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English Planning Policy and Practice

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Article Index
English Planning Policy and Practice
Development Plans
National Planning Policy in England
Types of Application
Making Decisions
Material Considerations
Areas subject to particular designation
Listed Buildings and Conservation Areas
Minimum Distances and Moratoria
Schools
Human Rights Act
European Union Law
All Pages

The Planning System in England - General Principles

The town and country planning system in the UK regulates the development and use of land in the public interest. This section is directed to the law and policy in England. Some points may be relevant in the other countries comprised in the UK, though each has its own distinct policy and law. For that reason separate sections are provided for each country. The planning system is the means by which land use planning decisions are made. The system is governed by legislation, both primary statutes (Acts of Parliament) and delegated (Rules, Regulations, Orders and Directions).

The planning system helps to ensure that development takes place in the public interest, in economically, socially and environmentally sustainable ways. It has a major impact on how local neighbourhoods look, feel and function.


Ultimately all planning decisions involve balancing a large number of factors but key among these are the development plan (produced by the local planning authority) and national planning policy produced by Government.

Planning Permission enables a certain form of development to be undertaken. It may involve building work or a change of use. It will be granted (possibly subject to certain conditions) or refused.


Certain types of work are covered by 'permitted development' rights. This is dealt with later in this section. It means that certain work does not require a separate grant of planning permission, so long as the development complies with the permitted development rules and restrictions.


The UK Parliament has given the main responsibility for planning and development control to local planning authorities (usually, this is your local council). Therefore, if you have any queries about a particular case, the first thing to do is to contact the planning department of your local planning authority.


For an introduction to general national planning policy see the National Planning Policy Framework and The Planning System: General Principles.

 


 

Development Plans

Under section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990 the development plan is the starting point for consideration of development proposals. However, it does not alone determine the outcome of the decision making process. The development plan should be up to date and consistent with national policy. A series of statutes are relevant to most planning decisions. The most important pieces of planning legislation are:

Town and Country Planning Act 1990

Planning and Compulsory Purchase Act 2004

Planning Act 2008

The development plan system has been revised but, even now, parts of the old system are still retained until the process of updating is completed. This is taking far longer than was originally anticipated by Government. In most instances the development plan will comprise the only a local plan, a unitary development plan (for unitary authorities) or one (or more) local development plan documents.

These documents may be new or date back some years.

Under the new system the local documents form part of a local development framework. This comprises local development documents, which include development plan documents (that forms part of the statutory development plan) and supplementary planning documents (which expand upon policies set out in a development plan document or provide additional detail) but will not form part of the development plan. The local development framework also includes a statement of community involvement, a local development scheme and an annual monitoring report.

Under the former system a number of documents may also form part of the development plan and may be relevant but only if the particular policies have been "saved" by a specific direction from the Secretary of State for Communities and Local Government (DCLG). In areas where counties exist the County Council Structure Plan (or parts of it) may also have been saved, at least for the present.

The Regional Strategies and Structure Plans (which used to form part of the development plan) have mostly been abolished. In a very limited number of cases some policies of some Regional Strategies and Structure Plans may continue to form part of the development plan. This is normally due to very locationally specific reasons (such as the green belt designation or special habitat protection). However, in the vast majority of cases it is only the local development documents that are relevant.

sphave proposed to be abolished by the Localism Bill) and the District or Borough Council Local Plan. In areas where a single unitary authority exists, there is normally one plan, the Unitary Development Plan.

The NPPF continues the Government's policy on development plans and confirms the Government's commitment to a Plan led system, outlines the key issues on the content of Development Plans and the general approach for preparing them.

The National Planning Policy Framework

Most development plans contain policies relating to telecommunications development. However, whether these policies represent a significant consideration may depend on a range of factors including how up to date they are and whether they accord with national telecommunications policy.

Copies of development plans and local development frameworks can be obtained from local planning authorities (LPAs) and many are accessible on LPA websites or the Planning Portal.

http://www.planningportal.gov.uk/

 


National Planning Policy in England

National planning policy is issued by the relevant Government Department responsible for town and country planning, presently the Department for Communities and Local Government (DCLG). The principal document encompassing national planning policy is the National Planning Policy Framework (NPPF) issued by DCLG in March 2012. That sets the context for the consideration of all development, including telecommunications proposals, in England.

The NPPF sets out the Government's policy on planning for telecommunications development - including radio masts and towers, antennas of all kinds, radio equipment housing, public call boxes, cabinets, poles and overhead wires.

The policy stresses that there is a presumption in favour of sustainable development (paragraph 14)

Among the core principles the NPPF identifies (at paragraph 17) that should underpin the planning system is a requirement for decision makers to "proactively drive and support sustainable economic development to deliver the homes, business and industrial units, infrastructure and thriving local places that the country needs". This includes (section 5 of the NPPF) "Supporting high quality communications infrastructure"

As is made clear

42. Advanced, high quality communications infrastructure is essential for sustainable economic growth. The development of high speed broadband technology and other communications networks also plays a vital role in enhancing the provision of local community facilities and services.

This also extends to plan making.

43. In preparing Local Plans, local planning authorities should support the expansion of electronic communications networks, including telecommunications and high speed broadband. They should aim to keep the numbers of radio and telecommunications masts and the sites for such installations to a minimum consistent with the efficient operation of the network. Existing masts, buildings and other structures should be used, unless the need for a new site has been justified. Where new sites are required, equipment should be sympathetically designed and camouflaged where appropriate".


The NNPF provides further policy direction:

44. Local planning authorities should not impose a ban on new telecommunications development in certain areas, impose blanket Article 4 directions over a wide area or a wide range of telecommunications development or insist on minimum distances between new telecommunications development and existing development. They should ensure that:

  • they have evidence to demonstrate that telecommunications infrastructure will not cause significant and irremediable interference with other electrical equipment, air traffic services or instrumentation operated in the national interest; and
  • they have considered the possibility of the construction of new buildings or other structures interfering with broadcast and telecommunications services.


45. Applications for telecommunications development (including for prior approval under Part 24 of the General Permitted Development Order) should be supported by the necessary evidence to justify the proposed development. This should include:

  • the outcome of consultations with organisations with an interest in the proposed development, in particular with the relevant body where a mast is to be installed near a school or college or within a statutory safeguarding zone surrounding an aerodrome or technical site; and
  • for an addition to an existing mast or base station, a statement that self-certifies that the cumulative exposure, when operational, will not exceed International Commission on non-ionising radiation protection guidelines; or
  • for a new mast or base station, evidence that the applicant has explored the possibility of erecting antennas on an existing building, mast or other structure and a statement that self-certifies that, when operational, International Commission guidelines will be met.

46. Local planning authorities must determine applications on planning grounds. They should not seek to prevent competition between different operators, question the need for the telecommunications system, or determine health safeguards if the proposal meets International Commission guidelines for public exposure.

 


Types of Application

Types of Application

The planning legislation [hyperlink to section 2 of England website] provides that planning permission is required for the development of land. This may be obtained in two main ways, either by reason of it being "permitted development" pursuant to a development order issued by Government or by applying to the local planning authority for permission. For the purposes of this guide the provisions relating to the grant of development consents for national infrastructure projects under the Planning Act 2008 are ignored as they are not directed to telecommunications development.

1) Permitted development

Most mobile phone base station developments require planning permission. However, some forms of development are permitted under Part 24 of the Town and Country Planning (General Permitted Development) Order 1995 ("the GPDO") as amended by the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2001 and the Communications Act 2003 (Consequential Amendments) Order 2003.

The Town and Country Planning (General Permitted Development) Order 1995 - HMSO website

The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2001 - HMSO website

The Communications Act 2003 (Consequential Amendments) Order 2003

The consequence of this is that an application for planning permission may not be required, though, in many circumstances the electronic communications operator must still make an application for 'prior approval' to the local planning authority. One example is a ground-based mast less than 15 metres in height with cabins less than 90 cubic metres in volume.

Where only a prior approval application is required this means that the principle of the development has been approved and the local planning authority has 56 days to consider only the siting and appearance of the proposed development. If the local planning authority fails to give written notice of its decision to the applicant within 56 days of receipt of an application then permission is deemed to have been given.

Some smaller installations permitted under the GPDO do not require an application for prior approval. These developments are small in scale, such as antennas on buildings that do not exceed the height of the building by 4 metres or cabins that are less than 2.5 cubic metres in volume. In line with the Code of Best Practice, mobile operators will notify the local planning authority of these developments.

Mobile phone network development: Code of Best Practice - Communities and Local Government site

2) Application for Planning Permission

Larger installations require an application for full planning permission. These will be determined in accordance with the development plan save where material considerations indicate otherwise. Local planning authorities must take into account the technical constraints on the location of the proposed development that may affect the operation or effectiveness of the equipment. This commitment is reflected in the Code of Practice on Mobile Network Development in England

The decision on an application for planning permission or prior approval will be made by the LPA in accordance with the Development Plan and Government policy.

Material considerations that may be taken into account can include the need for the proposed development as part of the national network, the impact of any installation on highway safety or the protection of trees. However, the impact of such development on property values is not a material planning consideration. As paragraph 29 of "The Planning System: General Principles" makes clear the planning system does not exist to, as such, protect the private interests of one person against the activities of another. The basic question is not whether owners and occupiers of neighbouring properties would experience financial or other loss from a particular development, but whether the proposal would unacceptably affect amenities and the existing use of land and buildings which ought to be protected in the public interest.

The Planning System: General Principles - Communities and Local Government website

Detailed information on Material Considerations

 


Making Decisions - Local Planning Authorities and Appeals

The Planning and Compulsory Purchase Act 2004 provides that decisions should be made in accordance with the development plan save where material considerations indicate otherwise.

This is reinforced in The Planning System: General Principles at paragraph 7, which states that "The statutory Development Plan will continue to be the starting point in the consideration of planning applications for the development or use of land, unless material considerations indicate otherwise. The Development Plan therefore provides the essential framework for planning decisions. When conflicts between Plan policies arise, decisions should be taken in the light of all material considerations, including local priorities and needs, guided by relevant national policy."

Paragraph 10 of the same document goes on "Local planning authorities must determine planning applications in accordance with the statutory Development Plan, unless material considerations indicate otherwise. If the Development Plan contains material policies or proposals and there are no other material considerations, the application should be determined in accordance with the Development Plan. Where there are other material considerations, the Development Plan should be the starting point, and other material considerations should be taken into account in reaching a decision. One such consideration will be whether the plan policies are relevant and up to date.

The NPPF makes the same point at paragraph 196

"The planning system is plan-led. Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. This Framework is a material consideration in planning decisions."

The 2004 Act provides that if there is a conflict between policies in a DPD, the most recent policy will take precedence."

Planning Officer's reports

When a decision is being taken on a planning application, it can be considered by the elected members of the Planning Committee or delegated by the LPA to a Planning Officer of the LPA. In the former case the Planning Officer should normally produce a written report setting out details of the site, the relevant policies in the development plan and a recommendation in terms of approving or refusing the application. In the latter case a clear written memorandum detailing the reasons for the decision taken should be prepared and provided by the relevant officer.

Appeals

If an application is refused by the LPA (or granted subject to conditions that the applicant regards as unacceptable) the applicant can, within six months of the date of refusal, appeal the decision to the Secretary of State. This will mean that the merits of the case are considered by an independent professionally qualified Planning Inspector. The Inspector will determine the appeal or (if the Secretary of State so requires) prepare a report for submission to the Secretary of State for him to determine the appeal.

Planning Portal

An appeal can be carried out in one of three ways: the written representation procedure, by way of an informal hearing or at a Public Inquiry. In accordance with the guidance set out in the Planning Inspectorate Procedural Guidance: planning appeals and called -in planning applications" (August 2013) the Planning Inspectorate will have the final say on the type of appeal. Criteria are set out in Annexe J of the Guidance note that indicates the factors to be considered in determining the mode of appeal.

In certain circumstances a party to a planning appeal can make an application for costs. Indeed, from October 2013, a decision to award costs against a party may be initiated by an Inspector or the Secretary of State, of his own volition (Planning Practice Guide – Planning Portal). The basis for awarding costs is statutory but guidance is contained in Circular 03/09 "Costs Awards in Appeals and Other Planning Proceedings" (Planning Portal). In all cases, irrespective of the outcome of the appeal, costs may only be awarded against a party who has behaved unreasonably and thereby caused another party to incur or waste expense unnecessarily.


 

Material Considerations

"In principle ... any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances". (Stringer –v- MHLG [1971])1 All ER, 65

Paragraph 11 The Planning System: General Principles goes on "Material considerations must be genuine planning considerations, i.e. they must be related to the development and use of land in the public interest. The considerations must also fairly and reasonably relate to the application concerned (R v Westminster CC ex-parte Monahan 1989)."

Paragraphs 12 to 15 of the same document continues

"12. The Courts are the arbiters of what constitutes a material consideration. All the fundamental factors involved in land-use planning are included, such as the number, size, layout, siting, design and external appearance of buildings and the proposed means of access, together with landscaping, impact on the neighbourhood and the availability of infrastructure.

13. The Courts have also held that the Government's statements of planning policy are material considerations which must be taken into account, where relevant, in decisions on planning applications. These statements cannot make irrelevant any matter which is a material consideration in a particular case. But where such statements indicate the weight that should be given to relevant considerations, decision-makers must have proper regard to them. If they elect not to follow relevant statements of the Government's planning policy, they must give clear and convincing reasons (E C Grandsen and Co Ltd v SSE and Gillingham BC 1985).

14. Emerging policies, in the form of draft policy statements and guidance, can be regarded as material considerations, depending on the context. Their existence may indicate that a relevant policy is under review; and the circumstances which have led to that review may need to be taken into account.

15. In those cases where the Development Plan is not relevant, for example because there are no relevant policies, or policies in the DPDs pull in opposite directions so that there is no clear guide for a particular proposal, the planning application (or planning appeal) should be determined on its merits in the light of all the material considerations".

It is clear that what will be a material consideration in any given circumstance may well vary. Hence, it is not possible to provide a comprehensive list. However, in the determination of many telecommunications applications and appeals the following have been considered material:

National Planning Policy
Emerging Plans
Supplementary Planning Guidance and Documents
Need
The examination of alternative sites
Health effects
Public perception of concern about harm to health
Views of local residents
Other appeal decisions
Telecommunications Code of Best Practice
The use of "Code Powers"

Health Effects

Mobile phones and their base stations operate by transmitting and receiving signals using electromagnetic waves (also referred to as electromagnetic fields (EMFs) or radio waves). EMFs are all around us. They occur naturally and also arise from a wide range of man-made sources.

Established health effects of exposure to radio waves from mobile phone systems are associated with the heating of tissue. Both the UK Health Protection Agency (HPA) (and its predecessor the National Radiological Protection Board (NRPB)) and the International Commission on Non-Ionizing Radiation Protection (ICNIRP) have published guidelines on limiting exposure to radio waves.

The public's increasing awareness of the presence of EMFs in the environment has been accompanied by concern that exposure to EMFs may have possible adverse effects upon health. Notwithstanding the advice of HPA, there has been some public concern whether exposure to low-level EMFs might cause other, 'non-established' health effects, such as headaches, sleep disturbance, depression, stress and also long term health effects such as cancer.

In 1999, the Government asked the NRPB to set up the Independent Expert Group on Mobile Phones (IEGMP). This Group, under the chairmanship of Sir William Stewart FRS FRSE, considered concerns about health effects from the use of mobile phones, base stations and transmitters. They conducted a rigorous and comprehensive assessment of existing research and gathered a wide range of views. The Group published its report on 11 May 2000.

In respect of base stations, the report concludes that "the balance of evidence indicates that there is no general risk to the health of people living near to base stations on the basis that exposures are expected to be small fractions of the guidelines. However, there can be indirect adverse effects on their well-being in some cases". The report also states that the possibility of harm cannot be ruled out with confidence and that the gaps in knowledge are sufficient to justify a precautionary approach.

The Government accepted the precautionary approach advised by the IEGMP though its acceptance is limited to the specific recommendations in the Group's report and the Government's response to them.

Of particular significance to the consideration of telecommunications proposals is the requirement that the emissions from mobile phones base stations should meet the ICNIRP guidelines for public exposure. All mobile phone base stations meet the ICNIRP guidelines and the audit undertaken by the Radiocommunications Agency since 2001 of existing base stations has found that all base stations surveyed by it also comply.

Office of Communications website

A range of update reports have been produced since 2000 both by the HPA and the ICNIRP and others.

In 2007, the UK Mobile Telecommunications and Health Research (MTHR) programme published a report summarising the results of the work it had funded since 2001. It concluded that none of the research had provided evidence of biological effects or health effects below guideline levels. Nevertheless there is still a need for good research and it could not rule out the possibility of long-term effects. The MTHR research programme was set up in response to a recommendation from the Stewart Report and is jointly funded by Government and industry. Its independence is safeguarded by a committee of experts who review the research proposals and monitor each project. Scientists receiving funds from MTHR are encouraged to publish their results in peer reviewed science journals.

 


Areas subject to particular designation

As well as providing a mobile telecommunications service to urban areas, there is also a requirement (and an accepted need) to provide a service in other areas, including in areas subject to particular planning designations. These include the most protected landscape areas, such as National Parks and Areas of Outstanding Natural Beauty. In addition, other areas are subject to special consideration such as Sites of Special Scientific Interest (SSSIs), Green Belts, the Heritage Coast and buildings and areas of historic and architectural importance.

The policies related to these areas are set out in the NPPF and the objective of communications operators to pay particular attention to these areas when contemplating development in them is specifically acknowledged in the Code of Best Practice (including at pages 29-32).

When proposing development in protected areas, there should be consultation with the relevant statutory body (such as English Heritage or Natural England).

 


Listed Buildings and Conservation Areas 

A proposal to carry out telecommunications development which affects a listed building or its setting will be subject to the normal statutory procedures, in that Listed Building consent will be required. No exceptions have been made to the requirement to obtain such consent under Sections 7, 8 and 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the LB Act) before executing works affecting a listed building. Hence, under sections 66 and 67 of the LB Act, the local planning authority when considering whether to grant planning permission for development which affects a listed building or its setting, are required to have "special regard" to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

Planning (Listed Buildings and Conservation Areas) Act 1990 (c. 9) - HMSO website

Similarly for Conservation Areas, any proposal will have to be considered in accordance with the tests under sections 72 and 73 of the LB Act. These tests require that, in exercising any of their powers under the LB Act with respect to any buildings or other land in a conservation area, the local planning authority must pay special attention to the desirability of preserving or enhancing the character or appearance of the area.

Further, it will constitute a material consideration in determining whether planning permission should be granted or refused.

The policy approach to developments affecting what are described as "designated Heritage assets" is now comprised in the NPPF section 12 (which, in addition, include any World Heritage Site, Scheduled Monument, Protected Wreck Site, Registered Park and Garden or Registered Battlefield). The specific policy approach will vary depending upon a number of factors including the degree of perceived harm (if any) and the status of the asset.

 


Minimum Distances and Moratoria

It is sometimes suggested that there should be a moratorium on decisions about mobile telephone base stations or that there should be requirements for minimum distances between base stations and existing development. Neither the IEGMP nor Government has accepted that such an approach would be appropriate. This is spelled out in the NPPF at paragraph 44

"Local planning authorities should not impose a ban on new telecommunications development in certain areas, impose blanket Article 4 directions over a wide area or a wide range of telecommunications development or insist on minimum distances between new telecommunications development and existing development."

 


Schools

The Code of Best Practice utilises a "Traffic Light Model and Consultation Strategy" in order to guide appropriate community engagement in terms of the likely sensitivity of a telecommunications proposal in terms of environmental, planning and community considerations. One of those factors for particular consideration is where a mast is proposed to be installed on or near a school or college. Whilst the NPPF directs this consideration only to the use of the prior approval regime, the Code of Best Practice goes wider and states that it is important that telecommunications operators discuss the proposed development with the relevant body of the school or college concerned before submitting an application for planning permission or prior approval to the local planning authority.
The Code notes that this approach "was originally drawn up when mobile telephony was relatively new, when there had been much less research into its possible effects and when public concern about mobile phone masts was greater than it is now". It goes on "Nevertheless operators recognise that some parents can be concerned about the possible health effects of mobile phone masts, and therefore, as a matter of good practice, carry out a specific pre-application consultation exercise with schools and colleges where appropriate. This will give them the opportunity to feed in their comments and concerns and to have them considered by the operators at an early stage. However, it is important to reiterate that there is no evidence that supports any health-related concerns about masts that operate within international guidelines. Health and safety issues are dealt with under a separate regulatory regime".

The Code of Best Practice provides guidance on determining which schools and colleges should be consulted. There are no hard and fast rules for determining whether a base station is near a school or college for the purposes of pre-application consultation. The institutions concerned need to be considered on a case-by-case basis, in the light of local circumstances.
The Code of Best Practice provides guidance of factors that should be taken into consideration when developing a consultation plan for a site on or close to a school or college.

Code of Best Practice


Human Rights Act

The Human Rights Act ("HRA") came into force on 2nd October 2000. In effect, this incorporated the provisions of the European Convention of Human Rights ("ECHR") into UK law. As a result, so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the Convention (s.3 HRA) and public authorities (including the Courts) must not act in a way which is incompatible with Convention rights (s6 HRA).

Human Rights Act 1998 - HMSO website

A number of Articles may be considered in the context of town and country planning applications, particularly Article 6 (the right to a fair hearing), Article 8 (the right to privacy home life) and Article 1 of the First Protocol (the right to property).

These Articles have been considered in a number of public inquiries relating to telecommunications proposals and any claims of them being engaged and violated have been rejected (see the appeal decisions relating to Watford (2001), Guildford, Brixham, Stroud, Watford (2002), Bolberry and Winchester and which may be viewed in the section of this website dealing with material considerations). Clearly, each case has to be considered on its own merits but the approach adopted by planning inspectors is informative.

Watford 2001 Appeal Decision (PDF 590KB)
Guildford 2002 Appeal Decision (PDF 1787KB)
Watford 2002 Appeal Decision (PDF 587KB)
Stroud 2002 Appeal Decision (PDF 2050KB)
Brixham 2002 Appeal Decision (PDF 876KB)
Bolberry 2002 Appeal Decision (PDF 855KB)
Winchester 2003 Appeal Decision (PDF 2194KB)
The Gower Appeal Decision (2004) (PDF 34KB)

Arguments based upon some suggested violation of Article 6 have not been accepted largely in view of the House of Lords decision in R –v- Secretary of State DETR ex parte Alconbury Developments and others [2001] UKHL 23.

Judgments: Alconbury - UK Parliament website

However, in R (On the application of Nunn) –v- FSS and Leeds CC [2205] EWCA Civ 101 the application of Article 6 Convention rights was considered and infringement found to have occurred in circumstances where the LPA had been dilatory in its response to a prior notification application. The application had been made by T-Mobile and permission was deemed to exist by reason of Part 24 of the General Permitted Development Order. After T-Mobile erected its mast the LPA sought to issue an enforcement notice. This was duly appealed and the appeal successful because T Mobile had planning permission.

Whilst Dr Nunn's Article 6 civil rights had been infringed (in that she and the others affected by the proposal had been denied the right to make representations to the LPA on the effects of the proposed mast on them, the appearance of the area and the value of their homes) the Court of Appeal concluded that the proper remedy did not include quashing T Mobile's planning permission. The remedy for Dr Nunn lay (or appeared to lie) against the LPA who "failed to make their determination in her favour effective".

In paragraphs 30 and 31, of the leading judgment of the Court, Waller LJ concluded

30. In relation to those complaints, only the LPA has any responsibility at all. T-Mobile have done nothing to affect or interfere with her Article 6 rights. The Inspector hearing the appeal against enforcement has no jurisdiction to consider what should flow from the decision of the LPA not being effective. It is furthermore not the scheme as set out in the GPDO which has prevented the determination of Dr Nunn's rights being effective, it is the failure of the LPA to serve their determination on time. That failure provided T-Mobile with rights to begin the development for which the GPDO had given them permission, and T- Mobile had exercised those rights. The Inspector on the appeal against the enforcement notice had no jurisdiction to take away that right. Section 3 simply does not provide the court with jurisdiction to write in words in the Scheme or in the TCPA which would have that effect.

31. The remedy for Dr Nunn appears to lie or to have lain against the LPA who failed to make their determination in her favour effective. The LPA were not represented before us and I will say nothing more other than if Dr Nunn has or had a remedy against them it may not be limited to a claim before the Ombudsman, but may include a claim for damages under Section 8 of the HRA.

In context of Article 8 and Article 1 of the First Protocol, in no cases at appeal have inspectors found any violations of those two articles.

To engage Article 8 (on the basis of an allegation of detriment to health) requires that the claimants show that they are "exposed ... personally to a danger that was not only serious, but also specific, and above all, imminent" Balmer-Schafroth -v- Switzerland (1997) 25EHRR 598, paragraph 40.

This test has been specifically approved again by the Grand Chamber in Athanassoglou -v- Switzerland (unreported, judgment 6th April 2000, see paras 42-59).

[both Balmer-Schafroth -v- Switzerland and Athanassoglou -v- Switzerland are available on the HUDOC website]

In respect of telecommunications masts, appeal decisions have concluded that adoption of the ICNIRP guidelines by the Stewart Report forms part of a precautionary approach, designed not only entirely to exclude all risk of known adverse health effects, but also to minimise the risk of any potential but as yet unascertained health effects i.e. it is precautionary and not based on any known adverse health effect. Consequently, challenges to telecommunications proposals which comply with the ICNIRP guidelines will not normally be capable of meeting the Balmer-Schafroth test and Article 8 will not be violated.

The issue of impact of a development proposal causing an alleged diminution in property value was raised in the planning context (but not related to a telecommunications development) in Lough –v First Secretary of State and others [2004] EWCA Civ 905. The Claimant contended that Article 1 of the First Protocol was engaged and violated by the development proposal. This was rejected as a discrete ground of claim by the Court of Appeal (and the High Court, previously). Pill LJ (at paragraph 51 of his judgment) made clear

"There remains the discrete question on the Inspector's finding 'that matters of property valuation' do not amount to material planning considerations, and its bearing on Convention rights. I readily accept that a diminution in value may be a reflection of loss of amenity and may be taken into account as demonstrating such loss and its extent but, in his reply, [counsel for the claimant], as I understand it, sought to create diminution of value as a separate and distinct breach of Article 8 and Article 1 of First Protocol. Having regard to the background and purpose of each Article, I do not accept that submission. A loss of value in itself does not involve a loss of privacy or amenity and it does not affect the peaceful enjoyment of possessions. Diminution of value in itself is not a loss contemplated by the Articles in this context."


The Principle of Proportionality


Inherent in the ECHR is the need to find a fair balance between the protection of individual rights and the interests of the community at large. This is reflected in the terms of both Article 8 (2) and Article 1 of the First Protocol. Insofar as any distinct Human Rights Act issues arise in the consideration of telecommunications proposals the decisions to date have indicated that this balance has been resolved in favour of the public interest and economic well being of the country. See the appeal decisions at Watford (2001), Watford (2002), Brixham (2002) and Bolberry (2002), among others.

Watford 2001 Appeal Decision (PDF 590KB)
Guildford 2002 Appeal Decision (PDF 1787KB)
Watford 2002 Appeal Decision (PDF 587KB)
Stroud 2002 Appeal Decision (PDF 2050KB)
Brixham 2002 Appeal Decision (PDF 876KB)
Bolberry 2002 Appeal Decision (PDF 855KB)
Winchester 2003 Appeal Decision (PDF 2194KB)
The Gower Appeal Decision (2004) (PDF 34KB)

 


European Union Law

There are a number of Directives relating to Environmental Assessment and Habitats protection which have an important bearing on many planning decisions but there are no European Union Directives or Regulations which specifically apply to telecommunications planning proposals.

It is sometimes suggested that Art 130r of the Maastricht Treaty means that the "precautionary principle" had some material bearing on the consideration of telecommunications proposal and that there was a "direct effect" of its provisions to impose a duty upon Government to act to obviate a possible (rather than actual) risk. This proposition was considered (not in the context of telecommunications but rather in the context of electromagnectic fields from electricity cables) in the case of R -v-v Secretary of State for Trade and Industry ex p Duddridge [1996] Env LR 325 (Court of Appeal).

There the Court of Appeal considered Article 130r of the Maastricht Treaty and dismissed an application for judicial review against the Secretary of State's decision not to take the action sought by the plaintiff. The Court was clear that Art 130r does not place any obligation upon any organ of a national government to adopt and apply the precautionary principle as defined under that Treaty when deciding to exercise its powers (in that case to make regulations under a specific statute) until such time as there had been a proposal by the European Commission after consultation with the European Parliament and the Economic and Social Committee followed by adoption by the Council (see the judgment of Sir Iain Glidewell at pages 331 - 334).

It may be noted that when this point has been raised at a number of planning inquiries relating to telecommunications mast development, independent planning inspectors have endorsed this approach. See the recent decisions, following public inquiries, at Watford (2001), Guildford (2002) and Brixham (2002).

Watford 2001 Appeal Decision (PDF 590KB)
Guildford 2002 Appeal Decision (PDF 1787KB)
Brixham 2002 Appeal Decision (PDF 876KB)

 

 

Ten Commitments

Central to the operators’ approach to network development is consultation with local communities, planning officers and other stakeholders on any proposed new developments. Pre-application consultation is included in the operators’ ‘Ten Commitments to Best Siting Practice’, which has existed since 2001 to help address concerns relating to the development of base stations, and which is now contained in planning guidance throughout the UK.

Sharing Sites

Mobile phone users in the UK increasingly want better coverage and greater capacity so they can access more services on their phones. While this means that new base stations will still be needed, network operators seek to share sites wherever possible. Site sharing helps reduce energy consumption and the overall environmental footprint of networks, as well as improving the quality of coverage.