The Director of Housing appealed to the Supreme Court to overturn an earlier decision by the Victorian Civil and Administrative Tribunal (VACT) ruling that construction was legal, according to federal telecommunications legislation that overrides local and state planning laws.
Supreme Court Justice Balmford upheld the appeal ruling that VCAT should reconsider its decision in light of the proceedings.
According to Phillip Nolan, Melbourne solicitor with legal firm Hunt and Hunt, acting on behalf of the Director of Housing, Optus and Telstra teamed up instructing a QC to attempt to intervene in the case under amicus curiae (friend of the court) provisions as Hutchison sought leave to appeal the decision.
Nolan said Optus and Telstra attempted to intervene in the case on the basis that the case was of importance to the telecommunications industry in Australia generally.
However, Judge Balmford rejected the application, ordering the two carriers not to interfere in the matter.
The case is one of around nine incidents in which Hutchison -- which is struggling to offer 3G coverage to match conventional 2G GSM services -- has clashed with residents and local councils over placement of its transmission equipment over the past two years.
However they are only the latest in a turf war between carriers and local government groups that has continued for the last six years despite the introduction of ACA codes and federal legislation to address the conflicts in July 1997.
Amendments to the Telecommunications Act introduced during Senator Richard Alston's tenure as Communication Minister in July 1997 favour carriers. Under the Telecommunications Act 1997 carriers are not required seek local council approval to construct mobile transmission equipment as long as it fell within federal government's definition of 'minor' as defined by its "low-impact determination".
At the time the legislation inflamed local government groups as it appeared to steam roll the rights of local resident groups. They also objected to the legislation on grounds that it contained "maintenance" provisions that they argued would give carriers a loop-hole to upgrade and replace facilities without seeking development approval.
Hutchison early this month removed a 22-metre high structure it had built in Sydney suburb of Oatley Park. Hutchison faced strong resistance from the community over the towers placement but the carrier defended the work under the maintenance provision of the Telecommunications Act. Local resident action groups and Hurstville council successfully defended a High Court challenge to an earlier decision by a NSW court which determined that Hutchison had used the maintenance provision of the low impact determination incorrectly.
Hutchison also recently resolved a dispute with the City of Monash which began in June 2002 when the carrier installed 3G infrastructure close to a sporting pavilion on the grounds of the Glen Waverly Hawks sports club.
The council objected to the facility claiming it was too large to comply with the federal legislation's low impact determination and set a date to take action against Hutchison in the VCAT in March 2003.
Attempting to head off the legal action Hutchison 3G advised the council it intended undertake "maintenance" activity on the site and upgraded equipment on the site. The council questioned Hutchison's definition of the work as maintenance and referred the matter to the Telecommunications Industry Ombudsman (TIO).
Both VCAT and the TIO upheld the council's views on the matter. However, reluctant to risk escalating legal action by ordering Hutchison 3G to remove the facility, the council entered into "mediation" with the carrier over the structure.
The dispute was resolved after Hutchison 3G agreed to house its discreetly within a new strutcture containing a first aid room that it agreed to donate to the sports club. It also agreed to lease the site for AU$20,000 per year and provide public liability insurance to the value of AU$10 million.
The case that the Director of Housing recently fought against Hutchison 3G Australia in Victoria's Supreme Court also tested whether the mobile equipment falls within the definitions provided by theFederal Telecommunications Act's low impact determination.
It is understood that the Director of Housing was concerned that the extensive array of antennas and cabling built on its St Kilda property would inhibit its ability to carry out maintenance on the public building.
Optus and Telstra's interest in the case could indicate that the Australia's number one and two telecommunications providers are getting nervous about the number of decisions beginning to run against the interests of carriers.
If so, the discontent is coming from both sides of the figurative fence.
Monash City councillors expressed their frustration with federal telecommunications laws in September. One Councillor expressed his concern that carriers had the ability to install facilities on private properties simply by classing them as 'minor'. The Mayor responded by informing him that several groups had been seeking reforms to the legislation including the Local Government Association.
That call was echoed during the University of Melbourne's annual property conference last July. Hunt and Hunt called on the Federal government to address legal confusion brought on by its amendments to the Telecommunications Act.
"Given the uncertainty that has arisen out of the many conflicting decisions, the time has come for the Federal Government to intervene and address the inadequacies inherent in the Federal Legislation, codes and determinations in the area of mobile phone towers," wrote the company in a paper it prepared for the event.
