ASHFIELD MUNICIPAL COUNCIL v VODAFONE PTY LTD; MANLY COUNCIL v TELSTRA CORPORATION LTD [1998] NSWCA 18

ASHFIELD MUNICIPAL COUNCIL v VODAFONE PTY LTD; MANLY COUNCIL v TELSTRA CORPORATION LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and STEIN JJA 5 November 1998, 16 December 1998 [1998] NSWCA 18

CONSTRUCTION — 'exempt activity' — meaning of 'commencement of activity' — whether requirement that physical construction commenced on site — s116, Telecommunications Act 1991 (Cth) — transitional provisions — Pt2, Schedule 3, Telecommunications Act 1997 (Cth) — applicability of state legislation

$116 of the Telecommunications Act 1991 (Cth) and cl5 of the Telecommunications (Exempt Activities) Regulations 1991 provided that the construction of certain specified facilities by a mobile telephone carrier was an exempt activity for the purposes of the Act. As a consequence, the particular activity was exempt from compliance with specified state and territory laws. The 1991 Act was repealed by the Telecommunications Act 1997 (Cth) and the exemption eliminated. The 1997 Act came into force on | July 1997. It contained transitional provisions which saved the exemption where two conditions were met. The second condition, which provided that the activity commence on or before the 30 June 1997, is the subject of dispute in this appeal.

The respondents are mobile telephone carriers who each proposed erecting a mobile base station and carried out certain preliminary work towards that end. No physical on site construction had commenced on either site by the relevant date, although a pre-fabricated cabin had been placed on one site.

The appellant councils contend that the commencement of activity refers to the commencement of actual physical construction on the site and not merely to the carrying out of the functions of providing a facility.

Held:

The definition of 'exempt activity', when read with other relevant definitions, should be given a broad construction. To construe it more narrowly would not give effect to the clear purpose of the transitional provisions. The application of the 1991 Act and regulations, read in the light of the transitional provisions, does not require construction of the facility constituting the exempt activity to have been actually physically commenced on the site by 30 June 1997.