ELECTRONIC COMMUNICATIONS – CONSEQUENCES FOR LOCAL PLANNING AUTHORITIES OF THE FAILURE TO NOTIFY CODE SYSTEM OPERATORS WITHIN THE STATUTORY 56 DAY PERIOD OF A DETERMINATION UNDER THE PRIOR APPROVAL PROCESS

The prior approval process sets out that a local planning authority must make a determination of an application as to whether prior approval is required within a statutory 56 day period, the wording as we shall show below is very clear in this respect that the 56 day period includes the day of the lodging by the Code System Operator of that application, yet far too many local planning authorities are still making the mistake of discounting the day of the lodging of the application and therefore effectively sending out the notification to arrive on the 57th day. The consequences of this failure for both the LPA and residents is dire, particularly where the LPA have determined that prior approval is required, effectively disenfranchising the residents and leaving the LPA exposed to a prima facia case in damages and/or a complaint of maladministration being upheld.

The primary case for consideration is that of Nunn, R (on the application of) v First Secretary of State & Ors [2005] EWCA Civ 101(the Bardsey case)1. This case was an application for judicial review of an Inspectors determination that an LPA was not entitled to take enforcement action on a 56 day case because the Code System Operator had effectively been granted planning permission by default, and that any blame lay at the door of the LPA and not the Secretary of State or the Code System Operator and therefore the only recourse open to a disgruntled resident was that of a claim in damages against the LPA as a consequence of the provisions set out in Section 8 of the HRA 1998 or a complaint to the Local Government Ombudsman.

In this case the Secretary of State conceded that the Claimants rights under Article 8, Article 1 of the First Protocol and Article 6.1 were engaged.

Lord Justice Walker - Bardsey para 21
"By the end of the hearing before us there was no real issue that the failure of the LPA had had the effect of depriving Dr Nunn of Article 6 rights. Mr Wolfe referred us to Zander v Sweden [1993] 18 EHRR 175, Ortenberg v Austria [1994] 19 EHRR 524, Friends Provident Life & Pensions Limited v The Secretary of State [2001] EWHC Admin 820, British Telecommunications Plc (2) Bloomsbury Land Investments v Gloucester CC [2001] EWHC Admin 1001 and of course Alconbury (supra). The concession made by Mr Mould for the Secretary of State in his skeleton was that Dr Nunn's rights under Article 8 and Article 1 of the First Protocol were engaged but, because the attack by Mr Wolfe was concentrated on the decision of the Inspector on appeal from the enforcement notice, there was no clear concession that Dr Nunn's Article 6 rights had been infringed. But in his oral argument he began by making that concession but submitted that any remedy lay against the LPA. Mr Katkowski also was prepared to assume for the purposes of this claim that Dr Nunn had been deprived of her Article 6 rights, and submitted that any remedy lay against the LPA."

Bardsey para 22
"It seems to me clear that Dr Nunn's Article 6 rights were here infringed. She and others affected had the right to make representations to the LPA on the effects on health and on the appearance of the mast as it affected them and the value of their homes. T-Mobile of course contested that their health could be affected and contested that the appearance affected the value of their homes. Both T-Mobile and Dr Nunn had, under Article 6, the right to expect that those points would be determined by the LPA, by an effective decision which might be the subject of an appeal to an Inspector, controlled by the court by Judicial Review or even such as to be under the direct control by the court by Judicial Review. In this instance she was deprived of her right under Article 6 to such a determination."

Bardsey para 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".

Bardsey para 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."

Lord Justice Laws - Bardsey para 34
"At paragraph 22 my Lord concludes that Dr Nunn was deprived of her right under ECHR Article 6 to a determination of her claims relating to health, the appearance of T-Mobile's mast and its effect on the value of her home and the homes of others......"

Lord Justice Wall – Bardsey para 38
"In a wholly public spirited fashion, Dr Nunn has sought to represent the interests of her local community whilst, at the same time, striving to protect the well-being of her family. In the result, her efforts, through no fault of her own, come to nothing. The planning permission remains in place, as does T-Mobile's mast. Dr Nunn has been deprived of her ECHR Article 6 rights; she has lost the opportunity to have her objections to the grant of planning permission heard and adjudicated upon by an Article 6 compliant body; and she is left with a monetary remedy which, if she is to pursue it, either through the Local Government Ombudsman or by means of an action pursuant to section 8 of the Human Rights Act, 1998 will require further time, effort and expense. She may well feel that this is a poor reward for her altruism."

Bardsey para 43
"The answers to the first two questions which I pose in paragraph 39 of this judgement can only be answered in one way. It is the LPA which has breached Dr Nunn's rights, and the consequence of that breach is that she had been deprived of the right to a determination by the LPA (and on any appeal by a planning inspector) of her claims "relating to her health, the appearance of T-Mobile's mast and its effect on the value of her home and the homes of others", as Laws LJ expresses it in paragraph 34 of his judgement."

Bardsey para 45
"It follows, in my judgment, and again the logic is inexorable, that Dr Nunn's remedy can only sound against the LPA in damages. Where, as here, the LPA has simply been incompetent, neither the scheme nor any public law remedy provides a mechanism for the revocation of the grant of planning permission. It might be different were it possible to say that the scheme had been improperly implemented in some way, or that T-Mobile has behaved unlawfully: but there is no suggestion of that. Through the LPA's incompetence, T-Mobile have obtained the right to erect their mast. That is the long and the short of it. If Dr Nunn and her fellow residents are to be compensated, the compensation either under HRA 1998 or under the scheme operated by the Local Government Ombudsman has to be financial. The law does not, as it seems to me, offer any other remedy".

Bardsey para 47
"I respectfully agree with Waller LJ that the presence of the inspector in this case is fortuitous. The result would have been exactly the same if the LPA had not issued the enforcement notices. Dr Nunn's Article 6 rights would have been breached, but there would have been no mechanism for setting aside the planning permission. Dr Nunn's remedy would have been against the LPA, and would have sounded in damages"

It is clear from the Bardsey case that the only remedy of a disenfranchised resident is a claim in damages, the only question for that remedy is whether to seek that through the courts or via the Ombudsman. However what was not taken into account within Bardsey was the other options open to the LPA, the only question before the courts was that of enforcement, however, what would be the effect of an LPA who had clearly determined that the development was contrary to the best interests of the amenity of the area by determining that prior approval was required and that permission should be refused. Therefore if the LPA turned to its powers under either Section 97 (revocation of permission) or Section 102 (discontinuance of use) of the T&CPA 1990 then whilst the matter would need to be referred to the Secretary of State for confirmation and effectively a public inquiry, then the outcome of this case may have been different, because the inspector would have been able to make a lawful determination as to whether the granted permission should be allowed to stay in force. It was therefore merely a wrong turn on the part of the LPA that took them through the enforcement process rather than the revocation/discontinuance process that caused the out come in the Bardsey case.

Turning to the present case, then clearly local residents have a prima facia case for seeking compensation (arguably equal to the loss in value of the before and after effect of the grant of permission on their homes) whether they choose to make a complaint to the Ombudsman or to seek compensation through the courts is a matter of judgement on their part. However, our clients neither want nor desire to seek damages (albeit they reserve the right to do so) they would far prefer that your authority take all reasonable measures to rectify there mistake and in so doing first attempt to negotiate an appropriate resolve with the relevant operator, and should that prove unsuccessful to make a resolution that in the interests of the good amenity of the area that depending on the status of the development at the date of that resolution to either revoke the permission or to resolve that the use of the site for telecommunication purposes should cease.

Should your authority conclude that it is not appropriate to take such action as suggested above then our clients reserve the right to instruct solicitors to seek appropriate compensation through the courts, or in the alternative to lodge a formal complaint with the Ombudsman.

However, in closing I should point to R on the application of Heather Richards v South Bucks District Council2 This case made a distinction between those cases where no decision had been made before the 56 days expired and those cases where a decision that prior approval was required, making it clear that if prejudiced to a resident could be demonstrated, and clearly it can where an indication of refusal was given by an LPA then a finding that an LPA should give consideration to making a resolution under Section 102 of the Act may have been granted by the courts.

We are therefore confident in putting the case to your authority that in principle they have a duty of care to local residents that have been disenfranchised by the failure of your authority to notify the Code System Operator within the required statutory period to rectify that mistake by making a resolution under Section 97 or Section 102. We hope as our clients do that this matter does not need to be pursued as a claim for damages against your authority, which could amount given the number of affected residents to a significant sum.