Australian Financial Review 8/10/03

Hutchison's 3G tower headache
Oct 08
Katrina Nicholas

Hutchison could be forced to dismantle scores of the high-tech mobile phone towers that power its '3' video-phone network after the High Court rejected its application to appeal a court ruling that ordered the removal of a tower in south Sydney.

Hutchison contractors broke into Oatley Park to remove the 22-metre high offending tower at about 5.30am on Saturday after being asked by the phone group to take down the tower early to avoid negative publicity.

Hurstville City Council mayor Vince Badalati said he was not worried about the smashed padlock but was glad Hutchison had begun removing the structure quickly. He said a number of other councils may be able to take similar action against the telco, which launched its third-generation mobile service in Australia in April.

Mr Badalati said Hutchison had erected its '3' tower at Oatley Park, despite Hurstville Council twice rejecting the telco's requests to do so.

Hutchison eventually relied on a maintenance provision in the Telecommunications Act to erect the tower. Usually, building such towers requires a permit from the Australian Communications Authority, which first holds a public inquiry.

However, carriers generally get around this process by relying on an exemption in the act that allows a carrier to "maintain" an existing facility. In the case of Oatley Park, Hutchison had declared that a council lighting pole was an existing facility and had replaced it with a '3' telecommunications tower.

In July, the NSW Court of Appeal ruled that Hutchison was wrong to rely on that provision.

Although Hutchison maintains the Oatley Park tower was a one-off and that its 500 or so other '3' towers around Sydney will not be affected, people close to the appeal say this is not the case.

One source said an affidavit sworn by a Hutchison project manager indicated that many more '3' sites could be affected if the High Court refused to allow the company's appeal. Deacons partner Peter Rigg, who acted for Hurstville Council, also said a number of other sites could be affected.

Other councils understood to be considering legal action of a similar nature include Sydney's Sutherland Shire Council and Adelaide's City of Mitcham. The City of Mitcham's action, which concerns five '3' towers, is expected to be heard in the South Australian Supreme Court soon.

Hutchison said in a statement that it was disappointed by the High Court's decision but intended to comply with orders to remove the facility (at present an equipment shed still remains) within 10 days. A spokesman also said the company's contractors would not have done anything Hurstville Council was not first made aware of.