Saturday, October 9, 2010

Digicel to Challenge Bermuda Tower Decision

On Friday, the Bermuda Sun reported that Digicel has launched a court challenge of a decision of the Bermuda Department of Planning, which denied Digicel's request for retroactive approval of a 35ft cellular tower.

According to the Sun's article, the Department determined in 2009 that a 23ft pole had been erected by Digicel on Knapton Hill, Smith’s, with the agreement of the landowner, but without the prior approval of the Department.  A retroactive application was subsequently submitted, but then withdrawn after Digicel realized that this property is not zoned for trade or business.  A few months later, in February 2010, Digicel was ordered to remove the tower.  Instead of complying with this order, Digicel replaced the 23 ft tower with a 35 ft one.    

In March 2010, Compu-Cad Ltd filed a retroactive application on behalf of Digicel to retain the structure.  This request was denied on the basis it was contrary to the zoning order and had an “adverse visual impact” on neighbouring property.  The board also noted that Digicel had shown “a blatant disregard for the planning process”.  Digicel then appealed the decision to the Minister responsible for Planning, Glenn Blakeney, who dismissed the appeal at the beginning of September.

The Department of Planning has now ordered Digicel to remove the tower by the end of this week. If Digicel does not comply with this order, the Department could decide to take enforcement action in the Supreme Court of Bermuda.  Instead of waiting for this enforcement action, Digicel has decided to launch proceedings in the
Supreme Court of Bermuda to challenge the denial of its planning application.  

The Sun's article does not specify the legal arguments that Digicel intends to make before the Supreme Court.  Therefore, it is difficult for me to comment on Digicel's chances of success.  In other jurisdictions, however, it is quite common for telecom operators to encounter opposition to the construction of cellular towers and masts.  Digicel has been involved in similar proceedings in several jurisdictions. In December 2003, for instance, an interim injunction was issued (and subsequently rescinded) by the Jamaica Supreme Court to stop the construction of a cell site in Saint Andrew, Jamaica.  

More recently, Digicel was deemed by the chiefs on the island of Pentecost (Vanuatu, South Pacific) to have damaged an historical site when building a cellular tower.  Digicel was sanctioned with the highest penalty the chiefs can impose for wrongdoing: 10 tusked pigs!


  1. Digicel has a long history of asking for forgiveness rather than permission. In Papua New Guinea, they actually built an entire mobile network without a license and then tried to shame the local government to approve their license application through a series of newspaper ads. It eventually worked.

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