Court quashes KSAMC building permit for Digicel tower

Residents of Aylsham Heights in St Andrew have secured a major triumph in their challenge against the erection of a cell tower in their community by telecoms firm Digicel.

The Supreme Court last month quashed a building permit issued to the company in November 2021 by the Kingston and St Andrew Municipal Corporation (KSAMC), the first defendant in the claim initiated by the Aylsham Heights Citizens’ Association.

The residents had objected to the 24-metre structure on the basis that they would be within the radius of the microwave radiation to be emitted from the tower and would be adversely affected.

President Steven Sykes and member Lynden Nugent, who filed the claim on behalf of the citizens’ association, also sought to reverse the planning and environmental permits for the tower, but the court found that they were not finalised, and as such, a ruling could not be made against the state agencies, which were also sued by the association.

Both the Natural Resources Conservation Authority (NRCA), the second defendant, and the Town and Country Planning Authority (TCPA), third defendant, had granted conditional permits. The former was with respect to the environment permit and the latter for planning.

In the recently published judgment, Justice Sonya Wint Blair said that although the agencies had granted the permits, they were never issued and because they were not final decision, they were not capable of a judicial review.

According to the claim, on December 23, 2021, one of the members of the association saw a notice dated November 10, 2021, attached to the gate at 1 Aylsham Heights, which stated that anyone wishing to object to the planned construction of the tower should do so within 14 days.

Sykes said that he wrote to the KSAMC and was informed that a favourable community survey had accompanied Digicel’s building application, which was approved by the Building and Town Planning Committee on November 17, 2021.

The citizens sought a meeting, which was held on March 4, 2022. During the meeting, the KSAMC’s attorneys maintained that their client had done nothing wrong in considering and granting the application before the period of filing an objection had expired.

The KSAMC claimed that it treated Digicel’s application on November 9, 2021, as an emergency one, given the importance of telecommunication services in the COVID-19 environment.

The KSAMC approved Digicel’s request within five working days of the application being submitted, but the residents are contending that under the Kingston and St Andrew Building Regulations, there is a 30-day period for objection after a notice of application is made.

Digicel submitted its application to the NRCA for an environmental permit on November 15, the same date the KSAMC sent a request for planning permission from the TCPA, which operates with the NRCA.

Both requests were approved the following day.

PROVISIONS NOT FOLLOWED

Justice Wint Blair found that the KSAMC had failed to act within its statutory remit in granting the permit.

Notwithstanding the emergency caused by the pandemic, she said the action of the corporation was not supported by the evidence of the meeting in which the approval was granted.

“There being no emergency approval on the record, the provisions of the Building Act were not followed in granting approval for the building permission,” Wint Blair said.

“Digicel clearly either failed to conduct a survey or did it in a different community. Therefore, to rely on the findings from another community as the basis on which to approve the application for the erection of the cell tower on November 17, 2021, was irrational,” she added.

According to Sykes, no one from the association was asked to participate in the survey. However, he said 50 persons from the community had signed an objection letter.

The court dismissed the claim against the NRCA, noting that it had not been properly brought.

It refused to grant the order of certiorari to quash the TCPA planning permit, but Justice Wint Blair, however, ordered that the claimants be notified when the permit is issued.

The residents were represented by attorneys-at-law Gavin Goffe and Matthew Royal while Rose Bennett-Cooper and Sidia Smith appeared for the KSAMC.

Matthew Ricketts argued for the other defendants while Maurice Manning, KC, and Allyandra Thompson represented Digicel, the interested party.

tanesha.mundle@gleanerjm.com