The Fiji Court of Appeal this morning struck out an appeal by Digicel Fiji Limited and the Director of Town and Country Planning, upholding an earlier judgement by the High Court that a 25 metre high telephone tower structure erected by Digicel Fiji Limited in Flagstaff is illegal.

High Court Judge Justice Jiten Singh ruled on 20th January last year that the tower site which covers 156 square meters is illegal and that the people living near the tower site who took the matter to court were given no opportunity to be heard or express their views on the proposal to build the tower.

Shireen Lateef, Lilieta Naiveli, Wella Pillay, Shazran Lateef and Sharan Lateef took the matter to court saying that the area where the 25 metre long tower stands is a recreation space and part of a civic zone.

The five submitted that such space can only be used for outdoor public or private recreational purposes and it would include any structures necessary for the enjoyment of this use, and not for any other purposes.

They also submitted that the erection of a telecommunication tower was a deviation from the zone scheme and therefore was a relaxation of the scheme.

The judge also ruled that the Director of Town and Country Planning, whose prior consent was required for any development within a municipality, did not call for objections as required by law.

However, Digicel Fiji Limited and the Director of Town and Country Planning were unhappy with Justice Singh's ruling and appealed the judgement.
 
Appeals Court Judges, Justice John Byrne and Justice William Calanchini, ruled this morning that Digicel Fiji Limited's submission that they were entitled to erect the tower because of sub section 3 and section 7 of the Town Planning Act which empowers the Director of Town and Country Planning to give consent is wrong, as these two sections only deals with planning issues arising before approval of the scheme, whereas in this case there was an existing scheme in place.

Both judges also stated that the Director of Town and Country Planning cannot rely upon an illegality by someone below her to justify her decisions therefore ruled that her decision was illegal.

For these reasons they upheld the High Court judgement and dismissed the appeal.

Digicel Fiji Limited and the Director of Town and Country Planning have been ordered to pay the respondent's costs which have been fixed at $6,000.


Story by: Shalvin Deo