Practical advocacy

This is an old case, but I had my own professional reasons to be looking it up.

One of the things which has long astounded me is the way in which enormous gifts (call them privileges if you will) have been bestowed on various commercial entities in the name of promoting progress in, for want of a better word, telecommunications.

You can see one example on every suburban street in Australia, where trees are trimmed to permit cables, originally for cable TV, that generally run just below the pre-existing telephone lines.  If you add up the foliage removed or prevented, it must count as the most extraordinary act of environmental vandalism.

Another example is the power conferred on telecommunications providers to install and maintain facilities under section 484 of the Telecommunications Act 1997.  That section baldly states “Schedule 3 has effect.”  Schedule 3 is headed “Carriers’ powers and immunities.”

In passing, I’ll just note that one of the annoying things about this trend to legislate by schedule (an approach also adopted in relation to the Competition and Consumer Act which has replaced the old Trade Practices Act and its various state Fair Trading Act counterparts) is that it has significantly reduced the effectiveness of internet-based reference and noting-up on Austlii, because schedules are given a single internet address and reference.   So you would need to scroll through the schedule to find clause 37, which relevantly provides that:

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.

Clause 7 (shorn of some detail) provided and provides that:

 7   Maintenance of facilities

(1)  A carrier may, at any time, maintain a facility.

(2)  A carrier may do anything necessary or desirable for the purpose of exercising powers under subclause (1), including (but not limited to):

(a)  entering on, and occupying, land; and

(b)  removing, or erecting a gate in, any fence.

(3)  A reference in this clause to the maintenance of a facility (the original facility ) includes a reference to:

(a)  the alteration, removal or repair of the original facility; and

(b)  the provisioning of the original facility with material or with information (whether in electronic form or otherwise); and

(c)  ensuring the proper functioning of the original facility; and

(d)  the replacement of the whole or a part of the original facility in its original location, where the conditions specified in subclause (5) are satisfied; and

(e)  the installation of an additional facility in the same location as the original facility, where the conditions specified in subclause (6) are satisfied; and

(f)  in a case where any tree, undergrowth or vegetation obstructs, or is likely to obstruct, the operation of the original facility–the cutting down or lopping of the tree, or the clearing or removal of the undergrowth or vegetation, as the case requires.

The conditions in subclause (5) and (6) were, in general terms, conditions that required that if replacing or installing an additional facility, what was done did not result in a facility with increased bulk or height or causing increased noise.

There is a different regime for new facilities requiring consultation and the like with a carve-out from that for facilities certified by the minister to be “low impact facilities.”  The bottom line is that local planning laws are overridden by the powers and immunities conferred on carriers by the schedule.  Other clauses have the same effect in relation to private property rights, though the schedule provides that to the extent that that results in acquisition of private property, compensation is to be paid.  That is a constitutional necessity because of the constitutional requirement that any acquisition of property be on just terms.

In 2003, Hutchison (now – 2012 – operating in Australia as part of the merged Vodafone Hutchison) was a carrier.  It wanted to put its transmitters and receivers in Oatley Park, a park on the Georges River in Oatley (obviously enough) which is in the local government area of Hurstville.  It told Hurstville City Council that it proposed replacing a light pole in the park with its own purpose-designed pole.  This met local opposition, partly because it was close to a school (there were fears which I am not actually sure are really very well-grounded about electromagnetic radiation hazards) but also, I think, because it was in a park.

Hurstville Council, which was also the trustee of the trust over crown lands which was responsible for the park, opposed this course of action.  It took the down the light pole.  Hutchison simply went ahead and put in its own pole as well as an associated equipment hut。  The council brought proceedings in the Land and Environment Court for the pole and hut to be removed as unauthorized development under NSW’s town planning laws.

In the Land and Environment Court, the Council lost.  Hutchison said that it was maintaining a facility.  This might seem counter-intuitive.  There was no facility there before.  But the court accepted that Hutchison was maintaining a facility.  That was because of the definition of “facility” in section 7 of the Act.  This said that:

“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.

The original pole was a facility because it was “a pole..for use, in or in connection with a telecommunications network” because Hutchison intended to use the pole for that purpose.  In building its new pole and the associated shed Hutchison was maintaining the old pole (even though by then it had been removed) because of the extensive definition of maintainence in clause 7(3) already quoted above.

Amazing!

The decision was overturned on appeal to the NSW Court of Appeal.

Hutchison applied to the High Court for special leave to appeal.

Bret Walker SC, for Hutchison, then very much the counsel of the moment, opened with a splash:

Your Honours, it may not quite be the age of canals or railways, but in our submission what is colloquially known as the rollout of telecommunications network for so-called mobile telephony has presented a similar opportunity for legislatures to regulate, both in broad brush and in fine detail, the balance between the public interest in encouraging the enterprise carried out by people actuated by the profit motive and the balance also to be struck in relation to the siting and use of both public and private land and other property for the purposes of the technical equipment necessary to advance what is self-evidently seen as the public interest of having a sophisticated telecommunications network. The Telecommunications Act 1997 bespeaks that both explicitly and implicitly.

What he is referring to is the legislation in 19th-century England which enabled canals and railways to be built.  Without such legislation, any one landholder could presumably hold out and extract a ransom from the promoters of the canal or railway quite out of proportion to the value of the land for other purposes.   In fact, in Australia, such infrastructure (railways rather than navigational canals) was constructed by the state rather than by private companies.

Francis Douglas QC (subsequently appointed and then sacked as a judge of appeal in Fiji) appeared for the respondent council.  His opening line was:

Just because the case is about telecommunications does not make it important. It may make it sexy, but that is about all.

The application for special leave was refused.

2 Responses to “Practical advocacy”

  1. Legal Eagle Says:

    Oh that opening line of the special leave application is *fabulous*.

  2. Victor Says:

    To be sexy and knocked back must be devastating.

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