Telecommunications (West Indies) Ltd (trading as Digicel Bermuda) and Markham v Minister of Environment, Planning and Infrastructure

• Jurisdiction: Bermuda
• Judgment Date: 29 April 2011
• Date: 29 April 2011
• Docket Number: Appellate Jurisdiction 2010 No. 336
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Appellate Jurisdiction 2010 No. 336

BETWEEN:

Telecommunications (West Indies) Limited (trading as Digicel Bermuda)

Michael Markham

Appellants

and

Minister of Environment, Planning and Infrastructure (Formerly the Minister of Environment and Sports)

Respondent

Mr J Woloniecki and Mr N Turner for the Appellants

Mr MA Cottle for the Respondent

The following cases were referred to in the judgment:

London Borough of Hounslow v Thames Water Authority [2003] EWHC 1197

Barber v Minister of the Environmen [1997] UKPC 25

Barber v Minister for the EnvironmentBDLR [1995] Bda LR 9

Corporation of Hamilton v Minister of the Environment and BillingsBDLR [1998] Bda LR 17

Abstract:

Cellphone tower - Planning permission - Zoning order for Knapton Hill prohibits trade and business premises - 2008 Draft Plan - Telecommunication towers

JUDGMENT of Kawaley, J

Introductory

1. The 1st Appellant ("Digicel") provides cellular phone services which require the erection of transmission towers in various parts of Bermuda. One such tower was erected on the 2nd Appellant's property in a residential area ("the Cellular Tower"), without planning permission. Retroactive planning permission was then sought by him. A neighbour objected to the adverse impact of the tower on his property. The Development Applications Board ("DAB") refused the application on March 31, 2010. The Appellants appealed to the Minister against this decision. The Inspector appointed to advise the Minister agreed with the DAB decision and the Minister refused the appeal on September 3, 2010. It is against this decision that the Appellants appeal to this Court on points of law.

2. There are essentially two main grounds of appeal, only the first of which was admittedly a pure point of law. Firstly, it is complained that the Minister erred in law in concluding that the Cellular Tower's erection constituted a breach of the prohibition on "trade and business premises" contained in paragraph 7 of the Knapton House Estate Zoning Order 1957 (Grounds 1 and 2). Secondly, it is complained that the Minister erred in law in concluding (in the alternative) that the Cellular Tower is in breach of the policy guidelines of the 2008 Draft Plan (Grounds 3-5). The Appellants' Notice of Motion dated October 4, 2010 seeks an order setting aside the Minister's decision and granting Digicel1 planning permission for its Cellular Tower.

The Minister's Decision

3. The Minister's decision is evidenced by three key documents; first and foremost, a Ministry letter. However the latter refers to an Inspector's report and the Board's own initial decision letter. By letter dated 3rd September 2011 to the 2nd Appellant, the Permanent Secretary wrote as follows:

"…On behalf of the Minister of Environment and Sports, I refer to the above appeal and enclose a copy of the Inspector's report and recommendation dated 30th August 2010.

The inspector considered this appeal by written representation following an unaccompanied site inspection on 16th August 2010.

I confirm the Minister has reviewed the Inspector's report and agrees with his recommendation.

Accordingly, it is the Minister's decision to dismiss the appeal, to uphold the decision of the Development Applications Board and to refuse planning permission for the reasons set out in the attached Inspector's report and the Board's decision letter dated 7th April 2010…"

4. The Board's decision letter dated April 7, 2010 stated in material part as follows:

"Planning permission was refused for the following reason(s):

1. The proposal is contrary to Policy ZON.15(1), Chapter 3 of the Draft Bermuda Plan 2008 Planning Statement, in that the stricter provision of the Knapton House Estate Zoning Order precluding alteration of buildings so they may be used as trade or business premises, prevails.

2. The proposal is contrary to Policies DAB.3, Details of Planning, Chapter 4, and UTL.17(a) (Telecommunications Towers), Chapter 12, of the Draft Bermuda Plan 2008 Planning Statement in that there is a significant visual impact on the adjacent property at 36 Knapton Hill, Smiths Parish."

5. The Inspector's Report is a five-page long document which sets out clearly and logically the background to the application, the grounds for refusal, the various submissions made in support of and in opposition to the appeal and the conditions which should be imposed if the appeal were to be allowed and permission granted. These matters are followed by the Inspector's own findings and recommendation. The recommendation that the appeal to the Minister against the Board's refusal of the application is based on the following findings:

"11. My Findings

Having visited the site, it is clear that the visual impact of the facility varies quite significantly, depending on one's vantage point. In the immediate vicinity, visibility is limited due to changes in elevation, vegetation and lot size, whilst longer vistas are not unduly obtrusive…the colour and relative slenderness of the latticework tower and antennas mitigate such impacts. However, it is clear that the visual impact on the adjoining property to the west at 36 Knapton Hill is both significant and detrimental, so I disagree with the appellant on this count. With regard to the Knapton House Zoning Order, I find the appellant's argument that this has been misinterpreted, and his somewhat creative redefinition of the Order's key terminology, both contrived and unconvincing. Against this backdrop, a very powerful case needs to be made for allowing the tower in this location. Whilst the appellant has demonstrated that there is insufficient signal coverage in the area, it has not been shown that this is the only viable site from which to address the problem… there may be others unencumbered by similar zoning restrictions. Meanwhile, it is instructive to note that a 23-foot tower was initially considered capable of meeting Digicel's needs, but this was replaced by a higher and more obtrusive 35 foot structure when enforcement proceedings were launched. I am not therefore persuaded by the appellant's case.

I am also reluctant to support an appellant that has shown such flagrant disregard for the planning process, not once but twice. To react to an enforcement notice by replacing the offending structure with a bigger one is both arrogant and provocative, and hardly likely to endear one to the authorities."

6. The key elements of the Inspector's findings are that (1) he finds that the Zoning Order applies to the Cellular Tower; (2) he finds that the Order impacts on the standard of proof the 2nd Appellant had to meet to justify the application; and (3) Digicel erected a more obtrusive structure after the enforcement proceedings had been commenced. Finding (2) seems to dilute the Board's decision on the impact of the Order, which decision appears to be based on the premise that the Zoning Order contains a mandatory prohibition on the erection of commercial structures. Finding (3) does not appear to be based on any issue which formed part of the Board's decision and which the Appellant's had an opportunity to address before the Minister made his decision. It seems self-evident that the Inspector does not in his Findings address the merits of the application on the hypothesis that the Zoning Order does not come into play.

7. The recommendations set out at the end of the Director of Planning's March 31, 2010 Board Report were clearly accepted by the Board. However, there is nothing in the body of the Report to suggest that the "significant visual impact" reason for refusing the application would have constituted a free-standing basis for refusal if the primary Zoning Order ground did not come into play. The relevant portion of the body of the Director' s Report is not expressed in such definitive terms:

"Policy DAB.3, Details of Planning, requires, similarly, that the Board consider the suitability of the site for use, and such elements as the overall appearance and visual impact of development in the context of its surroundings. While the use is classified as a utility and potentially suitable for any location, and the equipment itself is now deemed within the guidelines intended to protect the health and safety of those living and working in the area, this evaluation is site-specific. As noted, despite the dense vegetative screening in place around the facility compound, the tower and antennas are unquestionably visible from the adjacent property to the west. The tower/antenna's visibility from Knapton Hill and other properties varies; in the immediate vicinity, visibility is limited due to changes in elevation, vegetation and lot sizes. Clear longer views of the tower, as a vertical element amongst buildings, can be had from Knapton Hill and other roads. The light color and the relative slenderness of the latticework tower and the antennas mitigate in some measure the visibility of these long views."

8. These somewhat inconclusive ruminations about Policy DAB.3 are to be contrasted with the very unambiguous way in which the body of the Director's Board Report concludes its analysis of Policy ZON.15: "…As such, the facility for which retrospective approval is sought is not allowed under the zoning order, and the Board is without authority to grant approval of it."

9. Having regard to the way in which the Minister's decision and the key documents upon which it was based are expressed, it was impossible to attach much weight at the outset to the respective submissions of counsel as to what relief would be appropriate if the Court found that the operative analysis of the effect of the Zoning Order was wrong. Mr. Woloniecki for the Appellant contended that if the Zoning Order did not apply, it was obvious that the only decision open to the Minister was to allow the appeal on its merits and grant the planning permission sought. Mr. Cottle for the Minister contended, on the other hand...