Hutchison 3G Australia Pty Ltd v City of Mitcham

Post and telecommunications – Telephonic and related services - Structures for telecommunications purposes - Appellant was a licensed telecommunications carrier under Div 3 of Pt 3 of the Telecommunications Act 1997 (Cth) - Appellant installed certain telecommunications facilities ("downlink sites") upon structures ("stobie poles") erected by second to sixth respondents ("ETSA") - Some stobie poles replaced by ETSA at the cost of the appellant for the purpose of installation of downlink sites - Appellant had notified first respondent of intention to do so without applying for development approval pursuant to the Development Act 1993 (SA) - First respondent issued enforcement notices pursuant to s 84 of the Development Act - Appellant challenged notices - Whether either or both of the appellant or ETSA were required to obtain development approval - Whether in relation to the replacement of certain stobie poles the appellant undertook "development" within the meaning of the Development Act - Whether stobie poles when fitted with downlink sites were "towers" within the meaning of cl 6 of Sched 3 to the Telecommunications Act - Whether replacement stobie poles were "towers" - Whether downlink sites were "low-impact facilities" within the meaning of Sched 3 to the Telecommunications Act - Whether downlink sites constituted "co-located facilities" for the purposes of Pt 7 of the Schedule to the Telecommunications (Low-impact Facilities) Determination 1997 (Cth) ("the Determination") - Whether noise emitted by an equipment shelter is relevant to "the levels of noise that are likely to result from the operation of the co-located facilities" for the purposes of Item 2 of Pt 7 of the Schedule to the Determination.

Constitutional law (Cth) – Inconsistency of laws - Telecommunications Act did not "cover the field" of the regulation of the installation of the appellant's downlink facilities to the exclusion of the Development Act - Federal statutory policy included the efficient establishment and maintenance of nationwide and international telecommunications facilities in Australia - Relevance of statutory policy of co-operation between federal and State instrumentalities - Whether necessary to resolve possible constitutional questions of inconsistency of laws.

Words and phrases – "low-impact facility", "tower", "co-located facilities", "facility", "to undertake development".

Judiciary Act 1903 (Cth) – ss 78A, 79.

Telecommunications Act 1997 (Cth) – s 7, Sched 3.

Crown Proceedings Act 1992 (SA) – s 9(2).

Development Act 1993 (SA) – ss 4, 32, 33, 49A, Sched 14A.

Electricity Act 1996 (SA) – s 23(1)(j).

Constitution – s 109.