The signal saga: Decoding South Africa’s cellphone towers maze for administrative approval

February 1st, 2024
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Picture source:  Gallo Images/Getty

Cellphone towers evoke a polarising debate, particularly in South Africa (SA), where apprehensions regarding their potential adverse effects on health, property values, and overall quality of life are prevalent. Thus, it becomes imperative to grasp the legal procedures involved in acquiring approval for cellphone tower construction and to comprehend the roles played by different government departments in this process as it is not simply a matter of cellphone towers cropping up wherever telecommunication providers choose.

Administrative approvals

The construction of cellphone towers in SA requires several administrative approvals before any construction can begin. These approvals include obtaining special consent from the local authority (municipality), as well as approval of building plans for the proposed tower. In some instances, environmental authorisation may also be required.

If these requirements are not met, the cellphone tower will be considered an unlawful structure, and the High Court may issue an interdict to halt construction or even order its demolition. This can be both costly and a protracted process.

Public participation

While the public has a right to participate and object to a special consent application for a cellphone tower, the process for approving building plans is not subject to public scrutiny. This means that individuals who believe that their rights may be impacted by the construction of a cellphone tower can only raise objections during the special consent application process. If these objections are unsuccessful, parties may consider seeking recourse through the courts by initiating a High Court review application in terms of the Promotion of Administrative Justice Act 3 of 2000 to challenge the decision approving the installation of the cellphone tower. The telecommunications provider, on the other hand, also has the right to respond to any objections raised by concerned individuals and may similarly challenge the refusal of authorisation for the erection of such a tower, in a High Court review.

Therefore, it is important for all parties concerned to timely exercise their rights to provide comments or raise objections to the construction of a cellphone tower during the public participation stage. It should be noted that such objection should be supported by scientific evidence, where possible.

Municipal policies

Most municipalities in SA have implemented policies that set their attitude towards the development of cellphone towers within their jurisdiction. The requirements for a special consent application for a cellphone tower will vary from municipality to municipality and will be influenced by each municipality’s policy on cellphone towers.

For example, in the eThekwini Municipality, a special consent application for a cellphone tower must include an inventory of all cellphone towers within a 1000-meter radius of the property on which the proposed tower is to be constructed, among other requirements.

It is important to establish and understand the requirements set forth by each municipality towards the establishment of cellphone towers, as well as ascertain the underlying property’s zoning and title deed restrictions as these too can impact on whether or not a cellphone tower can be erected on a particular property.

Notice requirements

In some instances, it may be required that notice of the special consent application be sent to all landowners in proximity of the property at which the cellphone tower is proposed to be constructed.

Additionally, the public has the right to inspect the special consent application as well as all the expert reports in support thereof and provide written comments or objections. Public advertisements, such as a site notice and a notice in a newspaper circulating the area where the cellphone tower is proposed to be built, may also be required in certain instances. It is important, therefore, to establish the notice requirements set forth by the local authority insofar as such applications are concerned. Failure to comply with mandatory notice requirements may subject any approval granted by the local authority, to further challenge in a High Court review.

Environmental authorisation

Environmental authorisation or exemption is a prerequisite to most applications for the construction of a cellphone tower and must be obtained before any special consent application is submitted to the local authority. The relevant environmental authority must provide this authorisation or exemption in writing and this is normally provided as an annexure to the special consent applications submitted to the local authority.

Generally speaking, environmental authorisation is required when the erection of a cellphone tower will occur on a site that has not previously hosted a cellphone tower and where the proposed cellphone tower will exceed 15 meters in height in specified locations, such as community conservation areas or world heritage sites.

It is important to establish whether any environmental ‘triggers’ may be activated by the construction of a cellphone tower in terms of the National Environmental Management Act 107 of 1998 and its regulations thereunder, as this may require a full environmental impact assessment to be conducted before the local authority will even consider an application for special consent.

Environmental exemption

If the proposed cellphone tower does not fall within any of the areas that require environmental authorisation, an environmental exemption in the form of an exemption letter from the relevant environmental authority must be obtained.

Building plan approval

As mentioned above, the construction of cellphone towers will in most instances require building plan approval. Giving the type of structure involved, a structural engineer will normally be required to prepare design plans, which must be approved by the local authority. This process is, as mentioned above, not subject to public participation. The approval of building plans may, nevertheless, be challenged in a High Court review application. In some instances, a challenge may be mounted against the local authority’s approval in terms of s 7 of the National Building Regulations and Building Standards Act 103 of 1977 (NBR Act).

Impact on residential neighbourhoods

The key consideration in any special consent application for a cellphone tower revolves around determining if the proposed tower will adversely affect the amenity of the residential neighbourhood. This assessment encompasses factors such as potential noise disturbance, visual impact, health implications, and other relevant aspects.

In certain cases, it may be advisable for a party raising objections to engage an independent expert to provide their professional insights on matters such as noise disturbance, visual impact, and potential health impacts. Additionally, exploring the potential impact on property values is also a relevant aspect to consider. Any approval granted by the local authority that fails to take proper cognisance of any of the above factors may be subject to a High Court review challenge.

It is important to approach the evaluation of concerns and impacts in a fair and neutral manner, ensuring that both the objecting party and the developers have the opportunity to address and respond to valid concerns that have a significant impact on the well-being of the community.

In the case of Telkom SA SOC Limited v City of Cape Town and Another 2020 (10) BCLR 1283 (CC) the importance of the administrative approvals process in the construction of cellphone towers was highlighted.

This case revolved around the question of whether the exercise of rights granted under s 22 of the Electronic Communications Act 36 of 2005 (ECA) required compliance with municipal bylaws and policies.

In 2015, Telkom sought to enhance its infrastructure capacity in Cape Town by constructing 135 cellular phone masts and rooftop stations. It identified a property in Heathfield, Cape Town, owned by Mr Birch Kalu, as a suitable location. However, the property was zoned as a ‘single residential’ in terms of the town planning scheme of the City of Cape Town. This particular zone did not permit the construction of cellular masts according to the City of Cape Town’s bylaws.

Telkom applied for the rezoning of a portion of the property in January 2016 but proceeded to build the mast without receiving the city’s approval. Local residents objected to the mast and lodged complaints with the city. In response, the city imposed an administrative penalty on Telkom and put the rezoning application on hold until the penalty was paid.

Telkom challenged the city’s decision in the High Court, arguing that the city’s bylaw and policy were not competent and were in conflict with s 22 of the ECA. Telkom also claimed that it was exempt from the NBR Act because it was part of the state.

The High Court rejected Telkom’s arguments and dismissed its application, but the city’s counter-application was successful, with the High Court declaring Telkom’s mast construction on Kalu’s property, unlawful.

Unsatisfied with the outcome, Telkom appealed to the Supreme Court of Appeal (SCA), which dismissed the appeal and affirmed that the city’s bylaw pertained to municipal planning and not telecommunications matters. The SCA also found that Telkom had abandoned its argument regarding the NBR Act in the High Court.

At the Constitutional Court (CC), Telkom raised two main arguments. First, it claimed that the city had no legislative power to regulate telecommunications, and therefore, the bylaw was invalid. Telkom also argued that its telecommunications infrastructure extended beyond municipal boundaries, making compliance with multiple bylaws impractical. Second, Telkom contended that the bylaw was in conflict with s 22(1) of the ECA, making it invalid.

The CC unanimously rejected Telkom’s arguments. It held that the interpretation provided by Telkom was inconsistent with the Constitution, which established municipalities with the power to regulate land use within their jurisdictions. The court emphasised that licensees, including Telkom, must comply with municipal bylaws when exercising rights under s 22 of the ECA.

Consequently, the CC refused Telkom’s application, stating that it was not in the interests of justice to grant it. The High Court’s order remained in effect, and Telkom was required to pay the city’s costs, including the costs of two counsel.

In essence, the above case confirmed that telecommunications companies, must comply with municipal bylaws when exercising their rights under the ECA. The court rejected Telkom’s argument that they should be exempt from complying with individual municipal regulations, emphasising the authority of municipalities to control land use within their jurisdictions. The case clarifies the need for telecommunication companies to navigate and adhere to the regulatory framework set by local authorities when establishing their infrastructure.

Conclusion

The construction of cellphone towers in SA involves a series of administrative approvals, making it a complex and regulated process. These administrative approvals serve as a mechanism to ensure that the construction of cellphone towers is conducted in a manner that is compliant with relevant laws, regulations, and local policies.

One crucial aspect is the public’s right to participate in the deliberation of whether or not authority should be granted for the construction of cellphone towers. This means that individuals and communities have the opportunity to express their opinions, raise concerns, and even object to the proposed construction during the approval process. Public participation plays a pivotal role in ensuring that the interests and concerns of the community are considered when making decisions about the establishment of cellphone towers.

To effectively navigate the construction process, it is important to understand the legal procedures involved and the roles played by various government departments. Understanding the roles of different government departments, such as the local municipality and environmental authorities, can help streamline the process and ensure compliance with their specific requirements and regulations.

By having a clear understanding of the legal process and the roles of government departments, stakeholders can navigate the construction of cellphone towers more efficiently and effectively. This knowledge allows them to engage with the relevant local authority, provide necessary documentation, address concerns, and comply with the requirements to obtain the required approvals or to object to the construction of a cellphone tower. It also enables them to better advocate for their interests and engage in meaningful discussions during the approval process.

Matthew Bremner BSocSci LLB LLM (Environmental Law) (UKZN) is a legal practitioner at HSG Attorneys Inc in Durban.

This article was first published in De Rebus in 2024 (Jan/Feb) DR 14.

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