Exceland Pty Limited v North Sydney Council [2006] NSWLEC 84

Exceland Pty Limited v North Sydney Council [2006] NSWLEC 84

Equipment shelters satisfying Items 4 or 5 of the Telecommunications (Low-impact facilities) Determination 1997 (Cth) can be low-impact facilities when installed on a building roof; their height is measured by reference to the shelter itself from its floor, not from natural ground, roof level or a supporting platform. Multiple shelters may each be low-impact facilities and their aggregate floor area is not relevant to the status of each individual shelter. A platform necessary to support low-impact shelters can fall within Pt 3 cl 3.1(4) as ancillary for protection or safety, but on the evidence it was not clear that the platform as constructed, including structural members extending...

Jurisdiction
Australia
Judgment Date
21 June 2006
Procedural Posture
Appeals Concerning Deemed Refusal of a Development Application and a S 121 Order / Judgment on Questions of Law and Indication of Further Steps Before Final Orders
Outcome
The Court held that the s 121 order as drafted should not be enforced, further evidence or steps were required concerning the platform, and development consent should be granted to Development Application No 323/05 subject to conditions to be clarified before final orders.
Legal Topics
['development Consent' 'low Impact Telecommunications Facilities' 'equipment Shelters on Building Roofs' 'section 121 Order' 'matters for Consideration Under S 79 C(1)']
['environmental Planning and Development' 'telecommunications Regulation' 'local Government'] ['development Consent' 'low Impact Telecommunications Facilities' 'equipment Shelters on Building Roofs' 'section 121 Order' 'matters for Consideration Under S 79 C(1)']

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Procedural Posture

Appeals Concerning Deemed Refusal of a Development Application and a S 121 Order / Judgment on Questions of Law and Indication of Further Steps Before Final Orders

Legal Issues

  1. 1 ['Whether an equipment shelter on the roof of the subject building would be a low-impact facility within the meaning of the Telecommunications Act 1997 (Cth) and the Telecommunications (Low-impact facilities) Determination 1997 (Cth).' 'Whether equipment shelter height is measured from the roof or supporting platform, or from the floor of the item.' 'Whether more than one equipment shelter on the roof, or on a single platform, can comprise low-impact facilities.' 'Whether aggregate floor area of multiple shelters is relevant to whether an individual shelter is low-impact.' 'Whether the platform is a low-impact facility under Pt 3 cl 3.1(4) of the Telecommunications (Low-impact facilities) Determination 1997 (Cth).' 'If relocation does not require development consent, whether the proposed relocation of telecommunications shelters is an irrelevant consideration in determining Development Application No 323/05 under s 79C(1) of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

Equipment shelters satisfying Items 4 or 5 of the Telecommunications (Low-impact facilities) Determination 1997 (Cth) can be low-impact facilities when installed on a building roof; their height is measured by reference to the shelter itself from its floor, not from natural ground, roof level or a supporting platform. Multiple shelters may each be low-impact facilities and their aggregate floor area is not relevant to the status of each individual shelter. A platform necessary to support low-impact shelters can fall within Pt 3 cl 3.1(4) as ancillary for protection or safety, but on the evidence it was not clear that the platform as constructed, including structural members extending...

Court Disposition

The Court held that the s 121 order as drafted should not be enforced, further evidence or steps were required concerning the platform, and development consent should be granted to Development Application No 323/05 subject to conditions to be clarified before final orders.

Orders

  • ['The s 121 order as currently drafted should not be enforced.' 'The parties should consider the findings and advise the Court what further steps they wish to take concerning the platform.' 'Development consent should be granted to Development Application No 323/05 subject to conditions, with clarification of those...