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TELECOMMUNICATION INSTALLATIONS ON BUILDINGS AND OTHER STRUCTURES THAT DO NOT EXCEED 4 METRES IN HEIGHT
An issue that is increasingly being brought to our attention through the Planning Sanity helpline is the procedure that Telecommunication Operators use to erect installations on buildings and other structures (not masts), where the installation does not exceed the height of the building or structure by 4 metres. This problem is now accounting for about 20% of our inquiries, however, the numbers of people with concerns relating to these specific installations is increasing. Instances are coming to our attention where permission has been refused by local planning authorities, only to find that minor alterations to the proposals are made, and then the Operators erect the installation, without any reference to the local planning authority (LPA).
Hutchinson 3G through their Agents Crown Castle have stated they are going to erect 4000 installations using this process. Other operators are not slow in seeing the potential, with up to 30% of all installations being by this process, and when added to the other loopholes that bypass the local planning decision making process that figure rises to over 50% of all installations, put in simple terms that means that over half of all installations do not take into account the concerns of the public, and that discredits the whole planning process.
There are also questions as to whether the process is compatible with rights enshrined within the Human Rights Act, specifically Article 6.1 of the European Convention on Human Rights and Fundamental Principles (ECHR), which gives the right to a fair and impartial hearing.
Such installations are being placed not only on buildings, but also on street furniture, water towers, pylons and other structures. The crucial point is that these are being undertaken WITHOUT local planning permission. The Operators arguing that they do even have to give the local authority any notice, although most operators do inform the LPA on a purely courtesy basis, although the licensing provisions require a 56 day notice of all installations to the LPA and planning procedures a 28 day notice. The process is referred to as a licence notification installation, and should NOT be confused with an application for permitted development (Prior Approval) where a decision is required by the local planning authority.
When we raised the issue with Lord Rooker a previous Planning Minister we were informed that it is okay not to have a formal consultation process, as the local planning authority would be informed via the annual pre-rollout discussion they hold with the operators. And that consultations takes place with the operators via the informal Traffic Light Scheme, and as that process is under review there is no need for a statutory consultation process (that was in 2003, the consultation process resulted in many recommendations which were not implemented including the abolition of this loophole). We totally disagree with that aspect of Government policy, as it clearly prevents any form of challenge, or public concerns to be taken into account.
The Legal Process
A.2(4)(b) of Part 24 of The Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2001 implies that installation of antenna on buildings or other structures (other than a mast) that does not exceed the building or structure by 4 metres in height requires NO permission from the local planning authority. It follows that even guidance and other planning provisions will also not be taken into account, in the case of masts this would be Planning Policy Guidance Note 8 (PPG8). An illustration of what would not be taken into account is that the courts have repeatedly found that the concerns of the public on fear or perception of an adverse health effect, which arguably makes the process unlawful. It was also stated by the then Planning Minister Nick Raynsford in a media release (dated 16th March 2001) repeated in the Commons to questions by MPs that with the introduction of the new procedures (Aug 2001) that all new installations would be decided as if they were full planning in all but name, the Minister in the view of Planning Sanity lied to the House of Commons and the Country, even if it was not a direct lie, it was certainly being economical with the truth.
These provisions fly in the face of other sections of Part 24 of the GPDO, and therefore clarity is required as to whether these installations can be installed with no permission, and if they can, what is the exact criteria that should be applied. We set out below what we consider to be the correct position, and what we believe some local authorities are accepting as being correct.
Section A.2 is headed conditions, and A.2(4) states:
We first look to sub paragraph (b). The wording of this implies that yes permission for such installations are permitted, where they are not higher than 4 metres of the building, or structure. So yes the Operators are completely right, that is if that was the end of the matter but it is not. We need to then go to the final line of A.2(4) which states 'is permitted subject, to the conditions set out in A.3'. And A.3 then sets out at (3):
'Before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting and appearance of the development'.
That is very clear, However, before we all descend into despondency, let us look at the wording very carefully. First, as a consequence of the Development Order all telecoms installations by Code System Operators have already been granted permission, except those that are specifically excluded, for instance, those sites and locations contained within Schedule 1 of the GPDO, that is areas such as SSSIs and Conservation Areas, in addition to that all those installations where the criteria set out in the various categories of A.1 of the Part 24 of the GPDO. Then we turn to A.2(4)(b) and anything that is not excluded by A.1 is then subdivided by the categories in this list that is:-
- on any other land and consisting of the construction, installation, alteration or replacement of a mast;
- or of an antenna on a building or structure (other than a mast) where the antenna (including any supporting structure) would exceed the height of the building or structure at the point where it is installed or to be installed by 4 metres or more;
- or of a public call box;
- or of radio equipment housing with a volume not in excess of 2.5 cubic metres;
- or of development ancillary to radio equipment housing
Anything below the criteria in this list is what would be termed Prior Notification, and as such would require no notification or application to the LPA. That would exclude all ground based masts, both new and replacements, or even alterations. A public call-box is of course of no concern in as far as this briefing is concerned, except those that were trialled with antenna fitted in the roofs. Which leaves those installations fitted to buildings and other structures which we shall deal with in detail below. And of course Radio Equipment Housing and other equipment (points 4 and 5). Even where the antenna might be classed as Prior Notification, does not mean that the Equipment cabin, or other equipment such as stand-by generators would be classed as Prior Notification, therefore never assume, check the measurements, and what other equipment is on site, as those aspects might make the development unlawful.
All those proposals that do not fall below the criteria set out in A.2(4)(b) must be put to the LPA as an application for Prior Approval. The process, and criteria being set out in A.3 of the GPDO, sub para (4) sets out some of the information that must be submitted with the application. (5)(d) sets out that a site notice in the appropriate form should be displayed for 21 days, or by serving notice on any adjoining owner or occupier. (6) Then sets out that the LPA must take into account representations made to them. And (7) to (9) sets out the procedure to be adopted.
The operators argue that A.2.(4)(b) overrides all the other exclusions set out in A.1, providing the antenna and structure (mast) does not exceed the height of the building or structure by 4 metres. If this was true it would make a mockery of those conditions clearly intended to control installations on buildings, which goes into detail as to the size of the installation to be placed on buildings, and beggars believe that a clause relating to this type of installation would not have been included within A.1, when the full range of other exclusions are considered, illustrations being A.1(c) and (d):
(c) in the case of the installation, alteration or replacement of apparatus on a building or other structure, the height of the apparatus (taken by itself) would exceed -
(i) 15 metres, where it is installed, or is to be installed, on a building or other structure which is 30 metres or more in height; or
(ii) 10 metres in any other case;
(d) in the case of the installation, alteration or replacement of apparatus on a building or other structure, the highest part of the apparatus when installed, altered or replaced would exceed the height of the highest part of the building or structure by more than -
(i) 10 metres, in the case of a building or structure which is 30 metres or more in height;
(ii) 8 metres, in the case of a building or structure which is more than 15 metres but less than 30 metres in height; or
(iii) 6 metres in any other case;
A.4 sets out the interpretations of Class A installations. This includes 'small antenna' which is set out as meaning:
- is for the use in connection with a telephone system operating on a point to fixed multi-point basis;
- does not exceed 50 centimetres in any linear measurement; and
- does not, in any two-dimensional profile, have an area exceeding 1,591 square centimetres,
and any calculation for the purposes of (ii) and (iii) shall exclude any feed element, reinforcing rim mounting and brackets.
A.1(m) through to (o) sets out the exclusions relating to small antenna. We are concerned only with those under Clause (o) which states:
(o) in the case of the installation, alteration or replacement of a small antenna on a building which is not a dwellinghouse or within the curtilage of a dwellinghouse -
- the building is on article 1(5) land;
- the building is less than 15 metres in height, and the development would result in the presence on that building of more than one such antenna; or
- the building is 15 metres or more in height, and the development would result in the presence on that building of more than two such antennas.
We are concerned with both (ii) and (iii), which clearly indicates that small antenna on a building or structure are not excluded installations, providing that there is not more than one on a building of 15 metres or less, and two on a building over 15 metres in height. The clear intention of this is to cater for the minor installations.
Therefore our case is that A.2(4)(b) conflicts with other sections of the development order. Clauses A.1(m) to (o) are clearly intended to cater for minor installations, we therefore would have the case that you could not put 3 small antenna on a building over 15 metres high, but that you could put a number of full size installations, providing they are not higher than 4 metres of the building, but in effect full size installations, where you have 3 or 4 antenna, therefore two installation would have 8 antenna. Is it then unlawful under A.1(o) or lawful under A.2(4)(b)?
The question also has to be asked what is meant by mast, and what is meant by supporting structure. This leads to conflicts in A.2(4)(b), it states 'other than a mast' and then 'including any supporting structure'. Within the various legislative measures and the Code there is no definition of a mast. A search of various dictionaries describes a mast as pole, nothing states what height turns the pole into a mast. In the definitions in the Electronic Communication Code a structure and a pole are described in the same line as one of the aspects of what could constitute Electronic Communication Apparatus. Therefore the question when is a structure a mast, and when is a mast a structure (you might use the term supporting structure in your arguments). The logical answer to this would be that anything that constitutes that part of the structure needed purely for support is ok, but anything more than that, then it becomes a mast. But it is all in the interpretation, it is therefore well worth looking at the structure, and saying have they gone further than something required purely for support, and if they have, and an application for prior approval has not been made then the development might be determined to be unlawful.
The situation is that many installations are being constructed, on building, and structures such as water towers without applying for permitted development. Paragraphs 43 and 44 of Planning Policy Guidance Note 8 Telecommunications, refers to minor installations, and the de minimus principle. Which broadly put refers to small developments of an insignificant nature, and which does not alter the external appearance of a building. A 4 metre high structure could not be said in any way to come within that remit.
We therefore conclude one of two things either there is a major loop hole that has been allowed to Operators, or they are being allowed to be economical with the wording of the Development Order, in either case the matter requires clarification. If this is a deliberate loop hole to allow installations to proceed without any control whatsoever then it makes a mockery of the whole system, which causes stress to local communities, who have NO opportunity to object, or even challenge the installation, even if that installation is in a sensitive location. And is in direct conflict with the Governments statements in March of 2001 that all future installations would be considered as if they were full planning applications (This statement has now been repeated by the present plus previous two Planning Ministers, Nick Raynsford, Lord Falkener and Lord Rooker).
The evidence that we are now receiving through direct communication with Lord Rooker is that in the first place he was not aware of the loophole, and that he had been misled by his advisers that all applications were going through the local planning process. But now concedes that it is a loophole, and that the public have no statutory ability to make comments on the applications and to have their concerns taken into account. We are now looking to challenge this position through the courts.
If they are being permitted to erect these masts by reference to no one, then this potentially violates the humans rights of the local communities concerned. The Courts have found that health is a material planning consideration. And that damages will be awarded where there is an adverse environmental health effect, an illustration being the Heathrow noise cases. Which brings us onto the question the potential violation of Article 6.1, Article 8 and Article 1 of the First Protocol of the ECHR.
Article 6.1 is about a fair and impartial hearing. Local residents are clearly denied their rights in this respect due to the failure to even have a hearing. Article 8 is about protecting your home and your family life. If you cannot use your home to the same degree as you would without the installation, then arguably your rights in this respect are being violated. And Article 1 of the First Protocol is about protecting your property, clearly if you cannot use your property to in the same way as previously, then again your rights are potentially being violated.
It is therefore our view that if the wording of A2(4)(b) does allow the loophole then the amended Part 24 of the GPDO is in compatible with Article 6.1 of the ECHR and therefore arguably unlawful, as a consequence of the Human Rights Act which requires all legislation to be compatible with convention rights. For further info on Article 6 go to the Planning Sanity Human Rights Forum.
Naturally we view these developments with real concern, not only from the arguments relating to phone masts, but from the viewpoint of credibility of the entire planning system. If controversial developments are allowed without any reference to the planning authority, and the public are not allowed to comment, then the public will become very concerned. It is the view of Planning Sanity that for the planing system to be acceptable to the public, then it must be transparent in its dealings, the public must feel that their views are being taken on board, and that the LPA are working in the interests of the wider community, that will not happen when the system allows for wholesale provision of controversial developments to take place without any permission being sought or granted.
Legal Challenge
We are looking to mount a legal challenge on this and other loopholes in the very near future, unfortunately we need more funds, therefore if your group is affected by any of the loopholes please consider making a donation, as a win will help all those affected. We also want individuals affected to join the list of claimants, in either case please send email to info@planningsanity.co.uk
Standard letter in Word format suitable for sending to local MPs, Councillors and Local Planning Authorities
Standard Letter
See also the Planning Sanity briefing on Deminimis and Small Antenna.
© Planning Sanity - August 2008 (can be freely used by local communities within their campaigns.
Publication by third parties is permitted providing acknowledgment of Planning Sanity is given)
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