Brief Summary

Administrative Law — Review of administrative action — Application to review and set aside the City of Cape Town's decision to grant Mobile Telephone Networks (Pty) Ltd consent to construct a telecommunications base station — Applicant contending that his objections were not adequately considered, violating principles of procedural fairness under the Promotion of Administrative Justice Act 3 of 2000 — Court finding that the City failed to notify the applicant of the decision and did not consider all objections, rendering the decision procedurally unfair — Application granted.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned an application for judicial review brought in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The applicant sought to review and set aside decisions of the City of Cape Town that enabled the construction of a freestanding telecommunications base station in Morningstar, Philadelphia, Western Cape.

The applicant was Michael Bruce Abrahamse, the owner and resident of a property adjacent to the proposed base station site. The first respondent was Mobile Telephone Networks (Pty) Ltd (MTN), the telecommunications operator seeking to construct the base station. The second respondent was the City of Cape Town, the municipal authority that processed and approved the relevant applications. The third respondent was Mariza Delilan Cloete, the owner of the property on which MTN intended to construct the base station.

Procedurally, MTN’s land use application was approved by the City in March 2015 and became final after an appeal process in April 2015. Thereafter a minor works permit was issued in terms of building regulation legislation, enabling construction without ordinary local authority building plan approval. The applicant, unaware that approval had been granted and that construction could proceed, only discovered the construction once it had commenced. He first obtained interim interdictory relief (granted by Fortuin J on 9 October 2015) preventing continuation pending the review, and then launched this review application in November 2015. MTN opposed the review; the City abided the court’s decision; the third respondent did not participate.

The general subject matter was whether the City’s approvals for a telecommunications base station were lawful and procedurally fair, particularly in light of the City’s handling of public objections and notification.

Material Facts

MTN identified a need to increase network capacity and improve coverage in the relevant area, and selected the third respondent’s property as the proposed site for a base station. During June 2013, MTN lodged a consent use application with the City under the applicable land use regime. The City published a notice calling for comments and objections, with a closing date of 27 January 2014.

Four objections were received, including one by the applicant. The objections broadly raised concerns about aesthetics, health, and diminution in property values. The City, however, forwarded only one objection to MTN for response, namely an objection by Ms Colleen Durston. MTN provided a detailed response to that objection, addressing health-related concerns, visual impact, and property value allegations.

The applicant did not receive a response to his objection and repeatedly sought updates from City officials, but received no reply. After MTN’s response to the Durston objection, the City’s Land Use Management Department prepared a report recommending approval with conditions. The City’s decision-maker provisionally approved the application on 19 March 2015. After an appeal process, the approval became final on 29 April 2015.

A material fact relied upon by the court was that the City’s report did not include the other objections (including the applicant’s), with the consequence that the decision-making structure was not made aware of the applicant’s objection or the concerns particular to him.

After land use approval, MTN submitted a building plan-related application under the building standards legislation. The City approved the application and issued a minor works permit, which exempted MTN from obtaining ordinary local authority approval for building plans for the construction. The applicant was not informed that the consent use application had been approved, nor that a minor works permit had been issued.

Upon returning from holiday, the applicant observed that construction had commenced on 28 August 2015, during his absence. He then obtained an interdict restraining MTN pending the review.

Certain facts were treated as undisputed in the sense that the parties accepted that the City’s decision constituted administrative action subject to PAJA. The critical factual deficiency identified by the court was not a dispute about whether objections existed, but the City’s failure to ensure that all objections (including the applicant’s) were placed before the ultimate decision-maker and addressed through the prescribed process.

The court considered the applicant’s circumstances to be materially distinct from those of Durston. The applicant’s property was adjacent to the site, and the base station would be situated approximately 30 metres from the applicant’s front door. The applicant’s objection included site-specific assertions about direct overlooking of his home and erf, the adjacency to a low vineyard (with vines about one metre high), and the base station’s asserted industrial character in a rural-residential context. The court treated these as features not contained in the Durston objection and as relevant to what information the City’s decision-maker ought to have had.

Legal Issues

The central legal question was whether the City’s decision to grant land use consent for the base station was reviewable under PAJA on the basis of procedural unfairness, specifically whether the City failed to comply with the obligations of a notice-and-comment process by not ensuring the applicant’s objection was considered by the decision-maker.

A related legal question was whether, having invited objections, the City created a legitimate expectation that objectors’ submissions would be considered and that objectors would be notified of the decision, and whether a failure to do so infringed the requirements of procedural fairness under PAJA and the City’s own regulatory framework.

A further issue arose as to whether the base station qualified as a structure warranting only a minor works permit under the relevant building legislation, and whether the court should decide that question to provide certainty for future cases. The court ultimately declined to make a substantive determination on this classification question due to the evidentiary position and the City’s non-participation on that aspect.

The dispute primarily concerned the application of law to fact under PAJA (procedural fairness requirements applied to the City’s decision-making process), together with an evaluative assessment of whether the applicant’s objection contained materially distinct content requiring separate consideration and whether the City’s omission was outcome-relevant for procedural fairness.

Court’s Reasoning

The court proceeded from the accepted premise that the impugned municipal decision was administrative action and therefore subject to PAJA. It emphasised that where administrative action materially and adversely affects rights or legitimate expectations, procedural fairness is required, including an opportunity to make representations and the proper consideration of those representations.

In assessing the applicable procedural obligations, the court referred to the City’s regulatory and policy instruments governing zoning and notifications. The court highlighted that the zoning and notification framework contemplated that objections received by the closing date, together with responses, were to be incorporated into a departmental report that would be submitted to the relevant municipal decision-making structure, and that objectors must be notified after a decision is taken. Against this framework, the court treated the City’s decision-making process as one in which all timeous objections should have been placed before the decision-maker and considered.

The applicant confined argument to procedural grounds, contending that the City was obliged to consider his objection and that the failure to do so rendered the decision procedurally unfair. He also emphasised that he was the most directly affected party due to proximity. MTN’s response was that the applicant’s objection was substantially the same as Durston’s, that MTN had responded comprehensively to Durston’s objection, and that it would have been unnecessary to consider and respond separately to what MTN characterised as a “copy and paste” objection. MTN relied on Caine Brothers v Development Tribunal for KwaZulu Natal for the proposition that a complaint about not being furnished a further document for comment did not necessarily establish procedural unfairness.

The court rejected MTN’s reliance on Caine Brothers as misplaced. It distinguished that authority on the basis that, in Caine Brothers, the party complaining of an audi violation had in fact been afforded multiple opportunities to be heard at different stages and in different fora. In contrast, on the court’s assessment of the facts in the present matter, the applicant’s objection was not considered by the municipal decision-maker at all, and the applicant was effectively not heard in the decision-making process.

While acknowledging that the objections overlapped in general themes, the court found that the applicant’s objection contained distinct features related to proximity, direct visual impact, and the particular relationship of the structure to the applicant’s home and land. The court reasoned that these distinctions meant the City’s decision-maker did not have all relevant information before it when it approved the application, particularly given that the report to the decision-maker omitted the applicant’s objection entirely.

The court further rejected the suggestion that it was permissible for an administrator to disregard objections because dealing with them would be monotonous or tedious. It reasoned that there were only four objections, and therefore forwarding and considering all of them could not reasonably be characterised as an undue burden. The court held that the official who screened the objections was required to pass all objections to MTN for comment and thereafter ensure that objections and responses were placed before the Council or its delegates for the ultimate decision.

On the notion of legitimate expectation, the court held that by calling for objections and reasons, the City created a legitimate expectation that objections would be considered by the relevant decision-making structure. The omission to consider the applicant’s objection therefore constituted a breach of procedural fairness and violated the audi alteram partem principle as applied within PAJA’s procedural fairness framework.

Regarding the minor works permit issue, the court noted that ordinarily its finding on the consent use decision would dispose of the minor works permit issue because the latter depended on the former. Although MTN requested a ruling to obtain certainty on whether such a base station could be authorised via a minor works permit, the court declined to decide the point. It reasoned that the City was best positioned to address the issue comprehensively, and since the City had elected to abide and did not provide evidence on the economic and social differences between the minor works permit route and the ordinary local authority building plan approval process, the court lacked sufficient information to make a considered determination. The court indicated that additional input from the City by affidavit would have assisted.

Outcome and Relief

The court reviewed and set aside the City’s decision of 19 March 2015 granting MTN consent to construct the freestanding telecommunications base station on the third respondent’s property.

Because the land use consent decision was set aside, the court held that the City’s decision to grant a minor works permit to MTN had fallen away.

The court ordered that the first and second respondents pay the costs of the application jointly and severally, with the one paying the other to be absolved.

Cases Cited

| Case | Citation |
|---|---|
| Grey’s Marine Hout Bay (Pty) Ltd & Others v Minister of Public Works & Others | [2005] ZASCA 43; 2005 (6) SA 313 (SCA) |
| Brashville Properties v Colmant | [2014] ZASCA 61 |
| Masethla v President of the Republic of South Africa and Another | [2007] ZACC 20; 2008 (1) BCLR 1 (CC) |
| Walele v City of Cape Town & Others | [2008] ZACC 11; 2008 (6) SA 129 (CC) |
| Caine Brothers v Development Tribunal for KwaZulu Natal | (471/2015) [2016] ZASCA 81 (30 May 2016) |

Legislation Cited

| Legislation | Reference |
|---|---|
| Promotion of Administrative Justice Act | 3 of 2000 |
| Land Use Planning Ordinance | 15 of 1985 |
| National Building Regulations and Building Standards Act | 103 of 1977 |

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the City’s approval of MTN’s land use consent application was procedurally unfair and therefore reviewable under PAJA, because the City failed to ensure that the applicant’s objection (and other objections) were placed before and considered by the decision-maker after the City had invited objections in a notice-and-comment process.

The court held further that, once the consent decision was reviewed and set aside, the minor works permit decision was not capable of standing independently and therefore fell away. The court did not make a definitive ruling on whether such a base station properly qualified for authorisation by way of a minor works permit, due to insufficient evidentiary material and the City’s non-participation on that aspect.

LEGAL PRINCIPLES

Procedural fairness under section 3 of PAJA requires that administrative action materially and adversely affecting rights or legitimate expectations must be procedurally fair, which includes affording affected persons a reasonable opportunity to make representations and requiring that those representations be duly considered by the decision-maker.

Where an administrator elects to follow a notice-and-comment procedure, the administrator must consider timeous comments and objections received in response to the notice, and must comply with the prescribed procedures applicable to such public participation mechanisms. An authority that invites objections may, on the facts and applicable regulatory framework, create a legitimate expectation that objections will be considered and that objectors will be notified of the decision.

The audi alteram partem principle remains a central component of procedural fairness in administrative decision-making. A failure to place an affected person’s objection before the decision-maker, in circumstances where objections were invited and were required to be taken into account, constitutes a material procedural defect rendering the resulting administrative decision reviewable.

Reliance on precedent concerning the sufficiency of hearing opportunities must be context-sensitive. A case in which a party was afforded multiple opportunities to make representations is not authority for the proposition that a decision-maker may omit to consider an objection altogether in a separate process where the objector was not heard.

Abrahamse v Mobile Telephone Networks (Pty) Ltd and Others (21134/2015) [2016] ZAWCHC 186 (26 October 2016)