TELSTRA CORP LTD v CORP OF THE CITY OF MITCHAM No. SCCIV-00-1152 [2001] SASC 166

Full Court: Prior, Debelle, Nyland, Williams & Martin JJ

PRIOR J. I agree with the reasons to be given by Justice Debelle. The appeal should be dismissed.

DEBELLE J. This appeal from the Environment Resources and Development Court concerns a mobile telephone base station.

By application dated 26 April 2000 Telstra Corporation Ltd ("Telstra") applied to the Corporation of the City of Mitcham ("the Council") for development consent to erect a cellular mobile telephone base station at premises at 501 Goodwood Road, Colonel Light Gardens. It is proposed that the base station will be integrated into an existing building now being used as shops. The base station includes an antenna which Telstra proposes to mount on the roof of the building.

The building at 501 Goodwood Road lies within the Council area and is subject to the Council's Development Plan. The Development Plan was consolidated and amended on 6 July 2000. In particular, that part of the Plan which concerns the zone in which the base station is to be located was amended so that the zone became a State Heritage Area. The zone was called the State Heritage Area (Colonel Light Gardens) Zone. For convenience, I will call it "the Colonel Light Gardens Zone". By virtue of s 53(4) of the Development Act 1993, the amendments applied to Telstra's application notwithstanding that it was lodged before the amendments were made on 6 July 2000.

Principle of Development Control 50 in the Colonel Light Gardens Zone lists more than 40 kinds of development which are non-complying developments within the meaning of s 35 of the Development Act 1993. The list includes a development described as "transmitting station". Elsewhere in the Council's Development Plan, reference is occasionally made to a form of development called "telecommunications station". For example, a telecommunications station is a non-complying development in most, but not all, of the residential zones.

In order to deal with the application, the Council had to determine the nature of the proposed development. The procedure is prescribed by reg 16 of the Development Regulations which states:

" 16. (1) If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan, the relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination.

(2) If the relevant authority is of the opinion that an application relates to a kind of development that is described as non-complying under the relevant Development Plan, and the applicant has not identified the development as such, the relevant authority must, by notice in writing, inform the applicant of that fact."

The Council was thus required first to determine the nature of the proposed development and, having done so, to decide whether the application related to a development described as a non-complying development under its Development Plan. The Council decided that the application was for a transmitting station. By letter dated 16 August 2000, the Council informed Telstra that the proposed development is a transmitting station and hence a non-complying use.

Telstra contends that its proposed mobile telephone base station is a telecommunications station and not a transmitting station. At first blush, the distinction may seem unimportant. However, if the proposed development is classified as a transmitting station, it will be a non-complying development and Telstra will have no right to appeal to the Environment Resources and Development Court ("the Environment Court") should the Council refuse to grant development consent: s 35(4) of the Development Act. Depending on the terms of a particular Development Plan, the resolution of the question might also determine the extent to which public notice must be given of the proposed development and the rights of those who make representations opposing the proposed development: s 38 of the Development Act and reg 32 of the Development Regulations, 1993.

Telstra, therefore, appealed to the Environment Court from the Council's decision, contending that it was not applying to develop a transmitting station. The Environment Court applied the decision of the Full Court in Corporation of the City of Marion v Network Design & Construction [2000] SASC 185; (2000) 108 LGERA 411 and dismissed the appeal. Telstra has appealed to this Court. It contends that that decision is wrong. For that reason, this Court is constituted of five judges for the purpose of reconsidering the decision.

Section 35 of the Development Act prescribes certain procedural requirements in relation to types of development when assessed against a Development Plan. Sub-sections (3) and (4) of s 35 apply to a development that "is of a kind described as a non-complying development under the relevant Development Plan". The same formula is repeated in reg 16. Thus, the question which both the Council and this Court must determine is whether the development proposed by Telstra is described in the Council's Development Plan as non-complying. That turns on whether or not it is a transmitting station.

The evidence shows that the base station is the unit which receives from and transmits information to mobile telephone handsets which, for convenience, I will call "mobile phones". The base station's antenna would be used for the purpose of both receiving and transmitting radio signals to and from mobile phones. The base station receives the message from the caller, encodes it and transmits it to the other party. Telstra acknowledges that the transmitting function is critical to the operation but points out that the receiving and encoding functions are just as critical. Thus, Telstra submits, it is inaccurate and a mis-use of language to describe the facility as a transmitting station. Instead, Telstra says that the station should be characterised as a telecommunications station.

In Corporation of the City of Marion v Network Design & Construction (supra) the Full Court held that a telecommunications facility including a tower and associated equipment designed to receive and transmit signals from mobile phones was a transmitting station. In that case, the court was considering the Development Plan for the City of Marion. The Development Plan for the City of Mitcham is a different document, albeit that its overall objects are similar in that it seeks to regulate and control development in the Council area and it includes like expressions. However, the Plan for the City of Marion does not include the expression "telecommunications station". The absence of that expression has the consequence that this Court is not, strictly speaking, called upon to consider whether the decision in Corporation of the City of Marion v Network Design & Construction is plainly wrong: R v Do (1980) 54 SASR 543 at 545, Pashalis v WorkCover Corporation [1994] SASC 5143; (1994) 63 SASR 71, 73; Nguyen v Nguyen (1990) 169 CLR 245, 268 - 269.

The Council's Development Plan uses two expressions, "transmitting station" and "telecommunications station". Neither expression is defined in either the Development Plan or the Development Regulations. Neither expression is a term of art. The use of the expression "telecommunications station" in the Plan is relatively recent. In the 1993 version of the Plan, lists of non-complying developments referred only to "transmitting station" and the expression "telecommunications station" was then not used.

I note in passing that the expression "telecommunications facility" is used in Schedule 9 of the Development Regulations. It is there defined to mean "a facility within the meaning of the Telecommunications Act 1997 of the Commonwealth": see Schedule 9 Part 1, para 6(3) and Part 2, para 8. Section 8 of the Telecommunications Act 1997 (Cth) defines "facility" to mean:

"(a) any part of the infrastructure of a telecommunications network; or

(b) any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network."

However, the Council's Development Plan does not use the expression "telecommunications facility". The issues in this case might have been avoided had the Council used this expression.

In the absence of a definition of the expressions "transmitting station" and "telecommunications station", it is necessary to have regard to their meanings in ordinary usage. According to the Macquarie Dictionary, the primary meaning of the verb "to transmit" means "to send over or along, as to a recipient or destination". Its secondary meaning is "to communicate, as information, news, etc" and "to broadcast". In the context of radio, "transmit" means "to emit, for example, electromagnetic waves". "Transmitting" has a like meaning. The Oxford English Dictionary similarly defines the verb "to transmit" to mean "to cause (a thing), to pass, go or be conveyed to another person, place or thing; to send across an intervening space; to convey, transfer". In the context of physics or mechanics it means "to cause light, heat or sound to pass through a medium" and thus also means "to send out electric signals or electromagnetic waves". In the context of radio transmission it means "being able to transmit radio signals". The meaning of "station" in this context means "a place equipped for some particular kind of work, service or the like": see Macquarie Dictionary and Oxford English Dictionary. So we refer to radio stations, television stations and in other contexts to railway stations or bus stations. Thus, a transmitting station is a station from which radio signals are transmitted.

As already mentioned, the expression "telecommunications station" is not a term of art and it too is not defined in the Development Plan or in the Development Regulations. It has no accepted usage in ordinary parlance. It is wide enough to include a range of possible uses relating to telecommunications. According to the Macquarie Dictionary, the noun "telecommunications" means "the science or technology of telegraphic or telephonic communications by line or radio transmission". The Oxford English Dictionary contains a like definition, namely, "communication over long distances especially by electrical means such as by telegraphy, telephony or broadcasting". It is capable of describing a radio station, a television station, and a telephone exchange. No doubt it could include other kinds of facilities used to provide telecommunications services. The expression is wide enough to include this base station. However, it is not a necessary consequence that the base station is not also a transmitting station.

The proposed Telstra mobile phone base station performs the function, among others, of transmitting signals. It is one of its critical functions. The fact that the station also receives signals does not necessarily mean that it does not qualify as a transmitting station. The station might, therefore, be considered to be a transmitting station. The base station might also be described, perhaps a little more accurately, as a telecommunications station. However, that does not mean that it cannot also be described as a transmitting station. As this application is for a facility which has the function of, among others, transmitting, it relates to a development described in the Development Plan as a transmitting station. By virtue of Principle 50 it is, therefore a non-complying development. The fact that it might also be described as a telecommunications station does not mean that it is not a transmitting station. This is not a case where the nature of the proposed development constitutes one kind of development exclusive of another. Instead, it is a case where the Development Plan describes two kinds of development and the proposed development matches both descriptions.

There are two sound policy reasons for this approach. First, if a proposed development involves several different kinds of uses, one of which is a non-complying use and others which are complying uses, councils might find their powers to control the non-complying use severely restricted. Secondly, the Development Plan is concerned, among other things, with the visual impact of proposed developments. The towers used for a telecommunications station are sometimes very similar in appearance to those used for a transmitting station. It would be incongruous that, notwithstanding their similarity in appearance, one would be a non-complying development and the other not. The fact that this base station will use only a small antenna at the top of the existing building does not negate the force of that policy.

A further reason for this conclusion is that the Development Plan is not always consistent in its use of certain terms. It is not unusual for a particular kind of development to bear two descriptions in a Development Plan. For example, a shop is defined in Schedule 1 of the Development Regulations to mean and include both a restaurant and a retail showroom, a definition which also applies in Development Plans: see reg 3. However, notwithstanding the width of that definition in this Development Plan, lists of non-complying uses in certain zones refer to restaurants, retail showrooms, as well as shops. In addition, terms are not always consistently used in the Plan. For example, in some zones, including the Colonel Light Gardens Zone, the list of non-complying uses includes shops, a retail showroom, but not a restaurant.

Mr Canavan QC, who appeared for Telstra, sought to avoid this conclusion by contending that the expressions "transmitting station" and "telecommunications station" have different meanings in this Development Plan. The effect of his argument is that there is only one expression in the Development Plan capable of referring to a base station of this kind. Examination of the Development Plan does not support that assertion. Indeed, for the reasons which follow, an examination of the Plan suggests the contrary conclusion.

Listed below are the zones in which the expressions "transmitting station" and "telecommunications station" are used or not used in the Development Plan in force at the date of the application by Telstra. The Plan does not mention either a transmitting station or a telecommunications station in the following zones:

Commercial (South Road) Zone Rural Landscape Zone

Commercial (Coromandel Parade) Zone Special Uses Zone

The following zones list transmitting stations as a non-complying development but do not in any respect mention telecommunications stations:

The following zones list both transmitting station and telecommunications station as non-complying uses:

I should add that, in those zones which refer to a telecommunications station, the station is in some zones called a "telecommunication station" and in others a "telecommunications station". I will shortly be referring to the lack of consistency in the use of certain expressions in the Development Plan. This is but another instance of that inconsistency in expression.

Mr Canavan QC pointed to the fact that there is no zone where a telecommunications station is designated as a non-complying use but a transmitting station is not also so designated. Conversely, he said, there are six zones in addition to the Colonel Light Gardens Zone in which transmitting stations are designated as a non-complying use but telecommunications stations are not so designated. He submitted that this suggests that the Development Plan treats transmitting stations as having a greater capacity detrimentally to affect the amenity of a zone than a telecommunications station.

There are at least three flaws in that argument. First, as already noted, it is not possible to find any consistency in the use of expressions in the Development Plan and two expressions may refer to the same kind of development. Secondly, and perhaps more significantly, two of the six zones where telecommunications stations are not designated as a non-complying use are the Hills Face Zone and the Residential (Craigburn) Zone. An examination of the Development Plan discloses that both can fairly be described as zones with a sensitive amenity. In addition, given the heritage implications of the Colonel Light Gardens Zone as stated in the Development Plan, it too can fairly be regarded as a zone with a sensitive amenity. There is no reason in principle why the Council would not seek to maintain the same kinds of controls in these three zones as it would in its other six residential zones. Thirdly, the fact that both a transmitting station and a telecommunications station are designated in six residential zones and in the Historic (Conservation) Zone in the Mitcham Village only serves to point to the fact that both transmitting stations and telecommunications stations are perceived to have detrimental effects on sensitive environmental areas. Thus, there is no apparent consistency or pattern in the use of the two expressions. For these reasons, it cannot be concluded that the expression "telecommunications station" is the only expression capable of applying to a base station of this kind. Thus, although the Council's Plan refers to both a transmitting station and a telecommunications station, there is nothing in the Plan which suggests the expressions necessarily bear different meanings.

The effect of the argument for Telstra is that the Development Plan intends that this kind of telecommunications facility should be a non-complying use in the residential zones specified but not in other residential zones or environmentally sensitive zones. That would produce some incongruous, if not paradoxical, results.

Mr Canavan QC also submitted that the fact that Principles of Development Control 5 and 49 in this zone refer to telecommunications "facilities" indicated that a telecommunications station was not a non-complying use in the zone. Principles 5 and 49 read:

"5 Roof mounted mechanical plant or air conditioning equipment, radio communications and telecommunications masts, and including satellite dishes and towers should be located so as not to be prominently visible from the street.

49. Telecommunications and electricity infrastructure should be located so as to complement the heritage value and not detract visually from the 'Area'. Electricity poles, transformers, wiring, radio facilities, above ground housing, public pay phones, cabinets or booths should be designed and located to retain the heritage value of the 'Area'."

The flaw in this argument is that the expression "telecommunications masts" in Principle 5 and "telecommunications infrastructure" in Principle 49 apply also to masts and infrastructure used in connection with a transmitting station. Principles 5 and 49 are a further means of controlling this kind of facility. Mr Canavan QC was correct to suggest that this was not his strongest argument.

The court has repeatedly stated that the provisions of the Development Plan are not to be construed like a statute: see, for example, St Ann's College v Corporation of City of Adelaide [1999] EDLR 432 at 437. A Development Plan is a planning document couched in the language of planning objectives and principles, rather than that of legal obligation. It uses language appropriate to the expressions of goals and guiding principles, rather than the expression of legal mandates: Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 per King CJ at 187 approving observations of Wells J in both Claude Neon Ltd v City of West Torrens (1982) 29 SASR 260 at 270 - 271 and in Hassen v District Council of Murray Bridge (1984) 35 SASR 448 at 449. As the court said in District Council of Mallala v M&B Farmer Nominees Pty Ltd [2000] SASC 117; (2000) 76 SASR 443 at 449, the Plan does not always use expressions in a consistent manner. Thus, in order to determine the intended meaning it may be necessary to have regard to either or both the overall purpose and objectives of the relevant zone and of the Plan. This case provides an instance of expressions not being used in a consistent manner in that two expressions are capable of applying to one kind of development.

It would plainly be desirable in the interest of certainty for terms to be used in a consistent manner in the Development Plan. It is also plainly desirable in the interest of uniformity as well as certainty that terms should be used, so far as is possible, consistently in all Development Plans. The fact that a number of metropolitan councils include part of the Hills Face Zone lends a special force to the latter proposition. However, the desirability of certainty does not have the conclusion for which Telstra contends.

For all of these reasons, the Council was correct in deciding that the base station was a transmitting station and hence a non-complying use in the State Heritage Area (Colonel Light Gardens) Zone. I would dismiss the appeal.

NYLAND J. I agree with the reasons of Debelle J. I would dismiss the appeal.

WILLIAMS J. I would dismiss the appeal for the reasons given by Debelle J.

MARTIN J. I agree that the appeal should be dismissed for the reasons given by Debelle J.