A provider of a mobile phone network asks for a building permit for a base station antenna. Such a project is covered by the building act. There is a regulation on Non-Ionising Radiation Protection (ICNIRP) based on the Federal Immission Protection Act. This regulation provides safety distances. In the given case the legal safety distance to the next dwelling houses is kept.
In the public a broad discussion is going on if the existing provisions are sufficient to protect human health. Some neighbours founded a citizen’s initiative, which is supported by members of the city council. The initiative refers to regulations of other countries which demand longer distances and cite scientists who consider the German regulation not being in accordance with the fundamental right to physical integrity.
The city acting as the competent public authority refuses the permit. This decision is reasoned as follows: The danger coming from Non-Ionising Radiation is not scientifically established. In such a situation as a rule the burden of proof rests with the operator. Moreover there are various alternative locations.
The provider lodges an appeal with the Administrative Court. He points out that he cannot get the consent of owners of alternative locations. The defendant replies that one of these owners agrees but wants a rent 50 % more than usual.
During the judicial procedure the city sets into force a local regulation on building design which prohibits antennas of such a height. Exceptions are provided which are at the city’s discretion. The operator regards the new local rule as a fake because the real motivation is not building design but health protection.
Please give an answer to following questions from the point of view of your domestic law.
Must or can the neighbours concerned participate in the judicial
proceedings? If so, have they the same procedural rights and duties as
the other parties?
Must the Court follow the neighbours’ motion for the taking of evidence by hearing an Eco Institute?
In which way are safety distances to mobile phone base stations regulated in your country? Are there binding provisions?
Has the Court to examine alternative locations? If so, must the provider accept a higher rent as usual?
Is the new building design regulation applicable for the Court at all?
Is the building design regulation regarded as lawful? If not, can or must the Court put aside the regulation?
If the regulation is lawful, does have the operator a right to an exception?