DISPUTE – Communication Tower

The ARQRV sought legal advice on the following question. .

A village is approached by a telecommunications company to erect a mobile ‘phone transmitter within the village.

After consulting with the residents the scheme operator declines the approach.  The telecommunications company approaches the owners of the property next door with the same tower erection proposition. The owners indicate their willingness to permit the erection of the tower.  Planning Permission is sought from the local council who write by registered post to interested parties,  including the village, asking for comment. The registered letter was signed for by a member of village office staff but its having been received kept from residents and subsequently denied as having been received by village management. Planning signs are erected on the site but allegedly in such a manner that they are not readable from pathways used by the public from whom objections might be expected. The council (who later, apparently, express surprise) receive no objections to the erection of the tower on the boundary of the village.  Village residents eventually become aware of the impending tower erection when they see workmen and engage them in conversation. Village management still maintain that no registered letter was received. A resident had a search conducted at his expense by Australia Post and establishes that the registered letter was received at the village office together with when and who signed for its receipt.  Village management, after being presented with this information, concede that the letter was in fact received.  At the time of writing I am led to believe that the concrete foundation has been laid but construction of the tower not commenced. Obviously this could change at any time!

So, again, to the question.

Do the residents have any redress against their scheme operator for apparently concealed the plan to construct the telecommunications tower on the boundary of their village? The acknowledge that the council and telecommunications company have probably acted within the procedure they are obliged to follow except perhaps for the orientation of the planning notices erected on site?

 

Response from our ARQRV Legal Advisor

Unfortunately I am not really qualified to comment on this one as it relates more to planning law than retirement village law.  The residents might need to contact a firm that specialises in planning objections to phone towers, eg Certus Legal in Brisbane (3106 3016,inbox@certuslegal.com.au).  They have published some information about these issues here:

http://www.certuslegal.com.au/business/dispute-resolution/how-to-object-to-a-mobile-phone-tower/

My only thoughts are:

(a)  It seems strange to me that the Telco was only required to send one letter to the village operator, rather than individual letters to the village units.  The residents should seek advice about that (and about the signage that was potentially non-compliant).

(b)  I don’t think the residents should necessarily ‘give up’ on the idea of opposing the tower even though relevant objection dates may have passed.  It may be possible to get extensions in some circumstances? Again, the residents should seek appropriate advice.
(c)  If the planning rules have been complied with, the operator’s failure to notify the residents of the letter they received could potentially amount to negligence.   However to sue someone for negligence you need to be able to demonstrate that you have suffered some form of quantifiable economic loss.  So the residents would need to be able to prove that the tower was going to cause them some form of economic loss, and that they had a viable chance of stopping it had they been notified.  Again, advice from suitable professionals may be required.

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