FEDERAL COURT OF AUSTRALIA

Satellite & Wireless Pty Ltd v Gold Coast City Council [2013] FCA 193

THE COURT ORDERS THAT:

1.    The applicant is entitled to carry out the activity the subject of its Land Access and Activity Notice dated 24 February 2012 served under the provisions of the Telecommunications Act 1997 (Cth).

2.    The applicant is directed to submit draft orders within five days for consideration of the Court and the respondent.

3.    Should either of the parties wish to be heard on the question of the forms of order, a date will be nominated for hearing argument on that question failing which final orders will be made on the papers.

4.    The parties file and serve any submissions in relation to costs within 10 days and the question of the costs of the proceeding will be determined on the papers after any hearing contemplated by Order 3, if any, or otherwise on the papers generally.

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

REASONS FOR JUDGMENT

The application

1    In these proceedings, Satellite & Wireless Pty Ltd (“Satellite”) seeks an order that the respondent, Gold Coast City Council (the “Council”) be restrained from “interfering with [Satellite’s] statutory rights under Division 3 of Part 1 of Schedule 3 of the Telecommunications Act 1997 (Cth)” and, in particular, an order that the Council (by its employees and framed in terms of the other orthodox field of potential representatives of the respondent) not interfere with Satellite’s contended right to:

(a)    enter a compound on which a tower known as the Helensvale Water Tower is situated, located within Reservoir Park on Tamworth Drive, Helensvale, Queensland 4212 for the purposes set out in Division 3 of Part 1 of Schedule 3 of the Telecommunications Act 1997; and

(b)    engage in activities and exercise powers arising under Division 3 of Part 1 of Schedule 3 of the Telecommunications Act 1997; and

(c)    carry out the installation of a low-impact facility on the Helensvale Water Tower as specified in Satellite’s Land Access and Activity Notice dated 24 February 2012, on particular dates.

2    For the purposes of the proposed order, Satellite frames the term “interfere with” as including conduct which obstructs, prohibits, impedes, stalls or prevents Satellite from exercising the rights described at (a), (b) and (c) above.

3    The applicant relies upon three affidavits to make good its foundation rights in suit and its entitlement to the claimed relief. The affidavits are these: an affidavit sworn by Mr Paul Desmond Wallace on 19 April 2012, a Director of Satellite; an affidavit sworn by Mr Andrew Prados-Valerio on 19 April 2012, a Solicitor employed by the solicitors for Satellite, Barringer Leather Lawyers; and a further affidavit sworn by Mr Prados-Valerio on 3 July 2012.

4    The respondent relies upon these affidavits: an affidavit of Mr Hamish Campbell Kiddle sworn 13 June 2012, a Senior Lawyer employed by the Council; a further affidavit of Mr Kiddle sworn 12 September 2012; an affidavit of Ms Megan Cappelleri sworn 29 June 2012, an employee at that date of a body described as Southern SEQ Distributor-Retailer Authority (trading as Allconnex Water (“Allconnex”)), in a role described as Group Manager Knowledge Services for Allconnex; and an affidavit of Mr Cameron Hawkins sworn 18 September 2012, an employee of the Council, employed in the role of Senior Property Officer.

Background structural matters

5    In his affidavit sworn 13 June 2012, Mr Kiddle gives this evidence.

6    At the date of his affidavit, Mr Kiddle was responsible for managing the legal aspects of particular transactions at the direction of the Group Manager Legal or the General Counsel for Allconnex. On direction from those persons, Mr Kiddle was responsible for responding to a notice called a Land Access and Activity Notice (a “LAAN”) issued under the Telecommunications Act 1997 (Cth) (the “Act”) and the Telecommunications Code of Practice 1997 (Cth) (the “Code”) from time to time and as given by a telecommunications carrier licensed under the Act.

7    Allconnex was established as a legal entity under the provisions of the South East Queensland Water (Distribution and Retail Restructuring) Act 2009 (Qld) (the “SEQ Water Act”) on 3 November 2009. Allconnex was the distribution and retail water and wastewater service provider for the Gold Coast, Logan and Redland local government areas. Allconnex was, up to and including 30 June 2012, an Authority owned by the Council, Logan City Council and Redland City Council (the “Participating Councils”). From 1 July 2010, Allconnex assumed responsibility from the 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 water service provider.

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 businesses within the sphere of their own Council operations and undertaking. As a result of proposed amendments to the SEQ Water Act, all assets, liabilities, instruments and employees of Allconnex (with the exception of the Chief Executive Officer) would be transferred to the Participating Councils as at 30 June 2012 with the relevant geographic assets vesting in the Local Government Council with responsibility for the particular geographic area. The proposed amendments to the SEQ Water Act were enacted giving effect to the vesting of assets and the assignment and transfer of liabilities earlier mentioned.

10    In Mr Kiddle’s affidavit of 12 September 2012, he explains that although previously employed as Senior Manager Legal by Allconnex he became an employee of the Gold Coast City Council as a Senior Lawyer. I infer that Mr Kiddle, in this role, continued to have much the same responsibilities for the Council as he had discharged for Allconnex under the earlier arrangements. Mr Kiddle says that one of the assets re-transferred from Allconnex to the Gold Coast City Council from 1 July 2012 under the amendments to the SEQ Water Act is an allotment of land on which stands the “Helensvale Water Tower” (the “Tower”). As to the re-transfer or re-vesting of the allotment the uncontested position is that the re-vesting was effected by cl 4.8 and Annexure A of Schedule 7B of a re-transfer scheme under Chapter 3A of the SEQ Water Act (as amended).

11    The Tower is located within an area of land called “Reservoir Park” at Tamworth Drive, Helensvale. Mr Kiddle describes the Tower as a water-containing vessel with a capacity of .15 mega-litres built for the purpose of providing clean water to the general public. The Tower had been used for this purpose by the Gold Coast City Council and was so used by Allconnex and is now again so used by the Council. The allotment (and the Tower built upon it) had been owned by the Council for some time and was transferred to Allconnex in 2010 under the SEQ Water Act as part of the restructure involving the Participating Councils and the establishment of Allconnex. The asset was re-transferred from Allconnex to the Council from 1 July 2012 under the re-transfer arrangements.

12    Satellite’s present application was commenced against “The Southern SEQ Distribution-Retailer Authority trading as Allconnex Water”. However, due to the statutory restructure, it was common ground between the parties that from 1 July 2012 the Council became the proper respondent.

13    On 13 September 2012, the proceeding was amended to substitute Gold Coast City Council for Allconnex in the proceeding.

The background facts

14    Satellite is a telecommunications carrier licensed under the Act. In January 2012, Mr Wallace became aware that Satellite needed to expand the radio signal coverage of its network in and around the area surrounding the Tower. In his affidavit, Mr Wallace says this:

Radio signals must be of a sufficient level to allow communication and the siting of an antenna plays a crucial role in delivering these levels, ensuring network quality. When planning for a site to install a low-impact facility, it is necessary to take into account several factors including the distance between customers’ various properties and the proposed base station, antenna height of the base station, local terrain and any physical obstructions to signals. Computer modelling and field visits are used by [Satellite] to identify suitable location candidates. Following a detailed candidate assessment undertaken by [Satellite], the Tower was selected as being a suitable location which would provide coverage to be able to provide the necessary services to [Satellite’s] existing and any new customers in the area.

15    Mr Wallace says that he can say with “certainty” that the type of facility that Satellite wishes to install on the Tower, and the works Satellite proposes to undertake on-site at the Tower, “would have zero or a negligible impact or affect on the [water storage and clean water service provision] operations of [the Council]”.

16    On 12 January 2012, Mr Kiddle received an email from Mr Prados-Valerio attaching a document on the letterhead of Barringer Leather Lawyers dated 11 January 2012 bearing the heading “Land Entry Activity Notice”. By the Notice, Mr Prados-Valerio said that by operation of the Telecommunications Act , Satellite wished to access, enter upon and inspect the land on which the Tower was located, on a nominated date, so as to determine whether the roof of the Tower was suitable for the installation of a “low-impact facility”. The content of this notice is not relevant to the source of Satellite’s rights in issue in these proceedings. The relevance of the earlier Notice, however, goes to the question of the postal address adopted by Allconnex in its responsive letter, the postal address used by Satellite in its exchanges with Allconnex and the exchanges between the two organisations.

17    The Notice of 11 January 2012 was addressed to “Allconnex Water” at “PO Box 8042 GOLD COAST MC 9726”.

18    On 13 January 2012, Mr Kiddle responded to the 11 January 2012 Notice he had received by email the day before. He sent an email to Mr Prados-Valerio attaching a responsive letter. Mr Kiddle’s letter is written under the letterhead of “Allconnex Water” and immediately under the letterhead it recites as a postal address for Allconnex an address in these terms: “PO Box 8042 Gold Coast MC 9726”. In Mr Kiddle’s response to Mr Prados-Valerio’s Notice on behalf of Satellite, Mr Kiddle foreshadowed some issues of concern to Allconnex which were agitated in the present proceeding by the Council in response to Satellite’s assertion of rights under the Act by operation of the later LAAN.

19    In Mr Kiddle’s letter of 13 January 2012, he said this, among other things:

As we have previously advised your client, Allconnex Water cannot allow access to this water reservoir as it has been tagged out for access due to the unsafe condition of aspects of the facility which do not meet current work health and safety standards.

In any event, given the nature of the asset, in accordance with section 192 Water Supply (Safety and Reliability) Act 2008 [Qld] (Water Supply Act) Allconnex Water will not allow its infrastructure to be interfered with without its written consent.

As you may appreciate, Allconnex Water is statute-bound and committed to maintaining the security of its assets and the water that it supplies to the community. Accordingly and notwithstanding that your client’s investigations are in preliminary stages, any proposal that eventuates which involves interference with this asset is not likely to be accepted, having regard to the obligations Allconnex Water has to its people and the community which it serves.

…

Importantly, due to impending legislative reform under which the business and assets of Allconnex Water is to be returned to its respective three shareholder Councils on 1 July 2012, any negotiations had in respect of any proposal that your client may wish to make in respect of this site, and any agreement reached, will be subject to and conditional upon the approval of Gold Coast City Council/Gold Coast Water being obtained.

                                [emphasis added]

20    In that letter, Mr Kiddle suggested that Allconnex would be willing to engage in discussions with Satellite about the possibility of accommodating Satellite’s requirements at an alternative location.

21    On 24 February 2012, Mr Wallace instructed Mr Gregory Leather of Barringer Leather Lawyers to serve by post on behalf of Satellite a Land Access and Activity Notice under the Act on Allconnex notifying it of Satellite’s intention to access the Tower and the land on which it is located so as to perform the installation of a low-impact facility in relation to the Tower. On 24 February 2012, Mr Prados-Valerio sent two documents to Allconnex. The first document is a letter under Mr Prados-Valerio’s name on the letterhead of Barringer Leather Lawyers dated 24 February 2012. The letter is addressed in this way: “Allconnex Water PO Box 8042 GOLD COAST MC 9726”. The letter is marked: “Attention: The Proper Officer”. The letter explains that Satellite is a licensed carrier under the Act; Satellite intends to occupy the land (as defined) to undertake the described low-impact activities on the land and buildings; Satellite’s activities are said to comply with the Act and the Telecommunications (Low Impact Facility) Determination Act 1997 (Cth) (the “Determination Act”); and the letter encloses a Land Access and Activity Notice on behalf of Satellite representing “formal notification” of Satellite’s intention to install a low-impact facility on the land in conformity with the Act, regulations made under the Act, the Code and the Determination Act.

22    The second document is Satellite’s LAAN dated 24 February 2012. That document is also on the letterhead of Barringer Leather Lawyers under the authorship of Mr Prados-Valerio and bears the title “Activity Notice”. The Notice is addressed in this way: “Allconnex Water PO Box 8042 GOLD COAST MC 9726” and is also addressed: “Attention: The Proper Officer”.

23    The Notice tells Allconnex that Satellite is a licensed carrier; in order to provide its services, Satellite requires access to the land (comprising the Tower and the land upon which it stands) so as to install a low-impact facility on the roof of the Tower; the activities involve the supply and installation of an antenna system as shown in attached plans, the installation of cables in cable trays and riser shafts, and the connection of 240 volt power and telecommunications lines to particular radio equipment; the activities would commence on 27 March 2012 with final work being completed six weeks after commencement; and other matters to which Allconnex’s attention is drawn, such as, the likely effect of the activities on the land, Satellite’s methodology for minimising detriment and inconvenience, the occupier’s rights to compensation, the land owner/occupier’s rights of objection to Satellite’s exercise of power, and other matters.

24    The Notice attaches a number of documents comprising a plan depicting the location on the Tower of the proposed site equipment, a diagram of the proposed site equipment to be installed on the land, material describing aspects of the equipment and an owner’s checklist.

25    It is not necessary at this point to describe in real detail the scope of the activities or the equipment to be installed in furtherance of the LAAN. It is common ground between the parties that the proposed work to be done on the Tower involves activities properly described as the installation of a low-impact facility as defined by cl 6(3), Schedule 3 and the Determination Act (T, p 13, ln 30). However, the equipment can be described briefly. The proposed work, based on the technical plans attached to the LAAN, include the installation of one outdoor telecommunications cabinet (212cm x 60cm x 80cm); two single pole antenna mounts each hosting a 120cm parabolic dish; and two single pole antenna mounts each hosting three 60cm x 60cm flat panel antennas.

26    The proposed work is properly characterised as the installation of a low-impact facility.

27    Mr Prados-Valerio, in his affidavit of 3 July 2012, sets out what he describes as the “precise steps taken” by him in dispatching the letter of 24 February 2012 and the LAAN of that date to Allconnex.

28    Mr Prados-Valerio says that the postal address for Allconnex was obtained by searching the website for Allconnex and interrogating the tab “Contact Us” on the website. A screen shot of the webpage under that reference says this:

There are a number of ways you can contact us:

Phone

1300 000 WATER (1300 000 928)

+ 61 7 3412 5494

Fax

1300 009 824

Email

info@allconnex.com.au

Post

PO Box 8042

Gold Coast MC 9726

                                [emphasis added]

29    Mr Prados-Valerio says that the postal address on the website is consistent with the postal address adopted by him in exchanges previously with Mr Kiddle on other unrelated matters and Barringer Leather Lawyers have received letters in reply confirming receipt of correspondence by Allconnex at the postal address so used. This postal address is also recited on Allconnex’s letterhead as Allconnex’s postal address and is the same postal address set out as part of the email signature block adopted by Mr Kiddle which apart from telephone, fax and email references, is in these terms:

Hamish Kiddle

Senior Manager Legal

Allconnex Water

PO Box 8042 Gold Coast MC 9726

                                [original emphasis]

30    As to the manner of dispatch of the two documents, Mr Prados-Valerio says that on the afternoon of 24 February 2012 he “distinctly” recalls folding the cover letter from Barringer Leather Lawyers dated 24 February 2012 and the LAAN dated 24 February 2012 before placing both documents into an envelope (110mm x 220mm) and sealing the envelope. He then wrote on the front of the envelope in blue pen the following:

Allconnex Water

PO Box 8042

GOLD COAST MC 9726

Attention: The Proper Officer

31    On the back of the envelope he wrote in blue pen the following:

Barringer Leather Lawyers

Level 1

600 Darling Street

ROZELLE NSW 2039

32    Mr Prados-Valerio then affixed a pre-paid 60c stamp to the envelope and then personally walked to a posting box called the “Red Street Posting Box” located directly outside the Rozelle Post Shop at 659 Darling Street, Rozelle, NSW, 2039. Mr Prados-Valerio personally placed the envelope into the Red Street Posting Box. He then returned to the offices of Barringer Leather Lawyers and “immediately” sent an email to Mr Wallace confirming that Satellite’s LAAN had been sent to Allconnex. In order to fix, for the purposes of these proceedings, aspects of the timing, Mr Prados-Valerio exhibits to his affidavit of 3 July 2012 (APV-3) a copy of the email sent to Mr Wallace on 24 February 2012 at 3.11pm attaching a copy of the letter and the LAAN both of 24 February 2012 advising Mr Wallace that the documents had been sent to Allconnex that day.

33    In Satellite’s LAAN dated 24 February 2012, Mr Prados-Valerio set out the time frame within which Allconnex was required to address in writing any objections to the proposed activity. Relevantly for present purposes, any objection to the low-impact activities was to be given to Satellite care of Barringer Leather Lawyers at the nominated address at least five business days before the date nominated by Satellite for commencing the activities (which was to be 27 March 2012).

34    No objection was received by Barringer Leather Lawyers or Satellite.

35    On 20 March 2012, Mr Wallace instructed Barringer Leather Lawyers to send a further letter to Allconnex confirming a number of matters including service by post of the LAAN on 24 February 2012; no objection having been received; Satellite’s intention to proceed with its low-impact facility installation as proposed in the LAAN; and, Satellite’s intention to attend the site and, in particular, the Tower on 27 March 2012 at 9.00am to engage in the activities the subject of the LAAN. Mr Wallace also requested Barringer Leather Lawyers to seek confirmation from Allconnex that it would not interfere with or prevent Satellite from engaging in the activities the subject of the LAAN.

36    On 20 March 2012, Mr Prados-Valerio sent a letter on the letterhead of Barringer Leather Lawyers addressed in this way: “Allconnex Water; PO Box 8042; GOLD COAST MC 9726; Attention: The Proper Officer”. In that letter, Mr Prados-Valerio referred to the LAAN dated 24 February 2012 which was described by Mr Prados-Valerio as a document that was served by post on Allconnex Water on 24 February 2012. The letter observes that Barringer Leather Lawyers did not receive any objections to Satellite’s LAAN within the time frame stipulated by Chapter 4, s 4.32 of the Code. The letter asserts that Allconnex was thus statute-barred from raising any objection to the activities contemplated by the LAAN and that Satellite was entitled, pursuant to the Code, to engage in those activities. The letter also observes that the LAAN nominated 27 March 2012 as the proposed commencement date of entry and engagement in the activities with final work to be completed six weeks after commencement. The letter also said (and described the manner as a confirmation) that Satellite would be attending the Tower at 9.00am on 27 March 2012 as notified in the LAAN. Consistent with Mr Wallace’s request, the letter seeks confirmation in writing from Allconnex that access to the water tower would be provided to Satellite at the nominated time and thereafter as may become necessary until completion of the activities.

37    The letter also observed that Satellite had previously been subjected to lengthy delays when it attended the Tower site for the purpose of a site inspection as the representative of Allconnex on that day had failed to bring to the inspection meeting a key to the door of the water tower. Against that background, Satellite, through Mr Prados-Valerio, requested Allconnex to ensure that any representative of Allconnex attending the site to meet Satellite’s representatives on 27 March 2012 would have with them the key for the facility. The letter also addressed other steps that might become necessary should Allconnex fail or refuse to allow Satellite access to the land or prevent Satellite’s entry, occupation and installation of the low-impact facility.

38    Mr Kiddle says that on 27 March 2012 he was provided with a letter from Barringer Leather Lawyers dated 20 March 2012, by the Allconnex “mailroom”. The letter was date-stamped by staff within the Allconnex mailroom as having been received by Allconnex on 22 March 2012.

39    It follows that five days after the receipt by Allconnex at its mailroom, the 20 March 2012 letter reached Mr Kiddle.

40    Mr Kiddle observes that the 20 March 2012 letter made reference to a LAAN on behalf of Satellite dated 24 February 2012 which Mr Kiddle describes as “purportedly” sent to Allconnex. Mr Kiddle says he first became aware of Satellite’s LAAN when he read about it in the 20 March 2012 letter. On 27 March 2012 after having read the 20 March 2012 letter, Mr Kiddle telephoned Mr Prados-Valerio and told him that Allconnex had not received the LAAN. Mr Kiddle asked Mr Prados-Valerio what steps he had taken to “confirm” that Allconnex had received the LAAN and was told that no steps had been taken to confirm Allconnex’s receipt of the Notice as such steps were not required of Satellite under the Act.

41    Mr Kiddle told Mr Prados-Valerio that as Satellite’s LAAN had not been received by Allconnex “until earlier that day”, access as “requested” in the LAAN could not be facilitated. Mr Kiddle says that he requested Mr Prados-Valerio to “effect proper service of the access notice” if Satellite wished to continue with the proposed activities described in the LAAN. Mr Kiddle requested Mr Prados-Valerio to send him a copy of the access notice by email.

42    Shortly after the conversation that day, Mr Prados-Valerio sent an email to Mr Kiddle attaching a copy of Satellite’s LAAN as requested. Mr Kiddle says that this was the first time that he saw Satellite’s LAAN.

43    On 27 March 2012, Mr Kiddle sent a letter by email to Mr Prados-Valerio. In that letter, Mr Kiddle said this:

We refer to your letter dated 20 March 2012 which was received by the writer today and to the writer’s subsequent conversation with you.

As advised, save for the copy that you provided by email to the writer upon request subsequent to our conversation today, we confirm that we have not received your client’s Land Access and Activity Notice dated 24 February 2012.

Accordingly, we suggest that if your client wishes to continue with its proposed activity that it properly effects service of a [LAAN] as it is required to do so, either personally or by post to our head office as follows:

Allconnex Water

Attention: Mr Ray King, Senior Manager Property Services

Level 1 The Rocket

Cnr Laver Drive and Robina Town Centre Drive

ROBINA QLD 4226

Given the many past communications by email between us, we suggest that it is appropriate that your client also provides a copy of the notice to the writer by email at [and then Mr Kiddle’s nominated email address].

Naturally as your letter of 20 March 2012 and [the LAAN] of 24 February 2012 have only come to our attention today, we are not in a position to facilitate access which we note was sought by your client commencing 9am today.

                                [emphasis added]

44    The letter then reasserts aspects of the matters set out in Allconnex’s letter of 13 January 2012 described earlier in these reasons.

45    It follows from Mr Kiddle’s letter of 27 March 2012 that Allconnex, in the course of its daily engagement with a telecommunications carrier, accepted at least in its direct commercial dealings inter parties that a Land Access and Activity Notice under the Act and related instruments might properly be served upon Allconnex by post. The point of departure between Satellite and Allconnex, in the correspondence, was that in order to be properly served by post a LAAN would be required to be addressed to Allconnex to the attention of Mr King and addressed in the way described at [43].

46    Ms Megan Cappelleri says that at the relevant time (February and March 2012) she was employed by Allconnex as Group Manager Knowledge Services.

47    Her responsibilities included, among other things, the management of the Information Services Department which manages Allconnex’s records. Her role included responsibility for the efficient organisation and management of documents, records, web content and other digital information.

48    Ms Cappelleri says that mail received in Allconnex’s Post Office Box 8042 at the Gold Coast Mail Centre is dealt with according to commercial arrangements put in place between Allconnex and Australia Post for the sorting each morning of Allconnex’s mail received at the Post Office Box, by Australia Post staff.

49    Each morning Australia Post staff sort the mail into three categories which Ms Cappelleri describes as categories A, B and C.

50    Category A mail consists of all mail that has any marking on the envelope such as “Personal”, “Private” or “Confidential” that suggests that it should only be opened by the addressee, and also all mail that has any markings on the envelope that suggests that the mail relates to a legal matter concerning Allconnex. As to the latter, such markings might include the name or details of a law firm printed on the envelope or the name or details of a Court printed on the envelope, or mail addressed to Ms Nant, Allconnex’s General Counsel at that time.

51    Category A mail is not opened by Australia Post staff.

52    The envelopes for Category A mail are date-stamped by Australia Post staff. The mail is put into a satchel and the satchel is delivered by courier to Allconnex’s mailroom at Allconnex’s premises at Level 2, The Rocket, 203 Robina Town Centre Drive, Robina at 8.15am every morning. Allconnex’s staff in the mailroom take the mail from the satchel and sort it for distribution to the intended recipients. Mailroom staff do not open Category A mail unless the appropriate Allconnex’s staff member, or the area with responsibility for the mail, cannot be identified from the envelope. In that case, the envelope is opened to determine the area of responsibility within Allconnex or to identify the person to whom the Category A mail should be directed.

53    The Allconnex mailroom has a number of “pigeon holes” which are located in the main foyer on Level 2 of The Rocket at 203 Robina Town Centre Drive. If the mail is addressed to Ms Nant it is put into her designated pigeon hole by the mailroom staff. If mail is not addressed to her but appears to be of a legal nature from any marking on the envelope or is addressed to a person within the legal group, it is placed by the mailroom staff in a designated pigeon hole for the legal group. Other mail from the satchel is similarly placed by the mailroom staff in the relevant pigeon holes designated for other areas within Allconnex.

54    Ms Cappelleri says that she is aware that Allconnex’s staff check mail pigeon holes for their relevant areas and retrieve such mail on a regular basis. Ms Cappelleri is aware that the mail is normally then opened and if the mail relates to Allconnex’s water business, the mail is usually returned to the mailroom after it is read and actioned, in accordance with Allconnex’s records management policy. Certain classes of mail are not returned to the mailroom such as mail of a personal nature. When mail is returned to the mailroom, mailroom staff date-stamp the actual correspondence. The correspondence is then scanned and the scanned copy is uploaded onto Allconnex’s electronic records management system. Mailroom staff also fill out a profile form for the correspondence on the electronic records management system. Information entered into the profile includes the title of the correspondence; its date; the author; the organisation sending the letter; and the property that the correspondence relates to. An electronic link to the scanned copy of the correspondence is then sent to the Allconnex’s staff member by mailroom staff.

55    Ms Cappelleri says that the original correspondence, including the envelope (if it is returned to the mailroom) is stored in a “day box” by mailroom staff. There are a number of day boxes in the mailroom which are categorised according to date range and statutory records retention requirements which vary according to the type of document received. The day boxes are stored in a locked compactus.

56    Mail that is not Category A mail is Category B or C mail and Australia Post staff open all non-Category A mail, date-stamp it and sort the correspondence into either Category B or C mail.

57    Category B mail is of the following kind: invoices, payments, job applications or promotional mail. Category B mail is also put into a satchel by Australia Post staff and delivered to Allconnex’s premises as earlier described at 8.15am each morning. The mailroom takes the mail from the satchel and determines to whom the mail should be directed and then places the mail into the relevant pigeon holes. After having been dealt with by the relevant Allconnex person, some Category B mail is returned to the mailroom when it is no longer required in the relevant operational area.

58    That mail is then archived.

59    Category C mail is all mail not classified as Category A or B mail and includes such things as complaint letters from customers and hardship applications. Category C mail is collected by a company called “The Data Image Group Pty Ltd” trading as “Scan Conversion Services” (“SCS”) from the Gold Coast Mail Centre in accordance with commercial arrangements made between that company and Allconnex. SCS takes Category C mail to its business premises where it scans the correspondence and saves it to a CD. The CD and the original Category C mail are then delivered to the mailroom at Allconnex’s premises as earlier described, at 2.15pm every afternoon. Mailroom staff check the scanned copies of the Category C mail on the CD to make sure that all pages of the Category C mail have been scanned. Mailroom staff then save the scanned copies and upload them into Allconnex’s electronic records management system.

60    Mailroom staff also fill out a profile form for this correspondence and enter the title, the date, the author, the organisation and the property concerned. Mailroom staff then determine the appropriate area within Allconnex or the appropriate person who should deal with the letter. Mailroom staff send an electronic link to the scanned copy of the letter saved on the system to the staff member who is to deal with it. The original of the Category C mail is also stored in a day box by mailroom staff. There are a number of such boxes categorised according to date range and statutory records retention requirements. Like the other day boxes, these day boxes are stored in a locked compactus.

61    In those cases where the staff member must have access to the original Category C letter, the letter is provided to the staff member by being placed in the pigeon hole designated for that person.

62    These arrangements represent the system for the handling of all mail sent to Allconnex by post to the postal address Allconnex has chosen and held out to those who deal with it for the receipt, by post, of material.

63    Ms Cappelleri says she has carried out searches of Allconnex’s electronic records management system for the period 1 January 2012 to 31 March 2012 and has not located a copy of the Barringer Leather Lawyers “letter” dated 24 February 2012 except for a copy of the letter that was subsequently provided by email to Mr Kiddle on 27 March 2012 and saved to Allconnex’s electronic records management system. Ms Cappelleri, in referring to the Barringer Leather Lawyers letter of 24 February 2012, is referring to the LAAN on the letterhead of Barringer Leather Lawyers as that was the copy document sent to Mr Kiddle by Mr Prados-Valerio on 27 March 2012 at Mr Kiddle’s request.

64    The original LAAN sent by post by Mr Prados-Valerio on 24 February 2012 was contained in an envelope that also had within it a covering letter of 24 February 2012 as earlier described. I assume that Ms Cappelleri has not been able to locate either document (sent together) by Mr Prados-Valerio on 24 February 2012.

65    Ms Cappelleri has also searched, together with her staff, the day boxes and has been unable to locate the letters of 24 February 2012 from Barringer Leather Lawyers. Mr Kiddle says that after receiving the letter dated 20 March 2012 he searched his office, on or about 27 March 2012, for Satellite’s LAAN sent by Mr Prados-Valerio by post on 24 February 2012. Mr Kiddle could not locate it and at the same time he asked his colleagues in the Legal Section of Allconnex to “check their records for the access notice”. Mr Kiddle says that he was told by them, and believes, that nor could they locate the access notice.

66    Mr Kiddle says that on 27 March 2012 he spoke to three other Allconnex people (Ms Heather Burke, Group Manager Property and Facilities; Mr Ray King, Senior Manager Property Services; and Mr Robert Paolini, Assets Officer) and asked them to check their records for the access notice and was told by them, and believes, that nor could they locate the access notice.

67    Mr Kiddle also made enquiries of Allconnex’s Senior Records Officer, Ms Kylee Williamson, who was responsible for the operation of the mailroom. Ms Williamson has also made searches within the mailroom and has not identified any record of Allconnex having received the LAAN of 24 February 2012.

68    On 22 March 2012, the Barringer Leather Lawyers letter of 20 March 2012, addressed in the same way as the two letters of 24 February 2012, reached the mailroom of Allconnex (presumably in the satchel from the Gold Coast Mail Centre at about 8.15am), as Mr Kiddle says that the 20 March 2012 letter was date-stamped by mailroom staff as having been received by Allconnex on 22 March 2012. It too was a letter on the letterhead of a law firm and it must have been placed in the relevant pigeonhole reasonably early (presumably by 9.30am – 10.00am) on the morning of 22 March 2012. Mr Kiddle says that he was “provided by the Allconnex Water mailroom with [the 20 March 2012 letter] on 27 March 2012”. The 20 March 2012 letter, processed under the system described by Ms Cappelleri, seems to have reached Mr Kiddle on 27 March 2012. Although that period represents five days in transit to Mr Kiddle (not including 27 March 2012), 22 March 2012 was a Thursday and a weekend intervened before Mr Kiddle received the letter on Tuesday, 27 March 2012. Nevertheless, a letter which was addressed in the same way as the 24 February 2012 letters and which, plainly enough, was received by Allconnex on 22 March 2012, seems to have had some progression difficulty in reaching the relevant person, Mr Kiddle. Mr Kiddle’s call to Mr Prados-Valerio to say that Allconnex had not received the LAAN was made on the morning of the day that Satellite was due, under the LAAN, to enter upon the land and commence the activity.

69    In any event, I accept the evidence of Mr Prados-Valerio and find that the letters of 24 February 2012 were posted to Allconnex on 24 February 2012 addressed in the way described earlier and posted in the way described by Mr Prados-Valerio. I also accept Allconnex was unable to locate the two letters of 24 February 2012 within the various organs of the Allconnex organisation. What became of those letters is unclear. The structured system in place at the Gold Coast Mail Centre, the commercial arrangements between Allconnex and Australia Post and the processing protocols for mail so received as described by Ms Cappelleri, make it more likely than not that the letters of 24 February 2012 at least entered into the system, once the envelope containing the letters was posted in the way described by Mr Prados-Valerio.

Aspects of the legal regime

70    Section 3(1) of the Telecommunications Act 1997 (Cth) provides that one of the main objects of the Act in conjunction with Parts XIB and XIC of the Competition and Consumer Act 2012 (Cth) is to provide a regulatory framework that promotes, among other things, the long-term interests of end-users of carriage services and the availability of accessible and affordable carriage services that enhance the welfare of Australians. The Act establishes a system that provides for, among other things, a carrier’s rights, entitlements and corresponding responsibilities when inspecting, installing facilities or maintaining facilities.

71    Part 24 of the Act is entitled “Carriers’ powers and immunities” and s 484 of Part 24 gives statutory force and effect to Schedule 3 which addresses that topic primarily in Part 1 of the Schedule and in particular, for present purposes, by reference to Division 3 of Part 1 which is concerned with the installation of facilities by carriers, and by cl 6(1)(b), the installation of a low-impact facility. A facility is defined by s 7 of the Act as any part of the infrastructure of a telecommunications network, or any line, equipment, apparatus, pole, mast, antenna, duct, structure or thing used, or for use, in connection with a telecommunications network.

72    Clause 6(1)(b) of Division 3 of Schedule 3 provides that, “A carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if … the facility is a low-impact facility”, and cl 6(2) provides, that in carrying out an activity authorised by cl 6(1), the carrier may enter upon, and occupy, any land; and do anything necessary or desirable on, over or under the land for the purposes [purposes in connection with carrying out the installation of a low-impact facility authorised by cl 6(1)], including, for example, constructing, erecting and placing any plant, machinery, equipment and goods [on, over or under the land]: cl 6(2)(a) and (b)(i).

73    Division 5 of Schedule 3 addresses the conditions a carrier must comply with “relating to the carrying out of authorised activities”. Clause 17 of Schedule 3 (within Division 5) provides that before a carrier engages in an activity under, relevantly, Division 3 in relation to any land (which includes the activities contemplated by cls 6(1) and 6(2)), a carrier “must give written notice of its intention to do so … to the owner of the land; and if the land is occupied by a person other than the owner – the occupier” [emphasis added]. The notice must specify the purpose for which the carrier intends to engage in the activity: cl 17(2).

74    Clause 17(3) contemplates that either the owner or the occupier may suffer either “financial loss or damage in relation to the property because of anything done by a carrier in engaging in the activity”, as the sub-clause provides that the notice must contain “a statement” to the effect that if a person so suffers, compensation may be payable under cl 42 of Schedule 3. The notice required by cl 17 must be given at least 10 business days before the carrier begins to engage in the activity: cl 17(4).

75    The Code, as earlier defined, was adopted by the Minister for Communications and the Arts (Cth) under s 6(3) of the Act. Section 4.32 of the Code provides for time periods within which an owner or occupier must provide the carrier with grounds of objection to the proposed activity. Although the nature of the activity determines the relevant period for objections, Allconnex as owner and occupier of the Tower was required to provide Satellite with its grounds of objection within at least five business days prior to the carrier engaging in the activities contemplated by cls 6(1) and 6(2).

76    Although, of course, no objection was made to Satellite’s LAAN, Allconnex’s essential objection to Satellite’s proposed activity as reflected in the affidavit of Mr Kiddle sworn 13 June 2012 was that within the immediate vicinity of the Tower, there are two existing telecommunications towers constructed and leased to carriers by an organisation called “Crown Castle” for the purpose of co-locating telecommunications facilities operated by licensed telecommunications carriers including Telstra and Optus. Satellite, in Allconnex’s view, ought to locate their low-impact facility on one or other of those two Crown Castle towers rather than the Helensvale Water Tower. In other words, Allconnex preferred the low-impact facility to be located elsewhere and, conveniently, co-located on the nearby telecommunication towers of others.

77    Clause 17 uses the language, “a carrier must give written notice to” the owner or occupier of its intention to engage in the activity before engaging in the activity. Satellite must prove that it “has given” a conforming notice to Allconnex at least 10 days before beginning to engage in the activity.

78    It is common ground between the parties that the LAAN is a conforming notice.

79    How might a carrier give the required notice to Allconnex in conformity with the obligation “to give” in cl 17 of Schedule 3? Neither cl 17 nor any other part of Schedule 3 (subject to any necessary implication drawn from cl 54 of Schedule 3) expressly provides for “service” or the “sending” or “giving” of an activity notice by post. The Council contends in its submissions that cl 17 carries an “ordinary implication” that the notice must either be delivered “personally” or its contents must be “brought to the attention of the intended recipients” and since the giving of a notice is a pre-requisite to engaging in activity that would otherwise involve a trespass and possibly involve offences related to property, cl 17, in that context, ought to be construed so as to require one or other of those methods of giving the required notice. Section 28A of the Acts Interpretation Act 1901 (Cth) provides that for the purposes of any Act that requires a document to be served on a person, whether the Act uses the expression “served”, “give” or “send”, or any other like expression, the document may be served:

(a)    on a natural person:

(i)    by delivering it to the person personally; or

(ii)    by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or

(b)    on a body corporate – by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.

80    Section 9 of the SEQ Water Act makes it plain that Allconnex was not a body corporate, it was not “constituted by its Board”; and did not represent the State of Queensland. It was not a natural person. Section 109X of the Corporations Act 2001 (Cth) provides that for the purposes of any law, a document may be served on a company by leaving it at or posting it to the company’s registered office and the section applies whether the expression “serve”, “give” or “send”, or any similar expression, is used. Allconnex is not a company for the purposes of the Corporations Act.

81    These Acts are said to be relevant, however, by the Council, because they both expressly provide for the giving of a document by post and in that sense each Act is, in effect, enabling of postal service which makes delivering the document to the person personally, unnecessary. Clause 17 makes no such enabling provision. Secondly, these Acts, by enabling postal service, also expressly address, it is said, the postal address to which the document must be sent by post. In short, the Council says, if giving the notice by post was within the scope of cl 17, it would have said so, and the clause would have dealt with the place of address to which the document is to be sent.

82    Clause 54 of Schedule 3 is entitled “Service of notices”. It addresses Division 2, 3 or 4 activity and thus the activity of installing a low-impact facility and engaging in the cl 6(1) and cl 6(2) activity. Clause 54 expressly deals with the carrier’s mandatory obligation to give a written notice of its intention to engage in the relevant activity and sets out matters related to service of the notice.

83    Clause 54 provides that if a carrier is unable, after diligent enquiry, to find out who owns particular land, or alternatively, a carrier is unable to serve a notice required under Part 1 of Schedule 3 (an activity notice) on the owner of land either personally or by post, the carrier may serve the required notice on the owner by publishing a copy of the notice in a newspaper circulating in the district in which the land is situated and, if the land is occupied, serve a copy of the notice on the occupier. If the land is not occupied, the carrier may attach, if practicable, a copy of the notice on a conspicuous part of the land.

84    Although, of course, cl 54 is enabling of a default method of service by publication of the notice in a newspaper as just described, coupled with service on the occupier or, if the land is unoccupied, by attachment of the notice to the land, cl 54 necessarily recognises an orthodoxy of “service” of either personal service of the notice or service by post. Should a carrier be unable to serve the required notice on the owner by one or other of those two methods, a default method as described is then engaged by operation of cl 54.

85    Thus, Satellite was entitled to give notice of its LAAN by post.

86    Allconnex had told the world by its web-site that its postal address for receiving material by post was the postal address recited at [28]. It put the same address on its letterhead immediately under its trading name, as its postal address. Mr Kiddle adopted the same postal address as part of his everyday signature block (at [29]) which was presumably intended to tell those dealing with him that the postal address (should postal communication be adopted) for Allconnex was that address. Moreover, Allconnex put in place a system for dealing with all mail sent to Allconnex at that postal address which involved classifying the mail according to Categories A, B and C mail and processing it according to an institutional process managed by Allconnex’s Group Manager Knowledge Services.

87    Why then does it come as any surprise to Allconnex that Satellite (accepting for this purpose that the LAAN could properly be served by post) or anyone dealing with Allconnex by post, would send a letter, document or written communication to Allconnex at the postal address nominated by it consistently in each of these ways and in each of these forums?

88    Satellite was on 24 February 2012 entitled to serve its LAAN by post directed to the postal address held out to the world by Allconnex as the postal address.

89    Once the envelope containing the Barringer Leather Lawyers letter of 24 February 2012 and the LAAN on the letterhead of that firm entered the postal system in the way deposed to by Mr Prados-Valerio, Satellite had given notice to Allconnex and discharged its obligation under cl 17. The evidence of Mr Prados-Valerio establishes that the envelope bore the correct name and address of Allconnex Water; the documents were placed in the envelope; it bore the correct pre-paid postage; it bore the sender’s address and details; and it was placed in the post box thus entering the system for the receipt of mail at the designated Mail Centre facility adopted by Allconnex as its point of postal receipt for processing in accordance with the commercial arrangements earlier described.

Section 192 of the Water Supply Act

90    Clause 36 of Schedule 3 of the Act is in these terms:

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.

                                [emphasis added]

91    Satellite relies upon the authority conferred upon it under Division 3 of Part 1 of the Schedule to carry out the installation of the low-impact facility and in carrying out that activity, the authority conferred under cl 6(2) to enter and occupy the land and do those things necessary on and over the land for the purpose of installing the facility.

92    Section 192(1) of the Water Supply (Safety and Reliability) Act 2008 (Qld) (the “Water Supply Act”) is in these 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.

93    By s 3, the purpose of the Water Supply Act is to provide for the safety and reliability of water supply.

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.

95    Section 192 falls within Part 7 of the Act which deals with offences. There are a number of them under Part 7 with each of them bearing a particular number of penalty units. By s 190, a person must not supply a sewerage or water service unless the person is a service provider under the Act or is operating infrastructure for the service provider, for the relevant service. By s 191, a person must not, without the written consent of a service provider, connect to, or disconnect from, the service provider’s infrastructure. Section 192 is in the terms already quoted. Section 193 contains three offences all of which deal with, in part, infrastructure questions. Section 193(1) provides that a person must not discharge trade waste into a sewerage service provider’s infrastructure without the sewerage service provider’s approval. Section 193(2) provides that a person must not discharge a prohibited substance, surface water, soil, sand or rock into a service provider’s infrastructure and s 193(3) provides that a person must not discharge water from an ornamental pond, a swimming pool or the filtration system of a swimming pool into a service provider’s infrastructure without the written consent of the service provider.

96    Section 194 contains a prohibition upon doing anything likely to pollute water in a service provider’s water service.

97    Section 195 provides that a person must not, without a service provider’s written approval, take water from a service provider’s infrastructure and s 195(2) provides that if water is supplied to premises by a service provider’s infrastructure for domestic purposes, a person must not deal with that water in a way which offends the section.

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”.

99    In February and March 2012 (and in effect, until 30 June 2012), Allconnex was a “service provider”. Schedule 3 of the Water Supply Act defines the term “service provider” as a “water service provider” or a “sewerage service provider”. A water service provider is a person “registered” under Chapter 2, Part 3 of the Water Supply Act, as a service provider for a water service. The Register of water service providers is kept by the Chief Executive under the provisions of the Water Supply Act.

100    Allconnex was so registered at all relevant times.

101    The Tower (and the land upon which it sits) was an asset of Allconnex at the relevant time. The Tower represented infrastructure of Allconnex used as a water-containing vessel for the purpose of providing clean water to the general public as part of its activities as a water service provider.

102    The Council relies upon s 192(1) as giving rise to an inconsistency.

103    In effect, the Council says that should Satellite carry out all or any part of the proposed activity, doing so would be inconsistent with a prohibition upon Satellite under a law of the State not to “interfere with [Allconnex’s] infrastructure without the written consent of the service provider”.

104    The activity Satellite proposes to carry out involves these things.

105    Satellite will access the land on which the Tower stands within Reservoir Park. Satellite proposes to carry out installation work which will involve locating an outdoor telecommunications cabinet on the ground floor area of the Tower inside the door to the Tower. The cabinet is to be fully secure. The keys will be held by Satellite. The cabinet is a single cabinet having dimensions of 212cm x 60cm x 80cm. The cabinet will be labelled with the contact details for Satellite personnel that may be contacted at any time over 24 hours, seven days a week.

106    Satellite proposes to affix (attached to a plate) to the concrete roof (called the “concrete roof base”) of the Tower four single vertical pole antenna mounts at four places marked A, B, C and D on the site equipment plan. Each single pole antenna mount will be secured to the roof of the Tower with four holes drilled through the base plate anchoring the pole antenna mount to the roof of the Tower. The drill holes will be sealed with a particular epoxy resin to create a watertight secure seal.

107    A parabolic dish will then be mounted or affixed to each pole antenna located at points A and D on the site equipment plan for the roof. Each parabolic dish so mounted has a diameter of 120cm. Each pole antenna at points B and C on the roof will host three flat panel antennas each having dimensions of 60cm x 60cm. The total number of “Radio Units” to be mounted on the pole antennas therefore is eight units (six flat panels and two parabolic dishes). Each complete Radio Unit consists of an antenna flat panel or parabolic dish and a “Radio Frequency Emitting Radio” in order for it to function. The equipment comprising the pole antenna mounts, parabolic dishes and flat panel antennas and related emitting equipment is designated as low-impact equipment under Item 3 of Part 1 to the Schedule to the Determination Act.

108    All Radio Units mounted on the pole antenna mounts as described will be connected by outdoor rated Category 5 shielded cable using existing cable runs, or new cable runs if required. Should new cable runs be needed, a small amount of drilling may be necessary to affix the cable channel or run. Finally, it may be necessary for Satellite to arrange for a separate electrical power phase to be installed (with a power meter) if required. If an additional phase of power is thought to be required, Satellite proposes to carry out a power survey and advise the owner of any action necessary. The roof of the water tower is said to be an enclosed space with a supporting outdoor wall at least 70cm high.

109    The Telecommunications Act, by Division 3 of Part 1, authorised Satellite to enter upon Allconnex’s land and carry out the installation of the low-impact facility in the way described by erecting and placing plant, equipment and goods on the land inside the Tower door and on the roof of the Tower as described and depicted in the site equipment plan.

110    To what extent would carrying out that activity be inconsistent with the prohibition in s 192(1) of the Water Supply Act, on a person interfering with Allconnex’s infrastructure, without its consent?

111    “Interfere” is not defined in the Dictionary to the Water Supply Act. It is a common word of ordinary meaning. 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

112    The Macquarie Dictionary includes these 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

113    The Explanatory Note for the Water Supply Bill provides:

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.

114    Whilst it is true that the notion of “to interfere” with something comprehends a meaning of “to handle” or “adjust” or perhaps “alter” something without permission, the dominant notion in all of the received meanings of the term is an intervention that prevents a process, an action, a function, an activity or a motion occurring. Simply affixing low-impact equipment to a structure that results in no intervention in the functions, actions or water services provided by or through that infrastructure by either the owner or operator for the owner does not, at least according to the dominant conception of the verb “to interfere”, constitute an act of interference with the infrastructure.

115    Clause 36 of Schedule 3 provides that the authority conferred by Division 3 does not operate, to the extent that the carrying out of the activity would be inconsistent with the relevant State law. If the authorised activity has no affect upon the provision of services by the water service provider or the use of the Tower in that service provision, there is no area of inconsistency that limits the operation of the Division 3 authority conferred on Satellite under Schedule 3 of the Commonwealth Act.

116    The question however is one of the proper meaning to be attributed to the prohibition in s 192(1) upon interfering with a service provider’s infrastructure in the context of the Water Supply Act and an infrastructure owned or operated by or for the service provider.

117    The Explanatory Note gives emphasis to steps taken by a person (such as constructing a driveway over a water main or sewerage system) that “may adversely impact on a service provider’s ability to later access and service [the] infrastructure” [emphasis added]. The capacity to actually or potentially impair the performance of the service seems to be the vice addressed by the s 192 prohibition.

118    The evidence is that the activity is a low-impact non-service impairing intervention by accessing the land and then engaging in the installation activity.

119    In terms of asset management, each service provider must have an approved “strategic asset management plan” for ensuring continuity of supply of each of the service provider’s registered services: s 70, Water Supply Act. The service provider must prepare a strategic asset management plan for approval by the Regulator (s 71(1)) and the plan must identify the registered services to which the plan applies and the infrastructure deployed in providing the services: s 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. Sections 73, 74, 75 and 76 deal with submission of the asset management plan to the Regulator, approval of or refusal to approve the plan and the making of changes to the strategic asset management plan. Section 77 casts an obligation on the service provider to comply with the approved strategic asset management plan when supplying the services to which it relates through the infrastructure engaged by those services.

120    The maximum penalty for a contravention of s 77 is 1,665 penalty units.

121    There is no evidence that the Helensvale Water Tower was a strategic infrastructure asset of Allconnex’s at the material time although the evidence is that the Tower was used in the provision of clean water to the general public which probably rendered it a strategic asset.

122    I accept and find that the activity Satellite proposed to carry out would not “interfere with” the services provided by Allconnex over the six week period of the installation works and once completed, the operation of the low-impact facility would not have interfered with Allconnex’s provision of water services by, through or in connection with the Tower, at all. The same position prevails in relation to the use of the Tower by the Council. In making that finding, I use “interfered with” in the sense of an affect upon the provision of the services in a functional sense.

123    Notwithstanding the considerations at [110] to [121] and the finding at [122], it seems to me, in the context of the s 3 purpose of the Water Supply Act, the regulatory scheme of registration and supervision of service providers in the provision of registered services including the emphasis in the Water Supply Act on the relationship between infrastructure assets and the provision of registered services through those infrastructure assets, that s 192(1) creates a prohibition upon a person interfering, in the sense of doing things to, a service provider’s infrastructure asset, without its approval.

124    The prohibition can be tested in this way.

125    If the question of a Division 3 authority under the Commonwealth Act is put to one side entirely, and Satellite had simply entered upon the land on which the Tower is located; occupied it, on and off, for six weeks; built a cabinet 212cm x 60cm x 80cm on the ground floor area of the Tower inside the door to the Tower; affixed mounting plates, pole antenna mounts and eight flat panel and parabolic antennas to the roof of the Tower; drilled holes for the mounting plates and sealed the holes with epoxy resin; affixed cabling; and installed a further phase of power (and possibly a meter box) could it be said that these steps did not constitute an “interference” with the infrastructure asset. It may be a low-impact facility and it may be that the intervention is effected in a highly efficient manner with minimal affect upon Allconnex or the asset. However, a third party intervention of this kind, with and to the infrastructure asset, seems to me to fall within the statutory concept of an “interference with the service provider’s infrastructure”. The prohibition in s 192(2) is not on the provision of the service but operates on the infrastructure on the land.

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.

127    There are however two remaining questions. The first concerns the application of the exemption in the present circumstances and the second concerns a construction of cl 36 of Schedule 3 which reflects the construction, simply as a matter of law, other than the way in which the parties have framed the inconsistency question.

The exemption

128    As to the exemption, the question is whether the “rule” set out at cl 36(1) of Schedule 3 is displaced by cl 36(2) which renders cl 36(1) subject to the exemptions in cl 37.

129    Clause 37 of Schedule 3 is in these terms:

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.

130    The Tower is a water-containing fixture on the land.

131    It is an infrastructure asset attached to and located on part of the land described as Reservoir Park at Helensvale (Lot 962 on SP236792). The use of the land and that which stands upon it was at the material time vested in Allconnex for the purpose of enabling Allconnex to provide a registered water service of distributing clean water to the public as described in the evidence. Section 192(1) seeks to preserve the integrity of the infrastructure assets of service providers (including the Tower) for use by service providers in providing the registered service, by prohibiting a person from interfering with the service provider’s infrastructure, without the consent of the service provider. In context, s 192(1) is a law of the State of Queensland about the use of the infrastructure assets deployed in providing the registered services, with decisions about the use of those assets reserved to the decision-making of the service provider. Since the infrastructure assets of a water service provider or a sewerage service provider and thus “service providers” are deployed, on, in and over the land, s 192(1) is a law about “the use of the land” for the purposes of cl 37(2)(f), when considered in the context of Schedule 3 and the regulatory scheme adopted by the Act.

132    If the subject matter of cl 37(2)(d) is understood as addressing a law about six separate topics, the prohibition in s 192(1) may be susceptible of a construction that it is a law about a prohibition upon any “alteration” of a structure. For my own part, I have difficulty in accepting such a severable characterisation. It seems to me that cl 37(d) is addressing a law that selects for its operation matters taking their colour for the subclause read collectively rather than interference by alteration. Nevertheless, s 192(1) is a law about the use of the land. The clause expressly applies to “an activity carried on by a carrier if the activity is authorised by Division 3 …”. Thus, despite s 192(1) of the State law, the carrier, by reason of cl 37(2)(f) may engage in the activity authorised by cls 6(1) and 6(2) of Division 3 as the cl 37 exemption displaces the cl 36(1) limitation of the “operation” of the Division 3 authorisation, having regard to cl 36(2).

133    The alternative construction of cl 36 of Schedule 3 of the Act and its interaction with s 192(1) of the Water Supply Act, is this.

134    Section 192(1) provides that a person must not interfere with a service provider’s infrastructure without the consent of the service provider. That section contemplates conduct of a person that first, interferes with a service provider’s infrastructure, and second, there is no written consent of the service provider to that conduct.

135    The notion of, or meaning to be attributed to, “interfere” in s 192(1) of the Water Supply Act not only comprehends conduct of “doing something to the infrastructure”, rather than only doing something that interferes with the service provided by or through the infrastructure, but the conduct must also, necessarily, be conduct that is not lawful. To fall within the scope and operation of s 192(1), the conduct must be an unlawful interference, and also lack the written consent of the service provider itself. There may be many acts of interference with a service provider’s infrastructure either by reason of notices of one kind or another affixed to the infrastructure by officers of the Regulator, or workplace, health and safety officers acting under particular legislation or any range of public officials acting under statutory power. Section 192(1), in the context of the Water Supply Act, is not framed in a way which renders such acts an interference with a service provider’s infrastructure. 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.

136    Since Satellite has authority under Division 3 of Schedule 3 to carry out the conduct, there can be no interference with Allconnex’s infrastructure, for the purposes of s 192(1), as a question of construction.

137    The proper scope of s 192(1) is not to be determined by first removing the Division 3 authority conferred by Schedule 3.

138    The first step in determining whether there is, to any extent, inconsistency, is to determine the proper scope and operation of s 192(1). Once it is clear that s 192(1) necessarily involves interfering conduct for which there is no lawful excuse or answer (and also requires the written consent of the service provider), the authority conferred under Schedule 3 means, for the purpose of the proper construction of s 192(1), that there is no interference by Satellite with the service provider’s infrastructure by carrying out the activity. Once that becomes clear, there is no inconsistency to any extent, and thus cl 36(1), which only operates upon an inconsistency, does not effect a constraint upon the operation of Satellite’s authority to carry out the activity.

139    It follows that because there is no inconsistency, there is no constraint arising under cl 36.

140    It also follows, apart from the question of construction discussed at [133] to [139], that since, alternatively, the exemption applied as discussed, and no objection was made or taken in response to the LAAN served by post, Satellite is entitled to carry out the low-impact activity the subject of the activity notice. The applicant will be ordered to provide a draft of the proposed orders within five days. Any submissions on costs should also be filed and served within 10 days. The question of costs will be decided on the papers. Should either party wish to be heard on the scope of the formal orders, a date will be nominated for hearing submissions on that question.

Associate:

Dated:    8 March 2013