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English Planning Policy and Practice - Human Rights Act

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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)

 



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.