The KZN norms and standards for electronic communication facilities are consistently being overlooked by service providers and interested and affected parties at their own peril.
On 7 January 2020 the KZN Member of the Executive Council: Cooperative Governance and Traditional Affairs adopted the Provincial Norms and Standards for Electronic Communication Facilities (Norms and Standards). “Electronic Communication Facilities” being the fancy wording for “cell towers” and ancillary structures.
Anyone in a residential neighbourhood where a cell tower has been or was planned to be erected can attest, these applications are not always welcomed by the community. There is inevitably resistance based on health concerns, noise or aesthetics. To a disgruntled neighbour, no amount of plastic foliage can truly make a cell tower look like a pine tree or palm tree. Conversely, securing the rights to use these sites is big business and has become a government imperative to expand telecommunication access. At a personal level, who hasn’t become frustrated when your one bar of cell signal disappears when you need to make an important call. Moreover, there are widescale plans with billions of Rands invested for the roll out of 5G technology in the coming months. One of South Africa’s largest service providers is reportedly aiming to have at least 25% of South Africa’s population covered by 5G by the end of 2022.
Given the implications for service providers and affected people, it is surprising that the adoption of these Norms and Standards have gone relatively unnoticed both by service providers and interested and affected parties. In this article, I will provide a brief sketch of the legal basis for the adoption of the Norms and Standards, their legal effect, their practical implications and the consequences of non-compliance.
Electronic Communications Act 36 of 2005
The Constitutional Court has held that the grant to a person of rights in terms of the Electronic Communications Act 36 of 2005 (the ECA) to erect a telecommunications facility, does not exempt them from having to comply with the necessary planning laws to enable them to exercise these rights (Telkom SA SOC Ltd v City of Cape Town and another (CCT 287/19)). They are different rights derived from separate legislation with different purposes. Rights granted in terms of the ECA do not exempt compliance with other legislation. Therefore, a licensee cannot erect a facility without complying with the Spatial Planning and Land Use Management Act (SPLUMA), provincial planning legislation, municipal planning bylaws, the National Environmental Management Act and in certain traditional council areas the Traditional and Khoisan Leadership Act and the Communal Land Rights Act.
Spatial Planning and Land Use Management Act
SPLUMA provides the framework within which Provinces and Municipalities must regulate their constitutional spheres of planning. All municipalities have adopted their own planning bylaws within the framework of SPLUMA (although many are iterations of a standard precedent bylaw). KZN’s provincial planning legislation is the KwaZulu-Natal Planning and Development Act 6 of 2008 (PDA). The PDA was enacted to replace the provincial town planning ordinance. As will be observed from its date of promulgation, it predates SPLUMA. In terms of SPLUMA promulgated as the framework legislation for planning, the PDA must be interpreted in a way that is consistent with SPLUMA and where provisions of the PDA are in conflict with SPLUMA, they are not enforceable. The KZN Norms and Standards were adopted in terms of section 144 of the PDA. This is consistent with SPLUMA and is not in conflict. The Norms and Standards are binding on all telecommunication facility operators, including the state and municipalities as well as all municipalities that decide applications for land development approval for telecommunication facilities (Norms and Standards, clause 6). In other words, unless a municipality has applied to the MEC and has been granted an exemption, they apply throughout the province.
The Norms and Standards
The Norms and Standards direct municipalities on how they should amend their schemes and bylaws to align with the provincial planning standard on dealing with Electronic Communication Facilities. Given this aspect of the Norms and Standards, in future it is envisioned there will be some uniformity in the wording and application process for telecommunication facilities throughout KZN despite the nuances a particular municipal bylaw may have.
The major impact of the Norms and Standards immediately affecting municipalities, developers and objectors is the provision of information that must accompany an application for land development approval for a telecommunication facility. This information includes plans, assessments, declaration of intents and signed agreements, among other things. It goes far beyond the information ordinarily provided in these types of applications. As the clause in the Norms and Standards dealing with this is peremptory, an applicant must provide the information or the application will be non-compliant.
A municipality’s planning bylaw ordinarily provides for factors which a decision-maker must take into account when considering an application. The Norms and Standards extends these criteria to include factors which a decision-maker must additionally consider, specifically relating to the appropriateness of a telecommunication facility. These factors include extensive provisions relating to: whether the optimisation of the number of telecommunication facility sites is achieved; the reduction of the impact of the facility on public health; the inclusion of techniques to promote public safety; addressing and reducing environmental impacts; addressing and reducing impacts on heritage; reducing the visual impact; reducing the generation of noise; reducing interference with other telecommunications facilities and services; integration with existing infrastructure and surroundings.
What then happens if these Norms and Standards are not adhered to in an application for a telecommunication facility?
At the very least, the application should be deferred. This means that an applicant will need to supplement their application to include the necessary information and documentation required by the Norms and Standards. Given the amount of information and documentation required, this could result in repeating a public participation procedure. This is a costly exercise. Where the decision-maker is of the view that the application is fatally flawed as a result of non-compliance with the norms and standards, then the application will be rejected outright and the applicant will need to restart the application process. This is even more costly.
If a decision-maker does not consider the factors stated in the Norms and Standards, then the decision is appealable in terms of the relevant municipality’s bylaw read with SPLUMA. If these considerations are still not adequately dealt with by an appeal authority, then the decision could be reviewed and set aside as unlawful in terms of the Promotion of Administrative Justice Act (PAJA).
Finally, those relying on decisions taken after the adoption of the Norms and Standards which did not take the Norms and Standards into account need to be aware of the Oudekraal principle (Oudekraal Estates v CoCT and others (2004 (6) SA 222 (SCA)). Simply put, the principle states that “until the [decision-maker’s decision] …is set aside by a court in proceedings for judicial review, it exists in fact and it has legal consequences that cannot simply be overlooked” (para 26). So, where an application was made that was non-compliant with the Norms and Standards and where a decision on that application did not comply with the considerations contained in the Norms and Standards, the decision/approval remains valid until set aside. One needs to clearly understand that these decisions are at risk of being reviewed and set aside for unlawfulness in terms of PAJA.
Thus, compliance with the Norms and Standards should not be just a “box ticking” exercise for service providers and decision-makers. It is an in-depth process requiring specialist knowledge and input. Objectors (of which there are many in these applications) are well advised to scrutinise applications circulated to them to ensure compliance. Municipalities and decision-makers are well advised to ensure they consider the Norms and Standards when faced with an application to ensure they do not act unlawfully and have their decisions reviewed and set aside. Service Providers are well advised to comply strictly with the Norms and Standards in order to avoid costly deferrals, appeals, reviews and rejections.
HSG Attorneys and their involvement
HSG Attorneys has specialist professionals who are able to assist service providers, municipalities and interested and affected parties. HSG can advise on the implications of these Norms and Standards as well as other planning law issues. HSG works closely with the GeoAfrika Group which has associated additional specialist professionals in the fields of planning, surveying, GIS and development who can also assist in addressing and compiling the additional documentation required by the Norms and Standards. As a team, we are able to provide input or deliverables relating to specific compliance points. We provide an audit of existing documents and processes to highlight non-compliance and propose solutions. We are also able to provide customized tools to ensure tracking and/or compliance with everything contained in the Norms and Standards.
BA, LLB (RHODES), LLM: Planning and Environmental Law (UKZN)
HSG ATTORNEY
GeoAfrika 