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GROUND BASED TELECOMMUNICATION INSTALLATIONS HIGHER THAN 15 METRES

Mr Justice Sullivan in a ground breaking case The Queen on the application of Wandsworth Borough Council 'v' Secretry of State for Transport Local Government and the Regions and 02 UK Ltd has ruled that the height of ground based masts that are being considered under the Prior Approval Process must include the headgear. It has been normal practice for operators to install a 15m mast plus the headgear and antenna taking the whole development to approximately 17.6 metres. The rulling effectively makes all these installans unlawful.

A reading of the relevant section of Part 24 A.1(a) of the GPDO clearly has the words 'excluding antenna', the judge has stated that the measurement cannot exceed 15 metres (including the headgear but not the antenna), this is because the antennas are mounted on a frame (headgear) and this is not included within the term antenna. Similar wording can be found in GPDO A.1(b) the alteration of existing installations that would bring the installation above 15m. GPDO A.1(a)

This opens up the flood gates to those masts that come within this special category to pressure the local planning authority to take enforcement action against Code System Operators. Putting the case that the judgment effectively means that all such installations are ultra vires (beyond the limits of the powers conferred on the local planning authority). Which in real terms means that for existing installations that were wrongly approved under prior approval procedures within the last 4 years could be challenged, enforcement action taken, and potentially have the mast removed. Potentially must be emphasised, for two reasons, the Operator would in practice apply for restrospective planning permission, and the LPA might grant it, or an inspector on appeal might grant it. The LPA also have a discresion as to whether to take enforcement action, they might choose not to go down not to take enforcement.

For future applications of course the question is much more simple the Operator can only apply for prior approval where the mast including the headgear, but excluding the antenna (and lightning conductor which is deemed to be de minisis) cannot be more than 15 metres, which in real terms brings the mast down in height to 12.5 metres. This means that for all other ground based masts (those on building and other structures do not come within this remit) require full planning permission.

To emphasise the need for the LPA to take enforcement action refer them to the Planning & Compulsory Purchase Bill 2003 which makes it clear that the Government beleive that it discredits the planning system if enforcement action is not taken. Traditionally enforcement action is only taken by LPAs in a reative way by responding to complaints, therefore it is important to make sure you complain, and keep up the pressure until action is taken. If the development remains in place for 4 years without enforcement action being taken, then effectively the development becomes time barred from challenge. Also look at Review of the Planning Enforcement System in England which sets out the need for greater vigilance in enforcement, as well as the Government's consultation on enforcement

Standard letter requesting enforcement action be taken by the LPA on masts over 15 metres.

(c) Planning Sanity - July 2004 (can be freely used by local communities within their campaigns. Publication by third parties is permitted providing acknowledgement of Planning Sanity is given)

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