Article
November 26, 2020
In the recent judgment of Melbourne City Council v Telstra Corporation Limited [2020] FCAFC 200, the Full Court of the Federal Court of Australia (FCFCA) ruled the new Telstra payphone cabinets (comprising a shelf structure with open glass sides, housing a payphone and a digital screen) are designed to display commercial advertising, requiring planning permission in Melbourne and Brisbane.
The decision arose in the context of an appeal from the Federal Court’s decision in Telstra Corporation Limited v Melbourne City Council [2020] FCA 305 (Federal Court decision).
Telstra has been involved in a long-running dispute against the Melbourne, Sydney and Brisbane City Councils over plans to install 1,860 new payphones featuring large LCD screens capable of screening four advertisements a minute.
Telstra filed proceedings in the Federal Court of Australia in May last year to clarify the law after Melbourne City Council refused 81 applications for JCDecaux to upgrade Telstra payphones, including new 75-inch digital advertising screens across the municipality.
Permit exemption for ‘low-impact facilities’ under Victorian Planning Schemes
Clause 62.02-1 of Victorian Planning Schemes provides:
Any requirement in this scheme relating to the construction of a building or the construction or carrying out of works, other than a requirement in the Public Conservation and Resource Zone, does not apply to:
…
Clause 62.01 of the Victorian Planning Schemes provides:
Any requirement in this scheme relating to the use of land, other than a requirement in the Public Conservation and Resource Zone, does not apply to:
Clause 52.19-1 states:
A permit is required to construct a building or construct or carry out works for a Telecommunications facility. This does not apply to buildings and works for [among other things]:
Under item No. 1, Part 6 of the Schedule to the Telecommunications(Low-Impact Facilities) Determination 2018 (Cth) (Determination)[1], a ‘public payphone cabinet’ is a ‘low-impact facility’ if all of the following criteria are met:
a) used solely for carriage and content services; and
b) not designed for other uses (for example, as a vending machine; and
c) not fitted with devices or facilities for other uses; and
d) not used to display commercial advertising other than advertising related to the supply of standard telephone services
[Emphasis added]
It follows if the new payphone cabinets constitute a ‘low-impact facility’ for the purpose of the Determination, they are exempt from requiring planning permission under Victorian Planning Schemes.
Federal Court decision
In the Federal Court decision, Telstra argued the new payphone cabinets constitute ‘low-impact facilities’[2] for the purpose of the Determination because they were not used to display commercial advertising ‘at the time of their installation’, and subsequent planning approval would be required for them to do so (for example, under clause 52.05 of Victorian Planning Schemes relating to signs).
The councils argued the payphones were not ‘low-impact facilities’ because they would display third-party advertising, and should therefore be subject to the usual planning approval process.
The Federal Court constituted by Justice O’Callaghan rejected the councils’ argument, preferring the view the new payphone cabinets constitute ‘low-impact facilities’ within the meaning of the Determination when the digital screens were used only to promote the standard telephone service.
FCFCA’s decision
Melbourne City Council and Brisbane City Council appealed this decision with the FCFCA constituted by Justices Gleeson, Charlesworth and O’Bryan. They set aside O'Callaghan J’s ruling, determining ‘the primary judge erred in characterising Telstra’s intended use of the New Payphone Cabinets as a future, conditional intention to display commercial advertising’. [3]
The FCFCA went on to say ‘the primary judge erred in failing to find that one of the functions that the proposed New Payphone Cabinets were designed to serve is commercial advertising’. [4]
The FCFCA found the form of proposed advertisement was not limited to standard telephone services advertising and as a consequence the new payphone cabinets do not satisfy criteria (d) of the Determination. It follows the new payphone cabinets do not constitute ‘low-impact facilities’ for the purpose of the Determination and Schedule3 to the Telecommunications Act 1997.
The consequence of this ruling is that a permit is required to construct a building or construct or carry out works for the new Telstra payphone cabinets under clause 52.19-1 of Victorian Planning Schemes.
Provided a permit is granted (and in turn, the associated buildings and works meet the requirements of clause 52.19), using the new Telstra payphone cabinets will not require a permit. [5]
Please contact one of our team if you require assistance with these types of applications.
[1]Superseding the Telecommunications (Low-impact) Facilities Determination 1997 (Cth). Section 31 of the Interpretation of Legislation Act 1984 would require the reference in the 1997 Determination to be construed as a reference to the 2018 Determination.
[2] Telecommunications (Low‑impact Facilities) Determination 2018 (Cth) sch 3.
[3] Melbourne City Council v Telstra Corporation Limited [2020] FCA 200 at [171].
[4]Ibid at [172].
[5]Other than in the Public Conservation and Resource Zone, see clause 62.01.
