Posted on April 8, 2020 by Sue Puckeridge

New Payphone Cabinets – When is Development Consent Required?

In a decision that will effect every local government area in NSW, the Federal Court has held that Telstra does not require development consent to install about 1,800 new payphone cabinets throughout Australia (‘New Payphone Cabinets‘).  These payphone cabinets could be described as a type of “smart payphone cabinet” – able to provide telephone calls, Wi-Fi services, mobile charging services, near-field connectivity services and containing electronic LCD screens through which digital advertising content can be delivered (including on electronic screens on the reverse of the cabinet) .

However, before the New Payphone Cabinets can be used for commercial advertising, Telstra must obtain development consent if development consent is required.

Background

In proceedings commenced against the Melbourne City Council (‘MCC‘), Telstra sought a declaration that the installation of New Payphone Cabinets is an activity authorised by the Telecommunications Act 1997 because it involves the installation of low-impact facilities within the meaning of Schedule 3 of the Telecommunications (Low-Impact Facilities) Determination 2018 (Cth) (‘Determination‘).  If the New Payphone Cabinets are ‘low-impact facilities’, planning approval for their installation is not required despite a law of the State to the contrary.

Planning approval had been sought for the commercial advertising component of 81 New Payphone Cabinets but refusedby MCC; one of the grounds being that theNew Payphone Cabinets were not low -impact facilities.

Both the City of Sydney and Brisbane City Councils were also parties to the litigation.  At the time of the litigation, Telstra had not made any applications to those councils for similar planning approval, although it intends to do so.

Findings

Under Part 6 of the Schedule to the Determination a ‘public payphone cabinet or booth’ or a ‘public payphone instrument‘ is a ‘low-impact facility’ if certain criteria are met, namely the facility is:

1. used solely for carriage and content services; and
2. not designed for other uses (for example, as a vending machine); and
3. not fitted with devices or facilities for other uses; and
4. not used to display commercial advertising other than advertising related to the supply of standard telephone services (or displayed as part of the supply of a content service in the case of a public payphone instrument).

The Court rejected the Councils’ arguments that Telstra was seeking to rely upon the statutory provisions relating to public payphones so as to erect electronic billboards or ‘digital street furniture’ (for which planning approval was required).

The essence of the Councils’ argument was that because Telstra intended to display commercial advertising on the New Payphone Cabinets in the future, even before the grant of planning approval for that use, the New Payphone Cabinets could not fall within the definition of a ‘low-impact facility’.

The Court took the view that the definition criteria for a ‘facility’ for the purposes of the Determination are concerned with the functions of the facilities, not with the future or conditional intention of their use (being the future third party commercial advertising use) and found that the Councils’ case was ‘an improbable one, …deriv[ing] no support for the language of the Telecommunications Act or the Determination.” (at [115]).

Whether or not the structure could be used to display commercial advertising is in the hands of each local authority.  As the local authorities have not yet granted planning approval for this use, it is a hypothetical question.

Further, MCC conceded that each component of the New Payphone Cabinet, other than the USB charger, is designed for and can be used for either a carriage service or a content service but argued that in determining if the New Payphone Cabinets were ‘low-impact facilities’, regard needed to be had to the design and the use to which they would  be put after installation. The Court disagreed and accepted Telstra’s argument that advertising was both a content service and a carriage service for the purposes of the Determination.  Accordingly, the fact that the  New Payphone Cabinets were designed for the purpose of third-party commercial advertising did not mean that that they failed criterion (b) or (c) of the Determination.

Impact of the Decision

The decision gives Telstra wide scope to install the New Payphone Cabinets on any public land in NSW.  Whether or not it does so is likely to be dependent not only upon the suitability of the location for the delivery of telecommunication services but also the advertising value of the location.

In NSW, applications for development consent for commercial advertising on the New Payphone Cabinets will be subject to State Environmental Planning Policy No 64—Advertising and Signage (‘SEPP 64‘).  Clause 3(1)(a) and Schedule 1 of SEPP 64 sets out the assessment criteria for advertising and signage.  The majority of  these criteria are arguably focused on the impacts of the advertising structure, rather than the advertising itself.  Accordingly, where advertising is generally permissible under SEPP  64 and Councils’ LEPs, there may be limited grounds on which a Council can ultimately refuse granting development consent.  This in itself raises the question as to how hypothetical or improbable the intended use really is.

To read the case in full, click here: Telstra Corporation Limited v Melbourne City Council [2020] FCA 305.

To discuss this article, please leave a comment or call Sue Puckeridge on 02 8235 9702.