Optus Networks Pty Ltd v Rockdale City Council [2005] FCA 200 (9 March 2005)

Last Updated: 9 March 2005

FEDERAL COURT OF AUSTRALIA

Optus Networks Pty Ltd v Rockdale City Council [2005] FCA 200

TELECOMMUNICATIONS – application for declarations and injunctive relief – condition of development consent that Meriton underground cables of Energy Australia, State Rail Authority (NSW) and Optus - Council exercised power under NSW statute to modify development consent by deleting condition relating to Optus cables – Commonwealth statutory provision provides that a State law has no effect to the extent to which the law discriminates or would have the effect of discriminating against telecommunication carriers – meaning of "discriminates" – need to examine operational effect or outcome of Council’s exercise of the power – relationship between cl 44 and cl 51 of the Telecommunications Act – undergrounding of cable and power lines is reasonably capable of being considered a reasonable condition of development consent

CONSTITUTIONAL – s 109 – operational inconsistency between Commonwealth and State laws


WORDS AND PHRASES – "discriminates"


Telecommunications Act 1997 (Cth) Schedule 3 cl 44, cl 51,
Environmental Planning and Assessment Act 1979 (NSW) s 96(1A)
Commonwealth of Australia Constitution Act 1901 (Cth) s 109


Telstra Corporation Ltd v Hurstville City Council [2002] FCA 385; (2001) 118 FCR 198 cited
Bayside City Council v Telstra Corporation Ltd [2004] HCA 19; (2004) 206 ALR 1 discussed
Newbury District Council v The Secretary of State for the Environment [1981] AC 578 cited



OPTUS NETWORKS PTY LIMITED AND OPTUS VISION PTY LIMITED v ROCKDALE CITY COUNCIL AND MERITON APARTMENTS PTY LIMITED

N 845 OF 2003

TAMBERLIN J
SYDNEY
9 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 845 OF 2003

BETWEEN:	OPTUS NETWORKS PTY LIMITED (ACN 008 570 330) FIRST APPLICANT OPTUS VISION PTY LIMITED ACN 066 518 821) SECOND APPLICANT
AND:	ROCKDALE CITY COUNCIL FIRST RESPONDENT MERITON APARTMENTS PTY LIMITED (ACN 000 644 888) SECOND RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	9 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Section 96(1A) of the Environmental Planning and Assessment Act 1979 (NSW) is invalid to the extent that it purports to authorise the Council in the present circumstances to delete the conditions of development consent concerning the undergrounding of the Optus cable television lines.

2. The applicants bring in Short Minutes to give effect to the Reasons for Judgment.
3. The first respondent pay the costs of the applicants.




Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 845 OF 2003

BETWEEN:	OPTUS NETWORKS PTY LIMITED (ACN 008 570 330) FIRST APPLICANT OPTUS VISION PTY LIMITED (ACN 066 518 821) SECOND APPLICANT
AND:	ROCKDALE CITY COUNCIL FIRST RESPONDENT MERITON APARTMENTS PTY LIMITED (ACN 000 644 888) SECOND RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	9 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application by the applicants, Optus Networks Pty Limited and Optus Vision Pty Limited (which I will collectively refer to as "Optus"), for declarations and injunctive relief arising from the exercise by the first respondent, Rockdale City Council ("the Council"), of a power to modify a development consent by deleting a condition of development approval in respect of a proposed development by the second respondent, Meriton Apartments Pty Limited ("Meriton"). Optus submits that the Council resolution discriminates or has the effect of discriminating against Optus within the meaning of cl 44 of Schedule 3 to the Telecommunications Act 1997 (Cth) ("Telco Act").

2 Section 96(1A) of the Environmental Planning and Assessment Act 1979 (NSW) ("EP&A Act") relevantly provides that a consent authority may, on an application being made by the applicant, modify a development consent in specified circumstances. This power was exercised by the Council on 15 April 2002 to modify conditions of approval to a residential developmental flats consent which required the developer, Meriton, to underground Optus cable television lines in Bonar Street, Rockdale. The modification to the consent was that the condition was deleted.

3 The following Statement of Facts has been agreed by the applicants and first respondent as follows:

"The Parties

1.	The first applicant, Optus Networks Pty Limited, is a company duly incorporated and entitled to sue in its corporate name and style.
2.	The second applicant, Optus Vision Pty Limited, is a company duly incorporated and entitled to sue in its corporate name and style.
3.	The applicants will together be referred to in this statement as ‘Optus’.
4.	Optus is a carrier for the purposes of the Telecommunications Act 1977 (Cth) (‘Telco Act’).
5.	The first respondent, Rockdale City Council (‘Council’), is a body corporate constituted by section 219 of the Local Government Act 1993 (NSW) and entitled to be sued in its statutory corporate name and style.
6.	The second respondent, Meriton Apartments Pty Limited (‘Meriton’), is a company duly incorporated and entitled to be sued in its corporate name and style.

The poles, powerlines and cables

7.	For at least the entirety of 2000 there were high voltage (11kV) and low voltage power lines belonging to EnergyAustralia (‘EA power lines’) suspended from power poles in Bonar Street, between Thompson Street and Lusty Street, in the suburb of Arncliffe in Sydney in the State of New South Wales (‘the Bonar Street Power Poles’).
8.	For at least the entirety of 2000 there were EA power lines suspended from power poles in Lusty Street (adjacent to 76-90 Bonar Street) in the suburb of Arncliffe in Sydney in the State of New South Wales.
9.	For at least the entirety of 2000 there were EA power lines suspended from power poles in Guess Avenue (adjacent to 95-97 Bonar Street) in the suburb of Arncliffe in Sydney in the State of New South Wales.
10.	By on or about 18 October 2001, and subsequent to the Notices of Approval to Development being issued by the Council on or about 11 October 2000 in relation to Application No. 906/00A and Application No. 1112/00 (‘the Development Consents’ – as referred to further below), the EA power lines referred to in paragraphs 7, 8 and 9 were removed from the Bonar Street Power Poles and the relevant power poles in Lusty Street and Guess Avenue and were placed underground in the same location.
11.	For at least the entirety of 2000 there were 33kV power lines belonging to the State Rail Authority of New South Wales (‘SRA power lines’) suspended from the Bonar Street Power Poles.
12.	In or about 2002, and subsequent to the Development Consents being issued by the First Respondent, the SRA power lines referred to in paragraph 11 were removed from the Bonar Street Power Poles and were placed underground in the same location.
13.	Optus suspended its cables from EA’s power poles in Bonar and Lusty Streets, Arncliffe, in the State of New South Wales.
14.	From about the mid-1990s, and still, Optus’ hybrid coaxial telecommunications cable has been suspended from the Bonar Street Power Poles, being the same power poles referred to in paragraphs 7 and 11 above.
15.	From about the mid-1990’s, and still, Optus’ hybrid coaxial telecommunications cable has been suspended from the power poles in Lusty Street and Guess Avenue, being the same power poles referred to in paragraphs 8 and 9 above.

Meriton’s development applications

16.	On or about 28 February 2000, Meriton applied to the Council for development consent relating to development at 76-90 Bonar Street, Arncliffe (Application No. 906/00A) (‘76 Bonar Street Development’).
17.	On or about 19 April 2000, Meriton applied to the Council for development consent relating to development at 95-97 Bonar Street, Arncliffe (Application No. 1112/00) (‘95 Bonar Street Development’).
18.	On or about 11 October 2000, the Council approved the 76 Bonar Street Development (‘76 Bonar Street consent’) and the 95 Bonar Street Development (‘95 Bonar Street consent’). The 76 Bonar Street consent and the 95 Bonar Street consent were each granted subject to conditions.
19.	Three of the conditions imposed by the Council on the 76 Bonar Street consent were to the effect that:

(a)	Meriton underground all high (11kV) and low voltage EA power lines in Bonar Street and Lusty Street (condition 55);
(b)	Meriton underground the 33kV power lines of the State Rail Authority of New South Wales (‘SRA’) in Bonar Street and Lusty Street (condition 56); and
(c)	Meriton underground the Optus cable television lines in both Bonar Street and Lusty Street (condition 57).

20.	Three of the conditions imposed by the Council in the 95 Bonar Street consent were to the effect that:

(a)	Meriton underground all high and low voltage EA power lines in Bonar Street and Guess Avenue (condition 60);
(b)	Meriton underground the high voltage cables of the SRA in Bonar Street and Lusty Street (condition 61); and
(c)	Meriton underground the Optus cable television lines in Bonar Street (condition 62).

First modification of the Development Consents

21. On or about 22 November 2000, Merion applied to the Council, under section 96(2) of the Environmental Planning and Assessment Act 1979 (NSW) (‘EP&A Act’), for modification of certain conditions of the 76 Bonar Street consent and the 95 Bonar Street consent, including each of the conditions referred to in paragraphs 19 and 20 above.
22. On or about 2 May 2001, the Council notified Meriton that it had modified the 76 Bonar Street consent and the 95 Bonar Street consent. Conditions 55 and 57 of the 76 Bonar Street consent, and conditions 60 and 62 of the 95 Bower Street consent, were not modified (the conditions which required Meriton to place underground both the high and low voltage power lines of EA and the overhead cable television lines of Optus). Condition 56 of the 76 Bonar Street consent and 61 of the 95 Bonar Street consent were each amended as follows:

‘The applicant is to lay conduits, to the requirements of the State Rail Authority, within the footpath reservation of Bonar and Lusty Streets to allow for the future undergrounding of the SRA high voltage cables. The cost of the installation of the conduit will be paid by Council. In this regard, the applicant is to provide Council with full details of SRA requirements and the cost of completing the work. Should Council determine that the cost is excessive, it reserves the rights to have the work carried out by its own contractors.’

The removal of the conditions about undergrounding the Optus cables

23. On or about 11 December 2001, Meriton applied to the Council, under section 96(1A) of the EP&A Act, for the deletion of certain of the conditions of the 76 Bonar Street consent and the 95 Bonar Street consent.
24. On or about 15 April 2002, the Council modified the 76 Bonar Street consent and the 95 Bonar Street consent by deleting condition 57 from the former consent and condition 62 from the latter consent."

TELECOMMUNICATIONS ACT 1997 (CTH)

4 Clause 44(1) of Schedule 3 to the Telco Act deals with carriers’ powers and immunities and provides as follows:

"44 State and Territory laws that discriminate against carriers and users of carriage services

(1) The following provisions have effect:

(a)	a law of a State or Territory has no effect to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular carrier, against a particular class of carriers, or against carriers generally;
(b)	without limiting paragraph (a), a person is not entitled to a right, privilege, immunity or benefit, and must not exercise a power, under a law of a State or Territory to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular carrier, against a particular class of carriers, or against carriers generally;
(c)	without limiting paragraph (a), a person is not required to comply with a law of a State or Territory to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular carrier, against a particular class of carriers, or against carriers generally."

5 Clause 51 of Schedule 3 makes provision with respect to the removal of overhead lines as follows:

"51 Removal of certain overhead lines

(1) If:

(a) an overhead line (the eligible overhead line) is attached to a pole (the first pole); and
(b) the eligible overhead line, or a portion of the eligible overhead line, is suspended between the first pole and another pole (the second pole); and
(c) the installation of the eligible overhead line was or is authorised by:

(i)	this Act; or
(ii)	section 116 of the Telecommunications Act 1991; or
(iii)	Division 3 of Part 7 of the Telecommunications Act 1991, or
(iv)	a repealed law of the Commonwealth; and

(d) there is also attached to the first pole one or more overhead cables, where at least one of the other overhead cables is a non-communications cable; and
(e) each of the non-communications cables is permanently removed (either simultaneously or over a period) and is not replaced;

the owner of the eligible overhead line must, within 6 months after the completion of the last of the removals referred to in paragraph (e), permanently remove so much of the eligible overhead line as is suspended between the first pole and the second pole."

6 The consequence of a contravention of cl 44(1) is that the law has no effect to the extent to which the law has the effect of discriminating against Optus: see cl 44(2)

7 The principal issue raised in this case is whether cl 44 operates to invalidate the decision by the Council to exercise its discretionary power under s 96(1A) of the EP&A Act to delete the two conditions previously imposed on Meriton because the resolutions have the indirect effect of discriminating against a particular carrier, namely Optus.

SUBMISSIONS FOR OPTUS

8 Optus contends that the determination of the Council delegate on 15 April 2002 to delete the Optus conditions and the determination of the Council to impose conditions on Meriton in relation to the power lines of Energy Australia ("EA") and the State Rail Authority of New South Wales ("SRA") but no equivalent condition in relation to the Optus cable, meant that the Council had discriminated because there was a differential treatment of the Optus cable on the one hand and the EA and SRA overhead power lines suspended on the same poles on the other hand.

9 The first submission for Optus is that s 96(1A) of the EP&A Act is a law of New South Wales and that it has operated indirectly by exercise of the discretion to delete the condition with an effect which discriminates against Optus. It is said that the deletion of the condition gives rise to "operational inconsistency" by the exercise of power under an otherwise valid State law which conflicts in its practical operation with a Commonwealth law or an exercise of power under a Commonwealth law. The consequence of such inconsistency is that the State law is ineffective to the extent to which it can be construed to authorise that particular exercise of power: see the Constitution s 109. The focus of cl 44 is directed to the practical operation of s 96(1A): see Telstra Corporation Ltd v Hurstville City Council [2002] FCA 385; (2001) 118 FCR 198 at [42].

10 The applicant refers to and relies on the judgments of the High Court in Bayside City Council v Telstra Corporation Ltd [2004] HCA 19; (2004) 206 ALR 1 (Bayside), where a declaration was made that s 611 of the Local Government Act 1993 (NSW) was invalid to the extent that it authorised a local council to make and recover charges from a carrier in respect of the cables. A declaration was also made that Pt 8 of the Local Government Act 1989 (Vic), which authorised Victorian councils to declare and levy rates on the carrier in respect of land occupied by telecommunications cables, was discriminatory.

11 Optus submits here that although the powers conferred under the New South Wales and Victorian legislation were facially neutral, they were discriminatory in their practical operation and were invalid to the extent to which they authorised such a discriminatory exercise of power.

12 In this case, Optus says that the practical effect of removal of the conditions from the development consents is that the carriers of other cables, namely, EA and SRA, are treated more favourably. This is because EA and SRA are not required to meet the costs of removal, as Meriton is obliged to underground the EA power lines and to facilitate the undergrounding of the SRA power lines, whereas Optus is bound to pay those costs.

13 Optus further says that cl 51 of the Telco Act provides no defence to the Council because cl 51 takes its place within the legislative scheme conferring powers and immunities (Div 8) of which cl 44 itself forms part. Clause 51, it is said, is enacted on the premise that carriers will not be subject to discrimination. Optus also submits that the obligation imposed on Optus by cl 51 is not the same, and does not cover the same ground, as the obligation imposed on Meriton by the conditions of developmental approval. Clause 51 imposes an obligation on the owner of a facility rather than the developer and it is an obligation to remove and not to underground the cable. It is said that cl 51 is analogous to cl 39 of the Telco Act. Clause 39 was considered in the Bayside case, in which the High Court pointed out at [39] that the scheme of powers and immunities created by Schedule 3 includes, by virtue of cl 44, a protection from discriminatory laws in the form of taxes and charges.

SUBMISSIONS FOR ROCKDALE COUNCIL

14 The first submission for the Council is that the State law in the present case, namely, s 96(1A) of the EP&A Act, is facially neutral and cannot be said to discriminate within the meaning of cl 44 of the Telco Act. It is said that the law must discriminate and this does not include the exercise of a discretion under that law. In the present case, it is said that, unlike the position in the Bayside case, there is no State law or pattern of State legislation exemption which operates to discriminate.

15 It is also said that the relevant provisions of the EP&A Act, namely, s 96(1A) and (2), do not indirectly have the effect of discriminating against Optus. Nor is there other State law together with which those laws operate which has any effect on Optus as a particular carrier or as a member of a class of carriers. There is no pattern of treatment discernible in any State law generally which has an effect on Optus as a particular carrier or member of a class.

16 For cl 44 to operate, it is submitted that there must be a law which discriminates or has the effect of discriminating. That is to say, the prohibition is against State laws of a particular kind. The proscribed effect must be found in the law or in its effect. Section 96(1A), which is the law identified by Optus in the present case, does no more than authorise a discretionary decision in entirely neutral terms and does not interact with any other State law so that it can be said that the law discriminates directly or indirectly. The effect of the challenged provision in the present case is simply to enable a consent authority to determine a development application by modifying a consent where it has minimal environmental impact and where other requirements are satisfied. The exercise of such a power cannot constitute direct or indirect discrimination against Optus. The case is quite unlike Bayside. In that case, the State laws were in their effect and according to their terms discriminatory. They were not capable of operation other than in a discriminatory manner.

17 The second submission for the Council is that cl 51 forms part of the statutory context within which cl44 is enacted and that, being part of the scheme in which cl 44 was enacted, the requirements of cl 51 should not be read down by reference to cl 44 because the latter clause contemplates the obligation imposed by cl 51. It is said that the same result could have been achieved by the Council simply not imposing conditions 57 or 62 in the initial consents which required removal of the Optus cables. If the Council had not imposed such an obligation initially in respect of the Optus cables there could, it is said, have been no suggestion of discrimination. Moreover, in the present case, the clause which gives rise to the situation of Optus is expressly provided for in cl 51 and therefore there is no discrimination.

18 Further, it is said that there is no reason to suppose that cl 44(1) was intended to forbid Meriton from seeking to ensure that its own costs are minimised by relying on the clear operation of cl 51, which imposes an independent obligation on a carrier where the factual preconditions to the operation of that clause was satisfied, namely, removal of the non-communications cables.

19 Fourth, it is said that questions of fact and degree are involved in treating communications between carriers and other operators such as SRA and EA differently. The determination of that question is within the exclusive power of the Council.

20 Finally, and in the alternative, it is submitted that the condition originally imposed on Meriton requiring the removal of the Optus line is an invalid condition because it is so unreasonable that no reasonable planning authority could have imposed the condition: see Newbury District Council v The Secretary of State for the Environment [1981] AC 578 at 599-600, 607-608 and 627. It is also said that the Council received legal advice that it would be unable to enforce the condition. Acting on this basis, it decided to delete the condition on Optus. Accordingly, since the condition relating to the Optus lines were not authorised by the EP&A Act in the first place, there could not be any discriminatory effect in enabling a consent authority to rectify the legal position by formally removing the invalid condition order to delete an ultra vires condition.

REASONING

21 The starting point is the language of cl 44(1) of the Telco Act.

22 The first matter to note is that the language of the clause is broad. It is not limited to the direct effect of the exercise of power under a law. It is not limited to direct or indirect effect. Nor is it limited to the direct or indirect effect of the operation of the law itself but rather it extends to the exercise of a power under the law. The expression "under" is extensive and in the context of discriminatory provisions it is appropriate to give it a broad meaning. The provision is not concerned with motive or intent but rather with the consequence or effect of the exercise of authority of power under the law. Schedule 3 is expressly concerned with the powers and immunities of carriers and should be interpreted with this in mind. Accordingly, it is not relevant that s 96(1A) is non-discriminatory on its face. The issue is whether the law confers an authority which, if and when it is exercised, leads to discrimination against the carrier. The proper approach is to examine the operational effect or result or outcome of the exercise of the power.

23 The intended operation of cl 44 is referred to in the Explanatory Memorandum in the following terms:

"The clause is intended to deal with laws which have an indirect effect of discriminating against carriers or users of carrier services, not just a law which, for example, on its face treats a person differently to someone else. The indirect discrimination which this clause is intended to prevent includes the following examples:

• laws that impose a burden on facilities of a carrier that is not imposed on similar facilities (for example a tax on ‘street furniture’ which is in effect discriminatory against carriers because other bodies owning such equipment such as electricity authorities would be exempt from paying that tax);
• laws which have the effect of giving powers or immunities to a person or body in relation to the installation, maintenance or operation of a facility which do not apply to carriers generally (for example, where a public utility may rely on general land access powers given to that utility under State or Territory law to install telecommunication facilities without obtaining the approvals which would ordinarily be required for that activity under the law of that State or Territory); and
• laws which discriminate against people by reason of their use of the facilities of a carrier."

24 The first task is to identify the "law" said to come within cl 44. In the present case, the law is identified by the applicant as s 96(1A) of the EP&A Act, which confers the power to modify a consent.

25 The direct effect of the exercise of the power conferred under s 96(1A) of the EP&A Act is, in the present circumstances, to remove the conditions of the development consents which relate to the overhead cables of Optus. The effect of the exercise of the discretion is to delete the condition concerning the Optus line, and only the Optus line, while leaving the conditions concerning other users of the pole in effect.

26 In considering the indirect effect of the deletion in the circumstances in this case, it is helpful to consider the position of Optus before conditions 57 and 62 were deleted by the Council as a consequence of the modification application by Meriton. This application was an attempt by Meriton to avoid the expense of arranging for undergrounding of the Optus cables as, at the time when the power was exercised by the Council, Meriton, in order to satisfy the condition imposed by Council, was obliged to procure the undergrounding of the Optus cable lines and to procure a similar result with respect to the EA and SRA lines. This meant, in practical terms, that Meriton would need to negotiate with EA, SRA and Optus in order to reach agreement on the terms for removal and undergrounding of those lines. These terms would no doubt involve the exaction of a price or reciprocal benefit to persuade those bodies to permit the necessary work to be done.

27 After the deletion of the requirement affecting Optus, which imposed a condition on Meriton to underground the Optus lines, the result was that Meriton, in practical terms, would need to negotiate the undergrounding with EA and SRA but was no longer required to negotiate with Optus for removal of the Optus cable. The obligation on Meriton to underground the lines carried with it in its practical operation an obligation on Meriton to arrange for this to be permitted by the three authorities. As a result of the deletion of the condition in respect of the Optus cable, there was no obligation to negotiate with Optus because cl 51 of the Telco Act operated to require Optus to remove the cables. This meant that while EA and SRA could demand payment or other terms to carry out the Council conditions in relation to conduits and undergrounding, Optus could not demand terms for removal of its cable. Therefore, the effect of the decision to remove the requirement only as against Optus placed Optus in a disadvantageous position in comparison with the positions of EA and SRA in respect of lines and cables suspended over the same spaces from the same poles.

28 In short, prior to the decision to remove the Optus condition, by reason of the requirements imposed in respect of the lines of these users of these poles, the three entities using the pole for overhead cable were in the same position as regards their entitlements against Meriton to exact appropriate terms. Afterwards, Optus was disadvantaged as a consequence of removal of the condition and the operation of cl 51. This is different and disadvantageous treatment of Optus as a user of the pole when compared to the treatment given in relation to the other entities and their lines. In my opinion, the decision to remove the condition which produced, and was calculated to produce, this result is contrary to cl 44.

29 Rockdale Council contends that cl 51 operates so as to permit such a result, that any different treatment results from the Telco Act itself and not the State law formulated in s 96(1A) and, consequently, Meriton is simply exercising a commercial option open to it enabling it to reduce its expenses in accordance with the express provision in Schedule 3.

30 There is force in Optus’ response that cl 51 must be read in context and as part of the scheme of carriers’ immunities as provided for by Schedule 3, which includes cl 44, so that it would be an extremely odd result if cl 51 operated to oblige Optus to remove cables consequent upon a discriminatory State law requirement that the cables of the other users of the pole did not face similar consequences. Clause 51 operates on the assumption and basis that the removal of the non-communications lines does not occur as a consequence of discrimination contrary to cl 44 of the Schedule. Clause 44 is directed at state laws and not at federal laws that have the proscribed effect. I accept this reasoning.

31 I note that in the principal judgment in Bayside at [39], the Court referred to cl 39 of Schedule 3 where Parliament declared an intention not to protect carriers from State taxes of general application. However, their Honours pointed to the scheme of powers and immunities created by Schedule 3 generally which was to govern the operations of carriers and it observed that the scheme included, by virtue of cl 44, a protection arising from discriminatory State taxes and charges. In my view, cl 44 is not to be read down by cl 51. Rather cl 51 assumes and operates on the basis that the State law in question pursuant to which the other cables have been removed is a valid law and does not contravene cl 44. Clause 51 is not designed to operate as a consequence of an invalid exercise of power under State law nor to relieve States from laws which have a relevant discriminatory effect.

32 Under cl 44, the State law under consideration does not have to be the sole provision which leads to the discrimination. It is sufficient, in my view, to attract the immunity element if the discrimination arising from State law is a contributory element in the differential treatment. This is supported by the language to the effect that the law is invalid to the extent that it would have a discriminatory effect.

33 Clause 51 has a different operation to cl 44. Whereas cl 51 is concerned with the obligations of Optus as a carrier, cl 44 is concerned with the exercise of power by the local Council in deciding to remove a condition of development approval. Clause 51 was not meant to operate to permit a consequence prohibited by cl 44. Clause 44 is not subordinated made subject to cl 51 by Schedule 3. In my view, cl 44 operates to invalidate the State law to the extent it has the proscribed effect and that consequence is not negated by cl 51.

34 The Council submitted that there was no reason to suppose that cl 44 was intended to forbid an applicant for development consent seeking to ensure that its costs are minimised by relying on cl 51 as imposing an independent obligation on a carrier where the factual preconditions to the operation of that clause are satisfied. This is correct, however, if the exercise of discretion enlivens the operation of cl 44 then the State law is of no effect. If the Council had not deleted the condition, Optus would not have been disadvantaged vis-à-vis the two State entities but cl 44 is enlivened by the Council’s exercise of discretion. The developer’s expectations are not relevant for the question posed in this case.

35 In respect of the Council’s submission that there is no clear class of comparators, in my opinion it is reasonably clear that EA and SRA are relevant comparators in that they use the same poles for overhead lines and cables and the lines and cables can be reasonably considered to have similar visual environmental effects.

36 It is said that the Council did not treat EA and SRA equally in its determination of the applications because there was a differential modification of a condition applying to SRA in that it was only obliged to provide a conduit for its 33kV line whereas it was a requirement that EA’s 11kV Power line be undergrounded. In my view, this does not advance the Council’s case. Even if it is accepted that there was some difference in the Council’s treatment as between EA and SRA, this collateral circumstance does not impact on the proper construction and application of cl 44 as regards Optus.

37 In my view, the Council’s submission that the conditions omitted by the Council as a consequence of the modification of the Meriton development consent concerning Optus were invalid in any event and never had any force or effect because they did not reasonably relate to any planning purpose, cannot be accepted because there is no evidence to establish what is essentially a matter of fact for evidence. On its face, the undergrounding of cable and power lines as a condition of development consent, where those lines adjoin the subject development, is a requirement reasonably capable of being considered as a reasonable condition by reason of the visual impact of the cable and power lines. In the absence of evidence to the contrary, having regard to the photographs in evidence, I consider that a council could reasonably take the view that the suspended lines and cables affected the local environment and that the development would be improved by their undergrounding.

38 It is further said that the Council had received legal advice before the deletion that the conditions were invalid and consequently it acted reasonably in deleting the conditions. The first difficulty with this submission is that it misstates the effect of the legal advice. In any event, the same observation may be made in relation to the EA line, for example, yet no deletion of the condition was made in respect of that line. In my opinion, there is no substance in this submission on behalf of the Council.

39 Accordingly, for the above reasons, I conclude that s 96(1A) of the Act is invalid to the extent that it purports to authorise the Council in the present circumstances to delete the conditions of development consent concerning the undergrounding of the Optus cable television lines. I direct the applicants to bring in Short Minutes to give effect to these reasons and I order the first respondent to pay the costs of the applicants. I note that the second respondent appeared as a submitting party to any order the Court might make.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 9 March 2005

Counsel for the Applicant:	S J Gageler SC and J K Kirk
Solicitor for the Applicant:	Minter Ellison
Counsel for the First Respondent:	J A Ayling and Jayne Jagot
Solicitor for the First Respondent:	Abbot Tout
Counsel for the Second Respondent:	Did not appear
Solicitor for the Second Respondent:	Daniel Grynberg
Date of Hearing:	9 December 2004
Date of Judgment:	9 March 2005