New South Wales Court of Appeal CITATION : Optus Mobile Ltd v Canada Bay City Council [2004] NSWCA 446 revised - 6/12/2004 HEARING DATE(S) : 29 November 2004 JUDGMENT DATE : 29 November 2004 JUDGMENT OF : Giles JA DECISION : Notice of motion filed 10 November 2004 dismissed with costs. Continue the existing stay for seven days from today. CATCHWORDS : Stay of order pending appeal - dispute over whether development consent required for telecommunications facility - Council brought proceedings in Land and Environment Court - Optus went ahead and erected facility - held development consent required - proceedings adjourned so application could be made for development consent - but order preventing use of facility in the meantime - whether order to be stayed - balance of convenience - use illegal and Optus went ahead at its own risk - Council had benefit of judicial decision also giving it collateral advantage of allaying concerns, even if ill-founded, about electromagnetic emissions - stay refused. ND PARTIES : Optus Mobile Ltd - Claimant Canada Bay City Council - Opponent FILE NUMBER(S) : CA 40977/04 COUNSEL : T S Hale SC & M J McGrowdie - Claimant D Baird & P Whitford (Solrs) - Opponent SOLICITORS : Minter Ellison - Claimant Maddocks - Opponent LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT LEC 40906/04 FILE NUMBER(S) : LOWER COURT Lloyd J JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40977/04 LEC 40906/04 GILES JA Monday 29 November 2004 OPTUS MOBILE LTD v CANADA BAY CITY COUNCIL Judgment 1 GILES JA: This is an application for a stay, pending appeal, of an order made by Lloyd J on 5 November 2004. 2 In the proceedings in the Land and Environment Court the opponent claimed orders restraining the claimant from maintaining a telecommunications facility erected on premises at 97 Majors Bay Road, Concord. The issue between the parties, which I will describe in a little more detail, was whether or not the claimant needed development consent for the erection of the facility. His Honour held that it did. He adjourned the proceedings to enable the claimant to apply for development consent and for any application to be considered and determined, but ordered that it cease the transmission of telecommunication signals from the facility until further order. That is the order which the claimant wishes to stay. 3 The legislative background can be described quite briefly. Under the Telecommunications Act 1997 (C'th) a carrier, of which the claimant is one, is entitled to install certain telecommunications facilities and the entitlement to do so overrides the Environmental Planning and Assessment Act 1979 in the event of inconsistency. A carrier may install a facility if it is a low impact facility as defined. A facility is not a low impact facility if the area in which it is installed is an area of environmental significance. An area is an area of environmental significance: " … if, under a law of the Commonwealth, a State or a Territory, it consists of a place, building or thing that is entered in a register relating to heritage conservation". 4 The question in the Land and Environment Court was whether the claimant's facility did not qualify as a low impact facility because it was erected in a place which had been entered in a register relating to heritage conservation, within these last words. If it was not a low impact facility, development consent was required and had not been obtained. 5 The claimant's proposal to erect the facility became known to the opponent some time in 2003 or early 2004. The claimant made known that it considered that development consent was not required. 6 On 20 February 2004 officers of the opponent resolved, under delegated authority, that parts of Majors Bay Road be listed as potential heritage items on a listing of such items for which the Concord Local Environmental Plan No 103 (Heritage) provided. Its position was that because of the listing the proposed facility would be in a place that was entered in a register relating to heritage conservation. 7 The opponent made this position known to the claimant, and asked for an undertaking that the facility would not be erected. It did not receive an undertaking, and on 22 July 2004 it commenced the proceedings in the Land and Environment Court. At this time it seems the erection of the facility had not commenced, although it was imminent and the erection was commenced some time early in August 2004. 8 The facility began operating on 25 August 2004. The opponent did not seek interlocutory relief, but moved for expedition and an expedited hearing was granted. The hearing took place on 29 and 30 September 2004. Judgment was given on 5 November 2004. At the claimant's request, Lloyd J postponed the operation of the order presently in question to 15 November 2004, and the postponement was thereafter extended by consent until today. 9 The opponent's application in the Land and Environment Court was met by answers of two kinds. The first was that the listing of potential heritage items pursuant to the LEP was not entry in a register relating to heritage conservation within the words which I have earlier set out. This was a matter of construction in the light of the terms and operation of the relevant instruments. The second was that the listing by the opponent was invalid for one or more of a number of reasons, in particular because of improper motivation, failure to conduct appropriate investigations before the listing, and general Wednesbury unreasonableness. 10 None of these answers found favour with the judge, hence his Honour's decision. I am not in a position to say that the proposed appeal, for which leave is needed, is one in which there is merit or lack of merit in the re-agitation of these matters and I proceed on the basis that there is an arguable case for an appeal. 11 It comes down, then, to the exercise of a discretion according to the considerations generally summarised as the balance of convenience, although there is I think a little more to it in this case. 12 For the claimant it is submitted that the facility has been operating since about 25 August 2004, and that despite the then pendency of the proceedings in the Land and Environment Court the opponent did not seek interlocutory relief to restrain the erection of the facility or its use once erected. The claimant says that if it has to cease the transmission of telecommunication signals from the facility there will be a poorer and less effective service for subscribers to its telecommunications service in the area around the facility, with less than optimal coverage in some places, no coverage at all in other places and greater congestion in the use of other telecommunication transmission facilities surrounding Concord and Five Dock. There is some evidence that Optus customers found, and appreciated, a better level of service after the facility began to operate. 13 The claimant says there is really nothing to weigh against permitting it to continue to transmit telecommunication signals, and that it should not suffer the interim commercial detriment when in due course its position may be upheld on appeal. In particular, the claimant says that testing of the electromagnetic emissions from the facility after it had began to operate showed that they were all within Commonwealth standards, so that despite the concerns expressed by persons in the area (as demonstrated through the opponent's evidence) there has not been shown to be any detrimental effect on the populace from the operation of the facility. 14 In my opinion what this leaves out of account, and it is fair to say that it was recognised although somewhat sidelined in the claimant's submissions, is that there has been a judicial determination that the erection of the telecommunications facility was illegal, and that its use is therefore illegal. The claimant acknowledged that it was relevant to consider the integrity of the environmental planning laws, although saying that the integrity was that ultimately determined and so that if it succeeded on appeal the planning laws would be duly recognised, I do not think that sufficiently allows for the current illegality with which the order in question is intended to deal. 15 Nor to my mind do the claimant's submissions adequately deal with the fact that it proceeded with the erection of the facility well knowing that there was determined opposition to it from the opponent, and indeed that it began the erection after the commencement of the proceedings in the Land and Environment Court. The claimant took the risk that the erection of the facility would be found to be illegal. The risk having come home, it is not in a strong position in saying that it should be allowed to take the benefit of continued transmission from the facility pending an appeal. It is true that the opponent did not seek interlocutory relief, but the opponent put the claimant on very clear notice of the relief it was seeking and an expeditious hearing was obtained. It remains in my view that the claimant took the risk. 16 It is necessary for a litigant in the position of the claimant to make out a case for a stay, and it does not seem to me that on the matters to which I have referred thus far the claimant has done so. There is however a further matter which it seems to me, although not of determinative weight, can be taken into account. 17 As I have said, the opponent's evidence included evidence of concern at the effect of electromagnetic emissions; in particular of the perceived effect on the conduct of kindergartens in the vicinity. It may well be that the concerns have no scientific support, and that if in the consideration of a development application they are sought to be brought into account they cannot have significance on the principle that unfounded fears are of no weight in the administration of the planning laws. On the other hand, it may be that the concerns can appropriately be taken into account as something which a body in the position of the opponent can include in relevant considerations upon a development application. For present purposes it seems to me that the opponent is entitled to say that the concerns exist and have an impact on its conduct and on the lives of its ratepayers, and that if as a collateral result of the decision of Lloyd J it is able to ameliorate the concerns because this facility cannot operate without the consideration which a development application would allow that is something which can be taken into account in deciding whether or not there should be a stay. 18 I do take it into account, and while I would in any event have declined the stay it seems to me that that is an additional reason why it would be inappropriate to grant a stay. It is not because of any recognition that there is a basis for the concerns. It is because the opponent has the benefit of a judicial determination which ameliorates the concerns, although they were not amongst the issues on which the judicial determination depended, and a collateral advantage such as that can, it seems to me, be taken into account in deciding how matters should stand pending any appeal. 19 For these reasons I order that the notice of motion filed on 10 November 2004 be dismissed with costs. I do however continue the existing stay for seven days from today, to enable the claimant to cease the transmission of telecommunication signals from the facility with the least disruption to itself and the users of its telecommunication services. ********** Last Modified: 12/07/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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