Litigation

Join your local community or residents group or form a local community/residents group and become incorporated.  Groups nationwide have been threatened with huge legal costs if they lose, after what happened with Save the Sounds Stop the Wash residents  vs. Transrail Cook Straight Fast Ferry, where Judge Tredwell's decision stated that the residents were being frivolous and vexatious in their actions and awarded $300,000 costs against them, which meant that not only did they have to pay their lawyers and experts but they had to pay for the Transrail lawyers, subsequently community groups nationwide have received opposition lawyer letters mentioning that their actions are frivolous and vexatious.

 

Also of concern was that Judge Tredwell's decision highlighted the National Importance clause in the RMA, Resource Management Act, which seemed to override all other RMA clauses.

 

Subsequent action by Guardians of the Sounds has reduced the speed through the channel, despite Councillors individually having been threatened of being sued for loss of income.

 

If you are considering action you can also try your local Community Law Centre.

 

Community groups may be entitled to funds for legal fees from Environmental Legal Assistance Funds.

 

The Resource Management Act 1991, RMA,

 

Resource Management Amendment Act 2005

 

When landuse is outside the council rules and city plan a resource consent is needed.  The application can be notified, have limited notification or be non-notified.

 

Notification - is usually advertised in local newspapers, a notice placed outside the site and copies may be sent to affected neighbours.

 

Limited Notification - The Council decides who the effected parties are and only accepts their submissions.  The public recourse is through a judicial review which only looks at the process rather than the content.

 

Non-Notification eg - where the council deems that the adverse effects resulting from the proposal are no more than minor and the neighbours have consented. The public recourse is through a judicial review which only looks at the process rather than the content.

 

f a cellsite is being notified in the public notices section of the local Newspaper you have the right to get a copy of the proposal and make a submission.    Be assured that public consultation never guarantees that the council or corporation will take on board your position.  Be prepared to take it further to the hearing stage, and would recommend employing a QC Queens Councillor for this stage, use one that is knowledgeable in RMA and may have done work in this area for the council as they know the system.  It is better spending the money here than going onto appealing in the Environment Court.  If you win your position in the hearing then if the decision is appealed by the teleco then the council have to defend their decision in the Environment Court and will wear most of the cost, you can still remain a party to the decision and have your day in court if you want to pay, but the overall cost should be much less.

 

If you are making submissions on a city, town or regional plan, go and talk to the planners and check out other parts of the plan that you can make submissions on, to cover all your bases because you might be restricted by the terms of reference of one part of the plan, but can put your ideas forward in another.  You can take your submission to the Environment court if you object to the final council decision.

 

McIntyre and others v the Christchurch City Council decision 15/96 dated 5/3/96  set a president of limiting the cell site facility emissions to 2 µW/cm²

 

With the Shirley Primary School v Telecom Mobile Communications Ltd decision Shirley Residents Group Incorporated were disappointed that and appeal was never made with Human Rights and that existing case law from McIntyre (above) was disregarded.

Spanish High Court Decision here...

Orange in phones mast row

Appeal by Vodaphone Ltd against the East Devon District Council decision

IGEF-expert Mr. Wulf Dietrich Rose won a case against mobile communications company as per verdict of the High Court of Justice (Federal Court) of Austria ) (Az 6 Ob 69/01t; verdict of 26 April 2001).  He proved through his studies and researches that mobile radiation represents serious health risks to the nearby living population like cancer, brain tumours, genetic problems, and disformity of new borns.

Mobile Phones and Mobile Phone Networks - Potential Litigation or Law Suits (under phone tower heading)

Toxicogenomics and toxic tort personal injury litigation.  Gene expression changes that fingerprint exposure to particular classes of toxic substances.
 

Kane v. Motorola In this case, Robert Kane, an engineer for Motorola, alleges that he developed a brain tumour from exposure to radio frequency EMF which resulted from his testing of an experimental mobile phone antenna. Also named as defendants are Kane's manager, the principal designer of the antenna, and Motorola's chief research scientist for mobile telephones and antennas.

Rittman v. Motorola In August 1995, attorneys for the estate of Dean Vincent Rittman and family who survived him filed a lawsuit against several mobile telephone manufacturers and marketers and two cellular service providers, alleging that Mr Rittman's fatal brain tumour was caused by his use of mobile telephones. This case was filed in Tarrant County, Texas. Listed as defendants are Motorola, Inc; NEC USA, Inc; NEC America, Inc; General Electric Company; Ericsson, Inc; GTE Corporation; GTE Mobilnet, Inc; GTE Mobilnet Service Corporation; GTE Mobilnet of Houston, Inc; SBC Communications, Inc; Southwestern Bell Mobile Systems, Inc; Discount Communications, Inc; and Parkinson Electrical Company. The complaint contains claims for negligence, strict liability, breach of express and implied warranty, civil battery and violations of the Texas Deceptive Trade Practises Act (DTPA).


Also, a leading research laboratory in the UK has formally advised Motorola's German headquarters that it intends to file an action against Motorola for failure to comply with certain sections of the Consumer Protection Act 1987. The impending action alleges that Motorola has failed to affix warning labels to its mobile phone handsets advising consumers that prolonged usage may give rise to adverse health risks. The Consumer Protection Act 1987 is derived from a European Directive imposing, a duty on producers and distributors to ensure that products made available to the public are safe, or and that warning labels are affixed where there is any doubt.

So what do insurance companies think about all this litigation? A giant Swiss Insurance company, Swiss Re, has raised serious concerns for the insurance industry as to future liability for claims against health damage caused by electromagnetic emissions including mobile phones.  Up to now, the prevailing legal opinion is that industries can only be liable if science provides conclusive proof that weak electromagnetic fields impair health. The question on whether or not EMF's are a real hazard is no longer an issue when it comes to possible future litigation pay outs for insurance companies. The EMF problem is more dangerous and more threatening for the insurance industry than has generally been supposed. Swiss Re's report comes to the conclusion that on the basis of present knowledge alone, it must be expected that the plaintiffs will win suits dealing with this issue. There is obviously the risk that new research findings will demonstrate electromagnetic fields to be more dangerous than has been assumed.

This follows a recent incident by Australia's leading insurance company, Mercantile Mutual, who objected plans by Vodaphone to build a transmitting tower on its Sydney office block. In its formal objection it said: "there is an increasing body of scientific and medical evidence of the risk to health posed by exposure to emissions from telecommunication base stations. The risk to health may expose us as owners of the property to liability for injury to persons who are even alleged to have been exposed to emissions from the base station". Of note, according to a recent Telstra report mobile phone handset signals are between 100 and 46 000 times higher than maximum base station transmitters!

 

(19) of the Airtel (also known as Vodafone) insurance policy excludes any legal responsibilities with regard to "personal damages, illness, disability of any type, death, mental illness, anguish, mental or physical pain, mental deterioration or mental or physical disorder or any mental or physical disability or symptoms caused or said to have been caused by or attributed to the continuous use of mobile telephones."

 

In this clause it is clearly recognised by the insurance companies that the radiation emitted by the mobile phones are a BAD RISK FACTOR and are not prepared to cover it in their policy.