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[2015] ZAWCHC 79
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Beekmans N.O and Others v Mobile Telephone Networks (Pty) Ltd and Another (13543/14) [2015] ZAWCHC 79 (3 June 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: 13543/14
DATE: 03 JUNE 2015
In the matter between
CARL HENRICUS BEEKMANS
N.O
.................................................................
FIRST
APPLICANT
STEPHEN MARSHALL
N.O
..........................................................................
SECOND
APPLICANT
TIMOTHY LISTER MAUGHAN
N.O
..............................................................
THIRD
APPLICANT
And
MOBILE TELEPHONE NETWORKS
(PTY) LTD
......................................
FIRST
RESPONDENT
CITY OF CAPE
TOWN
...............................................................................
SECOND
RESPONDENT
Coram
:
ROGERS J
Heard:
21 MAY 2015
Delivered:
3 JUNE 2015
JUDGMENT
ROGERS
J:
Introduction
[1]
This case is about the
construction by the first respondent (‘MTN’) of a base
telecommunication station, including a
14,5 metre high mast, on
Erf 10762 Constantia, which lies at the south-west end of Dalham
Road.
[1]
The applicants, to whom I shall refer collectively as ‘the
Trust’, are the owners or Erf 10764, which abuts Erf 10762
on
the latter’s northern boundary. The Trust seeks to set aside
building plan approval granted to MTN by the second respondent
(‘the
City’) on 17 October 2013. The case raises questions regarding
the interpretation and application of the National
Building
Regulations and Building Standards Act 103 of 1997 (‘the Act’)
and the regulations promulgated thereunder
in relation to so-called
‘temporary buildings’.
[2]
MTN opposes the
application. The City abides and has not participated in the
proceedings. Mr Mitchell SC leading Mr Kelly appears
for the Trust
and Mr Mtembu for MTN.
The facts
[3]
To assist in what
follows, I reproduce below a Site Plan of Erf 10764, on which certain
features, to be discussed later, are marked:
[4]
The history of the
matter is briefly the following. Erf 10762 is zoned Single
Residential. Prior to the construction of the base
station it was
vacant land. In order to construct the base station MTN needed to get
approval for a departure in terms of s 15
of the Land Use
Planning Ordinance 15 of 1985 (‘LUPO’). During May 2008
MTN lodged an application in terms of s 15(1)(b)
of LUPO to use
the property on a temporary basis, being five years, as a base
station. There were four objections, including from
the Constantia
Property Owners’ Association (‘the CPOA’). The two
main objections, as summarised in the City’s
planning report
dated 4 October 2010, were health and safety concerns and adverse
aesthetic impact, both of which might reduce
the value of surrounding
properties. MTN’s position was that there is no conclusive
evidence of adverse health effects. The
proposed temporary departure
would only be issued for five years, thus giving opportunity to
decommission the site if research
proved that it was detrimental to
health. Visual impact would be minimised by disguising the mast as a
pine tree blending in with
the existing trees.
[5]
The planning report
recommended that the application be approved on specified conditions.
On 20 October 2010 the Council granted
the departure on the
recommended conditions. The approval was valid for five years. After
five years, or if the site was decommissioned
before such time, MTN
was to remove all site infrastructure and the property was to be
rehabilitated. If the base station was still
required to be
operational after five years, a new application had to be made for
consideration and approval. The mast was to be
disguised as a pine
tree. Importantly for present purposes, the ‘location’ of
the base station was, in terms of a ‘special
condition’,
to be ‘generally in accordance with’ three specified
plans referred to in the approval as Site Development
Plans. In truth
only one of the three specified plans, titled ‘Site Locality
Drawing Plan View’, indicated the intended
location of the base
station on the property.
[2]
For convenience I shall refer to this as the LUPO Plan. The other two
specified plans were Equipment Layout plans.
[3]
[6]
The City notified MTN
of this decision by way of a letter dated 4 November 2010 addressed
to MTN’s town planners, Warren
Petterson
Planning (‘WPP’). This
letter stated that the validity period of five years would run from
the Council’s final
notification letter. It appears that this
would be issued after the finalisation of any administrative appeals.
The CPOA duly lodged
an appeal. By way of a letter dated 30 January
2013 the City notified the CPOA that the Competent Authority had
dismissed the appeal.
Why the appeal took so long does not appear
from the papers. On 5 March 2013 the City sent a final notification
letter to WPP,
stating that the appeal process had been concluded and
that the previous approval was now regarded as final.
[7]
MTN not only required a
departure in terms of LUPO (which it now had); it also needed
approval in terms of the Act to construct
the base station, which was
to be a three-room brick-and-mortar structure with a corrugated iron
roof and a wall-enclosed slab
with gated vehicular access on which
the mast was to be erected. Two of the rooms are described on the
plans as Operator Rooms,
the third as an Equipment Room. The
structure is not intended for human habitation.
[8]
During April 2013 MTN
submitted building plans for approval in terms of s 4 of the
Act. At this stage there was no indication
that the approval which
MTN was seeking was anything other than ordinary building plan
approval in accordance with s 7(1) of the
Act.
[9]
In an internal report
by a Mr Gossman (Senior Engineering Technician in the City’s
Health Department: Specialised Services)
the writer inter alia
recommended ‘that a rigorous public participation process’
be followed ‘as there has been
public outcry in the media some
time ago in that particular area’.
[10]
Objections to building
plan approval were lodged by 21 property owners in the area,
including the Trust, during May and June 2013.
The objectors,
including the Trust, submitted objections in identical form in which
only the health issue was raised and in terms
of which the objectors
asked that approval be refused in terms of s 7(1)(b)(ii)(bb) (ie
on the basis that the building would
‘probably or in fact be
dangerous to life or property’). The Trust lodged an additional
objection through its town
planner, Tommy Brümmer Town Planners
(‘TBTP’). The thrust of the TBTP objection was aesthetic.
The Trust complained
that the base station, and in particular the
mast, would be unsightly and objectionable and devalue surrounding
properties. An
expert opinion from a professional valuer was
attached. The Trust said that if the mast could be successfully
disguised, it should
be disguised as a stone pine, which were common
in the area, and ‘not some arbitrary pine tree that is not
common to the
region at all’.
[11]
In regard to the
location of the base station, TBTP said the following:
'◦ The
positioning of the proposed mast at the eastern side of Erf 10762 is
regarded as highly insensitive due
to this position being at the
focal point of the western axis of Dalham Road, which ends in a
cul-de-sac with turning circle. The
mast will be highly visible to
any user of Dalham Road travelling in a westerly direction, given
that the mast will be in the direct
line of sight to any person
driving or walking along the road. No attempt has been made to locate
the mast closer to the trio of
Stone pines located within the
southern boundary of Erf 10762
[4]
Constantia.
◦
The
mast will be visible from a number of other locations as well and
will most certainly compete with the trio of Stone Pines which
are
imminently visible from the surrounding network of roads in the
area…’
[12]
These concerns found
some support in an internal City report dated 12 July 2013 authored
by the Regional Manager of Environmental
and Heritage Resources
Management: Southern Region. The writer said that the importance of
mature trees as visual screening was
clearly stipulated in the City’s
Cellular Telecommunications Infrastructure Policy. Since Erf 10762
did not itself contain
large trees, the mature stone pines in the
vicinity of the site formed the only apt visual mitigation. He
proposed that due consideration
be given to tree species that would
ultimately provide effective screening for a 14,5 metre high mast.
[13]
On 3 October 2013 the
City notified MTN that the application for building plan approval was
refused in terms of s 7. The only
document in the record
furnished by the City shedding light on this decision is an internal
memorandum of the previous day written
by Mr William Carter: Section
Head BDM in which he said that the application should be returned to
the MTN unapproved in its current
form. He continued:
‘
The
applicant is to submit a written application in terms of Regulation
A23(1)…. The period to be applied for as a temporary
building
(cell mast) is to be for a maximum of five (5) years. This is to
bring it in line with the Temporary Land Use Departure
that has been
granted for this property.
This
will then replace the Section 4 application and
Ipos
is to
indicate it as a temporary building.’
[14]
On 10 October 2013 WPP
on behalf of MTN informed the City that MTN withdrew the previous
application in terms of s 7 and wished
to submit a revised
application in terms of regulation A23(1) for a period of five years
corresponding with the duration of the
approved departure. No new
plans were submitted; the City was simply asked to reassess, now in
terms of regulation A23, the plans
already submitted.
[15]
On 17 October 2013 the
City, in the person of Mr Carter, addressed a letter to WPP as
follows:
‘
Provisional
authorisation is hereby granted in terms of Regulation A23(1)…
to proceed with the erection of the Temporary
Cellular Communication
Base Station as proposed on building plan application number
01461/2013 subject to the following conditions:
1. The
period it may remain on the property is five (5) years from the
granting of the Temporary Land Use Departure (granted
in March 2013).
It will then be demolished and all material moved from the property.
One or more extensions may be considered on
request of the owner as
contemplated in Sub-regulation A23(4)
[5]
provided that the Land Use Departure is further extended.
2. The Building
Development Management Section reserves the right to order you to
remove the temporary structure should
it be deemed necessary for
health or safety reasons or on non-compliance with any of the
conditions imposed in granting this authorisation.
3. All conditions set
out in the granting of the Temporary Land Use Departure remain and
are to be adhered to.
This authorisation does not
exempt you from complying with any other applicable law with regard
to the erection and/or use of the
Temporary Cellular Communication
Base Station.’
[16]
The building plans
referred to in this approval, and bearing the City’s date stamp
17 October 2013, formed part of the record
furnished by the City in
terms of rule 53.
[6]
As I have mentioned, these are the plans initially submitted for
approval in terms of s 4 read with s 7 of the Act. The
LUPO
Plan was one of the plans included in the batch of approved building
drawings.
[7]
Two of the other drawings in the batch were Site Plans, one of which
(with additional markings) I have reproduced above.
[8]
One of the Trust’s complaints in the present application is
that these Site Plans show a different location for the base
station
from the one in the LUPO Plan. The Trust says that MTN has erected
the base station at the location reflected in the Site
Plans, a
location which in the Trust’s view is not ‘generally in
accordance with’ the LUPO Plan. This is one
of the grounds on
which the Trust seeks to have the building plan approval set aside.
The other has to do with the City’s
use and apparent
understanding of the scope of regulation A23.
[17]
Mr Mitchell submitted,
in relation to the condonation issue to be considered presently, that
TBTP had inspected the building plans
in order to prepare its
objection on behalf of the Trust but that one could infer that they
had not noticed that the Site Plans
differed from the LUPO Plan in
regard to the location of the base station. The inference arose from
the first of the two bullet
points I quoted earlier from TBTP’s
objection to the building plans. The location reflected on the LUPO
Plan is the focal
point of the western axis of Dalham Road and would
be in the direct line of sight of a person driving down Dalham Road
towards
the property. The location on the Site Plans is somewhat to
the right as one drives down Dalham Road.
[9]
[18]
This inference seems to
be correct and I accept that, if TBTP looked at the plans at all in
preparing its objection, it must have
failed to notice the difference
in location. This is not as surprising as it might at first blush
seem. It must be remembered that
the LUPO Plan itself was included in
the building plans. The Site Plans were drawn to a different scale
and differently orientated.
Accordingly, a person looking at the
plans without close analysis might form his opinion on the location
of the base station from
the LUPO Plan. I am less confident
that TBTP did actually look at the building plans. Its objection does
not refer to any
particular features of the building plans. The plans
forming part of the LUPO approval already indicated in some detail
the structure
to be erected. TBTP’s objection, which seems in
essence to have been a rerun of the LUPO objections on aesthetics,
may have
been prepared without examining the building plans and on
the assumption that the base station was to be positioned at the
location
indicated in the LUPO Plan.
[19]
In mid-November 2013 Mr
Brümmer learnt in an email from Mr Carter that MTN’s
building plans had been approved. Mr Carter
simply told Mr Brümmer
that ‘the plans were approved last month’. The Trust and
Brümmer say that they assumed,
wrongly in the event, that the
plans had been approved in the usual way in terms of s 7. They
did not take steps at that stage
to impeach the approval of the plans
on review (they had no right to an administrative appeal).
[20]
In mid-July 2014 MTN
began construction. The Trust says that this is when it learnt the
base station’s actual location differed
from the LUPO Plan. On
31 July 2014 the Trust launched an urgent application in two parts.
Part A, which was set down for 8 August
2014, was for urgent interim
relief; Part B sought a review and setting aside of the approval of
the building plans on 17 October
2013. Part B is the matter now
before me. By 31 July 2014 the Trust had learnt, through
investigations made by TBTP, that the plans
had purportedly been
approved in terms of regulation A23.
[21]
There was
correspondence between the parties’ attorneys in early August
2014. In the first of these letters, dated 5 August
2014, MTN’s
attorneys said that MTN conceded that construction of the current
location contravened the approved departure.
They stated that MTN had
ceased construction at the non-approved location and would
rehabilitate the site and commence construction
at the correct
location. Subsequent correspondence reflected a difference of opinion
as to whether construction at the ‘correct
location’ was
dependent on further building plan approval. In the meanwhile, and on
6 August 2014, MTN filed an answering
affidavit in relation to Part
A, attaching its attorneys’ letter of 5 August 2014 and stating
that the matter was no
longer urgent. In para 13 MTN’s deponent
said that MTN had ceased construction work ‘on unapproved
site’. Part
A was removed from the roll on 8 August 2014 on the
basis that urgency had fallen away though there was no resolution as
to whether
further building plan approval was needed.
[22]
In an internal MTN
email of 29 August 2014 a Mr Ockie Theron emphasised that in terms of
the approved LUPO departure the base station
only needed to be
‘generally in accordance’ with the LUPO Plan. The City’s
approval of the building plans indicated
that the City’s
officials regarded the plans as generally being in accordance with
the LUPO Plan. He expressed the opinion
that MTN was entitled to
build in accordance with the approved building plans but requested
clarity from MTN’s legal department.
In an internal response of
2 September 2014 Ms Shelley Gray asked Mr Theron to get an opinion
from an experienced town planner
to verify whether ‘we actually
have a leg to stand on here or whether we need to redo the Land Use
Departure to comply with
the approved building plans.’ Ms Gray
said that as a town planner herself she regarded the building plan
approval as being
definitive and that the approved LUPO departure was
‘only about allowing MTN to deploy a base station on the
premises’.
[10]
[23]
On 9 September 2014 WPP
furnished the opinion contemplated in Ms Gray’s email. The
author said that the building plans were
assessed by the town
planning officials who had imposed the departure conditions. These
officials were of the opinion that the
building plans were ‘generally
in accordance with’ the LUPO Plan. (This latter statement was,
in context, an inference
drawn by the author from the fact that the
City had approved the building plans and that the City’s Town
Planning Department
participated in the approval process.)
[11]
The approvals which MTN had could thus, in the author’s
opinion, be considered as valid and final. As long as MTN built in
accordance with the approved building plans, the validity of its
actions could not be questioned. The author continued by observing
that the LUPO departure related to the proposed use of the land
whereas the Act prescribed building standards and regulated
construction.
He concluded:
‘
Based
on the above and a subsequent site inspection to confirm that MTN is
in fact constructing the site in accordance with the
approvals issued
by the City of Cape Town, we would like to confirm that the site is
in fact being constructed at the approved
position. The construction
is by no means contrary to the approvals issued or any other
governing legislation.’
[24]
Presumably on the basis
of this opinion, MTN resumed construction at the location indicated
on the approved building plans. The
Trust learnt of this on 27
October 2014. On 31 October 2014 the Trust launched a second
application in which it sought urgent interim
relief pending the
determination of Part B of the earlier application. MTN opposed the
urgent application. Its deponent said, among
other things, that the
concession made in its attorneys’ letter of 5 August 2014 and
in his Part A answering affidavit had
been based solely on the
Trust’s founding papers in the original application and the
digital photographs attached thereto.
From such information and his
own observation (as I understand it, observation of the materials
forming part of the founding papers),
but without the benefit of
expert opinion, he had conceded that construction was taking place in
the wrong location. After obtaining
WPP’s expert opinion MTN
was now advised that the position where construction had started in
July 2014 was the correct position
as approved both in terms of LUPO
and the Act. He attached the internal MTN emails and opinion, the
content of which I have already
summarised.
[25]
The urgent application,
having been postponed to 13 November 2014, was on that date argued
before Allie J. On the following day
she dismissed the application
with costs, finding that the Trust had not made sufficient
allegations in regard to urgency. She
did not comment on the merits
of the case.
[26]
The pleadings in Part B
of the earlier application followed and the matter came before me for
argument on 21 May 2015. I was told
from the bar that construction of
the base site is now complete. Construction would not have got far by
the time the original application
was launched on 31 July 2014 or
when the urgent application was launched on 31 October 2014.
The
statutory regime
[27]
The term ‘building’
is defined in s 1 of the Act as including ‘any other
structure, whether of a temporary
or permanent nature and
irrespective of the materials used in the erection thereof’ and
which is erected or used for in connection
with various purposes,
among which are ‘the rendering of any service’. There is
no doubting that the base station as
reflected in the building plans,
including the mast, is a ‘building’ as defined.
[28]
Section 1 states that
‘this Act’ includes ‘the national building
regulations made and directives issued in terms
of it’.
[29]
Section 4(1) provides
that no person shall, without the prior approval in writing of the
local authority, ‘erect any building
in respect of which plans
and specifications are to be drawn and submitted in terms of this
Act’. The application for approval
must, in terms of s 4(3)(b),
be accompanied ‘by such plans, specifications, documents and
information as may be required
by or under this Act’ and ‘by
such particulars as may be required by the local authority…
for the carrying out
of the objects and purposes of this Act’.
[30]
Section 6(1)(a) states
that the local authority’s building control officer (for whose
appointment s 5 makes provision)
must make recommendations to
the local authority ‘regarding any plans, specifications,
documents and information submitted
to such local authority in
accordance with section 4(3)’.
[31]
Section 7 deals with
the granting and refusing of applications for building plan approval.
In terms of s 7(1)(a) the local
authority must grant its
approval if satisfied that the application complies with the
requirements of the Act ‘and any other
applicable law’.
This is subject, however, to s 7(1)(b) which states that the
local authority must refuse approval either
if it is not satisfied on
the matters set out in s 7(1)(a) or if it is satisfied of the
existence of one or more of the negative
attributes set out in
s7(b)(ii). These negative attributes are (a) that the building
is to be erected in such manner or will
be of such nature or
appearance that the area will probably or in fact be disfigured
thereby or that the building will probably
or in fact be unsightly or
objectionable or that it will probably or in fact derogate from the
value of adjoining or neighbouring
properties; or (b) that the
building will probably or in fact be dangerous to life or property.
[32]
In
Walele
v City of Cape Town & Others
[2008] ZACC 11
;
2008
(6) SA 129
(CC) the majority held that the recommendation of the
building control officer (‘BCO’) contemplated in
s 6(1)(a)
was intended by the statute to be the proper means by
which the decision-maker in s 7(1) was to be informed of the
factors
relevant to the s 7(1) assessment. A mere endorsement
and signature by the BCO to the effect that he recommended the plans
for approval did not suffice. The BCO had to ensure that adequate
information was placed before the decision-maker so that the
latter
could consider applications for approval of building plans properly
and in a balanced way (paras 64-72).
[33]
Section 7(6) provides
as follows:
‘
The
provisions of this section shall not be construed so as to prohibit a
local authority, before granting or refusing its approval
in
accordance with subsection (1) in respect of an application, from
granting at the written request of the applicant and on such
conditions as the local authority may think fit, provisional
authorization to an applicant to commence or proceed with the
erection
of a building to which such application relates.’
[34]
The regulations were
promulgated in terms of s 17(1) of the Act. One of the matters
which in terms of that sub-section may
be the subject of regulations
is the regulation, restriction or prohibition of the erection of
temporary buildings and the occupation
or use thereof or access
thereto (para (o)). In terms of s 17(2), different national
building regulations may be made in respect
of different buildings or
categories of buildings.
[35]
The regulations define
‘temporary building’ as meaning
‘
any
building that is so declared by the owner and that is being used or
is to be used for a specified purpose for a specified limited
period
of time, but does not include a builder’s shed.’
[36]
Part A of the
regulations is headed ‘Administration’. Regulation A2(1)
lists the plans, drawings and particulars which
must accompany an
application for approval to erect ‘any building’. The
prescribed content of these plans and particulars
is set out in
regulations A4 to A10. Regulation A2(1) is, however, subject to
several provisos, one of which is that in the case
of any temporary
building only such plans and particulars as contemplated in
regulation A23 shall be submitted. (The provisos are
erroneously
excluded from the current edition of the regulations published by
LexisNexis. This may have come about through an erroneous
rendering
of the amendments to the regulations effected in May 2008.
Immediately prior to these amendments the provisos appeared
after
para (f) of regulation A2(1), there being at that stage no para (g).
One of the 2008 amendments was the substitution of para
(f)(v), which
was the last sub-para of A2(1)(f). The LexisNexis editors may have
thought that the provisos formed part of sub-para
(f)(v) and thus
deleted it and inserted the new para (f)(v) which contained no
provisos of its own. This was incorrect. The provisos
applied, and
still apply, to the whole of regulation A2(1) and should now be read
as appearing after sub-para (g), which was also
inserted in 2008.)
[37]
Regulation A23, which
is headed ‘Temporary Buildings’, reads thus:
‘
(1) On
receipt of any application to erect a building which the applicant
has declared to be a temporary building, the
local authority may,
subject to the provisions of sub-regulations (2), (3) and (4), grant
provisional authorization to the applicant
to proceed with the
erection of such building in accordance with any conditions or
directions specified in such authorization.
(2) before granting
such authorization the local authority may require the submission of
–
(a) a statement of
the period for which authorization is required;
(b) a site plan;
(c) layout drawings
in sufficient detail to enable the local authority to determine the
general size, form, materials
of construction and use of the proposed
building; and
(d) any structural
detail required by the local authority to determine the structural
safety of the proposed building.
(3) The local authority
shall grant the authorization contemplated in sub-regulation (1) for
a limited period, to be determined
with regard to the period
specified by the applicant.
(4) The local
authority may at the request of the owner grant approval for one or
more extensions of the period contemplated
in sub-regulation (3):
Provided that where it is intended that the public should have access
to such building each such request
shall be accompanied by a
certificate signed by an approved competent person, indicating that
the condition of the structural system
is satisfactory.
(5) The owner of such
building may, not later than the last day of the period contemplated
in sub-regulation (3), submit
to the local authority such additional
plans and details as required by the local authority in order to
consider an application
in terms of section 4 of the Act.
(6) Where such local
authority has granted approval in respect of an application
contemplated in sub-regulation (5),
the owner shall submit to the
local authority an affidavit stating that any part of such building
erected in terms of the provisional
authorization has been erected in
accordance with the plans and details contemplated in sub-regulation
(5).
(7) If any plans and
details contemplated in sub-regulation (5) have not been submitted to
such local authority or if such
local authority has refused to grant
approval in respect thereof, the owner shall forthwith remove or
demolish such building.’
[38]
Regulation A1(7)(a)
states that where in any application the owner has declared the
building to be a ‘temporary building’,
the local
authority shall, before granting provisional authorization in terms
of Regulation A23,
‘
…
assess
such building in relation to –
(i) the intended use
and life of the building;
(ii) the area in
which it is to be erected; and
(iii) the
availability of suitable materials from which it may be constructed.’
[39]
Regulation A25(10)
provides that where any building, ‘excluding a temporary
building’, is being or has been erected
without the prior
approval contemplated in s 4(1), the local authority must serve
a notice on the owner calling upon him to
obtain the approval
required by the Act by a date specified in the notice.
Condonation
[40]
A preliminary matter
requiring consideration is the Trust’s application for
condonation of its failure to comply with the
180-day limit specified
in s 7(1) of the Promotion of Administrative Justice Act 3 of
2000 (‘PAJA’). The decision
which the Trust attacks on
review was taken by the City on 17 October 2013. The Trust learnt of
the decision on 12 November 2013.
A period of 180 days, reckoned from
the latter date, expired on 12 May 2014. The review application was
issued about one and a
half months later, on 31 July 2014.
[41]
I am not sure that it
is right to count the 180 day-period from 12 November 2013. In terms
of s 7(1)(b) of PAJA the period
is reckoned from the date on
which the applicant became aware of the action and the reasons for it
or might reasonably have been
expected to have become aware of the
action and the reasons for it. It is not suggested that the Trust
could reasonably have become
aware of the decision to grant building
plan approval earlier than 12 November 2013. However, it would not
yet have known of the
reasons. Whether, if reasons had been
requested, they would have been furnished sooner than one and a half
months after 12 November
2013 may be doubted. (Section 5 of PAJA
gives an affected party 90 days to request reasons and a further 90
days to the administrator
to provide the reasons.) It is true that in
the event the Trust did not request reasons from the City before
instituting the review
application. However, that was probably
because by then (the second half of July 2014) construction work had
started and the Trust
felt it needed to launch proceedings urgently.
[42]
In assessing the date
by which the Trust could reasonably have become aware of the reasons
for the building plan approval, I shall
confine myself to the two
broad grounds of review advanced, namely the wrong-location point and
the temporary-building point (the
latter being concerned with the
process followed by the City). I am prepared to assume that by 12
November 2013 the Trust could
reasonably have become aware that the
base station location on the Site Plans differed from the location on
the LUPO Plan, though
as a fact the discrepancy had probably not been
noticed. I am also prepared to assume that the Trust, if it had made
prompt investigations
after 12 November 2013, could have ascertained
that the building plan approval had been given in terms of regulation
A23 rather
than s 7. If there had been no pressing urgency to
institute legal proceedings, the Trust could reasonably have
requested
the City to give reasons for approving a different location
and for invoking regulation A23. On the location point, the City
might
have said that there was no discrepancy at all or that the City
had not noticed the discrepancy or that in its view the discrepancy
had not prevented the location from being ‘generally in
accordance with’ the LUPO Plan. On the temporary-building
point, the City would presumably have explained why it regarded the
base station as a ‘temporary building’ and how it
understood regulation A23 to operate in relation to the Act and
regulations as a whole. To find that the review application launched
on 31 July 2014 was out of time would require one to find that these
reasons, if requested reasonably promptly after 12 November
2013,
would have been answered by (say) the end of December 2013. I repeat
that I am doubtful as to that; s 5 of PAJA would
not have
imposed such a stringent timeline.
[43]
But if one assumes that
the application was out of time, the court may grant condonation in
terms of s 9(2) of PAJA where the
interests of justice so
require. In
PricewaterhouseCoopers
Inc & Others v Van Vollenhoven NO Another
[2010]
2 All SA 256
(SCA) it was said that in assessing the interests of
justice a court should have regard to the extent and cause of the
delay, the
effect of the delay on the administration of justice and
other litigants, the reasonableness of the explanation for the delay
(which
must cover the full period thereof), the importance of the
issues raised in the review and prospects of success (paras 6-7).
[44]
The period of delay in
the present case was at most one and a half months. Because the
Trust’s town planner, in preparing
the Trust’s objection,
had not noticed the location discrepancy, it was only on 14 July
2014, with the commencement of construction,
that the Trust realised
that something was amiss. Further investigation was done and the
review application was promptly launched
at the end of July. Mr
Mtembu, correctly in my view, thus did not press the argument that
the Trust had not sufficiently explained
the delay in respect of the
location point. He submitted, however, that there was no satisfactory
explanation in respect of the
temporary-building point. He relied on
the judgment of the Supreme Court of Appeal in
Camps
Bay Ratepayers and Residents Association & Another v Harrison &
Another
2010 (2) SA
519
(SCA) for the proposition that a PAJA application might be
timeous in respect of one ground of review but not in respect of
another.
In my view this does not accord with the way in which the
Supreme Court of Appeal’s judgment on this point was explained
and clarified by the Constitutional Court in the further appeal
reported at
2011 (4) SA 42
(CC) para 25 read with paras 48-63. In the
latter case Brand AJ said that the late additional ground of review
was time-barred
because it was in truth a review directed not at the
decision with which the original ground of review was concerned but
at an
earlier decision. In para 47 Brand AJ said that the Supreme
Court of Appeal had not held that a new ground of review could not be
introduced into an existing application after 180 days; what it found
was that, on a proper analysis of the facts, the applicant’s
new ground was aimed at a decision that had already been taken in
February 2005, and not at a decision which was taken in September
2007.
[45]
On a parity of
reasoning, if the Trust has satisfactorily explained its delay in
respect of the location point and if for this reason
the late
institution of the review application should be condoned, the Trust
is not barred from relying on the temporary-building
point merely
because an application based solely on that ground would have been
out of time. It should also be remembered that
is not as if there is
no explanation for the delay regarding the temporary-building point.
MTN’s application, insofar as
the Trust was aware, was an
application for building plan approval in terms of s 4 read with
s 7. This formed the basis
of the Trust’s objections. At
no stage did the City inform the Trust that it was now reassessing
the plans in terms of regulation
A 23. When Mr Carter told TBTP on 11
November 2013 that the building plans had been approved, he did not
say that this was in terms
of regulation A23. I am not sure that the
Trust can be criticised for not having sent its town planner to
examine the approval.
[46]
The delay did not cause
material prejudice, since the review application was launched
promptly after construction began. MTN, after
initially conceding
that it was constructing the base station in the wrong location and
ceasing work at a very early stage, resumed
construction with full
knowledge that a review application was pending. MTN opposed the
Trust’s renewed request for urgent
relief. Almost all work has
thus been undertaken by MTN at its peril. If a successful review
eventually has the result that the
base station must be demolished (I
do not say it will), MTN will have been the author of its own
misfortune. The application
raises important questions regarding the
application of the Act and regulations in relation to so-called
temporary buildings. As
will appear hereunder, the Trust has
favourable prospects of success. In the circumstances, I am satisfied
that the interests of
justice require any delay on the Trust’s
part to be condoned.
The
temporary-building point
[47]
It is convenient to
consider the temporary-building point first. I use this tag to cover
several related complaints advanced by
the Trust concerning the
process followed by the City and which can be summarised thus:
(i) The City should not have approved
construction of the base
station as a ‘temporary building’, given that MTN is
entitled to make repeated applications
to extend the temporary
departure.
[12]
(ii) Even if regulation A23 were applicable, the City was required to
assess the application in accordance with s 7
[13]
and to obtain a recommendation from the BCO in terms of s 6.
[14]
The City did not have a recommendation from the BCO and did not
assess the application in accordance with s 7. (iii) The City
failed to have regard to the 21 objections and received no reports
from its officials thereon.
[15]
(iv) Had the City assessed the building plan application properly in
accordance with s 7, it would have concluded that the
building
was likely to disfigure the area, be unsightly and objectionable and
probably derogate from the value of surrounding properties.
[16]
[48]
On the facts, it is
clear that the City’s view when approving the building plans
was that s 7 was inapplicable and that
it therefore did not need
to assess the matters specified in s 7(1). It is also clear that
there was no recommendation from
the BCO in terms of s 6(1)(a)
as explained in
Walele
.
[49]
It is regrettable that
the City did not file an affidavit explaining its line of reasoning.
This it could have done while abiding
the result. Indeed, rule 53(1)
expressly permitted the City, when furnishing the record, to furnish
reasons for its decision. The
result of its silence is that the
Trust’s allegations about how the City approached the matter
are answered. This does not
mean that the Trust’s allegations
necessarily have to be accepted as correct. But if the Trust’s
allegations on these
matters are the most probable inferences to be
drawn from established facts, the absence of an answer from the City
in my view
entitles the court to accept them as correct.
[50]
Mr Mitchell submitted
that the City invoked regulation A23 specifically to avoid having to
address the 21 objections and the factors
specified in s 7(1).
This allegation, which comes close to one of mala fides, was not made
in the founding or supplementary
founding papers and is thus not open
to the Trust. In any event, I do not think the submission is the most
probable inference from
established facts. It is at least as probable
that the City, particularly in the person of Mr Carter, thought that
it was inappropriate
to assess the application in terms of s 7,
having regard to the fact that (so Mr Carter opined) the base station
was, by virtue
of the temporary LUPO departure, a ‘temporary
building’. He may even have been concerned that approval in
terms of
s 7(1) would be construed as giving MTN long-term
rights in conflict with the LUPO departure. He evidently thought that
the
way to reconcile building plan approval with the LUPO departure
was to grant approval for a temporary building in terms of regulation
A23, since the latter regulation unlike s 7(1) permits approval
to be given for a limited period.
[51]
It is thus necessary to
consider whether the City’s approach as just summarised was
correct. This in turn calls for a proper
interpretation of regulation
A23 and its inter-relationship with the provisions of the Act.
Is the base
station a ‘temporary building’’?
[52]
I start with the
definition of ‘temporary building’ in the regulations.
The first point to note is that a temporary
building as thus defined
is also a ‘building’ as defined in s 1 of the Act.
The second is that there are two requirements
to be met for a
building to qualify as a ‘temporary building’: (i) the
building must have been so declared by
the owner; and (ii) the
building must be one which is being used or will be used ‘for a
specified purpose for a specified
limited period of time’.
[53]
As to first of these
requirements, regulation A23(3) contemplates that the owner will have
specified the temporary period as does
the definition of ‘temporary
building’ itself (‘… for a
specified
limited period of time’). Although regulation A23(2)(a)
suggests that the local authority ‘may’ (not ‘must’)
require a statement of the period for which authorization is
required, it seems to me that a proper declaration by the owner must
incorporate a specified period of time. At any rate, it is likely
that the local authority in practice will always require a statement
of the period.
[54]
As to the second
requirement, the enquiry is a factual one and is not determined by
the owner’s say so in his declaration.
Regulation A1(7)(a)
obliges the local authority, when considering a regulation A23
application, to assess inter alia ‘the
intended use and life of
the building’. The local authority must thus properly consider
whether the building is to be used
‘for a specified limited
period of time’. Furthermore, although in the performance of
its functions the local authority
would need to decide whether the
building is to be used for a specified limited period of time, its
determination of that question
is not decisive. The relevant
jurisdictional fact for the application of regulation A23 is not the
local authority’s satisfaction
or opinion that the building is
to be used for a specified purpose for a specified limited period of
time but whether as a fact
the building is to be so used.
[55]
Although the period for
which a building is to be used is a question of fact, the relevant
fact is concerned with the owner’s
intentions (as distinct from
his formal declaration). Since the owner’s intentions can
(apart from his declaration) only
be determined inferentially, the
objective characteristics of the proposed structure and its intended
use and purpose are likely
to play an important and even decisive
role in determining whether in truth the building is one which the
owner intends to use
only for a specified period of time.
[56]
In the present case,
MTN’s letter of 10 October 2013 requested permission for the
base station as a temporary structure for
a period corresponding to
that of the LUPO departure. I am not convinced that this letter
constituted a valid declaration by the
owner as contemplated in the
definition of ‘temporary building’. To seek approval for
a building as a temporary structure
for five years is not quite the
same thing as declaring that the building is only to be used for a
period of five years. One knows
that when MTN initially submitted its
application for building plan approval it did not do so on the basis
that the base station
was to be temporary. However, I shall assume
that the letter of 10 October 2013 was a sufficient declaration by
MTN.
[57]
As to the objective
question whether the base station was to be used ‘for a
specified limited period of time’, the City
appears to have
assumed that because the LUPO departure was for five years the base
station was one which was to be used for a
specified limited period
of time. The same thinking underlies MTN’s letter of 10 October
2013. I do not think that this is
a correct assumption. Although the
LUPO departure was for a period of five years, the conditions of
approval expressly contemplated
that the base station might need to
remain operational for a longer period and reference was made to the
fact that in this event
there would need to be a new departure
application. So there might be repeated ‘temporary’
departures, resulting in
the base station continuing to be used
indefinitely into the future. An alternative to further temporary
departures (s 15(1)(b))
of LUPO) would be a permanent change in
land use (s 15(1)(a) of LUPO) or a rezoning of the property
(s 16 of LUPO).
[58]
It is true that without
some further LUPO approval the base station would have to be
demolished after five years but it by no means
follows that MTN
intended that the base station should only be in use for five years.
I am quite sure that MTN intended nothing
of the kind. MTN’s
motivation for the departure emphasised the need for improved network
coverage. Other sites had been considered
but none met MTN’s
requirements. This particular site was optimal. In response to
objections, MTN said that the site could
be decommissioned after five
years if further research showed that base stations of this kind had
deleterious health effects.
[59]
Although there is no
information before me about the cost of constructing the base
station, it must be considerable. The mast and
supporting equipment
are no doubt sophisticated and costly. The structure housing the
equipment and on which the mast is to be
installed has all the
hallmarks of permanence, with specifications for foundations,
external cavity walls, cement screed floors,
rhino board ceilings,
corrugated iron roofing and parapet walls at each end.
[17]
The roofed building, with three rooms, is 7,98m length x 3,56m width
x 2,5m height (with the parapets and roof extending above
this). The
external slab on which the mast stands is 7,98m length x 3,5m
width surrounded by a 2,4 m high wall.
[60]
MTN in its answering
papers did not say that it intended to use the base station for only
five years. Its answer to the contention
that the structure should
not have been approved as a temporary building was that approval as a
temporary building is not precluded
merely because there is provision
‘for an infinite number of resubmissions’.
[18]
There is no evidence that MTN has ever demolished base stations after
a short period of time. As a matter of practical reality,
it seems
unlikely that the City, having decided in a process finalised in
early 2013, that the first five-year departure should
be granted,
would thereafter refuse rolling five-year extensions (or eventually a
rezoning) in the absence of some material change
in circumstances.
The base station will not become aesthetically less pleasing with the
passing of time. If anything, the growth
of mature trees will shield
it more than at present. New scientific discoveries may lead to a
conclusion that base stations should,
for health reasons, not be
located near residential dwellings but there is no reason to suppose
that MTN expects this to happen.
If new research to this effect
emerges, it would presumably affect a great many base stations in
South Africa.
[61]
A further relevant
consideration is that the five-year period of the LUPO departure
expires, at the latest, on 5 March 2018. MTN
only obtained building
plan approval in October 2013 and started construction in mid-July
2014. If one assumes that in the ordinary
course the base station
could (but for the first urgent application) have been operative by
the end of 2014, MTN would only have
had three years and two months
before the LUPO departure expired. This makes it even more
implausible that MTN could have intended
the base station only to be
operative for the period of the LUPO departure.
[62]
In my view, therefore,
the base station did not qualify as a ‘temporary building’.
To the extent that the determination
of this question was one for the
City’s satisfaction or opinion rather than the court’s
objective determination, the
City approached the matter on a
fundamentally flawed basis. The City does not appear to have
investigated at all whether MTN had
the intention of using the base
station for only a limited period of time.
[63]
In the circumstances,
and even if the other issues on this part of the case were decided
against the Trust, the provisional authorization
granted on 17
October 2013 cannot be allowed to stand.
Regulation
A23
[64]
In case this matter
should go further, it may be desirable if I state my views on the
other legal issues on this part of the case,
ie on the assumption
that the base station was properly regarded by the City as a
temporary building.
[65]
The regulations must as
far as reasonably possible be interpreted in a manner consistent with
the Act. Any regulation that could
not reconciled with the Act would
be ultra vires but no attack on the validity of the regulations has
been made in the present
case.
[66]
Section 4(1) requires
prior approval of the local authority where a building is to be
erected ‘in respect of which plans and
specifications are to be
drawn and submitted in terms of this Act’. Section 4(3) states
that the application for approval
shall be accompanied by such plans,
specifications, documents and information as may be required by or
under the Act and by such
further particulars as the local authority
may require. In these provisions of s 4 the word ‘Act’
bears its defined
meaning, ie includes the regulations, because it is
the regulations that identify the buildings for which plans and
specifications
must be drawn and set out what those plans,
specifications, documents and information comprise. Section 4(3)
envisages two types
of documentation and information, namely that
which must mandatorily be furnished in terms of the Act as read with
the regulations
and that for which the local authority may in its
discretion call.
[67]
Where an application in
terms of s 4(3) has been submitted, the BCO must in terms of
s 6(1)(a) make a recommendation to
the local authority. After
considering the BCO’s recommendation, the local authority must
grant or refuse the application
in accordance with s 7(1). The
latter section thus applies in those cases where a BCO recommendation
in terms of s 6(1)(a)
is required. Such a recommendation is
required if the building is of the kind contemplated in s 4(3)
read with s 4(1).
[68]
Section 17(1)(o)
permits the Minister to make regulations to regulate, restrict or
prohibit the erection of temporary buildings
and the occupation or
use thereof or access thereto.
[69]
These various
provisions in the Act thus notionally permit regulations to be
promulgated which would exclude temporary buildings
from the category
of buildings for which plans and specifications must mandatorily be
submitted (s 4(1)). If regulations to
this effect were passed, a
person wishing to erect a temporary building would not have to submit
an application in terms of s 4(3),
with the result that there
would not have to be a BCO recommendation in terms of s 6(1)(c)
or resultant decision by the local
authority in terms of s 7(1).
One would nevertheless expect such regulations to control the
erection of temporary buildings
by way of a separate regime.
[70]
This, in my view, is
what Part A of the regulations does. In the previous version of the
regulations, published in June 1988, regulation
A2(1) achieved this
in the opening words of the sub-regulation (my underlining): ‘Any
person intending to erect any building,
excluding
a temporary building
,
shall… ‘. The new version of the regulations
promulgated in October 1990 (this is the current version, subject
to
further amendments) deleted the underlined words and instead added,
at the end of A2(1) as a whole, the provisos previously
mentioned.
Part A must naturally be interpreted as a whole. Regulation A2 as
read with regulations A3 to 10, although dealing
in general terms
with ‘buildings’, must be interpreted with due regard to
the provisos to regulation A2(1) and to regulations
A23 and A24(10).
The proviso relating to temporary buildings and regulation A23(2)
make it clear that there are no plans and drawings
which are
mandatorily required for the erection of temporary buildings. It is
within the discretion of the local authority to decide
what plans,
drawings and other information it requires. While it is difficult to
imagine that a local authority could ever properly
exercise its
powers under regulation A23 without calling for some information, a
temporary building is nevertheless not one in
respect of which plans
and specifications as contemplated in s 4(1) read with s 4(3)
must in terms of the Act be submitted.
This is reinforced by
regulation A24(10) which excludes temporary buildings from those in
respect of which the local authority
can by notice insist that the
owner seek approval in terms of s 4(1).
[71]
This does not mean that
a person can start erecting a temporary building without any approval
at all. A building is only a temporary
building for purposes of
regulation A23 if, inter alia, the owner has declared it to be a
temporary building. In context, the declaration
must be made in an
application for authorization in terms of regulation A23. If no such
application is made, the building, even
if in fact intended to be
temporary, would be a building to which the prohibition in s 4(1)
applies.
[72]
I therefore reject the
Trust’s submission that ss 4, 6(1)(a) and 7(1) apply to
the erection of temporary buildings where
an application in terms of
regulation A23 is made and the building in question is properly to be
regarded as a ‘temporary
building’ as defined. However,
and for this very reason, one should not construe the expression
‘temporary building’
in too liberal a fashion, since the
regulation A23 procedure exempts the owner from requirements which
are generally regarded as
necessary and desirable for the control of
building activity in the public interest and deprives neighbouring
owners of the protections
afforded by s 7(1) (and see
Walele
supra paras 52, 56
and 70-72;
Turnbull-Jackson
v Hibiscus Coast Municipality & Others
2014
(6) SA 592
(CC) paras 80-85 and 88-89). This fortifies me in my
conclusion that a building is not to be regarded as a ‘temporary
building’
merely because the owner may have to demolish it if
he does not get further departures or a rezoning.
[73]
If an owner makes an
application in terms of regulation A23 in respect of a building which
can properly be regarded as a ‘temporary
building’, the
local authority may thus grant the ‘provisional authorization’
contemplated in regulation A23(1)
after receiving such information as
it may call for in terms of regulation A23(2) and after making the
investigations required
by regulation A1(7)(a). The provisional
authorization must in terms of regulation 23(3) be for a ‘limited
period of time’.
This period must be determined by the local
authority ‘with regard to the period specified by the
applicant’. The local
authority could determine a period
shorter than that requested by the applicant though it could also
grant the authorization for
the full period specified by the
applicant.
[74]
Regulation 23(4)
permits one or more extensions of the provisional authorization. In
the light of my interpretation of the term
‘temporary
building’, I do not think the provision for extensions is
intended to apply where, from the outset, the
owner intends to seek
indefinite extensions. It would be contrary to the purposes of the
legislation and the notion of a ‘temporary
building’ that
an owner could ab initio apply for (say) a five-year ‘temporary’
authorization with the intention
of seeking five-year extensions
indefinitely into the future. Regulation 23(4) simply permits an
extension to be sought where it
turns out, after the provisional
authorization has been granted, that the building needs to be used
for a further definite limited
period. Examples might be where
temporary accommodation for construction workers is erected and the
construction contract is not
completed by the anticipated date or
temporary classrooms are erected pending completion of permanent
extensions to a school and
the extensions are not completed
timeously.
[75]
Although the
authorization for which regulation A23(1) provides, and which may in
appropriate circumstances be extended in terms
of regulation A23(4),
is styled a ‘provisional authorization’, the word
‘provisional’ is perhaps inapt
because, as Mr Mitchell
urged upon me, it usually means, in relation to decisions, an initial
decision of a temporary nature pending
the making of a final decision
(cf
Branca v Cobarro
[1947] KB 854
(CA) at 858 –
‘something which is going to operate until something else
happens’). In the context of regulation
A23, however, the
‘provisional authorization’ is not in my view provisional
upon some further process of approval.
Regulation A23(5) states that
before the end of the stipulated period the owner ‘may’
(not ‘must’) submit
an application in terms of s 4
of the Act. If matters turn out as the owner expects and he only
needs the building for the
period specified in his application, he
must simply remove or demolish the building at the end of the
specified period (see regulation
A23(7)). I do not think that a
provisional authorization may be granted for a structure as a
‘temporary building’ if,
from the outset, the owner
intends it to be a permanent structure. Regulation A23(5) is intended
to cater for the case where, after
provisional authorization for
construction as a temporary building has been given, the owner
decides that he does not wish to use
the building only for a
temporary period. In such cases, instead of seeking an extension in
terms of regulation A23(4), the owner
may seek permanent approval in
terms of s 4 of the Act which would then require compliance with
ss 6(1)(a) and 7(1).
[76]
Accordingly, the word
‘provisional’ in regulation A23 must be understood as
meaning ‘temporary’, without
the connotation of being
subject to some further approval. This is, after all, the first
meaning given in leading dictionaries
(
Webster’s
Third New International Dictionary
:
‘provided for a temporary need’;
Shorter
Oxford English Dictionary
:
‘Of, belonging to, or of the nature of a temporary provision or
arrangement; provided or adopted for present needs or for
the time
being’) This ‘provisional’ authorization may be
contrasted with s 7(6) of the Act, which permits
a local
authority to grant ‘provisional’ authorization for
construction of a (permanent) building to begin pending
the approval
in terms of s 7(1) of an application lodged in terms of s 4.
That provision has no bearing on the
present case.
[77]
Regulation A23 may be
regarded as unsatisfactory in not setting some limit on the temporary
period for which authorization for the
erection of a temporary
building may be sought. As Mr Mitchell asked rhetorically in
argument, if the ‘specified limited
period of time’ in
the definition of ‘temporary building’ could be five
years (as the City accepted in this case),
could it be 10 years or 20
years? However, as matters stand, there is no set limit. But a local
authority is not obliged to grant
authorization in terms of
regulation A23 merely because the owner only intends to use the
building for a specified period. The
longer the specified period, the
more likely it is that the local authority will decline to deal with
the matter in terms of regulation
A23. And the longer the specified
period, the more likely it is that the local authority will conclude
that the owner in truth
intends to use the building indefinitely into
the future, so that it is not a ‘temporary building’ at
all.
[78]
The fact that a local
authority is not required to assess a regulation A23 in accordance
with s 7(1) does not mean that it
can disregard the interests of
those who might be adversely affected by a provisional authorization.
The exercise of the power
is still subject to the law relating to
administrative action and to the principle of legality. However, the
Trust’s main
complaint (apart from contending that the base
station is not a ‘temporary building’) is that the City
should have
assessed the application in accordance with s 7(1)
and that had it done so it would have been bound to conclude that the
application
for approval should fail. If the base station, contrary
to my view, were properly regarded as a ‘temporary building’,
the City was not obliged to assess the application in terms of
s 7(1). Since the City, on the view I take of the case, will
still need to deal with MTN’s application in terms of s 7(1),
I prefer to express no opinion as to the conclusions it
could
properly reach under that section after receiving a recommendation
from its BCO.
The
location point
[79]
Because of the Trust’s
contention that s 7(1) applied, its argument on the location
point focused on s 7(1)(a),
which provides that an application
for building plan approval must be granted if the application
complies with the requirements
of the Act ‘and any other
applicable law’. The argument was that the only LUPO departure
for which MTN had obtained
approval was a departure containing a
condition as to the location on which the base station was to be
constructed. It followed
that building plans for the construction of
the base station at a different location were in conflict with
another law, namely
LUPO. Since the City did not see itself as acting
in terms of s 7(1), it would not have considered the matter in
these terms.
But I think it would be equally true to say that the
City could not lawfully grant a provisional authorization in terms of
regulation
A23 if this would be contrary to another law with which
the owner had to comply.
[80]
The evidence in the
papers regarding the location point can be summarised as follows. In
the founding affidavit the Trust’s
deponent attached a mark-up
copy of the LUPO Plan on which he had indicated the location where
MTN was actually constructing the
base station.
[19]
He said the actual construction site was immediately adjacent to the
driveway of the Trust’s property on the north-western
side of
Dalham Road and within very close proximity to the Trust’s
property. By contrast, the location indicated on the LUPO
Plan was
approximately 30 m away, on the south-eastern side of Dalham Road and
behind a wall on the edge of Dalham Road.
[20]
He also attached photographs on which the proposed mast was
superimposed in the position indicated on the LUPO Plan.
[21]
These showed, he said, that the mast was to be located a short
distance away from a trio of stone pines.
[22]
[81]
As noted, in
correspondence written shortly after the launching of the application
and also in its initial answering affidavit,
[23]
MTN admitted that construction was taking place in the wrong
location. The allegation that the actual site was approximately 30
m
to the south-east from the LUPO site was not denied.
[82]
After the production of
the City’s record, the Trust filed a supplementary founding
affidavit. The deponent attached the Site
Plan
[24]
forming part of the approved building plans, saying that the location
of the base station on the Site Plan differed substantially
from the
location on the LUPO Plan.
[25]
This is the Site Plan which, with some additional markings, I have
reproduced earlier in this judgment.
[83]
MTN responded to the
above allegation in its supplementary answering affidavit . The
allegation was denied. The deponent said that
the location on the
LUPO Plan was the same as on the building plan.
[26]
He attached an email dated 12 August 2014 written by the City’s
BCO, Christo Pheiffer.
[27]
This email, however, says no more than that a site inspection
revealed that the actual site of construction accorded with the
approved building plans. That is uncontentious.
[84]
In argument Mr Mtembu
placed reliance on what MTN’s deponent said in the urgent
application. Since both sides referred to
the urgent application, I
accept that I should regard that material as properly before me.
However, that application does not traverse
the specific allegations
made by the Trust as to the difference in the locations. WPP’s
opinion on which MTN placed reliance
in the urgent application does
not seem to me to go further than stating that the location reflected
in the Site Plan accords with
the LUPO Plan in the sense of being
‘generally in accordance’ therewith and that the City
must be presumed to have
been of that mind.
[85]
I thus do not think
that there is a genuine dispute of fact that the actual location
differs from the LUPO Plan. The difficulty
I feel in coming to a firm
conclusion on this part of the case is whether the actual location is
‘generally in accordance
with’ the LUPO location. The
word ‘generally’ in the LUPO approval involves some
derogation from exactness and
should be understood as
‘approximately’. That is a matter of degree and judgment,
having regard to the purposes which
the City sought to achieve in
specifying the location as a special condition, the distance of the
actual location from the approved
location and the extent to which
the actual location is less satisfactory than the approved location
in achieving the purposes
for which the location was specified as a
condition.
[86]
The objections filed in
the LUPO application are not part of the record furnished by the
City. However, and having regard to the
Planning report of 4 October
2010, summarising MTN’s motivation and the objectors’
complaints, the visual impact of
the mast was clearly an important
matter. On the other hand, it was not the aesthetic impact
specifically on the Trust’s
property that was debated. The
actual position is now somewhat closer to the Trust’s property
and the mast is further away
from the trio of stone pines. At least
from certain angles, this makes it more obtrusive. On the other hand,
it no longer lies
on the western axis of Dalham Road and is not in
the direct line of sight of a person approaching the property from
Dalham Road
(it will be recalled that this was one of the criticisms
made by TBTP on the mistaken assumption that the building plan
location
was the same as the LUPO Plan). So the difference in
location might be aesthetically worse in some respects and
aesthetically better
in others.
[87]
As to the physical
extent of the discrepancy, the LUPO Plan does not include dimensions.
Its scale is not stated but is quite large
(coarse). One can see from
the Site Plans that the LUPO Plan does not depict all the boundaries
of Erf 10762. The LUPO Plan does
not show the property’s
building lines which, according to the Site Plans, are set back six
metres from the boundary. The
location of the base station on the
LUPO Plan is indicated by a small black block on a small depiction of
the property. I assume
this must be taken as being just within the
building lines though they are not reflected on the LUPO Plan. I have
compared the
LUPO Plan
[28]
with the Site Plan drawn to the scale 1:100.
[29]
Dalham Road runs towards Erf 10762 in a south-westerly direction. Erf
10762 lies straight ahead at the end of the road but the
boundary
there does a dog-leg. If one were to transpose the location indicated
on the LUPO Plan to the Site Plan (which could not
be done with
absolute precision), the base station would be located just inside
the building line in the corner created by the
portion of the dog-leg
further away from Dalham Road (more or less the south-east corner of
the building line). The actual location
depicted on the Site Plan is
located just inside the building line in the corner created by the
portion of the dog-leg closer to
Dalham Road, just before the
boundary starts to run away diagonally from Dalham Road in a westerly
direction. Although the Trust’s
deponent alleges that the LUPO
site is about 30 meters to the south-west of the actual site (the
latter corresponding with the
Site Plan), the Site Plan, which is to
scale, indicates by my assessment that the LUPO site is about five
metres to the west and
eight meters to the south of the actual site.
(On the Site Plan reproduced earlier in this judgment, the blacked-in
rectangles
reflect respectively the base station’s actual
location on the Site Plan and my transposed location from the LUPO
Plan.)
The property as a whole is 2670m
2
in extent.
[30]
The distance from the LUPO location (even by my assessment, which
differs from that of the Trust’s deponent) is not trivial
but
might arguably, in combination with other considerations, be regarded
as not so great as to render the actual location in conflict
with the
LUPO condition.
[88]
In the circumstances,
if it were necessary to decide the location point, I would not feel
confident of doing so without more exact
information and if necessary
an inspection in loco, the possibility of which was briefly mentioned
during argument. However, the
conclusion I have reached on the
procedure followed by the City (ie its erroneous treatment of the
building as a ‘temporary
building’) means that the matter
will in any event have to be reconsidered by the City. While I have
thought it prudent to
express my view on the legal issues relating to
the interpretation of regulation A23, there would be unnecessary
delay and cost
if, for purposes of deciding a point which might in
the event be academic, the matter were adjourned for further evidence
and an
inspection followed by further argument. This issue should
rather be addressed in the City’s consideration of the matter
in terms of s 7. I may add, in this regard, that there is
nothing in the City’s record to show that its officials were
aware, when granting the approval of 17 October 2013, that there was
a difference in location.
Conclusion
[89]
For these reasons the
application to set aside the City’s decision of 17 October 2013
must succeed, on the basis that the
City was not entitled to grant
authorization for the construction of the base station as a
‘temporary building’ in
terms of regulation A23. Costs
should follow the result.
[90]
There is nothing which
the court can remit to the City for reconsideration. I venture to
suggest, though, that the sensible course
for the parties to follow
is to regard the City’s refusal of the s 4 application and
the resultant withdrawal of that
application by MTN as based on an
erroneous belief regarding the scope of regulation A23 and thus to
treat the s 4 application
as still pending, clearing the way for
the City to adjudicate it in terms of s 7(1) after obtaining a
recommendation from
the BCO in terms of s 6(1)(a) and such
further information it may think necessary on the location issue.
[91]
I make the following
order:
(a) Insofar as needs be, the period
prescribed by
s 7(1)
of the
Promotion of Administrative Justice
Act 3 of 2000
is extended in terms of
s 9(2)
, with the result
that any delay which there may have been in the launching of the
application is condoned.
(b) The decision taken by the second
respondent on 17 October 2013, granting approval to the first
respondent, in terms
of regulation A23 of the regulations promulgated
in terms of the National Standards and Building Regulations Act 103
of 1997, to
construct a cellular base station and mast on Erf 10762
Constantia, Dalham Road, Constantia, is reviewed and set aside.
(c) The first respondent is to pay the
applicants’ costs in respect of the application for Part B
relief, such
costs to include those attendant on the employment of
two counsel.
ROGERS
J
APPEARANCES
For Applicants Messrs D
Mitchell SC and L Kelly
Instructed by Francis
Thompson & Aspden
Unit 17, 10 Pepper
Street
Cape Town
For First Respondent Mr
AM Mtembu
Instructed by Mashiane
Moodley & Monama Inc
Suite 19, Second Floor
Katherine & West
Building
114 West Street
Sandton
c/o Shepstone &
Wylie Attorneys
18th Floor, 2 Long
Street
Cape Town
[1]
Three separately paginated files were placed
before me, being the papers in the present application, the papers
in an earlier
urgent application, and the record furnished by the
City in terms of Rule 53. Where it is necessary to identify a
document in
this judgment, I shall do so by page number preceded by
the letters A, U and R as appropriate.
[2]
A43 and R344; marked-up version at A47.
[3]
R345 and R346.
[4]
The letter says ‘Erf 19762’ but this
is an obvious typographical error: there is no Erf 19762 abutting
Erf 10762.
[5]
The letter refers to regulation A25(4) but that
is a typographical error.
[6]
R341-347.
[7]
R344.
[8]
R340 and R343.
[9]
See also para 49.3 of the founding affidavit
record A19.
[10]
This is how I is understand the relevant part of
her email which reads thus: ‘As a town planner myself, my
argument seems
to favour the building plan being '
Functus
Officio
’ in terms of the NBR,
the location was approved was processed via council, please verify
that the applicable town planning
department signed off on the
building plans and if so then they also agreed to the location
making the Land Use Departure only
about allowing MTN to deploy a
base station on the premises.’ [sic]
[11]
The building plans bear inter alia the stamp of
the City’s Zoning Administration.
[12]
Para 9 record A94; paras 9.2 – 9.4 record
A174-175; para 21 record A181.
[13]
Para 46.1 record A17; para
10
record A94-95.
[14]
Para 10 record A94-95.
[15]
Para 12 record A95-96.
[16]
Paras 47—50 record A18-20; paras 18-19
record A97-98.
[17]
See Elevation and Section Drawings at R341.
[18]
Para 43 at record A117.
[19]
Record A47.
[20]
Paras 14-17 record A9-10.
[21]
Record A51.
[22]
Paras 19-20 record A11.
[23]
Paras 13-17 record A79-80.
[24]
Record A103.
[25]
Para 13 record A96.
[26]
Paras 51-53 record A118.
[27]
Record A165.
[28]
The A3 version at R344.
[29]
R340.
[30]
A30 para 2.4;
R32.