Issue 30 July 2006
ENVIRONMENT & PLANNING BRIEFLY
Telecommunications Infrastructure
A continuing challenge for all Councils – Mitcham v Hutchinson [2006] HCA 12
Development applications for the construction of telecommunications infrastructure for the provision of the various generations of mobile phone services continue to present interesting challenges for all Councils in light of the decision of the High Court handed down on 6 April this year.
In light of the decision in Hutchison 3G Australia Pty Ltd v City of Mitcham & Ors [2006] HCA 12 the High Court has cast doubt on the exact role that Councils have to play in the assessment and installation of telecommunications and electricity infrastructure.
The High Court categorically resolved much of the ambiguity surrounding the role of Councils in the assessment of development applications relating to Telecommunication Infrastructure. In essence, the High Court ruled that Hutchison and ESTA do not require Development Act approval to use existing and new “electricity distributing stobie poles” for the installation of telecommunications equipment which is defined as “low impact” in the Telecommunications Act (Commonwealth).
The Court noted ETSA’s entitlement to use its electricity infrastructure for “telecommunications” purposes under certain provisions of the Development Act, although it did not directly address the question as to whether the South Australian Development Act 1993 had a role in regulating the installation of telecommunications equipment (whether low impact or not).
This case highlights the apparent tension between the Commonwealth (Telecommunications Act) legislation and the State “Development Act” as to which legislative instrument controls the installation of telecommunications equipment. Further complicating this tension is the role to play of the Ministerial “Low Impact Determination 1997”, which seeks to characterise certain forms of telecommunications infrastructure and designate them as “low impact” such that they are taken outside of the scope of the Councils role as the relevant authority pursuant to the Development Act.
The High Court did not directly address the question on whether the State legislation had anything to do at all with the control of the installation of telecommunications equipment, however, in argument at the hearing of the Appeal and in the judgment of the High Court the Court has suggested that the Commonwealth legislation would have primacy. The Court was not asked to consider this issue but it is likely that the Court will rule that the Telecommunications Act will rule that the Commonwealth legislation prevails and that the State Development Act has only a minor role to play in the assessment of installation of telecommunications facilities.
That is not a satisfactory outcome because local government and the community generally expected that the negotiated political outcome of the “overhead cables” dispute in the mid 1990’s, which resulted in the Ministerial Low Impact Determination in the Telecommunications Act has not been achieved.
It is clear that local government must now consider its position and decide what role if any it wishes to take in the assessment of proposals for installation of telecommunications facilities and to negotiate a legislative change which is more acceptable for the community at large. It may be that a more acceptable outcome for the community will see “low impact facilities” redefined to ensure that the real impact of the installation of such facilities is considered qualitatively rather than relying on a quantitative and largely technical definition.
It is from this position that local government should work with the Local Government Association and approach the Commonwealth Minister for Telecommunication, the State Minister for Development and the respective telecommunications carriers to agree on a preferable outcome to having the matter determined in the Courts.
Councils ongoing role should be to challenge the telecommunications carriers in instances where a proposal does not accord with community expectations. Telecommunications Infrastructure is often the subject of much controversy and emotion and as such local government has a key role to play in achieving the best outcome for the community, regardless of whether it is the relevant planning authority.
For further information about issues covered in this article, please contact Martha Savva on (08) 8210 1230 or E-mail msavva@normans.com.au.
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