Unlawful cellphone mast ruling (by high court)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

                                                                       

                       REPORTABLE      

                                                                  

                                                Case Number: 10354/2017

                                               

                                                                   

In the matter between:

TELKOM  SA SOC LTD                                                                       First Applicant  

HILDA ISABEL KALU N.O. in her capacity as 

THE EXECUTRIX OF THE ESTATE

LATE BIRCH KALU                                                                        Second Applicant                            

and

CITY OF CAPE TOWN                                                                             Respondent        

                                                             

                  JUDGMENT DELIVERED 10 MAY 2018

                                   

Andrews AJ

Introduction

1. [1] The Applicants seek a declarator that the provisions of the City of Cape Town’s Municipal Planning By-laws 2015 (“By-law”), Zoning Scheme Regulations and Telecommunications Mast Infrastructure Policy (Policy no. 40544) (“Mast Policy”), are in conflict with the provisions of Section 22 of the Electronic Communications Act 36 of 2005 (“ECA”) and are accordingly invalid.

Ruling:

s Section 22(2) clearly provides that “due regard must be had to applicable law and the environmental policy of the Republic”, it follows that apart from the municipality’s consent, which is required in terms of the By-law, the licensee is still required to obtain all other permits, licenses and authorisations required by law which do not constitute a ‘municipality’s consent’, such as rezoning or departure, building plan approval or exemption (which the First Applicant concedes is required), environmental authorisations, heritage authorisation, and civil aviation permits, amongst others. It is for these reasons that I am not in agreement with the Applicants’ contention that the By-law and the Mast Policy exceed the boundaries between spheres of planning law.  I am not persuaded that it is the intention of the legislature to grant a licensee unqualified rights to conduct activities on land without obtaining any permit, license or authorisation required by any law from any authority. If this were so, the public would be without the protection of a range of constitutionally compliant laws which serve the public interest.

51] The First Applicant conceded that unless exempted, a licensee must comply with the requirements of the Building Act and as such requires building plan approval for the mast on the Kalu property. The Respondent argues that on this ground alone, it is entitled to the order sought in the counter-application. It was further submitted that the First Applicant’s defences have no merit, and that the Respondent has made a case for the declarator that the Applicants’ conduct is unlawful.

Conclusion 

1. 1. [53] The Constitutional Court authorities referred to above have firmly established that municipalities’ constitutional legislative power regarding “municipal planning” includes the control of zoning, even in respect of a use of land, such as for telecommunications, which fall within the exclusive authority of national government. Link Africa and Maccsandsupport the conclusion that the By-law does not conflict with Section 22 of the ECA. In keeping with the Constitutional Court’s findings, it is overtly clear that a municipality must regulate land use, including matters which affect national interests.

1. 1. [54] Therefore, I find that the Respondent has the exclusive legislative competence to regulate zoning of all land in its area for all purposes, regardless of whether the purpose affects a national interest. Consequently, the Respondent has the constitutional power and right to regulate the zoning of land to determine whether it may be used for masts. I find that the By-law is valid and that the zoning of land for the use of masts falls within the Respondent’s competence of “municipal planning”.

1. 1. [55] In the result the following orders are made:
   2. (a) The Applicants’ application is dismissed with costs.
   3. (b) The erection of a freestanding base telecommunications station on Erf 80708, 47 Fourth Road, Heathfield, Cape Town (the property) on or about April 2016 is declared to be unlawful.
   4. (c) The use and development of the property for the purposes of a freestanding base telecommunications station is declared to be unlawful.
   5. (d) The First Applicant (Telkom) is to pay the costs of the Respondent’s (the City’s) counter-application.

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                                                              P ANDREWS, AJ

Acting Judge of the High Court