LOCAL GOVERNMENT BRIEFLY         
November 1998 Issue No 62

CONGRATULATIONS AND WELCOME!

We are delighted to announce the recent appointments of Celine McInerney and Michael Kelledy as Partners. Celine advises in technology and intellectual property and Michael advises in all aspects of local government law.

We are also pleased to announce that Simon Nuttall, corporate and commercial transactions and advice, Edtyka Mizgalski, commercial litigation, and Kym Tredrea, planning and local government, have been promoted to Senior Associates.

Welcome to Emma Shaw, Associate, employed in the local government area and Robert Chalmers, Senior Associate, who is working within the technology and intellectual property area.

OPTUS TOWER APPEAL

In Optus v CC Kensington & Norwood and Frost (unreported 29 May 1998 Judgment No. OE480) the Full Bench of the Environment, Resources & Development Court considered an application to erect a 20 metre high telecommunications tower and base station in Norwood.

The Court heard evidence on the effect of human exposure to radiofrequency radiation ("RFR") emitted from the facility.

The Court accepted that the interim Australian & New Zealand Standard AS/NZS 2772.1 (INT) 1998 incorporates large safety factors and the public debate about the effect of RFR has been largely uninformed. While acknowledging the desirability of a precautionary approach to assessing the risk to human health in new land uses, the Court was satisfied that compliance with this Australian standard was sufficient.

On that basis, the Court found that it would not be reasonable for residents to hold fears for their health. The Court was not prepared to give weight to the perceived loss of amenity of the residents where the basis of their concerns was measurable against an identifiable standard.

This is the first case where the Court has had the opportunity to consider an application for a telecommunication facility under the new regime of the Commonwealth Telecommunications Act 1997. It is also the first time that the Court has had to consider the significant debate about the health impacts of these facilities.

INVALID CONDITION - LANDFILL HEIGHT

The Supreme Court recently considered the validity of a condition imposed in 1970 on the planning consent for the Wingfield Waste Depot. The case was the City of Adelaide -v- City of Salisbury and City of Port Adelaide Enfield [1998] SASC 6914 and the subject condition read as follows:

"The landfill being carried out to a final level prescribed by Salisbury Council and a suitable cover over all refuse being not less than 12 inches in depth."

With the alteration of boundaries of Council areas in 1987, the Waste Depot subsequently found itself within the Council area of Port Adelaide Enfield.

In June 1996 Port Adelaide Enfield resolved, purportedly pursuant to the subject condition, that the height limit for the landfill would be 15 metres AHD. The City of Adelaide had not been informed of the Council's intention to consider such a resolution. It instituted judicial review proceedings in the Supreme Court seeking declarations that the subject condition was invalid and that the resolution of Port Adelaide Enfield was also invalid due to, amongst other things, the fact that the City of Adelaide was not afforded procedural fairness when the decision was made.

The Supreme Court found that the subject condition was invalid as it lacked certainty or finality as to how long the consent would continue in operation and did not contain a standard against which the intended duration could be measured. While Salisbury Council could have specified a particular height or, under the then Planning & Development Act, limited the use to a period of time, it had not done so. The subject condition meant that approval for the reception and storage of waste had been granted

subject to a height limit not being determined. To this extent the condition lacked finality and certainty and was thus found to be void and of no effect.

The Court went on to find that the invalid condition was severable as its removal did not fundamentally alter the nature or character of the consent thereby leading to a totally different scheme from that originally contemplated.

While the Court did not need to decide the issue of procedural fairness, it found that by making its decision without affording any opportunity to the City of Adelaide to make representations to it, Port Adelaide Enfield had denied the City of Adelaide procedural fairness to which it was entitled. In any event, the relevant authority for any such application should have been the Development Assessment Commission as the proposal was one for the reception and storage of waste.

It is important to note that while Port Adelaide Enfield was found to have been unable to limit the height of the landfill; the Environment Protection Authority could impose such a restriction, should it see fit, as a condition on the licence required to operate the landfill under the Environment Protection Act.

TIME REQUIREMENTS FOR SECTION 84 NOTICES

Section 84(2) of the Development Act enables a council when issuing a Section 84 Notice to:

"Direct a person to make good any breach in a manner, and within a period, specified by the relevant authority".

In Cheray Pty Ltd v City of Mitcham the Council issued a Section 84 Notice requiring certain specified action to be undertaken "immediately". The Court ruled that this direction was invalid and the Section 84 Notice was therefore void.

The Court held:

"Section 84 does not contemplate that a person be directed to make good a breach immediately. A proper reading of placitum (b) of Section 84(2) dictates that an authority like I say, in its direction, must specify both the nature in which the breach is to be made good and the period within which the action to make good the breach is to be taken. The Council's direction is not in accordance with the Act".

The basis of the Court's decision was the interpretation of the word "period" in Section 84. The Court held that "period" requires a specified period of time be given. The Court held that "immediately" is not a period of time and therefore the direction was invalid.

Councils should ensure in the future that when drafting Section 84 Notices a specific period of time is always provided, and that words such as "immediately" or "forthwith" are avoided.
The contents of this newsletter are for information only and should not be taken as advice on the law. This newsletter may be reproduced in whole or in part with the prior permission of Norman Waterhouse and acknowledgement of its source and copyright.

For further enquiries about issues covered in this newsletter, please contact Ted Byrt, Gavin Leydon, Michael Kelledy, Kym Tredrea or James Levinson on 61 8 8210 1200.