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 The 1991 Act was repealed by the Telecommunications Act 1997 (Cth) and the exemption eliminated.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. Mason P I agree with Stein JA. Meagher JA I agree with Stein JA. Stein JA Introduction The two appeals raise identical issues although on slightly different facts. The issue for determination is whether the respondents, who are mobile telephone carriers, are required to obtain development consent and building approval under State legislation from the appellant councils for the purpose of erecting a mobile base station. 2 UNREPORTED JUDGMENTS The issue for determination and its background By reason of the s116 of the Telecommunications Act 1991 (Cth) (the 1991 Act) and cl5 of the Telecommunications (Exempt Activities) Regulations 1991, the construction of a facility, in the nature of that proposed by the respondents, was an exempt activity. This meant that carriers were exempted from compliance with specified laws of the states and territories. These included laws relating to the assessment of environmental effects and the planning and construction of structures and buildings. In New South Wales the principal statutes governing these matters are the Environmental Planning and Assessment Act 1979 (the EPA Act) and the Local Government Act 1993 (the LG Act). There was significant public opposition to the exemption in the 1991 Act. As a result, the Government introduced the Telecommunications Bill in 1996. This was passed by the Parliament and became the Telecommunications Act 1997 (Cth) (the 1997 Act). It repealed the 1991 Act and, subject to exceptions which are immaterial, eliminated the carriers' exemption from state and territory building, planning and environmental laws. The 1997 Act came into force on | July 1997. The Act contained transitional provisions. It is these provisions which concern the appeals before the court. The transitional provisions are contained within Pt2 of Schedule 3 of the 1997 Act. CI56 thereof provides that the exemptions under s116 of the 1991 Act continue to apply if two conditions are satisfied. First, that the proposal to engage in the activity was notified by the carrier before 1 July 1997 and second, that the activity commenced on or before 30 June 1997. It is common ground that the former was satisfied in each case. It is the latter which is the subject of the dispute. Facts Vodafone Vodafone had located land in West Street, Croydon within the Ashfield Council area. It was owned by Sydney Water and used, in part, for a stormwater canal. Rights of entry were obtained by Vodafone in February 1996. Thereafter, survey work was carried out to establish the position for the erection of a mobile telephone tower and equipment cabin. The cabin was a pre-fabricated steel structure to be erected at the base of the tower. Consultants were employed to produce drawings and specifications. Discussions were held with them and also with architects on issues of design and aesthetics. All this had occurred by around May 1996. In March 1997 the respondent ordered the cabin from its supplier, James Hardie Building Systems. It was one of a number of cabins ordered, which were apparently more or less identical. The tower (or head frame) was approximately 34m high. The cabin was 3m x 2.5m and to be erected on a concrete slab. Vodafone had entered into contractual arrangements to erect the facility. The head frame of the tower was uniquely designed for the site for aesthetic purposes, the shape of the head frame having no relevance to its function. On 27 June 1997 Vodafone instructed its contractor to proceed with the building and construction works on the site. It made arrangements to have a pre-fabricated cabin delivered to the site. As it happened, it was not the specific cabin ordered for the site in March 1996 but another. This underlines their UWABHFIELD MUNICIPAL COUNCIL v VODAFONE PTY LTD; MANLY COUNCIL v TELSTR& CORPORATION LTD (Stein JA) similarity. The cabin arrived by truck on 30 June 1997 and, after a lengthy stand-off, was placed on the land notwithstanding the presence of protesters who were trying to prevent its delivery. At that time no footings had been constructed on the site and the cabin was not in its final position. No other work was done before | July 1997. The Council sought declarations and injunctive orders in the Land and Environment Court but were unsuccessful before Cowdroy AJ on 5 September 1997. His Honour found that Vodafone was entitled to the benefit of the transitional provisions. The work has since been carried out. Telstra In March 1995 Telstra identified a need for a mobile base station in the Seaforth area. It sought a suitable site and in May located one in Dalwood Avenue, which was owned by Sydney Electricity. The site contained a brick sub-station building. Telstra negotiated to buy the site and the contract was completed on | February 1996. Telstra then engaged consultants to prepare detailed design plans. These were prepared in March and included elevations and surveys. The plan included the use of the existing building. It was to be altered and adapted for the purpose and an adjoining 15m tower or antenna was to be erected. The antennas were to be mounted on a brick-style false chimney attached to a wall of the building, one assumes to try to match the brickwork of the existing building. Final plans were prepared in June 1996 and the Council was notified in August. Equipment was ordered, technical links requested and height clearances obtained. No materials had been delivered to the site by 1 July 1997, nor had any work of a physical nature been carried out on the site. The Council sought relief in the Land and Environment Court but Sheahan J dismissed its application on 25 February 1998 applying the decision of Cowdroy AJ in Vodafone. Again, the relevant work has been carried out since his decision. The Council's case On behalf of the Councils, Mr Downes QC submits that the respondents do not have the benefit of the transitional provisions in the 1997 Act and that the relevant activity did not commence on or before 30 June 1997 in each case. He submits that it is not the carrying out of the function of providing a facility which was exempted but the construction of it. 'Construction' means, in the context, the conjoining of parts of the object by fitting them together, as in the process of building. The reference to 'commencement' in cl56, understood consistently with the definition of 'exempt activity' in the 1991 Act, must relate to the commencement of construction on the site. Only physical works on the site were intended to have the exemption, see reg5(a) of the 1991 Regulations. Alternatively, adopting a purposive approach, Mr Downes submits that cl56 should be construed in a manner which promotes and facilitates its operation in the context of the state laws to which it is directed. The second reading speech on the 1997 Act is called in aid as supporting Parliament's intention. Commencement, in the context of building and planning laws, is not directed to the intellectual processes of design or decision-making etc, but to site works. Accordingly, all of the acts of the respondents were preliminary to the commencement of the activity of construction of the facility. It follows that the respondents cannot obtain the benefit of the transitional provisions. 4 UNREPORTED JUDGMENTS The respondents' case Vodafone relies on the definition of 'exempt activity' in cl56(5) referring back to the meaning in the 1991 Act. The effect of the transitional provisions is that s116 of the 1991 Act continues to apply to the facility at Ashfield if an exempt activity is commenced before 30 June 1997. Mr Jackson QC draws attention to s116 as not requiring any 'construction' to commence before 30 June 1997 but notes the limit of the right to the period ending on 31 December 1997 (see c156(2)(b)(ii)). Vodafone submits that the Commonwealth legislation under consideration has a quite different purpose than the specified laws of the states. Different treatment and definitions of the concept of 'commencement' and 'construction' would be expected, not only between the Commonwealth and the specified laws but also between the specified laws of the states and territories themselves. Consequently, the way in which these concepts have been construed under the EPA Act and the LG Act of NSW can be misleading and irrelevant. In Mr Jackson's submission, all that is required is that the work be referable to the site and incidental to the carrying out of the construction of the facility. The definition of 'exempt activity' in s5 of the 1991 Act, as per cl56(5) of the transitional provisions, extends well beyond buildings. The definition does not suggest a narrow interpretation limited to actual work on site. Such an approach does not accord with the clear purpose of the transitional provisions. The activities carried out by Vodafone before 30 June 1997 constituted commencement of the activity within the second limb of cl56(1) and the state laws do not apply. Telstra adopts Vodafone's submissions but adds a further argument by notice of contention. On its behalf, Mr Tobias QC submits that cl60 of the transitional provisions, which deals with the construction, alteration or demolition of existing buildings, is applicable and exempts it. For reasons which appear later, it is unnecessary to address this submission, which is not without its difficulties of construction. The legislative framework The starting point is s116 of the 1991 Act. Subs(1) provided that specified carriers (ie the respondents) may engage in specified exempt activities despite specified state and territory laws. S5 of the 1991 Act defined 'exempt activity' to mean: an activity, or conduct, engaged in the course of, for the purposes of, or otherwise in connection with: (a) installing, maintaining or operating a telecommunications network; or (b)without limiting para(a), supplying, installing, maintaining or operating a facility. The definition of 'facility' follows immediately. Relevantly, it means: (i) any part of the infrastructure of a telecommunications network; or (ii) any line, equipment, tower, mast, antenna, tunnel, hole, pit, pole or other structure or thing used, or intended for use, in or in connection with a telecommunications network;... A 'telecommunications network' is defined as a system for carrying communications by means of guided or unguided electromagnetic energy. Reg5 of the 1991 Regulations specifies exempt activities for the purposes of s116. The list is lengthy but includes the following: (a) the construction by a carrier of. UWABHFIELD MUNICIPAL COUNCIL v VODAFONE PTY LTD; MANLY COUNCIL v TELSTRA CORPORATION LTD (Stein JA) (i) a structure whose principal purpose will be to contain equipment that will be connected to a carrier's telecommunications network; or... (iii) a facility;... (b) the maintenance, repair, refurbishment, alteration or demolition by a carrier of: (i) a structure whose principal purpose is to contain equipment that is connected to a carrier's telecommunications network; or (iii) a facility. (c) the installation, certification, operation, maintenance, repair or removal by a carrier or any of the following that forms part of a carrier's public telecommunications network: The list which follows (c) contains some 17 items but includes, for example, an antenna (xiv). Cl6 of the 1991 Regulations specifies the state and territory laws which do not apply when a carrier is engaged in the exempt activities. Thus, prior to the 1997 Act, a carrier could engage in an activity for certain purposes (being specified exempt activities) despite the EPA Act and LG Act of New South Wales. The effect of the legislation was considered by Dunford J in Concord Council v Optus Networks Pty Ltd (1996) 90 LGERA 232 and Bannon J in Lane Cove Council v Optus Networks Pty Ltd (1996) 90 LGERA 225. As mentioned in the introduction, the 1997 Act repealed the 1991 Act, but the transitional provisions permitted carriers to continue particular activities in certain circumstances. C156 of the transitional provisions is central to the appeals. It relevantly provides: (1) This clause applies to a particular exempt activity if: (a) before 1 July 1997, a proposal to engage in the activity was notified by a carrier (within the meaning of the Telecommunications Act 1991) under a Telecommunications National Code and (b) the activity commenced on or before 30 June 1997. (2) Despite the repeal of the Telecommunications Act 1991 by the Telecommunications (Transitional and Consequential Amendments) Act 1997, s116, s117, s118 and s119 of the Telecommunications Act 1991 continue to apply, in relation to the activity, during: (b) if the activity does not consist of the installation of a designated overhead line - the period: (i) beginning on 1 July 1997; and (ii) ending at the end of 31 December 1997; as if: (c) a reference in those sections to a carrier (within the meaning of the Telecommunications Act 1991) were a reference to a carrier (within the meaning of this Act); and (g) that repeal had not been made. (5) In this clause: exempt activity has the same meaning as in the Telecommunications Act 1991, as in force before 1 July 1997. 6 UNREPORTED JUDGMENTS Consideration The Councils' case would be a stronger one were it not for cl56(5) of the transitional provisions providing a definition of 'exempt activity'. The definition adopts that contained in s5 of the 1991 Act. In my opinion, the definition must be given effect to and work to do. Subcl(1) of cl156 of the transitional provisions refers, in its opening words, to 'a particular exempt activity'. The word 'particular' adds nothing other than to highlight the particular 'real' activity to be considered in applying the provision. The phrase, therefore, includes any exempt activity included within the definition of exempt activity in s5. Subcl(1) of cl56 then refers to notification by a carrier of a proposal to engage in 'the activity'. That activity must be the exempt activity comprehended within the definition in s5 of the 1991 Act. The definition is to be read together with the definition of 'facility' in the same section by reason of its cross-reference in subpara(b) of the definition of exempt activity. The definition of 'facility' also directs reference to the definition of 'telecommunications network'. Armed with these definitions, derived from s5, one proceeds to reg5 of the 1991 Regulations, which includes a lengthy list of specific exempt activities. As already set forth, reg5(a)(i) refers to the 'construction' by the carrier of a structure whose principal purpose will be to contain equipment connected to the carriers' telecommunications network. The reference to 'construction' in reg5(a) is relied on by the Councils. It is, nonetheless, important to note that the word 'construction' does not appear in cl56 of the savings and transitional provisions. C156(1)(b) however speaks of the activity having 'commenced' before 30 June 1997. The Councils also rely on the reference to commenced. How should 'constriction' in reg5 of the 1991 Regulations be construed and what is its relevance or connection to commencement? The Councils submit that it should be interpreted as meaning actual physical construction on the site, as provided by the New South Wales state legislation. It is submitted that commencement in cl56(1) of the savings and transitional provisions should be similarly construed. C156(2)(g) of the savings and transitional provisions makes it plain that s116 of the 1991 Act continues to apply in relation to a proposal to engage in an exempt activity as if the 1991 Act had not been repealed. One must not lose sight of the fact that the legislation under consideration is a Commonwealth statute. The primary purpose of s116 of the 1991 Act was to relieve carriers from compliance with the specified laws of the states and territories, see Ashfield Council v Vodafone Pty Ltd (1997) 96 LGERA 241. What is engaged by the section is a series of laws of the states and territories on a variety of topics. In my view, the Commonwealth law is required to be construed on its own terms and without regard to particular definitions in the affected state legislation. It is simply irrelevant (and potentially misleading) to point to the interpretation in New South Wales of 'commencement' under planning and building laws. Likewise when considering the words 'work', 'construction' or the 'erection of a building'. The concepts are different under the Commonwealth legislation than that of the states which are relied on. Additionally, the purpose and objects of the respective legislation are quite different. In my opinion, the application of the 1991 Act and Regulations, read in the light of cl56 of the savings and 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. Of course, the activity relied on must be truly and directly referable to the site and have commenced before 30 UWABHFIELD MUNICIPAL COUNCIL v VODAFONE PTY LTD; MANLY COUNCIL v TELSTRA CORPORATION LTD (Stein JA) June 1997. The definition of 'exempt activity', when read with the other relevant definitions, is a broad one. It goes well beyond the erection of buildings. Nor does it speak exclusively about construction, see reg5(b) and regS(c). I can see no reason to give it a narrow construction which would confine it to actual physical building work on the site. Such a narrow construction is not justified by the wording of the savings provision, nor by dictionary definitions. No occasion arises to call extrinsic material in aid. There is simply no reason to construe s116, and its regulations, any differently following its repeal than before. To construe it more narrowly would not give effect to the clear purpose of the transitional provisions, which is to protect carriers who, is reliance on the exemption provided by s116, have taken steps towards the construction of a facility. In this respect, I agree with Cowdroy AJ. These steps include the activities relied on by Vodafone and Telstra. In my opinion, such acts constitute commencement of construction of the facility by each of the respondents on or before 30 June 1997. They amount to a commencement of an exempt activity as defined by cl56 of the savings provisions. The acts constitute conduct engaged in for the purposes of installing a telecommunications network and form part of an exempt activity. Accordingly, the provisions of the EPA Act and LG Act of New South Wales do not apply to the respondents in relation to the premises at Ashfield and Seaforth. It is therefore unnecessary to consider Telstra's notice of contention concerning cl60 of the savings and transitional provisions. Each appeal should be dismissed with costs. Each appeal dismissed with costs Counsel for the appellants: G Downes QC/J Ayling Solicitors for the appellants: Abbott Tout Counsel for the respondent (Vodafone): D F Jackson QC/C R Newlinds Solicitors for the respondent (Vodafone): Sowden McInnes Akerman Counsel for the respondent (Telstra): M Tobias QC/B Preston Solicitors for the respondent (Telstra): Mallesons Stephen Jaques