27 SEPTEMBER 2019, 07:48AM / LISA ISAACS
Cape Town – The Supreme Court of Appeal (SCA) has dismissed communications service provider Telkom’s appeal against a Western Cape High Court judgment that it is obliged when erecting a cellphone mast – whether free-standing or rooftop-based – to do so in accordance with the City’s Municipal Planning by-law.
In order to extend its mobile electronic communication network coverage in and around Cape Town, in 2017 Telkom planned to develop 135 sites for the erection of free-standing base telecommunication stations, commonly referred to as cellphone masts, and rooftop base telecommunication stations.
One of the sites was on a property owned by the estate of Birch Kalu in Heathfield.
The property was situated in a zone where the erection of such a mast was prohibited under the relevant planning by-law.
After initially applying for a rezoning of the portion of the property, Telkom erected it without obtaining a change in zoning.
Telkom contended that a section of the Electronic Communications Act 36 of 2005 and in particular 22(1)(a) thereof, entitled it to enter a property and erect a mast without having to seek the permission of either the property owner or the local authority.
The high court rejected this contention and the SCA upheld its decision and dismissed Telkom’s appeal with costs.
“Telkom’s argument is that it should be unfettered in determining where it should be able to erect its telecommunications infrastructure…”
“This would lead to the curious result that the construction of major infrastructure that can be seen across our country and in many places in our cities, having a potentially major impact on the environment, would fall outside any regulatory control insofar as its location was concerned,” the SCA found.
Mayco member for spatial planning and environment Marian Nieuwoudt said the City welcomed the judgment.
“With this judgment, the SCA has once again affirmed the constitutional validity of the City of Cape Town’s Municipal Planning by-law, and our telecommunications mast infrastructure policy.
“The SCA dismissed Telkom’s argument that it was free to select where to situate base stations without prior approval from the city.
“Also, the SCA judgment concurs with the order from the Western Cape High Court that the telecommunications infrastructure had been erected without obtaining the city’s approval as stipulated by the Municipal Planning by-law,” Nieuwoudt said.
Telkom said in a statement it was reviewing the judgment to consider its options.
“We are not yet in a position to comment in any greater detail at this stage until management has had an opportunity to obtain advice on the judgment and to consider the advice provided.”
LINK TO SUPREME COURT JUDGEMENT sca2019-121