FEDERAL COURT OF AUSTRALIA

Gold Coast City Council v Satellite & Wireless Pty Ltd [2014] FCAFC 51

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    This is an appeal from orders made by a judge of the Court on 8 March 2013 and on 1 May 2013. The principal order made was, in effect, a declaration that the respondent was entitled to go on to land owned by the appellant and install thereon a low-impact facility as defined in the Telecommunications Act 1997 (Cth) (“Telecommunications Act”). The respondent filed a notice of contention in which it claimed that the decision of the primary judge should be affirmed on grounds other than those relied on by him. The appeal and notice of contention raise issues concerning the proper construction of s 192(1) of the Water Supply (Safety and Reliability) Act 2008 (Qld) (“Water Supply Act”) and cls 36 and 37 in Division 7 of Part 1 of Schedule 3 of the Telecommunications Act.

2    At all material times, the respondent (Satellite & Wireless Pty Ltd) has been a licensed telecommunications carrier under the Telecommunications Act. By January 2012, it had decided that it needed to expand the radio signal coverage of its network in and around an area known as Reservoir Park at Tamworth Drive, Helensvale, Queensland. There is a water tower on an allotment of land within this area (“Water Tower”). The Water Tower is a water-containing vessel with a capacity of 0.15 mega-litres and it was built for the purpose of providing clean water to the general public. The Water Tower, and the allotment of land upon which it stands, is within the local government area of the appellant (the Gold Coast City Council).

3    The respondent decided that it would install a low-impact facility, as that term is defined in the Telecommunications Act, on the Water Tower. The term “facility” is defined in the definitions section of the Telecommunications Act (s 7) in the following way:

facility means:

(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.

4    A “low-impact facility” for the purposes of the clause dealing with the installation of such facilities is defined in cl 6 in Division 3 of Part 1 of Schedule 3 of the Telecommunications Act as a facility so specified by determination by the Minister by legislative instrument.

5    The low-impact facility proposed by the respondent is to consist of a number of elements. First, there will be a telecommunications cabinet, which will be located on the ground floor inside the door to the Water Tower. The dimensions of the cabinet will be 2120mm x 600mm x 800mm. It will be fully secure and outdoor rated, with the keys to be held by the respondent. It will be labelled with a 24/7 contact number for the respondent. Secondly, there will be four (4) single pole antenna mounts spanning vertically, each affixed to the concrete base of the roof of the Water Tower via a base plate. A single pole antenna mount will be located at each of four proposed sites and each single pole antenna mount will be secured to the roof with four (4) holes through a base plate, and each of the holes will be sealed with an epoxy resin to create a watertight secure seal. At two of the proposed sites, each single pole antenna mount will host one (1) 1200mm x 1200mm parabolic dish, and at the other two proposed sites, each mount will host three (3) 600mm x 600mm flat panel antennas. In total, there will be eight radio units (i.e., an antenna and/or parabolic dish and a radio frequency emitting radio). All radio units will be connected to the cabinet by cable using existing runs or new runs if necessary. New runs might involve a small amount of drilling. It might be necessary for a separate power phase to be run with a power meter if requested. The respondent considers that it will take six weeks to install the facility. There is no dispute that the facility proposed by the respondent is a low-impact facility within the Telecommunications Act.

6    The Telecommunications Act provides for a procedure to be followed by a carrier before a low-impact facility may be installed on land. When the respondent undertook the first steps in that procedure, an entity known as Allconnex Water (“Allconnex”) was the owner of the Water Tower and the allotment upon which it stood. It is necessary to explain the relationship between the appellant and Allconnex.

7    At all material times, the appellant has been a local government body or council. The allotment upon which the Water Tower stands is, as we have said, in the appellant’s area and it was owned by the appellant for some time before it was transferred to Allconnex in 2010. Allconnex was established as a legal entity under the South East Queensland Water (Distribution and Retail Restructuring) Act 2009 (Qld) (“SEQ Water Act”) on 3 November 2009. From 1 July 2010, Allconnex assumed responsibility from three Councils (the appellant, Logan City Council and Redland City Council) (“Participating Councils”) for the provision of water and wastewater services within the geographic areas of the Participating Councils, and commenced operations as a council-controlled statutory authority acting as a service provider within the Water Supply Act. Allconnex was owned by the Participating Councils.

8    The core functions of Allconnex and the scale of its activities were described by the primary judge in the following way (at [8]):

Allconnex’s core functions included supplying and distributing treated drinking water; collecting and treating wastewater; supplying recycled wastewater under a particular scheme; and planning for and deploying the infrastructure required to enable it to discharge its core functions. The scale of its activities involved providing safe and reliable water services to 400,000 customers each day; responsibility for a distribution area of 2,900 square kilometres; servicing a population of 900,000 people each day; distributing 75,000 mega-litres of water each day; and owning and maintaining assets deployed in the performance of its core functions and activities having an asset value of approximately $4 billion.

9    In 2011, the Participating Councils elected to withdraw their continuing participation in Allconnex and chose to re-establish their own water service business within the sphere of their own Council’s operations and undertaking. Effect was given to this decision by amendments to the SEQ Water Act and each Council resumed responsibility as a service provider within the Water Supply Act for its area from 1 July 2012. The primary judge found that the effect of these arrangements was that, whilst the allotment upon which the Water Tower stands was transferred to Allconnex in 2010, it was then re-transferred from Allconnex to the appellant from 1 July 2012 under the re-transfer arrangements.

10    In early 2012, the respondent sought to activate the provisions of Schedule 3 of the Telecommunications Act with a view to installing its proposed low-impact facility on the Water Tower. On its case, it served the required notice on Allconnex on or about 24 February 2012. Allconnex’s case was that it did not receive the notice. On 27 April 2012, the respondent commenced this proceeding against Allconnex seeking relief preventing Allconnex from interfering with what were said to be its statutory rights to enter the land and install its low-impact facility. As a result of the change of legal arrangements effective from 1 July 2012, identified above, the proceeding was amended on 13 September 2012 to substitute the appellant for Allconnex in the proceeding.

11    The appellant’s defence to the respondent’s claim was that it did not receive (or the respondent did not send) the required notice under the Telecommunications Act. In the alternative and in any event, it contended that Schedule 3 of the Telecommunications Act did not authorise the installation of the low-impact facility. It was unsuccessful on the notice point and that aspect of the primary judge’s decision is not challenged on the appeal.

the issues on the appeal

12    In order to understand the issues on the appeal, it is first necessary to understand the legal framework.

13    Schedule 3 of the Telecommunications Act confers on a carrier, as defined in the Act, certain powers in connection with the installation of low-impact facilities. The powers include a power to inspect land to determine whether it is suitable for its purposes (Division 2), a power to install a low-impact facility (Division 3) and a power to maintain a facility (Division 4). These powers are subject to a limitation in cl 36 in Division 7 of Part 1 of Schedule 3, and the limitation itself is subject to a number of exemptions in cl 37.

14    Clauses 36 and 37 are in the following terms:

36    Activities not generally exempt from State and Territory laws

(1)    Divisions 2, 3 and 4 do not operate so as to authorise an activity to the extent that the carrying out of the activity would be inconsistent with the provisions of a law or a State or Territory.

(2)    The rule set out in subclause (1) has effect subject to any exemptions that are applicable under clause 37.

37    Exemption from State and Territory laws

(1)    This clause applies to an activity carried on by a carrier if the activity is authorised by Division 2, 3 or 4.

(2)    The carrier may engage in the activity despite a law of a State or Territory about:

(a)    the assessment of the environmental effects of engaging in the activity; or

(b)    the protection of places or items of significance to Australia’s natural or cultural heritage; or

(c)    town planning; or

(d)    the planning, design, siting, construction, alteration or removal of a structure; or

(e)    the powers and functions of a local government body; or

(f)    the use of land; or

(g)    tenancy; or

(h)    the supply of fuel or power, including the supply and distribution of extra-low voltage power systems; or

(i)    a matter specified in the regulations.

(3)    Paragraph (2)(b) does not apply to a law in so far as the law provides for the protection of places or items of significance to the cultural heritage of Aboriginal persons or Torres Strait Islanders.

(4)    Paragraph (2)(h) does not apply to a law in so far as the law deals with the supply of electricity at a voltage that exceeds that used for ordinary commercial or domestic requirements.

15    The appellant’s case before the primary judge was that the installation of a low-impact facility on the Water Tower would be inconsistent with a State law and, therefore, was not authorised by Division 3 of Part 1 of Schedule 3 of the Telecommunications Act. The State law it identified was s 192(1) of the Water Supply Act which is in the following terms:

Interfering with service provider’s infrastructure

(1)    A person must not, without the written consent of a service provider, interfere with a service provider’s infrastructure.

    Maximum penalty – 1000 penalty units.

(2)    A person must not, without the written consent of a service provider, build over, interfere with access to, increase or reduce the cover over, or change the surface of land in a way causing ponding of water over an access chamber for, a service provider’s infrastructure.

    Maximum penalty – 500 penalty units.

16    The issues raised on the appeal and on the notice of contention are as follows. The first issue is whether the installation of the low-impact facility proposed by the respondent would contravene s 192(1) of the Water Supply Act. This issue, in turn, raises two sub-issues. The first is whether the installation of the low-impact facility would “interfere with” the Water Tower within s 192(1) of the Water Supply Act. The primary judge held that it would because he said that “interfere with” was not restricted to an effect on the provision of the relevant services in a functional sense, but was wide enough to include and did include a person interfering in the sense of doing things to a service provider’s infrastructure asset without its approval. The respondent challenges that conclusion in its notice of contention. The second sub-issue is whether s 192(1) of the Water Supply Act is to be construed so that it operates only if there is not otherwise a lawful authority for the interference with the service provider’s infrastructure. The primary judge held that the subsection should be construed in that way and that Division 3 of Part 1 of Schedule 3 of the Telecommunications Act provides a lawful authority for the respondent’s proposed low-impact facility. The appellant challenges that conclusion in its appeal.

17    The second issue only arises if the installation of the low-impact facility proposed by the respondent would contravene s 192(1) of the Water Supply Act. If that is the case, then it is necessary to consider the exemptions in cl 37(2) and, in particular, in the circumstances of this case, cls 37(2)(f) and 37(2)(e). Clause 37(2)(f) raises a question of whether s 192(1) of the Water Supply Act is a State law about “the use of land”. The primary judge held that it was and that conclusion provided a separate ground for his decision to grant the respondent the relief it sought. The appellant challenges that conclusion in its appeal. Clause 37(2)(e) raises a question of whether s 192(1) of the Water Supply Act is a State law about “the powers and functions of a local government body”. This question was not raised before the primary judge and the respondent seeks to raise it in its notice of contention. The appellant does not object to the respondent raising the contention (Coulton and Others v Holcombe and Others (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ).

18    Our conclusions with respect to the various issues are as follows. We respectfully agree with the primary judge’s conclusion that the installation of the low-impact facility proposed by the respondent would “interfere with” the Water Tower within s 192(1) of the Water Supply Act. We respectfully disagree with his Honour’s conclusion that there would, nevertheless, be no contravention of s 192(1) because s 192(1) only operates where there is otherwise no lawful authority and the powers in Division 3 of Part 1 of Schedule 3 of the Telecommunications Act provide such lawful authority. We think that there would be a contravention. Therefore, it becomes necessary to consider whether s 192(1) of the Water Supply Act falls within one of the two identified exemptions in cl 37(2) of Division 7 of Part 1 of Schedule 3 of the Telecommunications Act. We respectfully agree with the primary judge that it falls within cl 37(2)(f) (the use of land). We do not think it falls within cl 37(2)(e) (the powers and functions of a local government body). The result of these conclusions is that, although the installation of the low-impact facility proposed by the respondent would contravene s 192(1) of the Water Supply Act, nevertheless, the respondent may engage in the activity because s 192(1) of the Water Supply Act is a State law about the use of land. In those circumstances, the appeal must be dismissed.

19    Before stating our reasons for reaching these conclusions, it is necessary to examine the primary judge’s reasons.

the primary judge’s reasons

20    In considering whether the low-impact facility proposed by the respondent would interfere with the appellant’s infrastructure within the Water Supply Act, the primary judge considered various provisions of the Act. He noted that the purpose of the Water Supply Act is to provide for the safety and reliability of water supply (s 3(1)). He summarised the manner or means by which that purpose is achieved in a passage which was not challenged on the appeal. He said (at [94]):

That purpose is achieved primarily by providing for a regulatory framework that provides for water and sewerage services in the State, including functions and powers of service providers; and, by providing for a regulatory framework for recycled water and drinking water quality, directed to the primary object of protecting public health.

21    The primary judge examined Part 7 of the Water Supply Act which contains offences relating to sewerage and water services and a service provider’s infrastructure. Section 192(1) is in Part 7. It is sufficient for us to identify his conclusion (at [98]):

All of these provisions creating offences are directed to the preservation of the integrity of the service provided by the service provider and the integrity of the service provider’s infrastructure in the provision of the service so as to serve the dominant purpose of the Act to “provide for the safety and reliability of water supply”.

22    The primary judge noted that “interfere” is not defined in the Water Supply Act and he considered various dictionary definitions of the word. He noted that the verb “to interfere” (with) has these meanings according to the Oxford Dictionary of English:

interfere, verb – (interfere with) prevent (a person or activity) continuing or being carried out properly: (of a thing) strike against (something) when working; get in the way of (example:- the rotors are widely separated and do not interfere with one another)

handle or adjust (something) without permission, especially so as to cause damage (example:- he admitted interfering with a van); law – attempt to bribe or intimidate a witness

to take part or intervene in an activity without invitation or necessity: as an adjective – interfering busybodies

of physics (of light or other electromagnet waveforms) mutually act upon each other and produce interference (example: light pulses interfere constructively in a fibre to emit a pulse)

to cause interference to a broadcasted radio signal

of a horse: knock one foot against the fetlock of another leg

23    He also noted that the Macquarie Dictionary includes the following attributions:

to interpose or intervene for a particular purpose

to take part in the affairs of others: meddle

to come into opposition, as one thing with another, especially with the effect of hampering action or procedure

to strike against each other or one against another so as to hamper or hinder action;

to come into physical collision

to strike one foot or leg against the opposite foot or leg in going, as a horse

24    The primary judge said that the dominant notion in all the received meanings of “to interfere” was an intervention that prevented a process, an action, a function, an activity or a motion occurring. He said that applying that notion, simply affixing low-impact equipment to a structure that resulted in no intervention in the functions, actions or water services provided by or through that infrastructure, did not constitute an act of interference with the infrastructure. He said that the vice addressed by s 192(1) of the Water Supply Act was the capacity to actually or potentially impair the performance of the service.

25    The primary judge said that the evidence was that the activity is a low-impact non-service impairing intervention by accessing the land and then engaging in an installation activity.

26    The primary judge considered the factual position if “interfere with” was used to mean an effect upon the provision of the services in a functional sense and he found that the activity proposed by the respondent would not interfere with the service provider’s provision of services. However, he held, having regard to a number of matters which he identified, that s 192(1) created “a prohibition upon a person interfering, in the sense of doing things to, a service provider’s infrastructure asset without its approval”. His Honour said that the prohibition operates not on the provision of the service, but on the infrastructure on the land.

27    The primary judge expressed his conclusion on this aspect of the case in the following terms (at [126]):

It follows therefore that, having regard to the way in which the parties have framed the inconsistency question by reference to the meaning of “to interfere” in s 192(1), that is, whether the conduct must interfere with the service provided through the infrastructure asset, or merely interfere with the infrastructure asset in the sense of doing something to it, Division 3 does not operate, having regard to the conclusions at [123] to [125], so as to authorise the carrying out of the proposed activity, as doing so would be inconsistent with s 192(1), subject to what follows.

28    At this point, the primary judge turned to consider whether s 192(1) of the Water Supply Act was a State law about the use of land within cl 37(2)(f) of Division 7 of Part 1 of Schedule 3 of the Telecommunications Act. He held that it was. His reasoning was as follows. First, he noted that the Water Tower is a water-containing fixture on the relevant land and an infrastructure asset attached to and located on the land. Secondly, he said that s 192(1) of the Water Supply Act is a State law about the use of infrastructure assets deployed in providing registered services. Thirdly, he said that, as the assets are deployed on, in and over the land, s 192(1) is a law about the use of land.

29    The primary judge held that there was an alternative construction of s 192(1) of the Water Supply Act which led to the conclusion that the respondent could proceed with the installation of the low-impact facility it proposed. The primary judge said that, in his view, s 192(1) was only contravened where the relevant acts or activities were otherwise unlawful. As the respondent’s activities were otherwise authorised by Schedule 3 of the Telecommunications Act, s 192(1) was not contravened. The primary judge said (at [135]):

Inherent in the meaning of “to interfere”, in the context of the Water Supply Act (apart from the content of the conduct constituting an interference) is the notion that the engagement by the person with the service provider’s infrastructure, by relevant conduct, is not undertaken according to law.

determination of the issues

The scope of s 192(1) of the Water Supply Act

30    Both constructions of the words “interfere with” are available constructions of s 192(1) of the Water Supply Act. However, we think the broader construction is the correct one. In other words, we think a person interferes with a service provider’s infrastructure where that person does things to or on the infrastructure without the service provider’s written consent. It is not an essential element of the offence created by s 192(1) that there be an adverse effect on the functioning or operating capacity of the infrastructure.

31    Whilst it is true, as the primary judge correctly noted, that the primary notion of the verb is an adverse interference or an interference which affects an existing working relationship, object or relationship, the various meanings of the word also include merely handling or adjusting something without permission.

32    In support of its argument, the respondent referred to the Explanatory Note for the Water Supply Bill which, in relation to cl  192, was in the following terms:

Clause 192 is relocated from the Water Act to the Bill as the Bill now provides for service provider regulation. It makes it an offence to interfere with a service provider’s infrastructure without the service provider’s written consent.

In addition this clause makes it an offence to build over a service provider’s infrastructure, interfere with access to their infrastructure, change the amount of cover over their infrastructure, or change the surface of land in a way which causes ponding of water over an access chamber for their infrastructure without the service provider’s written consent. Construction of, for example, a driveway over a water main or sewerage system may adversely impact on a service provider’s ability to later access and service that infrastructure. Service providers made aware of activities covered by this clause can take action to ensure those activities do not later have a detrimental effect on service provision.

33    We do not think the Explanatory Note advances the respondent’s argument. Subsection (1) deals with direct interference with a service provider’s infrastructure, whereas subsection (2), in relation to which a lesser maximum penalty applies, deals with more indirect forms of interference, such as inhibiting or reducing access to a service provider’s infrastructure.

34    A number of provisions of the Water Supply Act illustrate the significance of a service provider’s infrastructure to the achievement of the purpose of the Act of providing for the safety and reliability of the water supply. We have already referred to the significance of the offences in Part 7 and the primary judge’s conclusion about the purpose of those provisions (at [21]). In addition, a service provider is a water service provider or a sewerage service provider and they, in turn, are defined to mean an entity registered under Chapter 2, Part 3, as a service provider for a water service or a sewerage service, as the case may be. A registered service for a service provider means a water or sewerage service for which the service provider is registered (Schedule 3). Each service provider must have an approved “strategic asset management plan” for the purpose of ensuring continuity of supply of each of the service provider’s registered services (s 70). The service provider must prepare the plan for approval by the Regulator (see s 10) and the plan must identify the registered services to which it applies and the infrastructure deployed in providing the services (ss 71(1) and 71(2)). The plan must be certified by a registered professional engineer as being appropriate for the service provider’s infrastructure and registered services (s 72). The Water Supply Act contains provision for the submission of the plan to the Regulator, the approval or refusal of the plan, and the making of changes to it. A service provider must comply with the approved plan when supplying the services to which it relates through the infrastructure engaged by these services (s 77).

35    In our opinion, the broader construction of the words “interfere with” is supported by the following matters. First, although the narrow construction is, as we have said, an available construction of the words “interfere with”, it was open to the Queensland Parliament to include additional words to make it clear that the subsection was restricted to adverse interference had that been Parliament’s intention (see, for example, s 34). Secondly, the Water Supply Act is designed to achieve the important public purpose of providing for the safety and reliability of water supply. A service provider’s infrastructure is an integral part of the regulatory scheme designed to achieve that purpose. That may be seen from the sections to which we have referred, which address not only the registered services, but also the infrastructure for providing those services. Finally, Parliament had a choice to restrict the offence to adverse interference with infrastructure with the possibility that there would be arguments about whether the service provider’s infrastructure was adversely affected in function or operation. It is not surprising that Parliament would choose to avoid such arguments by enacting a clear, albeit wide, prohibition.

36    The respondent’s challenge by way of notice of contention to the primary judge’s construction of the words “interfere with” in s 192(1) of the Water Supply Act must be rejected.

37    Despite his conclusion about the meaning of the words “interfere with”, the primary judge went on to adopt what he called an alternative construction of s 192(1), being that it was not engaged where there was otherwise, and aside from the written consent of the service provider, a lawful authority for the activity. It may be noted that the subsection itself contains nothing to this effect. With respect, we think the primary judge erred. Others Acts of the Queensland Parliament dealing with matters such as access to land for the purposes of effective policing, health and workplace safety, may also raise issues of inconsistency with s 192(1) of the Water Supply Act, and those issues are to be dealt with according to well-known principles of statutory construction dealing with earlier and later Acts and general and special Acts. The Commonwealth Act stands in a different position. Clause 36 of Division 7 of Part 1 of Schedule 3 of the Telecommunications Act requires one to examine the proposed activity (i.e., the installation of a low-impact facility) as a matter of fact, and without regard to earlier Divisions in Schedule 3 conferring authority, and ask whether the activity is inconsistent with a State law. The answer to that question is yes, and that means that the activity is not authorised unless one of the exemptions in cl 37 applies. This aspect of the appellant’s challenge to the primary judge’s reasons succeeds.

The scope of the exemptions in cls 37(2)(f) and 37(2)(e) of Division 7 of Part 1 of Schedule 3 of the Telecommunications Act

38    In the Macquarie Dictionary (5th ed, Macquarie Dictionary Publishers Pty Ltd Sydney, Australia), the following relevant meanings of the preposition “about” are identified:

1.    of; concerning, in regard to: to talk about secrets.

2.    connected with: instructions about the work.

39    It seems to us that the question raised by the use of the word “about” is whether there is a connection between the State law and the use of land within cl 37(2)(f). It must be remembered that, although the State law in this case is s 192(1) of the Water Supply Act, the subsection appears in an Act which gives it a context. That point is reinforced by the fact that it appears in a Part in the Water Supply Act that prescribes offences, which themselves are designed to facilitate the achievement of the objects of the Act.

40    From the point of view of a town planning lawyer, the notion of a law about the use of land might suggest, at first blush, a law about the activities an owner or occupier of land may engage in on his or her land, including the building or alteration of a building or structure on the land and that, in turn, suggests town planning and building laws. However, those two subjects are specifically dealt with in cls 37(2)(c) and 37(2)(d) respectively. That suggests that the expression “the use of land” has a wider meaning, although not necessarily one that does not overlap with other paragraphs in cl 37(2).

41    The appellant submitted that s 192(1) of the Water Supply Act is not directed at the owner or occupier of land. It submitted that an alleged contravener did not need to be on the land to commit an offence under s 192(1) and it submitted that a service provider’s infrastructure is not necessarily affixed to land and may be personal and portable property. It submitted that, if a broad meaning is given to the notion of a State law about the use of land so that any connection, however remote or indirect between the law and land is sufficient, then not only does cl 37(2)(f) render many, if not all, of the other paragraphs in cl 37(2) virtually otiose, but also because of the nature of a carrier’s proposed activities (e.g., the installation of a low-impact facility on land) it means cl 36(1) itself would have a very limited operation. The appellant submitted that s 192(1) was a law about a service provider’s infrastructure and that it was an important part of the Queensland Parliament’s legislative scheme to protect the safety and reliability of the water supply. It submitted that the fact that the infrastructure will invariably be affixed to land is not sufficient.

42    There is a good deal of force in these submissions, but, ultimately, we have decided that they should not be accepted.

43    First, we think that the use of the word “about” is significant. It suggests that a broad connection will be sufficient, although we accept that a very remote or indirect connection will not be sufficient. If one was restricted to one short characterisation only, then it may be correct to characterise s 192(1) as law dealing with the protection of a service provider’s infrastructure. However, we think that the use of the word “about” means that one is not restricted in that way.

44    Secondly, it is important to note that the exemptions in cl 37(2) are not restricted to planning, building, health and environmental laws, but include tenancy laws and laws about the supply of fuel or power.

45    Finally, we think it is relevant to examine the activity authorised under Divisions 2, 3 and 4 of Part 1 of Schedule 3 of the Telecommunications Act, and how it is regulated under that Act, in considering the scope to be given to the notion in cl 37 of a law about the use of land. The Telecommunications Act has important public policy objectives. Section 3 sets out the objects of the Act and provides, relevantly:

(1)    The main object of this Act, when read together with Parts XIB and XIC of the Competition and Consumer Act 2010, is to provide a regulatory framework that promotes:

(a)    the long-term interests of end-users of carriage services or of services provided by means of carriage services; and

(b)    the efficiency and international competitiveness of the Australian telecommunications industry; and

(c)    the availability of accessible and affordable carriage services that enhance the welfare of Australians.

46    A matter to be noted at the outset is the obvious one that it is not the installation of any facility that is authorised by Division 3 of Part 1 of Schedule 3 of the Telecommunications Act. It is only a low-impact facility, and the Minister is prohibited from designating certain structures – a designated overhead line, a submarine cable, and a tower above a certain height – as low-impact facilities. A carrier that is installing a low-impact facility is under an obligation to take all reasonable steps to ensure that it causes as little detriment and inconvenience, and does as little damage, as is practicable, and is under an obligation to restore land (cls 8 and 9 in Division 5 of Part 1). Clause 11 in the same Division deals with a carrier’s obligations when its activity is likely to affect the operations of a public utility. In these circumstances, the carrier must make reasonable efforts to enter into an agreement with the public utility that makes provision for the manner in which the carrier will engage in the activity. A public utility is a body that provides to the public reticulated products or services, including water, sewerage or drainage (cl 2 in Division 1 of Part 1 of Schedule 3). The Minister may make a Code of Practice containing conditions that a carrier must comply with in carrying out an activity authorised by Division 3. There is a compensation provision which applies where a carrier’s activity under, inter alia, Division 3 causes financial loss or damage in relation to any property owned by the person or any property in which the person has an interest.

47    In our opinion, these matters, and the fact that invariably the service provider’s infrastructure will be substantial and will be affixed to land, means that a law which protects against interference with that infrastructure is sufficiently connected to land to be a law about the use of land within cl 37(2)(f).

48    In the circumstances, it is not necessary for us to consider the exemption in cl  37(2)(e). However, it was fully argued and we will address it briefly. We reject the argument that s 192(1) is a law about the powers and functions of a local government body. A service provider under the Water Supply Act need not be a local government body. We think the respondent accepted that Allconnex was not a local government body, and yet, it was the service provider in relation to the Water Tower between 1 July 2010 and 30 June 2012. That is but one example, but we think it illustrates that it is not possible to characterise s 192(1) as a law about the powers and functions of a local government body.

CONCLUSION

49    For these reasons, the appeal should be dismissed.

50    Unless the parties or one of them contacts the Court within three business days and advises that they wish to be heard on the question of costs, we will make an order in chambers that the appellant pay the respondent’s costs of the appeal and that the respondent pay the appellant’s costs of the notice of contention. If there is to be an issue as to costs, we will formulate a short timetable for the lodging of written submissions.

Associate:

Dated:    1 May 2014