Joburg responds to cell mast fears

JOBURG RESPONDS TO CELL MAST FEARS

Joburg residents have no legal rights to complain about the construction of cellphone street lamp masts in their suburbs unless they exceed 15 metres in height or are in environmentally-sensitive areas.

So said the City of Joburg in response to numerous complaints by residents waking up and finding the lamps outside their homes being topped with cellphone masts.

Despite the legislation, the city has introduced, in the interest of its residents, a cellphone mast policy that promotes a public participation process whereby adjoining property owners and any other person who may be affected by the installation of a cellphone mast must be given notice and such affected parties may then submit comments to the city within a time frame. This also included informing the ward councillor.

Residents in many Joburg suburbs have recently voiced their unhappiness with the installation of these masts, claiming they can cause cancer, devalue their properties and block views.

Bryanston residents recently drew up a petition to protest over the installation of cellular street-lamp masts at the entrance a housing estate.

The community, comprising the area's residents, community committee members, concerned parents, grandparents, siblings, teachers, local schools and nursery schools as well as health practitioners called for a meeting with the cellphone company responsible for putting up the masts.

In the suburb of Kensington there was also an application for the erection of cellular masts. Ward councillor Carlos da Rocha had called a public meeting over the matter, but said there was little interest.

City spokesperson Virgil James said: "The question is whether such policy and such public participation process is still justified bearing in mind judgments in recent Constitutional Court hearings.

"Why go through a public participation process when it is not a statutory requirement, and what is the use of going through a public participation process where such processes cannot defeat or eviscerate the right given to network licensees?" he asked.

James added this had now become a matter between the licensee and the property owner, not the neighbour, councillor or the city.

He said that several pieces of legislation governed this issue such as the Electronic Communications Act, the National Environmental Management Act (Nema), 107 of 1998, and the National Building Regulations and Building Standards Act (NBRA), 103 of 1977, as well as the relevant town planning scheme. "Nema only requires public participation for cell masts in excess of 15m and that may be in an environmentally sensitive area," he said.

"The NBRA regards masts as a building structure and requires that the applicant submit a building plan for approval, but does not prescribe any public participation process," James added.

There are several cases which have ended up in court that sided with the licence holders based on judgments passed.

"In all of the judgments, the courts found that, based on an interpretation of the acts, no permission is required from any landowner for an electronic network services licensee.

"The 'landowner' includes state organs. Licensees must comply with applicable laws, however, those applicable laws cannot be used to limit the very act authorised in the licence.

"This simply means that anyone who has a gripe about this cannot even rely on the Public Access to Information Act to be heard, unless they make a proper case that they have a right, or a legitimate expectation, that will be adversely affected by the decision to approve building plans for cellphone masts," James said.

Many residents, he said, accused the city of not ensuring adequate public participation prior to the installation of cellphone masts.

In Walele v the City of Cape Town 2008, in which the City of Joburg was admitted as an amicus curiae, the Constitutional Court confirmed that neighbours, and any other third party, do not have a right to be heard, to be informed of, or to have access to building plans or to object against them prior to approval.

James said the World Health Organisation had recently indicated: "Considering the very low exposure levels and research results collected to date, there is no convincing evidence that the weak RF signals from base stations and wireless networks cause adverse health effects including the use of mobile phones."

Anna Cox
City Watch
The Star