Hutchison 3G Australia Pty Ltd v City of Mitcham [2006] HCA 12

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND HEYDON JJ

HUTCHISON 3G AUSTRALIA PTY LTD APPELLANT

AND

CITY OF MITCHAM & ORS RESPONDENTS

Hutchison 3G Australia Pty Ltd v City of Mitcham

[2006] HCA 12

6 April 2006

A43/2005

ORDER

1. Appeal allowed.

2. Set aside so much of the order of the Full Court of the Supreme Court of South Australia made on 11 March 2005 as answered the questions set out in the Case Stated filed on 27 January 2004 and, in its place, order that the questions be answered as follows:

(1.1) Q. In the events which have happened except at Clarence Gardens, are the stobie poles erected by ETSA when fitted with the facilities placed upon each by Hutchison, a tower within the meaning of cl 6 of Sched 3 of the Telecommunications Act 1997 (Cth)?

A. No, because the stobie poles are not and do not become facilities for the purposes of the Telecommunications Act 1997 (Cth) notwithstanding the installation on them of Hutchison's facilities. Therefore, the stobie poles are not and do not become towers within the meaning of cl 6 of Sched 3 of that Act.

(1.2) Q. In the events which have happened except at Clarence Gardens, has Hutchison erected low-impact facilities within the meaning of the Telecommunications (Low-impact Facilities) Determination 1997 (Cth) having regard to the facts that:

(a) the new or replaced stobie pole together with the facilities installed by Hutchison constitute more than a 25% increase in the apparent volume of the original stobie pole; or

(b) the air conditioning units in the equipment shelters for the facility emit noise; or

(c) the distance from the top of the stobie pole to the top of the panel antennae exceeds 3 metres?

A. Yes, and on the basis that the fact referred to in question 1.2(a) is not relevant to the identification of low-impact facilities in the Telecommunications (Low-impact Facilities) Determination 1997 (Cth).