of anchors will have resulted in significant damage to the slab (page 9 of the memo notes that this "would not occur in a significant enough number of locations to be a concern. No evidence of these mechanisms was found on the Alexandra Hills reservoir roof"). 34. No objective evidence has been presented in the GHD Memorandums or Condition Assessment to support the position that an indeterminate risk has been created by the installation of the previous telecommunications equipment. If this was a real concern, then such indeterminate risks would need to be investigated to establish that they do not create a risk to the structure under other load cases such as by workers accessing the structure or under self-weight conditions. 35. I do not agree that the statement "The only certain way to determine the load capacity of the roof is to test load it up to close to its theoretical elastic limit and back calculate an allowable capacity from measured strains" is reasonable within the context of assessing a proposed change in loading of the roof slab. Various non-destructive and destructive testing techniques are available that would allow a competent structural engineer to objectively assessing the structural capacity of the existing roof slab structure for the purpose of assess proposed load changes. 164 In relation to the statement of GHD that the slab had marginally sufficient capacity (595kg theoretical applied load, 600kg allowable capacity) to support the respondent's maintenance workers and equipment load, Mr Vose opined: 37. The term 'marginally sufficient' to describe imposed loads that are below (but close to) the allowable load is a misleading term - if it is less than the design threshold it is sufficient. 38. General Comment. The GHD Memo uses the term 'allowable load' frequently in reference to allowable stress design. The Memo does not address the use of factors of safety appropriate in the design of the water tower structure and implies that any load equal to the allowable imposed load would necessarily result in a situation that would detrimentally affect the ability of SEQ water to undertake maintenance. 39. As part of the allowable stress design philosophy, a factor of safety will have been applied in the design of the water tower structure. Factors of safety commonly adopted in structural design (prior to the adoption of limit states design philosophy currently used) typically ranged from 2.0 to 3.0 (or even higher for critical infrastructure) depending on the perceived importance of the structure. Consequently, a significant structural reserve is inherent in the structural design of the high-level water tower roof. 40. Any slight increase in loading associated with a change in configuration of the telecommunications equipment will not result in an 'overload' situation that presents an imminent risk of catastrophic failure due to the nature of the allowable stress design philosophy current at the time of the design of the water tower. 165 In summary, Mr Vose concluded: He did not agree that the method adopted by GHD provided an accurate and objective basis for determining the structural capacity of the existing roof slab sufficient to justify limiting the loads applied to the roof slab. He had provided justification for an allowance of 1074 kg of telecommunications equipment to be placed around the 1m wide anulus in from the extremities of the 'highlevel' water tank roof slab. Based on a conservative estimate that the current installation weighed 338 kg, an additional mass of 736 kg of installations could be accommodated on the roof slab. A legible set of structural drawings for the Reservoir Tower should be obtained to inform a more detailed assessment of the capacity of the slab. Otherwise non-destructive material testing should be undertaken to assess the material properties of the concrete and reinforcement.

Evidence of the respondent 166 Evidence in these proceedings was given on behalf of the respondent by its lawyer, Mr Paul Hardman; Mr Errol George; Mr Brian Hester; Mr Joseph Meissner, and Mr Alan Wolski. 167 Mr Hardman's affidavit dated 6 January 2020 annexed relevant correspondence between the parties, including correspondence between the parties following the commencement of this litigation. Only Mr Meissner and Mr Wolski were called as witnesses, however it is important to also have regard to evidence of Mr George and Mr Hester notwithstanding that they were not sought for cross-examination.

Evidence of Mr Errol George 168 Mr George was an engineer (Civil and Pipeline) employed by the respondent, whose day to day duties included engineering and technical support. His affidavit was dated 14 November 2019. Mr George deposed that part of those duties required him to provide engineering advice regarding infrastructure such as the Reservoir Tower. He gave evidence that he had experience in working in confined spaces. 169 Mr George gave evidence specifically relating to safety procedures and access through the roof to the Reservoir Tower for maintenance activities within the Reservoir tank structure itself, including: A significant amount of equipment was required for such maintenance activities; More than 16 square metres of roof space (equating to 33% of the surface roof area) was required for safe conduct of maintenance work by respondent personnel, all of which must be outside any RF EME footprint; A new installation of equipment would be difficult to support due to concerns raised by GHD in its 8 March 2019 Report; There was not a "one size fits all" approach for devising safety plans for an inspection or installation on the Reservoir Tower roof, rather it was necessary for relevantly qualified staff of the Respondent to devise a tailored approach to take into account all current safety procedures, documents and checklists in respect of the Reservoir Tower, together with the risk management of all identified hazards; and He expected that the procedures for the applicant installing telecommunications equipment on the Reservoir Tower roof would include all practicable steps to maintain a safe working environment, and not reduce the safety of personnel of the respondent working later in that place. 170 I accept the evidence of Mr George.

Evidence of Mr Brian Hester 171 Mr Hester deposed that he was a Water Quality Specialist - Drinking Water Quality employed by the respondent. He deposed that the respondent was required to comply with strict obligations concerning safety and drinkability of the water it supplied, having regard to the Public Health Act 2005 (Qld), the Public Health Regulation (Qld) 2018, the Water Supply (Safety and Reliability) Act 2008 (Qld), the respondent's regulator-approved Drinking Water Quality Management Plan, and the Australian Drinking Water Guidelines developed by the National Health and Medical Research Council and the Natural Resource Management Ministerial Council. 172 Mr Hester gave evidence that water which flowed through the Reservoir Tower was delivered from the respondent's water treatment plants at Capalaba and North Stradbroke Island, and deposed as to the water treatment processes used. He further deposed that if the roof of the Reservoir Tower were compromised there would be a risk of gross contamination of water, which meant that it was crucial that appropriate measures be adopted by the respondent to mitigate that risk. 173 Mr Hester gave evidence about water quality testing, and the necessity to guarantee the safety of drinking water from a particular asset. He gave evidence of potential severe public health risks which could result from contaminated water, the detrimental effect on the respondent's reputation as a bulk supplier of safe drinking water in the event of contamination, and the high costs of decontaminating the Reservoir and affected pipework in the event of contamination. 174 Mr Hester noted that the Reservoir Tower was constructed in 1966, and further deposed: 44. Given the age of the Reservoir Tower: (a) there is a higher risk that the vermin proofing is not effective or in good condition; (b) there may be structural issues due to the aging concrete which could result in cracks forming, which allows rainwater to seep into the Reservoir; and (c) as can be seen from the 8 March 2019 Report, sediment build up can be seen at the bottom of the internal Reservoir. Such sediment has a higher risk of containing Contaminants such as pathogens and should be routinely removed for disposal. If water is drawn fown from the Reservoir to an unusually low level, or flow rates through the Reservoir change dramatically, there is a far higher Contaminant risk due to sediment being stirred up and displaced from the Reservoir into the distribution network. 175 I accept the evidence of Mr Hester.

Evidence of Mr Joseph Meissner 176 Mr Meissner gave evidence that a number of pieces of telecommunications equipment (including masts, antennas and satellite dishes) were affixed to the Reservoir Tower. Mr Meissner also deposed as follows: 60. On 4 September 2013, Seqwater was formally vested with the Reservoir Site (and Reservoir Tower) as trustee and occupier. The Reservoir Site is subject to the requirements of the Land Act 1994 (Qld). 61. As part of the Asset Transfer, Seqwater was transferred the rights and obligations associated with existing: (a) telecommunications equipment located within and on the roof of the Reservoir Tower; and (b) freestanding telecommunication monopole owned and operated by Telstra Corporation Limited (Telstra) adjacent to the Reservoir Site on parcel of land Lot 3 on SP136675 (excised out of land forming part of the Reservoir Site) (referred to in my affidavit as the Telstra Facility). 62. The installation of all of the Telecommunications Equipment at the Reservoir Tower pre-dates Seqwater taking possession of the Reservoir Site. 63. There are no records or documents which provide any details about the manner in which the Telecommunications Equipment has been affixed. Seqwater does not believe that they have been assessed and certified by a Registered Practicing Engineer of Queensland (RPEQ). Requests have been made of the Carriers to provide certification and to the best of my knowledge, none of the Carriers have provided the certification. 64. Although I am not a registered engineer, based on my degree qualifications and experience, I do not believe that these installations would be capable of being certified by an RPEQ. The methods of attaching the Telecommunications Equipment were shoddy and haphazard. For example, many pieces of Telecommunications Equipment were affixed to the safety handrail around the perimeter of the roof, cabling has been run all over the place and in all directions and bolts of dissimilar size and metals has been used (evidenced by corroded fixtures) . It appears to me that no regard has been given to the Reservoir's structural reinforcements when the Telecommunications Equipment has been installed. 65. My concerns about the methods of installation were also identified by GHD Engineering Consultants in their inspection, discussed at paragraph 99 below. 66. In the absence of this RPEQ certification, I have concerns that the methods of attachment used by Carriers may have impacted on the integrity of the Reservoir Tower roof. For example, they may have drilled through concrete reinforcement to install the Telecommunications Equipment which might affect the Reservoir Tower itself by the formation of 'concrete cancer'. 'Concrete cancer' occurs when the internal reinforcement mesh is exposed to the atmosphere by way of drilling or coring next to it, through it or in close proximity to it (less than 50mm away). The oxygen and moisture causes the steel reinforcement to rust, then swell then crack out the concrete itself creating a weak-point at that location. Once 'concrete cancer' has broken out of the concrete or cracked it, this then opens up the entire Reservoir to this phenomenon to spread. This is a concern because the Reservoir Tower is located near the coast and is subject to a marine environment which accelerates the corrosion process. 67. Due to the relatively limited period that Seqwater has been in possession of the Reservoir Site, it has very few documents and records about the Reservoir Site. Scant information was provided as part of the Asset Transfer about the Telecommunications Equipment on the Reservoir Tower and the Radio Communications Site Management Book (RSCMB) allocated at the Reservoir Site was inaccurate. This is discussed further below. 177 I note evidence of Mr Meissner that he commenced as Operations Manager for the respondent in late 2016/early 2017: para [85] of his affidavit filed 19 February 2020. At [85] Mr Meissner gave further evidence that he then became aware from staff of the respondent of concerns regarding access to the Reservoir Tower, including concerns about the EME Radiation on the roof as well as the state of the safety handrail around the perimeter of the roof and a broken ladder to the external stairway. Mr Meissner gave evidence including the following: 86. When I was made aware of these concerns, I undertook enquiries and verified that: (a) the ladder to the external stairway of the Reservoir Tower had been reported to Seqwater as broken by RCC (External Ladder). The External Ladder could not be used as a means of access to the roof; (b) entry to the Hatch of the Reservoir Tank had been blocked by a Telecommunications Equipment belonging to Optus, preventing access to the Reservoir Tank. (c) the handrail around the perimeter of the Reservoir Tower was damaged and unsafe: (i) the safety handrail was not fit for its purpose due to multiple sections of the guardrail missing as a result of severe corrosion; (ii) this corrosion was exacerbated due to several pieces of Telecommunications Equipment being mounted to it which placed abnormal weight distribution forces on the safety handrail and removed the protective galvanised coating; (iii) as a result of the corrosion and abnormal weight distribution, the safety handrail could not serve as a compliant fall from heights protective barrier; (iv) the strong winds on the roof due to its elevated coastal location, as well as the multiple trip hazards caused by poorly fitted telecommunications equipment and cabling could easily cause a person to fall off the roof, which could have fatal consequences for my workers and Seqwater contractors. (d) the EME Radiation that may be emitted from the Telecommunications Equipment affixed to the roof of the Reservoir Tower posed a serious risk to workers safety (collectively referred to as the Safety Concerns). 178 In relation to the repair of the safety handrail, Mr Meissner gave evidence including the following: 95. The replacement of the safety handrail could not be done until the owners of the Telecommunications Equipment had been identified for several reasons: (a) the Carriers could agree to temporarily shut down their Equipment to prevent the EME Radiation posing a concern during the rectification work; (b) the Telecommunications Equipment had been directly connected to Seqwater's main power without any isolation switch; and (c) some of the Telecommunications Equipment was affixed to the safety handrail. … 97. In its attempts to gain information about the state of the Reservoir Tower and the Telecommunications Equipment, Seqwater engaged: (a) Mr Grant Mathie and Mr Mark Hazel from Corearth Australia Pty Ltd (Corearth) to conduct a radio frequency site survey at the Reservoir Site; and (b) GHD Engineering Consultants (GHD) to undertake an engineering condition report. 98. GHD, assisted by Corearth undertook their inspection on 13 September 2017. Corearth, as experts in EME Radiation, provided assistance to ensure the safety of the GHD personnel undertaking the inspection. Corearth returned on 14 September 2017 to undertake the radio frequency site survey. 179 Mr Meissner exhibited the Corearth 2017 Report as Annexure JM-7 to his affidavit. 180 Mr Meissner deposed: 112. Whilst Seqwater was attempting to work with the owners of the Telecommunications Equipment, Workplace Health and Safety Queensland (WHSQ) became aware that the safety handrail on the Reservoir Tower was defective. Following a site visit and consultation with me, WHSQ decided to issue Seqwater with an Improvement Notice on 31 May 2018. 181 Relevantly the First Improvement Notice, issued pursuant to s 191 of the WHSQ Act, stated as follows: I, Kev Dwyer reasonably believe on 31 May 2018 at 11.30 that you have contravened a provision in circumstances that make it likely that the contravention will continue or be repeated of the: Work Health and Safety Act 2011 - section(s) 19 (3)(B), 33 Brief description of how the provision is being or has been contravened: The person conducting a business or undertaking has not ensured so as far as is reasonably practicable the provision and maintenance of a safe structure, namely the Alexandra Hills High Level Reservoir. (The Reservoir) The handrail on top of The Reservoir is in an unsafe condition and has the potential for failure. This is evidenced by the independent engineer's report which includes photographic evidence and states "this handrail was in very poor condition with isolated areas of advanced corrosion" which has resulted in a "complete section loss and failure at one location of the handrail". 182 Section 193 of the WHS Act provides that the maximum penalty for failure to comply with an improvement notice is 500 penalty units. 183 Mr Meissner deposed that: 114. In response to the First Improvement Notice and to ensure safety as far as is reasonably practicable as required under the section 19 of the WHS Act, Seqwater drafted and issued a Work Instruction dated 13 June 2018 (the First Work Instruction). A copy of the First Work Instruction is annexed to my affidavit and marked 'JM-9'. The First Work Instruction stipulated that: (a) Seqwater had been issued with an Improvement Notice under section 191 of the WHS Act by WHSQ; (b) until further notice, entrance to the Reservoir Tower was restricted due to safety concerns regarding hazards including: (i) damage to the safety handrail; and (ii) a fire hazard from electrical equipment and control rooms. (c) any person seeking access would need to undertake a comprehensive risk assessment and develop SWMS to address relevant hazards and risks as directed by the First Work Instruction. The risk assessments and SWMS would be required to be provided to Seqwater at least five business days prior to the requested access date for review and approval. 184 Mr Meissner gave evidence that the safety handrail could not be easily rectified because of "the EME Radiation risks". His evidence continued: 116. In order to repair the safety handrail to enable compliance with the First Improvement Notice, it was necessary to effect an electrical shut down of the Reservoir Tower and Telecommunications Equipment (which would have the effect of disabling the EME Radiation), including the removal of all Telecommunications Equipment affixed to the safety handrail. 117. In order to carry out this shutdown, Seqwater required the cooperation and consent of every Carrier who had Telecommunications Equipment on the Reservoir Tower to temporarily switch off their equipment. There are no mechanisms within the Telecommunications Act to facilitate, direct or compel those Carriers to temporarily switch off their equipment at Seqwater's request. This problem was exacerbated because consent and co-operation could not obtained from the owners of the Unidentified Telecommunications Equipment. … 121. In addition to exchanging correspondence with those entities referred to in preceding paragraphs, on 19 June 2018 a site meeting was held at the Reservoir Site. Representatives of the following were in attendance: (a) Seqwater; (b) Department of Natural Resources, Mines and Energy (DNRME); (c) WHSQ; (d) PSBA; (e) ACMA; (f) Bayside; (g) Optus; (h) RCC; and (i) Vodafone. 122. The purpose of this site meeting was to assist Seqwater in identifying the owners of the Unidentified Telecommunications Equipment on the Reservoir Tower roof (particularly that equipment which was affixed to the safety handrail) and to discuss and review current safety conditions impacting on the Reservoir Tower and on Seqwater's operations including their assistance with cooperating with and facilitating with the safety handrail replacement and removal of equipment room (which houses batteries) from within the chamber of the Reservoir Tower. 123. I attended this meeting. 124. Consensus could not be reached with the Carriers as to whether they would agree to a shutdown and when that shutdown could occur. The meeting also did not result in the ownership of the Unidentified Telecommunications Equipment being ascertained. 185 Mr Meissner deposed that, as a result, the rectification works required by the First Improvement Notice could not be completed by the time stipulated, leading to the applicant seeking an extension of time for compliance until 30 September 2018. 186 Mr Meissner deposed: 128. Around this time, WHSQ raised a new concern about the capacity of the Reservoir Tower to withstand the weight of the Telecommunications Equipment on the Reservoir Tower roof. In light of WHSQ's concerns, I was concerned about these matters so I discussed this internally with others within Seqwater. It was determined to engage GHD to further consider whether this was an issue for Seqwater… 187 Mr Meissner deposed at [132] of his affidavit that the Second Improvement Notice was issued on 2 October 2018 in the same terms as the Revised Improvement Notice but with a remediation date extended to 30 November 2018. On 19 November 2018 the applicant emailed WHSQ, seeking an extension of the time for compliance but also referring to concerns relating to the structural integrity of the Reservoir Tower in the following terms: … 1. A further potential hazard in relation to the Reservoir Tower has been identified. This potential hazard has been identified in consultation with Work Health & Safety Queensland (WHSQ). The potential hazard relates to the structural integrity of the Reservoir Tower roof and its ability to withstand loads (Potential Hazard). On 18 October 2018 Seqwater received an Information Request issued by Inspector Doug Innes. The Information Request was extensive. On 8 November 2018 Seqwater provided a substantial and detailed response to the Information Request. 188 Mr Meissner gave evidence that, after the exchange of significant correspondence with all owners of the identified telecommunications equipment on the roof of the Reservoir Tower, a date was eventually set for a shutdown of that equipment to enable the safety handrail rectification work to be completed, and this rectification work occurred between 10 December 2018 and 14 December 2018 ([135]-[136] of Mr Meissner's affidavit). Mr Meissner further deposed that the rectification work to the safety handrail on the Reservoir Tower resolved the concern around the absence of guarding at the top of the Reservoir Tower, however the following significant concerns remained which continued to prevent the routine inspections of the Reservoir Tower, namely: The structural concerns pertaining to the roof slab of the Reservoir Tower; The EME Radiation concerns; and The batteries stored within the Reservoir Tower. 189 In respect of these concerns, the evidence of Mr Meissner was, in summary, as follows. 190 In relation to structural concerns, in summary Mr Meissner gave evidence that: On 16 November 2018 Mr Daniel Anstice of GHD delivered a further report entitled "Correction and Update Addendum to the GHD Memorandum dated 14 February 2018" (16 November 2018 report). Mr Meissner stated that the purpose of the 16 November 2018 report was to retract a comment made about the structural capacity of the Reservoir Tower made in a previous report dated 14 February 2018, which report in turn had been prepared as part of the initial proceedings to consider the applicant's proposed installation. On 8 March 2019 the applicant obtained a further report from GHD regarding the structural integrity of the Reservoir Tower entitled "Instructions Response" (8 March 2019 Report). In that report GHD opined that any additional loading on the Reservoir Tower roof from telecommunications or other infrastructure being installed would reduce the available roof live load capacity for maintenance activities to below the minimum of 600 kg required for maintenance activities, and therefore detrimentally impact the respondent's ability to undertake essential maintenance. Following the 8 March 2019 Report Mr Meissner revised the First Work Instruction and issued the Second Work Instruction. The Reservoir Tower is a "confined space" within the meaning of the Work Health and Safety Regulations 2011 and the respondent's WHS Confined Space Management Procedure (Confined Space Procedure), meaning that onerous safety requirements must be followed in the event workers needed to access the area. The Confined Space Procedure required a minimum of 3 workers to be present any time a confined space was accessed, and that minimum number is increased if the circumstances required. It was likely that any inspections of the Reservoir Tower would require 5 people to be present for underwater and internal inspections of the Reservoir Tower tank ([159] of Meissner affidavit). In light of the 8 March 2019 Report, Mr Meissner opined that there was a real risk that the load restrictions arising from that report (being the combined weight of five men and associated equipment) would be exceeded. Mr Meissner also relied on calculations prepared by Mr Geoff Simmer, Principal Engineer at Seqwater. 191 In relation to EME Radiation concerns, in his affidavit Mr Meissner gave evidence including: As at the date of his affidavit (18 February 2020) his EME Radiation concerns remained unresolved; He remained of the view that his workers and contractors, and the employees and contractors of the applicant, would be exposed to EME Radiation if they were required to go on the Reservoir Tower roof. As a result the applicant was prevented from undertaking the required inspections of the Reservoir Tower. Mr Meissner referred to the 2017 report prepared by Corearth (Annexure JM-7 to Mr Meissner's affidavit) however gave evidence that: that report had been prepared on the assumption that workers would have less than 6 minutes of exposure, whereas Mr Meissner gave evidence that it was more likely workers would be on the roof in excess of 6 hours to repair the hand rail (at [172]). that report did not contemplate that complete access of the roof was required to properly perform the inspections (including those areas on the roof where workers should not enter); the report was not prepared on the basis of the "worst case" scenario, being a situation where all telecommunications equipment was powered at maximum capacity. Mr Meissner did not believe that training was a suitable method of protecting the respondent's workers from the risk of EME Radiation. Mr Meissner considered that, due to the severity of the consequences if workers were exposed to EME Radiation, the only acceptable solution was to isolate that risk, which could only be achieved by a shutdown of all of the telecommunications equipment on the roof, which in turn was not practical to achieve by co-operation on a six-monthly basis (at [173]). Mr Meissner referred to a further EME Site Safety Report prepared for the Reservoir Tower site on behalf of Telstra by WaveForm Global Pty Ltd issued on 20 October 2017, which had different findings from the Corearth Report. Mr Meissner gave evidence that he found the differences concerning, and formed the view as a result that the carriers were not accurately updating the EME Guide for Site Safety, and that the respondent could not rely on it ([177]). Further, even if the reports were correct at the date of issue, the carriers with equipment on the Reservoir Tower site could change the way the equipment emitted EME Radiation without notice ([178]). Mr Meissner was unaware whether telecommunications equipment on the Reservoir Tower roof were receivers, transmitters or repeaters. Mr Meissner gave evidence that this was relevant because, in the event that certain equipment were repeaters, there could be EME Radiation risks from telecommunications equipment on other telecommunication towers/facilities surrounding the Reservoir site which were pointed towards the Reservoir Tower ([179]). Further, Mr Meissner gave evidence that although he was aware it was sometimes possible to demarcate EME Radiation by using "RadHaz" lines which showed persons the area into which they should not enter in order to avoid EME Radiation, Mr Meissner gave evidence that the respondent could not map the areas of radiation as it was not fully aware of the types (and the extent) of radiation which existed on the Reservoir Tower roof due to the discrepancies in the EME Radiation drawings depicted in the various EME Site Safety guides for the Reservoir site, and the EME Radiations fields were not constant ([180]).

Evidence of Mr Alan Wolski 192 Mr Wolski gave evidence in an affidavit dated 17 December 2019. In his affidavit Mr Wolski deposed that he was a registered professional engineer in Queensland, and an employee of GHD as a Technical Director (Structures). He deposed that he had 34 years' experience in the design development and procurement of government building infrastructure, and further that as a senior and Principal Structural Engineer in the Queensland Department of Works for 24 years he conducted and supervised maintenance inspections of damaged buildings. 193 He also deposed that his work as a forensic engineer had included investigations of concrete decay, floor strengthening, building systems review and review of underpinning systems. 194 Materially Mr Wolski deposed: 6. On 14 December 2017, GHD delivered a Reservoir Condition Assessment Alexandra Hills High Level Reservoir (Condition Assessment). Annexed hereto and marked "AW-1" is a copy of that Condition Assessment. 7. On 14 February 2018, GHD delivered a Preliminary Report on the Implications of Proposed Antenna Installations at Alexandra Hills High Level Reservoir (Preliminary Report). Annexed hereto and marked "AW-2" is a copy of this Preliminary Report. 8. On 1 November 2018, GHD delivered a Memorandum to Seqwater titled "Alexandra Hills Reservoir Roof Condition" (1 November 2018 Memorandum). Annexed hereto and marked "AW-3" is a copy of the 2 November 2018 Memorandum. 9. On 16 November 2018, GHD drafted a Reservoir Condition Assessment Addendum to GHD Memorandum dated 14 February 2018 - Correction and Update dated 16 November 2018 (Addendum Report). Annexed hereto and marked "AW-4" is a copy of the Addendum Report. 10. On 26 November 2018, GHD was briefed with a letter of instructions by the Respondent's solicitors, K&L Gates, to answer a number of questions regarding the Reservoir Tower. Annexed hereto and marked "AW-5" is a copy of the letter of instructions. 11. On 8 March 2019, I, along with Mr Daniel Anstice of GHD, prepared a report regarding the roof slab of the Alexandra Hills Reservoir Tower (8 March 2019 Report). Annexed hereto and marked "AW-6" is a copy of the 8 March 2019 Report. 12. I have read and reviewed the report of Mr Antony Vose dated 1 October 2019, filed by the Applicant. 13. On 28 October 2019, I prepared a Memorandum containing my response to Mr Vose's report (28 October 2019 Response). Annexed hereto and marked "AW-7" is a copy of the 28 October 2019 Response. 14. On 22 November 2019, I prepared a further Memorandum containing my further response to matters raised in my 28 October 2019 Response (22 November 2019 Response). Annexed hereto and marked "AW-8" is a copy of the 22 November 2019 Response and letter of instructions. 195 The Preliminary Report dated 14 February 2018 stated, in summary: 2 Findings The following points summarise GHD's findings with relevance to the suitability of the proposed future antenna installations at the Alexandra Hills High Level Reservoir: 2.1 Resilience Capacity • Security of site access, in relation to telecommunication maintenance staff accessing the reservoir, has implications for resilience of the reservoir, in terms of ensuring an appropriate water supply. 2.2 Structural Capacity • Calculations will be conducted on the structural capacity of the reservoir, as well as the structural impact of the installed telecommunication equipment. The structural capacity of the reservoir is deemed likely to be sufficient to support the installed telecommunications as well as future installations. 2.3 Electrical Capacity Assessment • The assessment on electrical capacity has been carried out to determine the electrical loading imposed on Seqwater from the telecommunication installations and associated equipment. The assessment concluded that the current electrical capacity is sufficient to operate and maintain the reservoir, and that Seqwater are able to meet the maximum current capacity requirement. However, clearly this assessment would need revisiting in the light of any planned future telecommunications installations and appropriate information must be provided by the telecommunications providers for potential installations in order that such an assessment can be conducted. Likewise, the electrical capacity assessment (and the implications of current and future telecommunications installations) would need revisiting upon any future upgrade/expansion works required by Seqwater, with respect to ensuring the safe operation and maintenance of the reservoir in the future. • It would be prudent for future telecommunications installations applications to consider utilising an independent mains supply. • The communications carrier facilities built into the water tower stair well area, and indeed the proposed Satellite wall mounted communication cabinet (Land Access and Activity Notice, dated 2 May 2017), may provide some added risk to the safe operation of the water tower. The risks associated with the carrier communications equipment and associated batteries being located in the tower is that if there is any fire event that occurs while the tower is occupied with personnel above the communications equipment levels, the personnel's only viable escape path would be compromised by smoke. 2.4 Whole of Life Management 2.4.1 Residual Life of Structure • Given its age, the high level reservoir structure itself would likely have been designed for a service life of 50 years +/- 10 years, i.e. 40 to 60 years. The ability of the reservoir to function beyond the maximum design life cannot be predicted at this time. 2.4.2 Future Operation and Maintenance Activities Risk of Radio Frequency (RF) Exposure • The presence of telecommunication equipment at the reservoir introduces a risk of Radio Frequency (RF) exposure to workers in accessing the roof and the tank surrounds. Therefore, all personnel accessing these zones (including Seqwater staff carrying out routine inspection and maintenance) must have undergone RF awareness training, which is considered additional to the training normally required to access and enter a Seqwater reservoir. A preliminary review of the report by CoreEarth titled "Alexandra Hill Water Supply Reservoir - RF EME Measurement Survey for Seqwater", dated 5th October 2017, indicates that there are no issues accessing the reservoir by the external ladder or by entering the reservoir hatch. However, there is an exclusion zone approximately 1.75 m directly above the ladder, of which workers must be made aware. Due to the arrangement of the telecommunication equipment pointing outward from the reservoir, and the directional nature of RF emittance, there is a significant hazard when approaching the reservoir from outside its footprint, e.g. in an EWP delivering equipment. Any proposed works that involve approaching the reservoir from the outside must be detailed in a Safe Work Method Statement and an approach plan, detailing the proposed method of safe approach (likely to involve significant logistics, an outage, making future inspection, operation and maintenance problematic) and access. Health and Safety Issues Associated with Inspection and Maintenance • As mentioned above, the risks associated with the carrier communications equipment and associated batteries being located in the tower is that if there is any fire event that occurs while the tower is occupied with personnel above the communications equipment levels, the personnel's only viable escape path would be compromised by smoke. • As also mentioned above, due to the arrangement of the telecommunication equipment pointing outward from the reservoir, and the directional nature of RF emittance, there is a significant hazard when approaching the reservoir from outside its footprint whilst the antennae are switched on (see Figure 1 below). Considerable effort is required to switch off all antennae, thus already making routine inspection, operation and maintenance of the reservoir extremely difficult. • The handrail is unfit for its purpose, which is to act as a safety rail for workers on the roof. A number of telecommunications equipment were noted to be affixed to the handrail. Any use of the handrail besides its primary purpose is not appropriate, as it impedes access to the handrail in an emergency situation. Therefore, it is recommended that all existing installations affixed to the handrail are removed and that no future installations are affixed to the handrail. Additionally, the very poor condition of the handrail means that the current telecommunication equipment attachments are not structurally sound. This poses a considerable safety risk, both for workers on the roof and those below. The handrail and bolts should be replaced at the earliest opportunity. • The proposed Location A (see Proposed Antenna No. 17 on Figure 2 below) of a future telecommunications installation is not appropriate with regards to its proximity to the access hatch, as a sufficient clear zone is required around the hatch. A minimum clear distance of 2000 mm is required where a fall hazard exists at an entry point. In addition, sufficient clear distance is required in order to set up tripods and safely lay down and pick-up personnel and materials required for inspection and maintenance within the reservoir. • Insect nests and bird's droppings were also noted throughout the internal tower. While these are located in the reservoir and therefore do not affect water quality, they could pose a health risk for workers within the tower and should be removed. • The vent at the centre of the reservoir roof is made from asbestos cement, thus access to the roof area should be strictly controlled until removal of the asbestos is complete. 196 The report then set out maintenance activities required to address defects (including removal and replacement of the handrail on the roof and removal of antennae attached to the handrail), although noting that fire risk, asbestos and RF exposure issues outlined created difficulties in carrying out those defects. 197 The report concluded: 3 Summary In summary, any future installations will increase the risk associated with resilience and current health and safety issues due to increasing both the number of people accessing the reservoir and the number of antennae installed on the reservoir. It is recommended that all existing installations affixed to the handrail are removed and that no future installations are affixed to the handrail. The electrical capacity assessment would need revisiting in the light of any planned future telecommunications installations and appropriate information must be provided by the telecommunications providers for potential installations in order that such an assessment can be conducted. Likewise, the electrical capacity assessment (and the implications of current and future telecommunications installations) would need revisiting upon any future upgrade works required by Seqwater, with respect to ensuring the safe operation and maintenance of the reservoir in the future. It is therefore recommended that future telecommunications installations applications consider utilising an independent mains supply. The proposed antenna Location A is not appropriate due to its proximity to the access hatch, as a sufficient clear zone is required around the hatch. A minimum clear distance of 2000 mm is required where a fall hazard exists at an entry point, sufficient clear distance is also required to lay down and pickup personnel and materials required for inspection and maintenance within the reservoir. The current fire risk and potential RF and asbestos exposure issues create difficulties in carrying out many of the maintenance activities required to address current defects. All personnel accessing potential RF exposure zones must have undergone RF awareness training, which is considered additional to the training normally required to access and enter a Seqwater reservoir. Considerable effort is required to switch off all existing antennae, thus already making routine inspection, operation and maintenance of the reservoir extremely difficult. Given its age, the high level reservoir structure itself would likely have been designed for a service life of 50 years+/- 10 years, i.e. 40 to 60 years. The ability of the reservoir to function beyond the maximum design life cannot be predicted at this time. With respect to the proposed location of equipment (antenna at both locations A and B on roof plus one wall mounted communication cabinet) proposed by Satellite in their Land Access and Activity Notice dated 2 May 2017 (LAAN), these installations are likely to affect Seqwater's operation and maintenance from a safety/operation/maintenance perspective. It is recommended that no further installations be allowed at the Alexandra Hills High Level Reservoir until the electrical safety risks be rectified, the asbestos vent be removed and an operations and maintenance plan is in place which allows regular safe access to both the internal and external faces of the reservoir. A telecommunications mono-pole is already present at the Alexandra Hills Reservoir site, and presents a viable alternative option for the installation of the proposed telecommunication equipment. An assessment can also be carried out to determine other suitable areas of the site to be made secure for the purpose of installing poles and antennae, as an alternative to installation on the reservoir. 198 Annexure AW-4 to which Mr Wolski referred was a letter from Mr Daniel Anstice to the respondent, as follows: Dear Carmel, Reservoir Condition Assessments 16/17 Addendum to GHD Memorandum dated 14th February 2018 - Correction and Update I am writing this addendum to provide a correction and update to GHD's memorandum entitled 'Preliminary Report on the Implications of the Proposed Antenna Installations at Alexandra Hills High Level Reservoir', dated 14th February 2018. Under section 2.2 of the memorandum, GHD state the following: "The structural capacity of the reservoir is deemed likely to be sufficient to support the installed telecommunications as well as future installations." We have since become aware that the reservoir was designed in accordance with Standards Association Australia (1952) Minimum Design Loads on Buildings - SAA Interim 350. Seqwater believe that the 1955 reprint was the current reprint at the time of the design of this reservoir and was not superseded until the release of AS CA34.1-1969. Upon consideration of the designed intent, we now remove the above sentence from the memorandum, by way of this addendum letter. Should you have any queries regarding this letter please contact the undersigned. 199 In the 8 March 2019, Dr Anstice and Mr Wolski opined, inter alia: 3.1 Question - Please provide an explanation as to why GHD removed the following sentence from the Preliminary Report, by way of the Addendum Report: "The structural capacity of the reservoir is deemed likely to be sufficient to support the installed telecommunications as well as future installations" Answer - The sentence was removed as no structural analysis had taken place, and as such no assertion could be made in relation to the structural capacity. 3.2(c)(i) Question - With respect to installing additional telecommunication equipment, is there any effect on the structural integrity of the Alexandra Hills Reservoir roof? Answer- With respect to the integrity (durability or structural load carrying capacity) of the roof slab, correctly installed telecommunications equipment, subjected to the professional oversight of the building approval process, will not reduce the structural integrity of the roof slab (the roof slab being supported only by the walls at its extremities). What can result from permanently installing equipment on the roof slab is a reduction in additional live load that can be supported by the roof slab. This may prejudice the ability of the slab to support maintenance activities by the asset owner. The assessment of the impact of an individual piece of permanent equipment does require professional engineering calculation. In the broader context of construction work, in Queensland this process is managed under the Building Approval system. Under the the [sic] Qld Building Act, an antenna is specifically listed as a class 10 b Other Structure and is subject to the provisions of those regulations. The structural impact of installing an individual piece of equipment depends on its weight and location, in particular its juxtaposition to existing equipment on the roof slab. The roof slab has a very low allowable live load, consistent with the design code of the time of its design and broadly consistent with the current design code. To simplify design, these codes assume a uniformly distributed load over the whole roof. While individual telecommunications equipment pieces may be heavier than the allowable load it is not covering the whole roof. In placing the equipment near the edge of the roof slab and not at mid-span, heavier equipment loads can be accepted. Some of the equipment is near the edge of the roof slab or fixed to the wall, in which case the slab sees no load. From a bending action consideration, the edge of the slab can be taken to mean 600 mm from the physical outer edge. Some of the equipment is located further than 600 mm from the physical outer edge and thus the slab may see some load. 200 Dr Anstice and Mr Wolski gave an opinion concerning installation of telecommunications equipment on the roof, including: Correctly installed, avoiding the potential issues noted above, fixing equipment to the roof slab would not have any structurally deleterious effect. 201 Dr Anstice and Mr Wolski opined that it would not be appropriate to install telecommunications on a new safety handrail after the handrail replacement, because: The handrail's only intended purpose was to act as a safety rail for workers on the roof, and any other use could impede access to the handrail in an emergency situation; and Affixing antennae equipment to handrails could lead to overloading the handrail fixings due to an increased wind load or fatigue. 202 In relation to the impact of the installation of third party telecommunications equipment on the Reservoir Tower roof, they opined: There was a risk of attachment bolts coming into contact with the reinforcement in the reinforced concrete structure; Installation of equipment on the roof meant loss of space due to the equipment itself, loss of access to the "RF" zone of that third party telecommunications equipment, and less space for not only the respondent's maintenance personnel and equipment but also heavier equipment; Because cable trays associated with telecommunications equipment have been affixed around most of the roof, storm water run-off is impeded, leading potentially to ponding and water backflow from the roof into the ventilation penetration. 203 In relation to whether the centre of the roof of the Reservoir Tower had a reduced load bearing capacity, and the area of the reduced loadbearing capacity, Dr Anstice and Mr Wolski opined as follows: Based on information provided by Seqwater our understanding is that 41 telecommunication items (as per Core Earth Report entitled "Alexandra Hill Water Supply Reservoir R F EME Measurement Survey for Seqwater", dated October 2017) with a total estimated mass of 1074 kg (calculated by GHD with the aid of internet sources) are present at the roof, this works out to an average mass of approximately 25 kg. A reasonable assumption would be that this equipment has a structural zone of influence of a 1 m wide annulus around the perimeter. The total live load that can be supported by the roof (assuming 41 kg·/ sq·m derived from back calculation from current concrete code) is 1674 kg. In the worst current situation this leaves a remaining allowable live load 600 kg which would be carried over the 5.2 m diameter inner "clear" space. This gives an allowable live load over every sq m on the remaining slab of 27.9 kg/ sq m. As explained in para 3.2, the useable open area of the residual roof is only 16 sq m. The total load capacity for the roof capacity for the whole roof will not change. This means that on the useable area, 600 / 16 = 37.5 kg/ sq m can be applied. It must be stressed that this calculation is simply a maximum lower bound estimate. In reality, several of the equipment pieces are mounted on the wall of the tank or right on top of the wall. It would not take much of this load to be taken off the slab to bring the residual allowable live load back up to its design value. It is equally possible that given the age of the roof, unknown construction quality, and unknown effects of multiple telecommunication equipment installations, the total allowable load on the roof may be less than the design value. The only certain way to determine the load capacity of the roof is to test load it up to close to its theoretical elastic limit and back calculate an allowable capacity from measured strains. 204 In relation to the live load bearing capacity of the Reservoir Tower roof in respect of workers carrying out work on its surface, Dr Anstice and Mr Wolski opined: The roof is a restricted space by way of its accessibility and authorised access to the site. The roof is not suitable for a crowd load. The implicit assumption in the low design load of 37 kg / sq m (41 kg/ sq m actual load capacity) is that in reality not every square metre will be concurrently loaded. The design standard currently and of its time would not anticipate that more than 5 persons or equivalent equipment load (say 595 kg) would be working on the roof at one time and they would not be bunched together or all standing at mid-span. It is imperative that a Safe Work Method to stop crowd loading be understood by workers on the site. By way of its extreme age, wherein all manner of maintenance work and access has been carried out, including installation of telecommunication equipment, the roof has an adequate load capacity to carry out maintenance work subject to the stated limitations of live load 205 At 3.5 of their report Dr Anstice and Mr Wolski opined that it could be inferred from the respondent's statements to the applicant concerning access by EWP and tethered harness that all access to the roof was unsafe until the handrail works had been completed. At 5.0 they opined that Seqwater practice was for 5 persons and equipment to conduct an external and internal inspection of the reservoir, constituting 5 average sized persons (5x95 kg = 475 kg) plus 120 kg of equipment. The experts continued: 5.0…… In gross load terms, and following Seqwater's instruction as to the number of people (5 no.) required to access the slab at any one time, the slab has marginally sufficient capacity (595 kg theoretical applied load, 600 kg allowable capacity) to support the Seqwater maintenance workers and equipment load discussed in the above paragraph. Seqwater maintenance loads can be applied to any accessible area on the roof provided the total load does not exceed 600 kg and the average load over any 5 sq m does not exceed 37.6 kg/sq m. Local load concentrations are acceptable, i.e. two men can stand together, but this does have limitations. These limitations are now more significant as the whole roof is approaching maximum allowable load. 206 Dr Anstice and Mr Wolski concluded as follows: Conclusions Based on the findings of the investigations as detailed in responses herein, it is concluded that Seqwater currently only has 600 kg of live load capacity available to it to undertake essential maintenance requiring access to the roof of the reservoir. Based on Seqwater's advice that this maintenance involves use of 5 maintenance staff and associated equipment, estimated to equate to approximately 600 kg of load, Seqwater currently only has marginally sufficient roof live load capacity available to it to undertake this essential maintenance. Further, it can therefore be concluded that any additional loading of the roof from telecommunications or other infrastructure being installed on the roof of the reservoir will reduce the available roof live load capacity for maintenance activities to below the minimum of 600 kg required for maintenance activities, and therefore detrimentally impact Seqwater's ability to undertake essential maintenance required to ensure a continuous supply of drinking water to the surrounding community. It is concluded that a lack of third party professional oversight on the design and installation of telecommunications equipment on the roof and uncontrolled access to this equipment has created an indeterminate risk for Seqwater in terms of the physical durability of the roof slab. The combination of reduced available load for Seqwater to carry out their work on their structure and Seqwater's responsibility to manage the impairment of their asset from the actions of others must have a limit. It is our opinion this limit has been reached on all counts and no further telecommunication equipment should be installed on this roof. 207 Mr Wolski commented on Mr Vose's expert opinion in the following terms: Executive summary Mr Voss does not advance any original calculation of his own to substantiate the claim of Satellite and Wireless that their antennae will have no detrimental effects on SEQWATER's use of the reservoir roof. Possibly this is because he claims the original design drawings he was provided were illegible. The basis of Mr Voss' report is manipulation of GHD data and assumptions to attempt to demonstrate the roof is structurally adequate to carry the current and additional antennae loads while leaving a residual live load capacity. He does not specifically address the essential requirement for SEQWATER to place maintenance live load on the roof and the cumulative effect of antennae to reduce this ability. There is a disagreement in fact between us in that Mr Voss, who has not personally visited the site, claims there are 16 existing antennae on the roof whereas I have a photo showing 41 antennae. Notwithstanding his significantly more positive opinion of mounting additional antennae, his summary recommends non destructive testing of the roof structure to assess the actual material properties that would allow a more accurate assessment of the load capacity of the slab. He does not warrant the structural capacity of the slab but selectively uses the GHD data to give a more favourable estimate of its possible residual live load capacity. Mr Voss does not address other issues raised in the GHD memo such as long term durability or restricted rooftop access which would prejudice SEQWATER use of the space. Specific Matters Analysis The statement by Mr Voss that GHD has made no supporting calculations is not true and taken out of the context where the GHD memo in section 3.1 advises that no analysis has been carried out on the slab. Our advice was intended to report that we had not completed numerical modelling of the bending behaviour of the roof slab with the non design load pattern of the antennaes. We have completed calculations of the slab's theoretical bending capacity based on the information in the original design drawings using rules from the current concrete code, and then reverse calculated from this result to determine a theoretical allowable uniformly distributed (UDL) live load. We have then used this UDL to calculate a total allowable live load on the roof, taken off the estimated mass of all the antennae and made some conservative assumptions about relative distribution about antennae loads and other live loads, to determine what a reasonable theoretical live load is left available for use by SEQWATER to carryout maintenance activities. Load= Bending stress (bending moment in technical terms). Mr Voss appears to agree with all of the above load and area assumptions and then checks them using a very accurate analytical method (finite element) to conclude that the difference in bending behaviour between the slab with the design UDL and the slab with the GHD adjusted pattern load is less than 2%. We therefore agree that provided the underlying assumptions are strictly correct, we can use calculation of residual live load to gauge an approximate lower bound of roof slab live load capacity. Disagreement of facts Mr Voss uses a report from his client Satellite and Wireless Pty Ltd to state that there are 13 antennae on the roof. Using the above GHD methodology on this basis he determines there is a significant available live load capacity on the roof. I disagree with the number of 13 antennae on the roof. I have was on the roof in September 2017 inspecting antennae fixings and noted a large number of installations. A count of antennae from a GHD drone photo of that time shows 41 antennae. Agreement of facts We agree that the actual load pattern of the antennae is complex and antennae fixed to the wall of the reservoir would result in some increase in available residual live load. We agree control of future installations with professional oversight (checking, documentation and as built inspection) would result in installations having no deleterious effect to the roof. The implication of this however is that there must be a limit to third part live load that can be accepted on the roof without compromising the essential requirements of the asset owner to use the roof for its intended purpose. The additional implication is that the onus of investigation and warranty must be with the proponent. Disagreement of risk management Mr Voss and myself disagree sharply on how we recognise and recommend management of the risk to the slab from overloading. We agree the slab will not catastrophically collapse as a result of one too many antennae bolted to the roof or a third party maintenance team not aware of (or able to judge) load limits, crowding on the roof (the more likely risk). The slab will give ample warning by cracking and permanently deflecting (dishing in) that it has been overloaded. Even approaching final failure it will form a catenary and hang like a net from the supporting walls. The real risk from overloading is the public health risk and extreme commercial loss to SEQWATER that a cracked slab or one that ponds unsanitary water, leaking into the reservoir. This could go unnoticed for a long time. Due to this extreme and likely risk, I take a very conservative approach to any calculations concerning allowable live load as there is a wide range of real world ignorance and variability underlying the mathematically accurate models we develop. This is why design codes have factors of safety to account for all of these unknowns. Mr Voss has the view that as long as the calculated allowable load value is less than a theoretical threshold, that is proof enough that the proposal is acceptable. Using the agreed GHD methodology in adjusting UDL we seem to agree that the residual live load available on the roof for use by SEQWATER is within 1% on the safe side of a theoretical limiting value. Mr Voss goes on to say that if this is perceived as cutting it a bit fine, a "significant structural reserve is inherent in the structural design of the high level water tower roof". The inference is that the proponents may reduce the regulated factors of design safety to justify a risk of overload. I strongly disagree with this approach as it is not in accordance with responsible engineering practice. Late in his report Mr Voss recommends non destructive testing of the concrete and reinforcement in the roof as a means of reducing the unknown vales of calculation inputs and thus obtaining a more accurate theoretical value of roof slab load capacity. It is true this testing will improve the confidence of the accuracy of our calculations but it would not account for major variables such as placement of the reinforcement within the slab and the actual load pattern of antennae on the roof. While I do not suggest the material testing not be done, when the final result is within a few percent of acceptable or not and the risk consequence so high, the most direct means of performance measurement is warranted. Measure what we need to know, which is how the roof behaves under live load. This can be done by slowly loading up the roof with shallow water filled wading pools while measurements with strain gauges will keep the roof deflection safely within its elastic limit (no permanent harm done to the roof). We will then have indisputable real world behaviour from which to extrapolate what a maximum allowable live load would be. 208 In a subsequent memorandum Mr Wolski materially stated: 1. In estimating the average mass of existing antennae equipment on the roof of the Alexandra Hills water reservoir, I have used internet sources of equipment tabulated data to make this estimate. My calculation included an allowance for the mass of ancillary items such as cabling, mounting posts and brackets. I do not wish to change my estimate of the average total mass per antennae of 25 kg each as advised in earlier correspondence.

The Corearth 2017 Report, subsequent Corearth Report, and WaveForm Report 209 On 5 October 2017 Corearth issued the Alexandra Hill Water Supply Reservoir RFE EME Measurement Survey for Seqwater (Corearth 2017 Report). The report resulted from a survey performed by Grant Mathie and Mark Hazle of Corearth. The report was prepared for the respondent, with legal counsel Ms Carmel Serratore being the client contact. 210 The Corearth 2017 report was the subject of extensive evidentiary comment by witnesses in these proceedings, however no representative from Corearth was called as a witness in these proceedings. As both parties also made submissions concerning this report it is useful to examine it. 211 The Executive Summary of the report was follows: Corearth Australia Pty Ltd was commissioned by Seqwater to undertake an independent radio frequency site survey at Alexandra Hill Water Supply Reservoir. The purpose of this survey was to determine RF EME Safety for both an upcoming structural assessment along with a predictive RF EME calculation of two (2) proposed Satellite and Wireless transmitters submitted for approval to be installed on the water tower. This was achieved by conducting two separate site visits. The first site visit Corearth assessed RF EME levels for the existing mobile infrastructure. This was to ensure safe access for the structural assessment to be carried out. The second visit was conducted to complete a full RF EME Measurement Survey, including asset capture and identification. Two sets of Predictive EME calculations (refer to Appendix C) were also carried out based on the current existing telecommunication infrastructure as well as the proposed installation of two (2) Satellite and Wireless transmitters as per their proposed construction submission showing worst case scenario of RF EME levels. Worst case scenario is defined by means of maximum power output for any given antenna. While our predicative modelling is based on 'worst case', actual levels of RF EME present on site may be significantly lower due to operational requirements not demanding full transmission power. The results from the measurement survey were analysed to determine the exact levels of electromagnetic energy on top of the Water Supply Reservoir. Six (6) locations on the Alexandra Hill Water Supply Reservoir were selected as key positions to ensure each measurement location complied with exposure limits for the General Public as defined in the recommendations of the ARPANSA (Australian Radiation Protection and Nuclear Safety Agency) Standard. These results indicated the power density levels measured for each location were significantly below the ARPANSA recommendations for General Public exposure at the time of assessment. 212 The report set out measurements recorded for RF EME at various locations on the roof. It concluded: The highest total power density level measured was 0.844 W/m2 (16.84% of the General Public limit), measured at location 6. This is equivalent to a reading more than 6 times lower than the limit specified in the ARPANSA Standard for the General Public. This value (0.844 W/m2) is based on actual transmitter power of all active antennas on site at the time of measurement. This does not reflect a worst case scenario, where all transmitters on site are powered at their maximum capacity. All measured levels were significantly below the General Public exposure limit and thus comply with the Australian Radiation Protection and Nuclear Safety Agency, RPS3 standard. Access to this site should be carried out with all relevant personal protective equipment including personal RF monitors. Any person accessing this site should have RF Awareness training and be familiar with the general nature of transmitting antennae. Based on the power density levels measured on site, there is no immediate concern from risk of RF EME overexposure if safe work practices for site access are upheld. 213 On 10 October 2018 Corearth issued a further report EME Guide for Site Safety referable to the Reservoir Tower. This document was also annexed to Mr Meissner's affidavit (as Annexure JM-22). Relevantly this document provided: An Important Message to people accessing this building or structure There are radio communications antennas operating on this building or structure. The antennas on this building or structure produce a form of energy known as electromagnetic energy (EME). You should not access Exclusion Zones, which are areas close to the antennas This EME guide is endorsed by AMTA and the MCF as a standard for EME Site Safety Documentation. DO NOT STAND IN FRONT OF ANTENNAS DO NOT ACCESS RED AND YELLOW EXCLUSION ZONES This document will show Exclusion Zones around the antennas, don't enter these areas. The latest version of this EME Guide is accessible at www.rfnsa.com.au or from the facility owner, the mobile carrier, or radio service operator or building owners occupying the site Exclusion zones are defined by the Australian EME Standard "ARPANSA Radiation Protection Standard - Maximum Exposure Levels to Radiofrequency Fields (RPS3)." Make sure you view all the Exclusion Zone drawings so you get a complet understanding of the site. … … Red Zone = Exclusion Zone. No access without confirmed transmitter power reduction or transmitter shutdown. … Yellow Zone = Exclusion Zone. Limited access to specially trained personnel (RF Workers). … White Zone = General access. 214 The WaveForm Report prepared on behalf of Telstra and issued on 20 October 2017 was annexed to Mr Meissner's affidavit as Annexure JM-21. Materially the first page of this report stated: An Important Message to people accessing this building or structure There are radiocommunications antennas operating on this building or structure. The antennas on the building or structure produce a form of energy known as electromagnetic energy (EME). You should not access Exclusion Zones, which are areas close to the antennas. This EME Guide is endoesed [sic] by AMTA and the MCF as a standard for EME Site Safety Documentation. The Radiocommunications facility cited below is unable to be declared COMPLIANT with the applicable Australian Standard due to some unidentified radio systems. The Mobile Carriers' equipment, and other included radio services have been evaluated against, and are compliant to the applicable Australian Standard. Visitors to this site shall note that EME Safe Work Procedures apply DO NOT STAND IN FRONT OF ANTENNAS DO NOT ACCESS RED AND YELLOW EXCLUSION ZONES (emphasis in original)

Submissions 215 In summary the applicant submitted: Although the respondent alleged that the applicant failed to provide drawings and specifications as required by the Access Permit, any failure by the applicant arose from the respondent's own conduct; The obligation under cl 3.2 to provide an engineering assessment of the respondent's infrastructure confirming that the Carrier's Works would not materially impact that infrastructure was predicated on the respondent being satisfied on reasonable grounds that the Carrier's Works as proposed would materially affect the structural integrity or safety of the infrastructure. No such grounds have been elucidated by the respondent. During cross-examination the respondent's expert gave evidence that there were only two facilities on the roof of the Reservoir Tower that had any impact on the structural integrity of the roof. The available live load capacity of the roof is 1,622kg. This is 1000kg in excess of the live load required for maintenance. The prohibition on new installations in the respondent's Second Work Instruction has no foundation. All of the alleged safety issues raised by the respondent concerned allegations made against existing carriers whose facilities are on the Reservoir Tower roof, against whom the respondent had a right to compensation under cl 42 of Sch 3 to the Telco Act, and did not relate to anything done or failed to be done by the applicant. The case of the respondent against the applicant was not only prospective about activities not yet performed or not yet required to be performed, but also entirely speculative, and without any foundation whatsoever. Whilst the applicant performed the installation in accordance with Queensland workplace health and safety laws, those laws could not be utilised by the respondent to override the applicant's rights to so install. The applicant objected to evidence of Mr Meissner insofar as it related to electromagnetic radiation, as being entirely irrelevant in so far as it related to equipment installed by other telecommunications carriers against whom the respondent had rights under cl 42 of Sch 3 to the Telco Act. In any event the First Work Instruction did not include reference to RF-EME as a potential hazard. The Second Work Instruction included a reference to RF-EME as a potential hazard to be addressed by persons seeking to address the site, but did not require a total shutdown of the telecommunications facilities on the site to manage that hazard. Mr Grant Mathie in the Corearth Report plainly stated that all measured levels were significantly below the General Public exposure limit and thus complied with the Australian Radiation Protection and Nuclear Safety Agency RPS 3 standard, and that access to the roof could be conducted by persons with relevant personal protective equipment, RF awareness training, and a familiarity with the general nature of transmitting antennae. Mr Meissner's assertion during cross examination (transcript 3 June 2020 p 88 ll 31-38) that the Corearth audit was not based upon a "worst case scenario" was disingenuous when viewed against the background of its brief. In fact, the EME guide prepared by Corearth (including its conclusions as to exposure being 16.84% of the general public exposure) were based on the worst-case scenario. Although Mr Meissner asserted that routine maintenance had not been possible on the Reservoir Tower "due to hazards associated with radio frequency envelopes impending safe access", the preliminary report of GHD on the implications of proposed antenna installation was to the contrary. Further, the Corearth report of RF EME measurement survey concluded that there was no impediment to safe access for any personnel who had had suitable RE EME safe work procedure training The RF emitting equipment to be installed by the applicant on the Reservoir Tower would only increase the volume of the original facility or the original infrastructure an infinitesimal amount (and nowhere near 25% in accordance with s. 3.1 and Item 2 of Part 8 of the Telecommunications (Low-Impact Facilities) Determination 2018. The respondent's submissions generally exhibited an ongoing intent to avoid performance of the agreement, evincing a "work to rule" approach which constituted a breach of the agreement The applicant is at a loss to understand the stonewalling on the part of the respondent WHSQ never said that no-one was allowed on the roof of the Reservoir Tower - the respondent said that. 216 The respondent submitted, in summary: Although the applicant submitted that the First Work Instruction did not preclude access to the roof of the Reservoir Tower, this is incorrect. The First Work Instruction specifically stated that no person was permitted to access the roof. There was no evidence that any other carrier was granted access to the Reservoir Tower in the period of the First Work Instruction. The suggestion that allowing people to access the Reservoir Tower roof for the purpose of conducting remediation works was contrary to the terms of the First Work Instruction, was absurd. Under the Access Permit it was clear that the applicant was obliged to satisfy the respondent that its proposed equipment would not cause damage to the applicant's infrastructure (clause 3.1-3.2). Given the doubt about structural integrity and the necessity to undertake an objective structural assessment as per Mr Vose's evidence, the applicant ought to establish this. The onus was on the applicant in this respect. There was even more uncertainty given the doubts about whether certain equipment could be said to be on the roof or on the wall. The only relevance of Mr Vose's evidence was to provide confirmation that the concerns of the applicant during the period 23 April 2018 to 1 July 2019 about the structural capacity of the roof of the Reservoir Tower were well founded. In the period 23 April 2018 to 1 July 2019, the structural capacity of the roof to entertain any new structures was questionable. Until these questions were answered no new installations could be permitted on the roof. In relation to whether the respondent should have been satisfied following the Corearth 2017 report that the EMEs were not such as to pose a risk of injury to contractors for which it was responsible when seeking access to the roof of the Reservoir Tower, as Mr Meissner read the conclusion of the report, Corearth's opinion did not cover the worst-case scenario. It was open to Mr Meissner to conclude that the Reservoir Tower was still unsafe for contractors. The applicant sought specific performance of the agreement that it be granted access to the roof of the Reservoir Tower to determine where it wished to locate its masts and dishes, however it enjoyed that very access on 22 May 2018, and also enjoyed access on 9 September 2019 (in respect of which evidence was given by Mr Hardman in his affidavit at [37]). The applicant also sought an injunction preventing the respondent impeding access to the roof for installation, however this ignored the Access Permit's terms that prior to installation the applicant provide the documents required by clause 3(1) and cascading obligations which may follow the provision of those documents and information. The terms of the relief sought were vague and unlikely to be enforceable in their terms. The specific performance sought could not prevent the applicant meeting its obligations under the Access Permit, nor prevent the respondent from relying on the terms of the Access Permit when granting access. It was likely that any asserted breach of such an order for specific performance would be beset by uncertainty. The lack of precision was itself a reflection of the applicant's failure to comply with clause 3.1(c) of the Access Permit. In any event the respondent was subject to a duty of care to ensure a safe workplace and duties as occupier of the Reservoir Tower. Overall the applicant did not establish that each of the requests were made in compliance with the Access Permit, nor that any of the respondent's refusals to grant access were made in contravention of the Access Permit. The applicant did not establish that there was a contravention by the respondent of the terms of the Access Permit that it has performed the necessary requirements under the Access Permit to warrant an order for specific performance.

Consideration 217 In my view the respondent was entitled under the terms of the Access Permit to refuse the applicant access to the Reservoir Tower in respect of all requests made. I have formed this view for the following reasons. 218 First, I have already set out in some detail the manner in which requests for access by the applicant dated 23 April 2018, 15 May 2018, 31 May 2018, 12 January 2019 and 1 July 2019 failed to comply with the terms of the Access Permit. In circumstances where the applicant made non-compliant requests, the respondent was not required to provide access to the Reservoir Tower for either inspection or installation. 219 To the extent that, referable to cl 3.1 of the Access Permit, the applicant contended that it was unable to provide drawings or specifications, or provide particulars of materials to be used, because the respondent refused to allow the applicant access to the Reservoir Tower so as to make informed assessments of those requirements, I reject that submission. In particular: As I have noted in this judgment, there was a clear distinction between requests for access for inspection, and requests for access for installation. All but two of the requests made by the applicant were for installation of equipment (within the meaning of Carrier's Works), in respect of which the applicant was required to comply with cl 3.1. The applicant could have sought access for the purpose of inspection to (for example) facilitate preparation of drawings or specifications pursuant to cl 3.1 (a) of the Access Permit; As I have further noted, the respondent allowed the applicant access to the Reservoir Tower on 22 May 2018 to place a data cabinet on the internal ground floor of the Reservoir Tower; and There is no evidence that the respondent arbitrarily rejected drawings or specifications provided by the applicant purportedly in compliance with cl 3.1 (c)(ii), or particulars of materials the applicant proposed to use in accordance with cl 3.1 (c)(iii). Rather, there is no evidence before the Court that the applicant had sought to provide relevant drawings or specifications. 220 Second, as I have already noted, the respondent refused access to the Reservoir Tower roof in relation to the requests of 14 August 2018, 7 November 2018, 12 January 2019 and 1 July 2019 for what was clearly, in my view, reasons which can be described as safety and operational reasons. Whether this was justified is of particular importance in respect of the requests for access of 14 August 2018 and 7 November 2018, where I found that the applicant provided adequate notice (but no drawings or specifications, or particulars of material, were required). 221 There are extensive provisions in the Access Permit engaged where there are, in essence, issues arising in respect of safety or operational matters applicable to the Reservoir Tower. In particular I note the following: Clause 3.2 (a) of the Access Permit provides: If, upon provision of the material referred to clause 3.1 (c), Seqwater is satisfied on reasonable grounds that the Carrier's Works as proposed under clause 3.1 in would materially affect the structural integrity or safety of Seqwater's Infrastructure, then the Carrier must, before the commencement of any Carrier's Works, and upon written request from Seqwater, give Seqwater an engineering assessment of Seqwater's Infrastructure certified by a RPEQ confirming Seqwater's Infrastructure is not materially structurally impacted by the Carrier's Works, and that the Carrier's Works do not: (i) impede Seqwater's ability to use Seqwater's Infrastructure for Seqwater's purposes; or (ii) interfere with Seqwater's telemetry equipment. Clause 3.2 (e) of the Access Permit provides: The Carrier's Works are at the Carrier's sole risk. The Carrier accepts responsibility for compliance with the WHS Act and WHS Regulations in respect of the Permitted Use In cl 2 (b) of the Access Permit the applicant acknowledges that: (vii) Seqwater may restrict or temporarily prohibit access to the Permitted Area for:- A. safety or operational (including maintenance) reasons; B. to protect people and property in the event of a natural disaster or for emergency response purposes; Although the phrase "safety or operational (including maintenance) reasons" is not defined by the Access Permit, the parties at cl 2 (b)(iv) of the Access Permit agree that the Permitted Area is located "within a key operational and/or catchment of Seqwater". The Background to the Access Permit also acknowledges that the respondent "has statutory obligations to provide safe, secure, resilient and reliable bulk drinking water for the general public." Importantly cl 2 (b) of the Access Permit proceeds to state: (xi) except where expressly provided for in this Permit, the Carrier has no right to object to or make any Claim against Seqwater in connection with the matters in this clause 2(b). Clause 7.1 requires the applicant to ensure that the Carrier's Works and Carrier's Equipment do not cause any danger to, and in carrying out the Permitted Use, the applicant must otherwise act to protect (inter alia), the health and safety of persons. Clause 6.4 of the Access Permit provides: 6.4 General The Carrier must observe and comply with: (a) all Laws concerning: (i) the Land and the Permitted Area; (ii) the Carrier's use of the Land and the Permitted Area; and (iii) the Carrier's Equipment and the Carrier's Works; (b) all reasonable directions given from time to time by Seqwater. 222 Detailed evidence was given by Mr Joseph Meissner in respect of requirements of the respondent concerning all carriers accessing the Reservoir Tower roof. I note in particular the following: 41. To coordinate activities and ensure security of the site and its water, Seqwater requests the Carriers to contact Seqwater's 24 hour control room and apply for site access in accordance with our Permit Access Safety System (PASS). 42. If one of the Carriers wishes to access the Reservoir Site, Seqwater requests the owner of the equipment to ensure its employees and/or contractors undertake Seqwater's general contractor induction, site-specific induction and induction on its PASS system. The site specific induction details the specific features of the site, which is particularly important at the Reservoir Site as it includes a chemical dosing facility. 43. Seqwater asks any of the Carriers accessing the Reservoir Tower to provide evidence that the required inductions by each worker intending to access the Reservoir Site has been completed and provide a job safety and environmental analysis (JSEA) or safe work method statement (SWMS) to detail the work that is to be undertaken and the protocols that will be adopted. Seqwater requires the Carriers to reflect any requirements of Seqwater's work instructions for the site in the JSEA and SWMS. 44. Seqwater reviews this information to ensure that the workers performing that work will be safe and that work will not adversely affect the safety of any other Seqwater workers or contractors performing work at the Reservoir Site. This is done in order to comply with Seqwater's obligations under the Work Health and Safety Act 2011 (WHS Act) and its 'Safe for Life' commitment. 45. Permission to access the Reservoir Site by the Carriers is conditional on their agreement to: (a) comply with any direction issued by Seqwater, including any work instructions issued for the Reservoir Site; (b) contact the control room by phone on entry and exit to the Reservoir Site, referring their PASS details; and (c) secure and lock the Reservoir Tower and Reservoir Site upon exiting. 46. The Reservoir Site is secured by a padlocked gate. The site is unmanned. 47. The Carriers have keys to the gate and can access the Reservoir Site. These keys were provided to the Carriers by RCC, the previous occupier of the Reservoir Site. The effect of this is that despite the protocols Seqwater has put in place for safety and security, access by the Carriers can occur without Seqwater's knowledge. Seqwater is currently reviewing its security and access protocols for the Reservoir Site. 223 I do not understand this evidence to be contested. I also understand that these requirements of the respondent were "directions" of the respondent within the meaning of cl 6.4, to which the applicant did not object. Indeed the evidence before the Court was that the applicant provided evidence to the respondent at various points of its completion of various safe work method statements (SWMS) to detail the work proposed to be undertaken. 224 I have also noted uncontested and detailed evidence of Mr Hester concerning the serious public health and safety issues pertinent to the safe operation of the Reservoir Tower by the respondent. 225 Earlier in this judgment I set out the sequence of events commencing with the issue of the First Improvement Notice by WHSQ on 31 May 2018 requiring compliance on 30 June 2018, the issue of a Revised Improvement Notice by WHSQ on 28 June 2018 requiring compliance by 30 June 2018, and then the issue of the Second Improvement Notice by WHSQ on 2 October 2018 requiring compliance by 30 November 2018. I noted the uncontested evidence of Mr Meissner as to the significantly deteriorated state of the safety rail on the roof, the difficulties experienced by the respondent in identifying the owners of telecommunications equipment located on the roof of the Reservoir Tower, and the further difficulties experienced by the respondent in endeavouring to obtain agreement from owners of the telecommunications equipment to arrange the shut down of that equipment to then arrange repair of the safety rail. 226 I infer from the evidence of Mr Meissner that, for unknown reasons, over a period of years the respondent had permitted installation of telecommunications equipment on the roof of the Reservoir Tower in an apparently uncontrolled fashion (including without maintaining records of the owners of that equipment to allow the respondent to contact owners to arrange shut down of equipment and maintenance of the Reservoir Tower). I further infer that it was only since around 2017 that the respondent (in particular Mr Meissner) recognised the deteriorated state of the roof, and the potential risks: In relation to the safety rail collapsing from, inter alia, age-related deterioration; To employees of and other workers engaged by the respondent who would need to repair the safety rail, but could be exposed to RF EME because of the volume of telecommunications equipment on the roof of the Reservoir Tower; To the structural integrity of the Reservoir Tower roof by reason of any additional weight at all being placed on it, including by equipment the applicant sought to place on it; To employees of and other workers engaged by the respondent in respect of future maintenance of the Reservoir Tower, if the structural integrity of the Reservoir Tower roof was compromised; To public health and safety given the primary use of the Reservoir Tower as infrastructure in the supply of fresh and clean drinking water to residents of south east Queensland by the respondent. 227 I find from the evidence of Mr Meissner, and the extensive correspondence tendered as evidence, that the respondent was very concerned about safety and operational issues arising in respect of the repair of the safety rail, and the impact on the structural integrity of the roof of the Reservoir Tower by an increase in the weight of telecommunications equipment installed there. 228 The evidence before the Court is that the respondent dealt with these concerns in a conservative fashion, including by endeavouring to liaise and negotiate with the owners of telecommunications equipment and by refusing access to the roof while it endeavoured to investigate and resolve its concerns. In my view it was not only reasonable for the respondent to approach its concerns in the manner that it did - insofar as concerned its contractual arrangements with the applicant under the Access Permit it was entitled to do so by cl 2 (b)(vii) of the Access Permit. 229 Third, and relevantly, there is incontrovertible evidence before the Court that WHSQ was concerned about safety issues in relation to the Reservoir Tower safety rail, to the point of multiple Improvement Notices. It is not submitted, and indeed I would not accept, that WHSQ did so otherwise than because the relevant WHSQ inspector who issued the Improvement Notices reasonably believed that the respondent was contravening or had contravened the WHS Act such as to make it likely that the contravention would continue or be repeated. 230 Fourth, the applicant submitted, in essence, that the respondent was "perfectly happy for other carriers to access the roof throughout the period while denying access to the applicant". In my view this submission is unsubstantiated, and indeed contrary to the evidence before the Court that the respondent was unwilling to allow anyone on the roof of the Reservoir Tower (including to repair the safety rail on the roof) until it could satisfactorily address issues of RF EME. 231 Fifth, delays in the repair of the safety rail appear to have been, at least in significant part, attributable to the respondent's concerns about levels of RF EME on the roof of the Reservoir Tower. The applicant submitted that the Corearth Report did not support the respondent's concerns, however as the Corearth Report plainly concluded: The highest total power density level measured was 0.844 W/m2 (16.84% of the General Public limit), measured at location 6. This is equivalent to a reading more than 6 times lower than the limit specified in the ARPANSA Standard for the General Public. This value (0.844 W/m2) is based on actual transmitter power of all active antennas on site at the time of measurement. This does not reflect a worst case scenario, where all transmitters on site are powered at their maximum capacity. (emphasis added) 232 In such circumstances it was clearly open to Mr Meissner to be concerned that the level of radiation on the roof of the Reservoir Tower was higher than understood. This was particularly so in circumstances where, 12 months after its report, Corearth issued its further report EME Guide for Site Safety advising that there were "exclusion zones" on the roof of the Reservoir Tower, and where this approach was similarly endorsed by the WaveForm report procured by Telstra which declared that the facility cited was unable to be declared compliant with the applicable Australian Standard due to unidentified radio systems. The fact that Corearth and WaveForm both recommended "exclusion zones" on the roof of the Reservoir Tower strongly indicated a view that there were potentially dangerous levels of RF EME to which persons on the roof could be exposed. 233 Sixth, and very importantly, I note the conflict of opinion between Mr Vose and Mr Wolski in respect of the capacity of the roof of the Reservoir Tower to support workers, additional equipment, and in particular the equipment the applicant sought to install on the roof in addition to that already permanently located on the roof. 234 I found both experts helpful and credible, however on balance I preferred the evidence of Mr Wolski in relation to the structural capacity of the Reservoir Tower roof, for the following reasons: I considered that Mr Wolski's expertise was more specifically relevant to the issues before the Court. In particular I note that Mr Wolski had extensive and length experience in relation to maintenance inspections of damaged buildings, concrete decay and floor strengthening, all of which arose in respect of the Reservoir Tower roof. In comparison, although Mr Vose was clearly an experienced engineer of many years standing, his was a broader range of more general experience in relation to such matters as the design of deep underground rail shafts, large retail and commercial projects, low and high-rise buildings, tourism developments, hospitals and health projects, industrial buildings, institutional buildings, residential dwellings, independent verification, asset inspection and dilapidation reports, bridge design and associated road structures. In my view the specific expertise of Mr Wolski was such that he could speak more directly and authoritatively in relation to the structural integrity of the roof of the Reservoir Tower. Accordingly I gave his evidence greater weight. Mr Vose gave evidence that he did not actually sight the Reservoir Tower roof, and was unable to comment on aspects of the GHD reports because of illegible drawings. Dr Anstice, Mr Wolski and other GHD staff inspected the Reservoir on 13 September 2017, as well as an on foot external reservoir structure inspection, and were able to comment authoritatively on the any defects, staining, cracking, roof penetrations, vermin proofing, drainage and overall appearance of the Reservoir Tower. Mr Wolski's evidence built upon the earlier report of GHD, of which he was a Technical Director. While both experts recommended testing of the roof in order to obtain data concerning its load bearing capacity: I consider reasonable Mr Wolski's opinion that non-destructive testing of the concrete and reinforcement in the roof would not account for major variables such as placement of the reinforcement within the slab and the actual load pattern of equipment on the roof; I note Mr Wolski's recognition of the serious risks associated with compromise to the structural integrity of the roof slab, and prefer his recommendation of the most direct means of performance measurement. In circumstances where I find that a conservative approach to management of public health and safety risks was reasonable, Mr Wolski himself took a very conservative approach to calculations concerning allowable live load on the roof. In my view this was appropriate. Mr Vose opined that the GHD approach was overly conservative, however in the circumstances I do not accept this. 235 Finally the applicant claims that the respondent was, in essence, filibustering in its refusal to allow the applicant access to the Permitted Area. In my view, when all relevant facts (including communications between the parties and the views of WHSQ) are taken into account, there is no basis for this contention, nor the supposition that for unknown reasons the respondent refused the applicant access to the Reservoir Tower simply because the respondent did not like the applicant.

Conclusion 236 The respondent operates a major public utility in Queensland, with critical risks referable to public health and safety. The Access Permit entitled the respondent to refuse access, not only where the applicant failed to comply with the terms of the Access Permit, but in appropriate cases for safety and operational reasons. I consider that the respondent was entitled to refuse the applicant access to the Permitted Area in response to the applicant's requests as identified.

ISSUE 3: Do the Applicant and Respondent have any residual rights under schedule 3 to the Act given the terms of the Settlement Agreement, the Access Permit and section 11 of Schedule 3 to the Act? 237 Section 11 of the Sch 3 to the Telco Act provides: 11 Agreements with public utilities (1) A carrier must make reasonable efforts to enter into an agreement with a public utility that makes provision for the manner in which the carrier will engage in an activity that is: (a) covered by Division 2, 3 or 4; and (b) likely to affect the operations of the utility. (2) A carrier must comply with an agreement in force under subclause (1). 238 It is not contentious that the Access Permit is an agreement within the scope of s 11, or that it represented the contractual basis on which the respondent was required to allow access by the applicant to the Permitted Area. 239 The parties made minimal submissions in respect of the question whether either of them had residual rights under Sch 3 of the Telco Act in relation to access by the applicant to the Permitted Area. 240 The applicant acknowledged that it originally proposed to exercise its statutory rights in accordance with Sch 3 of the Telco Act to install its equipment on the Reservoir Tower and for that purpose served a LAAN on the respondent dated 2 May 2017. With resolution of litigation between the parties and the execution of the Access Permit however, it appears that both parties understood that any access by the applicant was from that point regulated by the Access Permit. The applicant submitted however that there were applicable residual rights under Sch 3 of the Telco Act, for example: The applicant is bound to act in accordance with good engineering practice, to protect the safety of persons and property; and to ensure that the activity interferes as little as practicable with the operations of a public utility: s 10 of the Sch 3 of the Telco Act; and By s 42 of Sch 3 of the Telco Act, if a person suffers financial loss or damage because of anything done by a carrier under Div 2, 3 or 4 in relation to any property owned by the person or any property in which the person has an interest, there is payable to the person by the carrier such reasonable amount of compensation as is agreed between the, or failing agreement as determined by a Court of competent jurisdiction. 241 Even if these residual rights existed however, it is not apparent how they are relevant to the present dispute between the parties. 242 The respondent submitted that, by operation of s 11 (2) of Sch 3, all rights of entry were restricted by the terms of the Access Permit. 243 In my view any right of access by the applicant was governed by the Access Permit. In this respect: Section 11 (2) of Sch 3 is specific in its application to agreements between carriers and public utilities. The section reflects the standing of public utilities in the provision of services to the community, and the desirability of enforceable agreements being reached between carriers and those public utilities; In light of the entry by the parties into the Access Permit (with which the applicant is required to comply pursuant to s 11 (2)), the only source of the applicant's entitlement to enter the Permitted Area was the Access Permit; It is plain from the evidence that the applicant requested access to the Permitted Area pursuant to the terms of the Access Permit, not by LAAN addressed to the respondent pursuant to s 17 of Sch 3 to the Telco Act; and I accept the submission of the respondent that the decision of Kunc J in NBN Co Limited v Pipe Networks Pty Limited [2015] NSWSC 475 is of no assistance in respect of issues currently before the Court, in circumstances where the parties in NBN Co had not entered an agreement of the kind presently before the Court. 244 The applicant does not have a residual right of access, for inspection or installation purposes, or to engage in such activity as usage of power supplies of the respondent, under Sch 3 to the Telco Act.

ISSUE 4: Has the Applicant breached the Access Permit? 245 As I have already explained, requests for access made by the applicant on 23 April 2018, 15 May 2018, 24 May 2018, 31 May 2018, 12 January 2019 and 1 July 2019 failed to comply with the Access Permit. Although there was some discussion of compliance by the applicant with cl 3.2 of the Access Agreement, in my view this clause was not relevant, because at no point in respect of installation of its equipment (being commencement of Carrier's Works) did the applicant comply with cl 3.1 such that an obligation under cl 3.2 (a) to provide an engineering assessment to the respondent was enlivened.

ISSUE 5: Has the Respondent breached the Access Permit? 246 For reasons I have already explained - no.

ISSUE 6: If the Respondent has breached the Access Permit has the Applicant sufficiently complied with the terms of the Access Permit to entitle it to an order for specific performance? 247 As Dixon J explained in JC Williamson Ltd v Lukey and Mulholland [1931] 45 CLR 282 at 297: Specific performance, in the proper sense, is a remedy to compel the execution in specie of a contract which requires some definite thing to be done before the transaction is complete and the parties rights are settled and defined in the manner intended. Moreover, the remedy is not available unless complete relief can be given, and the contract carried into full and final execution so that the parties are put in the relation contemplated by their agreement. 248 Where there is a breach of a contractual promise, specific performance of the contract may be ordered where damages would be inadequate: Gageler and Gordon JJ in Price v Spoor [2021] HCA 20 at [51]; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 per Mason CJ and Wilson J at 119, Brennan J at 138, Gaudron J at 173. 249 In circumstances where I find that the respondent has not breached the Access Permit, it is unnecessary for me to answer the question posed by Issue 6.

Conclusion 250 The applicant has not demonstrated an entitlement to access the Permitted Area in terms of the Access Permit, or that it has been wrongfully denied access contrary to the terms of the Access Permit. The applicant is not entitled to the relief it has sought in these proceedings. 251 It is appropriate that costs should follow the event. I certify that the preceding two hundred and fifty one (251) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.