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Date Posted: 21:44:13 04/03/03 Thu
Author: Australian Financial Review 03/04/03
Subject: Court permits 3G Tower on residential roof without owner's permission
In reply to:
's message, "This thread for NEWS ARTICLES" on 21:40:22 04/03/03 Thu
In an unprecedented decision, the Victorian Civil and Administrative Tribunal has allowed a telecommunications company to install a mobile phone facility on the roof of a Melbourne apartment building without the owner's permission.
According to national law firm Hunt & Hunt senior associate Phillip Nolan, the decision opens the way for telecommunication carriers to install similar facilities without permission or without planning permits on any residential property at any time.
"The decision means in practice that carriers can install mobile phone facilities on people's homes without giving them notice of their intention to do so," Mr Nolan said. "Home owners should be very concerned by this decision."
The VCAT decision stems from a case in which the apartment building owner, the Victorian Director Of Housing, would not give permission for Hutchison 3G Australia Pty Ltd to install what it described as a low-impact mobile phone facility on a high-rise public housing estate in Melbourne's bayside suburb of St Kilda.
The installation consisted of what looked like "a forest of antennae", with 14 poles, six panel antennae and a parabolic antenna, and the Director of Housing believed it was not low impact.
However, the phone carrier went to the property and installed the facility on the roof anyway. It also constructed a fitout room for its equipment on the roof and a large amount of cabling on the property at 150 Inkerman Street.
Hunt & Hunt, on behalf of the Director of Housing, sought a declaration from VCAT that the facility was not low impact and that it should therefore go through the planning process and require a planning permit and consultation.
The apartment block owner also sought a decision on the construction of the equipment shed on the building's rooftop, which it also opposed.
VCAT member Jeanette Rickards determined the case on Monday and found that a planning permit was not required as the facility was low impact.
She decided that an equipment shed was allowed to be built "above ground", which included the rooftop of any building, without the owner's permission, Mr Nolan said.
The decision is at odds with the recently introduced code governing communication carriers.
The Deployment of Radiocommunications Infrastructure Industry Code reduces some of the powers previously given to phone carriers by the federal government in 1997.
Under the new code, phone companies had to consult communities and councils before planning new mobile phone towers or other facilities, Mr Nolan said.
The code was introduced to help reduce the visual blight to residents and tenants and, in some cases, avoid reductions in property values because of concerns about radiation and the perception of adverse health effects.
Mr Nolan said that under the code, landowners and occupants of a building had to be given notice of a carrier's intention of installing low-impact facilities. This brought it into line with the requirement for installing major facilities.
Mr Nolan said VCAT's interpretation of the federal legislation could now be argued in other states and territories and was expected to be used by all carriers to undertake installations on residential
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