FW: [MLB-WIRELESS] Doh!!

[Dan Flett]

Thanks for resending my email Steven.  I thought I should resend it in
it's entirety anyway. :)

-----Original Message-----
From: Dan Flett [mailto:conhoolio at hotmail.com] 
Sent: Wednesday, 28 July 2004 15:06
To: melbwireless at wireless.org.au
Subject: FW: [MLB-WIRELESS] Doh!!

Hi Alex,

Check this out:

Maciszewski v Casey City Council [2003] VCAT 402 (10 April 2003)

http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/vic/VCAT/2003/402.htm
l

This is the case where Mark Maciszewski took his Council to VCAT and the
determined that he didn't need a permit for his 13.7 metre amateur radio
mast.

Some quotes from the case:


--- START QUOTE ---

A LITTLE BIT OF HISTORY 
18. In those wistful days when the Planning Tribunal decisions were
little longer than a page, radio masts required by ham radio operators
to pursue their hobby were consistently held to be as-of-right uses,
ancillary to domestic use of a dwelling in a residential zone. This is
reflected in the following decisions: Ryan v City of Heidelberg (1978)
12 VPA 340; Jones v City of Sunshine (1980) 19 VPA 320 and Phelan v City
of Mordialloc (1980) 17 VPAD 5. Each of these decisions held: 
(i) hobbies which may reasonably be conducted at home must be considered
as adjunct of the use of a house for the purpose of a dwelling so that,
provided hobbies can be carried out as a concomitant of normal
residence, no town planning permit is required; 
(ii) amateur radio is a hobby which may reasonably be conducted at home
incidental to normal residence; and 
(iii) no permit is needed for a radio mast which is an adjunct to a
family hobby, recreation or education and not specifically excluded by
the zoning. 
19. Following that, a specific definition of radio mast was inserted
into the planning scheme which read something to the following effect: 
A mast for radio transmission or reception in a dwelling that is any of
the following: 
* With antenna, more than 14 metres above the ground. 
* If attached to a building, with antenna, more than 5 metres above the
roof line. 
* Including antenna, wider than 6 metres. 
* Excluding antenna, wider than 50 centimetres at any point exceeding 3
metres above the ground. 
20. Mr Vallis and Mr Cripps from the City of Banyule appeared as
observers for the entire day of these proceedings. They advised the
Tribunal that whereas, in the days preceding the VPP format planning
scheme, there was a link between this definition and the zoning, whereby
a radio mast which exceeded these dimensions required planning
permission, the translation across to the VPP format schemes has not
seen that trigger translated across. In other words, there appears to be
no requirement in the VPP format planning schemes in a residential zone
(sans heritage or design development overlays) for a planning permit for
a radio mast that exceeds those abovementioned dimensions. 

---- END QUOTE ---


In the Statutory Rules (Building Regulations 1994) you quoted, item 4.31
(masts, poles) was added in 2001 according to this version:

http://www.dms.dpc.vic.gov.au/Domino/Web_Notes/LDMS/PubLawToday.nsf/b12e
276826f7c27fca256de50022686b/ebe30a7e9ea59a42ca256ea1001e37c1/$FILE/94-8
1sr066.pdf

But as far as I can see none of the parties in the above case took them
into account.  I'm no lawyer though. B  I definitely think you should
seek further advice on your situation though, and tell whoever you ask
for advice about this VCAT case.  It's interesting that Monash is only
talking about Building Regulations, they're not saying anything about
Telecommunications Facilities, as the other councils did.

Also of interest:

http://www.austlii.edu.au/au/cases/vic/VCAT/2002/471.html
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/vic/VCAT/2003/511.htm
l

Rulings saying a satellite dish is not a telecommunications facility,
also points are made that hobby or domestic use of a property are
reasonable and don't require permits.

Also note this news:

http://mdrc.org.au/apcnews/apcnews-2003/APCNews-20030507.html

The City of Banyule dropped it's demands against another amateur and his
mast after the Mark Maciszewski case.

Good luck!

Dan

 

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