Is It A Power Pole Or Part Of A Telecoms Network? Multiple Use Poles And The Law

• an electricity utility's pole on which telecommunications facilities are installed does not thereby become a "facility" (a tower) for the purposes of the Telecommunications Act, even if the utility has replaced a pole to support the telecommunications facilities;

• this means that the poles are still subject to State laws (such as planning law);the High Court adopted an "element by element" analysis of whether the facilities were low-impact (rather than aggregating the facilities on, or associated with, a site together);

• it also considered a Facilities Access Agreement and the nature of the arrangements made between the parties under that Agreement.

A recent decision of the High Court in Hutchison 3G Australia v City of Mitcham [2006] HCA 12 considers the definition of a "facility" under the provisions of Schedule 3 to the Telecommunications Act 1997 (Cth) ("Telco Act") and the interaction between Schedule 3 and State government planning and development legislation. The decision (a joint decision of the Court) affirms the reasoning of the NSW Court of Appeal in Hurstville City Council v Hutchison 3G Australia Pty Ltd (2003) 200 ALR 308 as to what constitutes a "facility". The case also considers the nature of arrangements between a telecommunications carrier and a public utility in relation to the installation of facilities.

Although the High Court decision concerned the interaction between the Telco Act (which is Federal legislation) and State planning legislation, the parties did not seek to rely on section 109 of the Constitution (the provision dealing with inconsistency between State and Federal laws) to argue that the Telco Act prevailed. Accordingly, the appeal was determined only on construction of concurrently operating Federal and State laws. The Court noted, at the end of its judgment, that the "more fundamental question" of constitutional inconsistency may need to be considered in another case "to decide whether it affords a more direct route" to the conclusions reached in this case.

Hutchison 3G Australia installed telecommunications facilities described as "downlink sites" at five locations throughout the City of Mitcham area during 2002 and late 2003 as part of its mobile telecommunications network. Hutchison asserted that the requirement for development approvals under the provisions of the Development Act 1993 (SA) did not apply to these installations.

ETSA Utilities had erected stobie poles on which Hutchison wished to install its downlink facilities. ETSA was a licensed operator of the electricity distribution network under the Electricity Act 1996 (SA). Hutchison applied to ETSA pursuant to a Facilities Access Agreement between the parties. ETSA determined that most of the poles would have to be replaced with poles of a larger cross-section before Hutchison could proceed with the installation of its facilities, and ETSA then replaced the poles at Hutchison's expense. Only one site, the Clarence Gardens site, did not require the pole to be replaced. Each downlink site consisted of panel antennae that were erected at the top of each pole and an equipment shelter located nearby on ground level containing equipment required for operation of the downlink site.

The Council claimed that Hutchison, or ETSA, or both, were required to obtain development approval under the Development Act for the replacement of the stobie poles and that Hutchison was required to obtain development approval under the Development Act for the installation of the downlink sites.

Hutchison argued that the installed downlink sites were "low-impact facilities" within the meaning of the Telecommunications (Low-impact Facilities) Determination 1997 (Cth), and as a consequence, attracted the exemption in clause 37 of Schedule 3 of the Telco Act from the application of the Development Act requirements.

The Council argued that the replacement poles were "towers" within the meaning of clause 6(5) of Schedule 3 to the Telco Act. This clause prevents a tower from been specified as a "low-impact" facility unless the tower is attached to a building and is less than 5 metres in height. The Council submitted that because the poles were not attached to buildings they could not be taken, for the purposes of the Telco Act, to be "low-impact" facilities.

The Council also argued that the equipment shelter was a "co-located facility" within the meaning of Pt 7 of the Determination on the basis that it was installed on or within a public utility structure. The Council argued that the air conditioning units in the equipment shelter emitted a level of noise inconsistent with the restrictions on co-located facilities in Pt 7 of the Determination, and as a consequence, the downlink facilities collectively categorised as a co-located facility could not be considered to be a "low-impact" facility.

The Court considered:

• whether the replacement poles were towers within the meaning of cl 6 of Sch 3 of the Telco Act; and

• whether the equipment shelter co-located on or within a public utility structure, so that the level of noise emitted from the air conditioning units in the equipment shelters could prevent the downlink facilities been categorised as "low-impact facilities", by virtue of Pt 7 of the Schedule to the Determination.

ETSA argued that it was also exempt from the requirement to seek development approval under the Development Act by virtue of an exception for electrical developments under paragraph (a)(ii) of Schedule 14A to the Development Regulations.

The High Court found that the replacement poles were not "facilities" for the purposes of the Telco Act, and therefore were not "towers" (as a type of facility) within the meaning of Div 3 of Sch 3 to that Act.

The Court took a similar approach to that of the NSW Court of Appeal in Hurstville. In Hurstville, the Court of Appeal decided that a telecommunications carrier could not deem an object to be a "facility" (a power pole was also in issue in that case) simply by deciding to treat the object as a "facility", and that the definition did not rest upon whether the thing was objectively suitable "for use" in the network. Mason P (giving the Court's principal reasons) also held that "It is not necessary to treat an existing (non purpose-built) pole, structure or thing upon which a 'facility' is placed as the facility itself". In considering this statement and the relationship between the definition of "facility" and purpose, the High Court held that:

• attention should be directed to the function which a structure or thing serves or was designed to serve and not to the motive for the installation of that structure or thing;

• the equipment must be intended to satisfy the requirements of a system or a series of systems of the sort described in the definition of a "telecommunications network". There was no such intention in the present case. The Court recognised that the poles were replaced in order to meet the structural demands of carrying the facilities installed as part of the downlink site, however, this was considered distinct from an intention to satisfy the requirements of a system;

• it was important for the Court that the ETSA had decided upon the location of the poles as part of its electricity distribution business. The fact that the location of the poles was conducive to the operation of a telecommunications network was considered strictly secondary, or consequential, to the original purpose of the ETSA.

To be a "facility" within the meaning of Telco Act, the Court seemed to consider it necessary that the structure or thing function as part of a system forming a telecommunications network and not simply support or facilitate the installation of separate "facilities" that do function as part of a system forming a telecommunications network.

Hutchison argued that the equipment shelter did not fall within the definition of "co-located facilities" in cl 1.3 of the Determination because it was not installed on, or within, either an original facility or a public utility structure. The High Court accepted this argument. It was agreed that the panel antennae installed on the poles (public utility structures) constituted co-located facilities. The Council attempted to argue that the "facility" at the site consisted of all the elements necessary for the operation of the equipment, and that included the equipment shelter. In relation to the equipment shelter, the Court made the following comments in reaching its decision:

• the definition of "facility" does not include any reference to the necessity for the operation of the telecommunications equipment at a particular site. By contrast, the definition indicates that several things or structures capable of having little independent function beyond supporting the operation of telecommunications facilities at a given site are themselves to be treated as facilities, and not parts of facilities.

• characterising a "facility" at a higher level of abstraction (as proposed by the Council) would defeat the intention of the Schedule to the Determination in specifying what facilities should be regarded as low-impact facilities. This can be seen by observing that "equipment shelters" are specifically dealt with in the Schedule and as are such recognised as facilities, distinct from parts of facilities, in the provisions of the Determination.

As a consequence, the restriction on the levels of noise emitted from co-located facilities in Part 7 of the Schedule did not extend to the equipment shelter. The downlink facilities were considered to be low-impact facilities.

Regardless of whether Hutchison was entitled to an exemption from the requirements of the Development Act by reference to Schedule 3 to the Telco Act, the High Court decided that in respect of the replacement poles, Hutchison had not "undertaken development" within the meaning of the Development Act, and was therefore not required to obtain development approval. In considering the definition "to undertake development" in section 4 of the Development Act, the Court held that Hutchison did not commence or proceed with the development or cause, suffer or permit development to be commenced or proceed. In reaching this conclusion, the Court relied on the following factors:

• Hutchison and ETSA did not jointly carry out the development. The Facilities Access Agreement made between the parties was not evidence of a joint venture within the meaning set out in United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1 at 10, but rather of a commercial arrangement designed simply to facilitate the compliance by the parties with their respective obligations to obtain access, and provide access, to facilities under the Telecommunications Code of Practice and the Electricity Transmission Code¹; and

• Hutchison cannot be said to have "caused" the development, since the Agreement did not oblige ETSA to carry out any work requested by Hutchison in order to facilitate the installation of facilities.

The Court also decided that the actions of the ETSA, in replacing the poles, fell within the exception provided in paragraph (a)(ii) of Schedule 14A to the Development Regulations for a development "used for or associated with the supply, conversion, transformation or control of electricity". In reaching this conclusion the Court held that:

• this exception does not impose a sole purpose requirement, and therefore it did not matter that the development had the additional purpose of allowing Hutchison to install its downlink facilities;

• construing the regulations to impose a sole purpose requirement would create a tension with the Electricity Transmission Code, which explicitly encourages transmission system owners to provide access to its system for telecommunications purposes;

• the availability of the exception depends on the purpose of the building or equipment developed, and not that of the development.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.