U'-1

1998 EDLR 298

OPTUS MOBILE PTY LTD v CITY OF TEA TREE GULLY

Judgment No OE503

Judge Bowering

Delivered 10th August 1998

[Local Government - Town Planning - Development Act 1993 - Subsection 35(1) -

Application to construct a telecommunications station in a District Commercial 2 Zone
- Prescribed as a complying development - Decision by Council to deal with it as a
consent development because proposal includes building work - Whether "station"
means a place but does not include buildings - Proposed development complying -
application also subject to direction of Federal Airports Corporation pursuant "to
Section 37 - Sections 35 and 37 must be read together - A complying development
does not cease to be complying because it is subject to Section 37 - Council to deal
with application in accordwith Section 35 but subject to Section 37.]

The appellant applied to the Council for provisional development

plan consent to undertake a development described as a " 26m slimline
concrete monopole and associated equipment" . The subject land was
within a District Commercial 2 Zone. Within the list of uses
prescribed as " complying" within that Zone is a
" telecommunications station" . The Council advised the appellant
that it proposed to process the application as relating to a consent
development and not a complying development because the proposal
included building work. The appellant appealed against the Council's
decision to deal with the application as a consent development rather
than as a complying development

Decided:

1. The proposed development is a telecommunications facility.

2. The proposed facility constitutes a telecommunications station
as that term is generally used in common parlance and in the
relevant provisions of the Development Plan.

3. There is nothing in the 'Development Act, the Regulations or Plan

to suggest that a development involving both a change in the use
of land and construction of buildings or structures in accord
with the new use is two separate developments. It is one
development and should be dealt with accordingly.

The proposed development is for one development only, which

development includes both a change in the use of land and the
erection of appropriate structures, which development falls
within the term " telecommunications station" as used in the
Development Plan.

5. The proposed development is a complying development for the

purposes of Section 35 of the Development Act
 1998 EDLR 299

OPTUS MOBILE PTY LTD v CITY OF TEA TREE GULLY

(2)

A development which is complying within the meaning of

subsection 35(1) does not cease to be a complying development
simply because it is subject to the referral procedures set out
in Section 37.

Where a relevant authority receives an application relating to a

complying development which is subject to Section 37, it must
comply with the requirements of that section and that done,
comply with the requirements of subsection 35(1) to the extent
which it is able to do so. If it receives a direction to either
refuse or impose conditions, it must do so. If it receives no
advice or direction it must grant consent in accordance with
subsection 35 (1).

Appeal allowed.

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

By application made pursuant to the provisions of the Planning

Act, 1993, on 22nd May, 1998, Optus Communications (the business name
for Optus Mobile Pfcy Limited) applied to the Council of the City of
Tea Tree Gully for provisional development plan consent to undertake a
development described, in the application as a "26m slimline concrete
monopole and associated equipment". The land to which the application
relates is situated at 16 Famechon Crescent, Modbury North. The land
is presently used in connection with a landscaping business and has a
colorbond shed standing upon. It is proposed that the shed remain and
be incorporated into the development now proposed by Optus.

The land lies within a District Commercial 2 Zone as prescribed

by the City of Tea Tree Gully provisions of the Development Plan.
Within the list of uses prescribed as "complying" within that Zone is
a "telecommunication station". Such a use is prescribed as complying
subject to it meeting the conditions prescribed in Tables TTG/1 and
TTG/4, neither of which tables prescribe conditions applicable to a
telecommunication station. Thus it is reasonable to assume that Optus
regarded its application as being for a complying development with
respect to which the Council was lawfully required to grant
provisional development plan consent in accordance with the provisions
of subsection 35(1) of the Development Act. The provisions of
subsection 35(1) are as follows:-

"35. (1) If a proposed development is of a kind described as a

complying development under the Regulations or the
relevant Development Plan, the development must be
granted a provisional development plan consent (subject
to such conditions or exceptions as may be prescribed by
the Regulations or the relevant Development Plan)."

However, by letter dated 16th June., 1998, the Council's District

Planner advised an Optus agent that the Council proposed to process
the application as relating to a consent development. The letter
read, in part, as fallows:-
 1998 EDLR 300

OPTUS MOBILE PTY LTD v CITY OF TEA TREE GULLY

(3)

^ refer_to the above aPPlication, which has been determined to

be a_. consent type of use- Althou9h a >telecommuni'ca^onTta'^onu
^ ].lsted-^_the. Distrlct commercial 2 Zone asT'co'mplyi'ng'
°Ldevelopment' councn has rec^ved legal ^iae'^ch^t^
?e_. application should be Pressed as a consent"type" ^
development.

The^ legal advice suggests that the listing of

^ecommmlcation.the_station7 the _comPlyi"3"''type^r±lv ellopn, en?
as a

;efe;S^TY. ^_. land-andr "°t^to^buri dln^"le^

use of
"

str uctures, which may associated" with"~the"

be
Tc^our<3Jn^r use.

^fLn o^structures
sidered
ProPosed were
the development"'7ouTda^e
con be to
co mplying. The legal opinion 'also" st^ thTt
the. te"n-_'telecommunication facility: or 'teYecommmi'icati^n
_

^ru.ct^eLw as. l^ed_as . comPly1^ ^velopment"the"ap;Uc:t^n1

.

^Lb; cons3;dered. a. comPlyi^ type'of-deve'lopnTent7°:sua1

fco be

would be-^ied^in\heu^llTf
^ing structure
or
c'tahse^

optus. has. appealed . to this court a^ainst the Council's decision

^n>^.ln;T. ^tl:pplicatlon-ls-^~consenrd TV^
.

^ply^g. development-. . upon the ^Peal"coming^l"^r ^ar^g"^ ^

-Levi^°^°^thrl Clo^IilI orTSrSSa ltea?^S
appe^ed fw_opt^_
a number of
questions
and

7 shall^dea7TndTv iduaTlyappeal
with which
raised

Is it a Telecommunication Station?

oplul. l£Llicensedas_a Tel^°Tication Carrier pursuant to the

21^^tc a^on^AC\^9\^ommonw^^^^^^^
.

SVToTt en. ^±tlo f^ 26mM^"-te

t
p;le t'a^aof^icph'Tsoste^
?!^tc ated.approximately 2m °f Electronic gadgetry" givi^g^a1 ^t^
SL°ft"In^itBf^rporH
^gnals__to <". -tt^rn
and. from_mobile
3^mYsms:^oaf^
telephone handset-s'. ""'"^Thr
de:el^ment is,, to. incl^e--the"ex7sting c7l^d sheTe inpr^d
presumablyl__ additi^ equipn>ent'""wi?l "be"^ce^ea lnlnwhiSe
c:Lm ^:. zrEeu.
. Frs""cati:-;lll°Befln^edit t01"^

:£^£^, ^T^l:ar^. r"^^ ^s

EH^¥^ si|^^^SnS
tL^iewm ^L? ^^:tio^:. b^a:se^;^i^^e:ta^atm^ ^^
?^ ^iFS^^^^^r^
s^^i^S^s^s
for .a part.icular_ pu^ose- The dictionary"refers, ^^yut3^s^s^p
^. n^b.roalc as-t^n9 _statlon being"^n"°esytablTsh°menoty owraY o°rtga^^^n
transmitting radio or television signals"
 1998 EDLR 301

OPTUS MOBILE PTY LTD v CITY OF TEA TREE GULLY

(4)

In my view, the proposed facility constitutes a

telecommunications station as that term is generally used in common
parlance and in the relevant provisions of the Development Plan.

Is it a Complying Development?

Mr Levinson submitted that the Council's decision not to deal

with the application as being for a complying development is correct,
notwithstanding the inclusion of "telecommunication station" in the
list of complying developments applicable to this Zone. The basis of
the submission is that a station is a place and not a building. Thus
the term "telecommunication station" refers to a place rather than to
any buildings which may be constructed upon it. In support of this
submission, he points out that the lists of complying developments
scattered throughout the numerous provisions of the Development Plan
sometimes refer, by their terms, solely to the use of land, whilst
others so refer to land and buildings. As an example of the first
category, he refers to agriculture and general farming. As an example
of the second he refers to detached dwelling, residential flat
building and hotel. When determining whether a particular development
falls within a list of complying developments it is important, he
said, to bear this distinction in mind.

Applying that distinction to the circumstances of this case, a

station is a place, and the term "telecommunication station", as used
in the relevant list of complying developments, is a reference, he
submitted, to a place not to any buildings. It is a reference to the
place where telecommunications occur. Should Optus seek to construct
any buildings or structures upon it it will be going beyond the scope
of the term "telecommunication station" and thus straying from the
field of complying development. Had the authors of the Development
Plan intended to included building or structures within the list of
complying developments, they would surely have used terms such as
"telecommunications facility" or "telecommunication establishment".

Whilst, without doubt, some of the various developments referred

to in the Development Plan may involve nofching more than a change in
the use of land whilst others may involve building work, I do not
think that that leads to the conclusion that a development which
involves both a change of the use in land and building work is two
separate developments. A development is a development. It may
involve a change in the use of the land, a change in the use plus
building works, or simply building work. There is nothing in either
the Development Act, the Development Control Regulations or the
Development Plan which suggests that a development which involves both
a change in the use of land and the construction of buildings or
structures in accord with the new use is two separate developments. It
is one development, and should be dealt with accordingly.

I do not think that the use of the word "station" as part of the
term "telecommunication station" means that the development now
proposed constitutes two developments, namely one involving the
 1998 EDLR 302

OPTUS MOBILE PTY LTD v CITY OF TEA TREE GULLY

(5)

SElSS^, UH^S^Tl ^e^et^^f ^

i^^l=?^^^^^
STa ^ oly^^ch/e71 0pment"incru
des^:th'L aDY^ntges ^s tfh°er ^
?^-s
s .op;SH^!-et°c0^^" ]t°";^n^ed:
^^^iEESi^ .SS?^ ^^
Must The Council Approve It?

Glv en. that. the Pr°P°sed development relates to a cornn^-.

relevant provisions of which are as"7ollows7-"^u11 " OE cne Act' the

"37' (1)
^ trh?uloat.tn s .maLpr-ovide^that where_^ application
for, ^.co.ns:nt. °Lapproval of a pr°Posed deve^e;t';If
,

:utpto:rt ryibed ':lase "

^''"^le'v^
to te "Be8aed

(a) .thl.rll evan^authority must refer the application,

^g:^ ,wluLa-copy of any relevant "^f°rma^o±n
p^videlbLthLapplicant. body P^escribe'd^y
' to a

the. Jegulations (includ^ where^ ^ "'"^0^

Dev^°P--., ;e;;^
.

Str s\t», "

;^ounci11 the

<b>
^teilrelTrn L:utho^tLmust
^ has received a
not make
response
it- ^cision
from"-that:
Lres!:^ bod^-i""-Lt :onTcTts;ee r.ra°tmterthS
mat^ers. for which the referral was made 7but'\f "a
^esponse is not . rece^ed from the body within I
perlolprescribed by the -gulat^Lon^t ww^n ^
pr.Tmed'.. unless.. the body n°tifies~'th7 r"eTeLva^
Thlrit Y. wit the body ^q^les
hin that period that
t±me -b-'of'll:uub"sueyctrieorl
.

a^. :;teri on^of_. Les

t(Stingtheanalx 1te.n:lo n. lqual^to__that Pe;r^°^ ti^e
^^t^L^°^ 'nake"a-
re8'30n8e""^ -nn:u.
5°liwS
Ta(Ldt°;; eS
^e.t,°l
141
Ss :c:9uia t^r my'in relation to ^ °Pe- o.
 1998 EDLR 303

OPTUS MOBILE PTY LTD v CITY OF TEA TREE GULLY

(6)

(a) provide that the relevant authority cannot consent

to or approve the development -

(i) without having regard to the response of the

prescribed body; or

(ii) without concurrence of the prescribed body

(which concurrence may be given by the
prescribed body on such conditions as it
thinks fit);

(b) empower the prescribed body to direct the relevant

authority -

(i) to refuse the application ; or

(ii) if the relevant authority decides to consent

to or approve the development - subject to any
specific limitation under another Act as to
the conditions that may be imposed by the
prescribed body, to impose such conditions as
the prescribed body thinks fit, (and the
relevant authority must comply with any such
direction)."

The subject land lies close to the Parafield Airport at

Salisbury. Pursuant to Regulation 24 of the Development Control
Regulations 1993 and Schedule 8 to those Regulations, land which is
shown on any map in the Development Plan entitled "Airport Building
Heights" must be referred to the Federal Airports Corporation, which
Corporation is empowered to give to the Council a direction to either
refuse the application or to impose conditions upon its approval .
Given that the subject land lies within area "C" on a map forming part
of the Tea Tree Gully Provisions of the Development Plan and
designated "Tea Tree Gully (City) Airport Building Heights", the
Council "must" refer the application to the Federal Airports
Corporation and must comply with any direction which that Corporation
may give.

Mr Levinson submitted that, reading subsection 35(1) and Section

37 together, the direction found in subsection 35(1) that the Council
"must" approve this development as complying cannot mean what it says.
This logically leads, he said, to the conclusion that subsection 35(1)
does not apply to the application in question and that it therefore
cannot be regarded as complying. Whilst I accept that the obligation
imposed upon the Council by subsection 35(1) must be read in the light
of the obligations imposed by Section 37 (when they are applicable) I
do not think that this leads to the conclusion that a development
which is complying within the meaning of subsection 35(1) ceases to be
a complying development simply because it is subject to the referral
procedures set out in Section 37. In my view, such a development
remains a complying development and the relevant authority is required
 1998 EDLR 304

OPTUS MOBILE PTY LTD v CITY OF TEA TREE GULLY

(7)
l
^l.cta ^lth^t in, with th^ requirements
accord
subsection 35(1) of

sub2ect:. however'. to the requir^e"ts of'Section-37" Whe^a^rele^ant

:;;th^7^e^e^I^pli^I:^^in^Lt::c: witF^e3
^^l^ed^v^S
^ich. "sub3ect tosection 37, it . comply
that ~done7 ^piyu lwTtyh w^
ust r^ulr ^ts
oiLthat. Jec^on and'.the"extent"which"rt crneUS^enS
y

subsecli on .35(1). , to isw"able'"o ^oqu^ementisf ^

ToceivlTi at d^t^l^° ^ther ^f^or;'imP°-^nd^io^, "t .u^ ^
^L^ILl tl refcelves advi^ no direction: or
it "grant' provi'^on^must

^^t3splia" ^cr."ri n
r°ir te°""''":LtlhTh: 9"eSi^^°m^
^seCcofm°cnil35i(nl) <Ho^eLer;. / .do. no. thlnk_ that. . the~ CO^^PurTue'd ^
^he., l
counli :Ln_this th. case
_is Properiy °Pen "it'"carm'o"t"de^deou^a?
-

becau.se^he comll ying_ devel°Pment- - °"e' to whi-ch Te;t7onT7 "acpplL11::;

^ ^seZtunacir:p.ly^Ld::lllpment o-^ch"re^;:: t'he'Sn s^t
but

of the Council and then proceed to deal with it "accordingly

CONCLUSION

.
FOL_these. reasons' z have come to the conclusion that the
dev!io pm!nt.. appucation made by °ptus to the~Counciri n"t'hi^caclse w^
s. t°£l"t^^:j:wl/^ ^m¥"MmTY °*±t^e"°^"°"
s^atlon:. __The/ecision of the council fc° deal with 7t~as"lTco^lt
^Sl"^^ ;;d ^lc ategorlze7i t~and''give>''notTce ^^t^saasCaat^n3t
d^op"T waLonLnot~'legall70;en ^^^i" ia; ^CSeTr^
co^nc3:1 . ls___required to. deal with it a- a - Category" l"ldevel^r
3s^je?/?:e^^ry ^cTl oi^hichui:tore:e^::e^ refTi se"Tt7 l'VIfTt"Ts
^;... If, ±1 ls___directed.. to
refuse it' ifc must

^T^. l0 llm pose. condltions-7t. mu'st ^^OProcv^ro n^c' de;erlo^ts

Sana^nses s;;^ct^ho:e^tlonC" ^--^s\r, :^^
^1L^l;^i.t... development "Plan "^se^l'^n1
mustgrant Provisi°^l
accordance with the requirements'oTsubseTti'o'n^'^T) . p^an consent in
ORDER

T.he. .order^of . the court is that the council °f the City of Tea
£SS°^^^^i^flS^i
^^£^:^^^^£
^SS^^i^^^S
as it may receive pursuant to Section 37 of the Act

Counsel for the appellant P M Ross

Solicitors for the appellant Minter Ellison

Counsel for the respondent J A Levinson

Solicitors for the respondent Norman Waterhouse