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PLANNING & BROADBAND WIRELESS SYSTEMS
Law & Practice in England and Wales
This issue was missed by most commentators before it was introduced through a minor amendment to the Town and Country (General Permitted Development) Order 1995 (GPDO), yet has wide implications for those concerned about the spread of mobile technology. The introduction effectively enables the entire system to be installed without any planning permission at a local level. Whilst this paper does not look at or attempt to deal with any adverse or positive health implications from the system, that is a matter for others to comment on, we are concerned that yet again close on the heels of the untried TETRA system we have another new technology being rolled out without any convincing evidence of its safety and without any precautionary consideration of the systems consequences having been taken into account.
Prior to the introduction of the new provisions if a householder wanted to put a single satellite dish on their property then they could without any permission being required from the local planning authority, unless it was in a conservation area, or was to be placed on a listed building. The new provisions remove the term satellite and replace with the more loosely defined term microwave antenna, whilst increasing the ability to place two such antenna on each residential premises, we will go into this in more detail below.
The government then looked at the question of 'Broadband Base Stations' and instead of placing them alongside mobile phone base stations they craftily classified them to fit within the less restrictive Part 25 class which is normally used by small installations for the likes of local systems such as that used by taxi operators and amateur radio enthusiasts. The system being straight forward no permission is required, the only difference is that of whether it is above or below 15 metres, then it is just down to the number of antenna, two below four above. Whilst there are other slight differences that is the main aspect, so in theory an operator could build a 30 metre mast/tower and put 4 antenna on it. Now the mast/tower is built and as we all know in the pecking order existing structures take precedence over new ground based masts, so normal phone operators will be queueing up to use them for serious mobile phone expansion.
There is a limited ability for the local planning authority to prevent the most sensitively sited installations by the making of Article 4 Directions that take away the permitted development rights from any given site. Even the restrictions on satellite dishes within conservation areas has been downgraded in order to allow this system to be rolled out uninterrupted. Therefore the only way of reducing this role-out is to mount a legal challenge, however based on past experience Planning Sanity is not convinced that is a realistic option.
So the new provisions how will they work. For England the provisions are contained in The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2005 and for Wales The Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2006 which for all intents and purposes are identical and therefore I only refer to the English version. We also need to look at the ODPM Circular 10/2005 this sets out the Governments interpretation of the new provisions, albeit that as it rightly sets out in para 2 it is only the courts that can interpret legislation, therefore we shall have to see what if anything the courts make of the new provisions when and if they ever get to court, we deal with its provisions in more detail below.
As already stated the power that enables Sky and other satellite dishes on residential property is brought in by Schedule 2 Part 1 of the GPDO, both Class A and H being the relevant sections, the amendments are either crossed out if they have been removed or coloured red if they are additions under the new provisions:-
Class A - Permitted Development
A. The enlargement, improvement or other alteration of a dwellinghouse.
From this if you want to carry out any work on your home you can unless it falls into one of the restrictions in Class A.1, A.1(f) sets out:-
(f) it would consist of or include the installation, alteration or replacement of a satellite microwave antenna;
Thus under Class A there is a ban on the installation of microwave antenna, and moves towards satellite systems, whether these systems are safe or not is not a question for Planning Sanity, that is for those more qualified, what is clear is the ease by which the 7 (minimum) to 12 (maximum) new operators of these systems will be able to install their equipment. However, this gives a problem of interpretation, if microwave antenna are not permitted for installations under Part 25 but instead satellite antenna can be installed does this mean that any form of microwaves even if they are transmitted from a satellite are banned. This is important as satellite dishes also use microwave frequencies, the only difference being is that they are transmitted from the geo-orbital satellite rather than from terrestrially (and presumably as broadband would require a two way system they are also transmitted back from the dish to the satellite, albeit they are unlike mobile phone and other radio communications but use a line of sight). Circular 10/2005 sets out at paragraph that the interpretation of antennas should be taken from Article 2(1) of the 1995 version of the GPDO which sets out that microwave mean:-
&qout;that part of the radio spectrum above 1,000 MHz"
And microwave antenna means:-
"a satellite antenna or a terrestrial microwave antenna"
This clearly confuses rather than interprets, because as it sets out in Class A(f) above microwave antenna are specifically excluded from the permission granted by Class A. We therefore have to look at Class H but again confusion reigns. If Class A prevents, and Class H which only refers to satellite antenna permits, each conflicts with the other if the interpretation in Article 2(1) prevails. We must though take Class H as the all important provision, and presumably includes both terrestrial and microwave antenna, with all the health implications that entails:-
Class H - Permitted Development
H. The installation, alteration or replacement of a satellite antenna on a dwellinghouse or within the curtilage of a dwellinghouse.
H.1 then going on to list the restrictions I set these out in full so that the entire picture can be seen.
Development not permitted
H.1 Development is not permitted by Class H if -
(a) the size of the antenna (excluding any projecting feed element, reinforcing rim, mountings and brackets) when measured in any dimension would exceed -
(i) 45 centimetres in the case of an antenna to be installed on a chimney;
(ii) 90 centimetres in the case of an antenna to be installed on or within the curtilage of a dwellinghouse on article 1(4) land other than on a chimney;
(iii) 70 centimetres in any other case;
(a) it would result in the presence on the dwellinghouse or within its curtilage of-
(i) more than two antennas;
(ii) a single antenna exceeding 100 centimetres in length;
(iii) two antennas which do not meet the relevant size criteria;
(iv) an antenna installed on a chimney, where the length of the antenna would exceed 60 centimetres;
(v) an antenna installed on a chimney, where the antenna would protrude above the chimney;
(vi) an antenna with a cubic capacity in excess of 35 litres;
(b) the highest part of an antenna to be installed on a roof or without a chimney, would, when installed, exceed in height-
(i) in the case of an antenna to be installed on a roof without a chimney, the highest part of the antenna would be higher than the highest part of the roof;
(ii) in the case of an antenna to be installed on a chimney, the highest part of the chimney;
(c) there is any other satellite antenna on the dwellinghouse or within its curtilage in the case of an antenna to be installed on a roof with a chimney, the highest part of the antenna would be higher than the highest part of the chimney, or 60 centimetres measured from the highest part of the ridge tiles of the roof, whichever is the lower;
(d) in the case of article 1(5) land, it would consist of the installation of an antenna-
(i) on a chimney, wall or roof slope which faces onto, and is visible from, a highway;
(ii) on a building which exceeds 15 metres in height in the Broads, on a chimney, wall or roof slope which faces onto, and is visible from, a waterway;
(iii) on a wall or roof slope which fronts a waterway in the Broads or a highway elsewhere on a building which exceeds 15 metres in height.
Conditions
H.2 Development is permitted by Class H subject to the following conditions-
(a) an antenna installed on a building shall, so far as practicable, be sited so as to minimise its effect on the external appearance of the building;
(b) an antenna no longer needed for the reception or transmission of microwave radio energy purposes shall be removed as soon as reasonably practicable.
H.3 The relevant size criteria for the purpose of paragraph H.1(a)(iii) are that:
(a) only one of the antennas may exceed 60 centimetres in length; and
(b) any antenna which exceeds 60 centimetres in length must not exceed 100 centimetres in length.
H.4 The length of an antenna is to be measured in any linear direction, and shall exclude any projecting feed element, reinforcing rim, mounting or brackets.
First it is clear that we have moved from a satellite to a microwave antenna, and that overall the size of the antenna has increased. At face value it does not seem over daunting, other than houses will have a considerably greater number of antenna (dishes and well as whip like antenna). For a point of reference Article 1(5) land is land listed in Part 2 of Schedule 1 of the GPDO and include - a national park, an area of outstanding natural beauty, a conservation area, an area of natural beauty and amenity of the countryside and the Broads.
When we turn to Part 25 we see a similar picture
Class A
Permitted development A.
The installation, alteration or replacement on any building or other structure of a height of 15 metres or more of a microwave antenna and any structure intended for the support of a microwave antenna.
Development not permitted
A.1 Development is not permitted by Class A if-
(a) the building is a dwellinghouse or the building or other structure is within the curtilage of a dwellinghouse;
(b) it would consist of development of a kind described in paragraph A of Part 24;
(c) the development would result in the presence on the building or structure of more than two microwave antennas it would consist of the installation, alteration or replacement of system apparatus within the meaning of section 8(6) of the Road Traffic (Driver Licensing and Information Systems) Act 1989 (definitions of driver information systems etc);
(d) in the case of a satellite antenna, the size of the antenna, including its supporting structure but excluding any projecting feed element, would exceed 90 centimetres it would result in the presence on the building or structure of more than four antennas;
(e) in the case of a terrestrial microwave antenna-
(i) the size of the antenna, when measured in any dimension but excluding any projecting feed element, would exceed 1.3 metres; and
(ii) the highest part of the antenna or its supporting structure would be more than 3 metres higher than the highest part of the building or structure on which it is installed or is to be installed in the case of an antenna installed on a chimney, the length of the antenna would exceed 60cm;
(f) it is on article 1(5) land; or in all other cases, the length of the antenna would exceed 130cm;
(g) it would consist of the installation, alteration or replacement of system apparatus within the meaning of section 8(6) of the Road Traffic (Driver Licensing and Information Systems) Act 1989[54] (definitions of driver information systems etc.). it would consist of the installation of an antenna with a cubic capacity in excess of 35 litres;
(h) the highest part of the antenna or its supporting structure would be more than three metres higher than the highest part of the building or structure on which it is installed or is to be installed;
(i) in the case of article 1(5) land, it would consist of the installation of an antenna.
(i) on a chimney, wall or roof slope which faces onto, and is visible from, a highway;
(ii) in the Broads, on a chimney, wall or roof slope which faces onto, and is visible from, a waterway.
Conditions A.2 Development is permitted by Class A subject to the following conditions-
(a) the antenna shall, so far as is practicable, be sited so as to minimise its effect on the external appearance of the building or structure on which it is installed;
(b) an antenna no longer needed for the reception or transmission of microwave radio energy purposes shall be removed from the building or structure as soon as reasonably practicable.
A.3 The length of an antenna is to be measured in any linear direction, and shall exclude any projecting feed element, reinforcing rim, mounting or brackets.
Permitted development
B. The installation, alteration or replacement on any building or other structure of a height of less than 15 metres of a satellite microwave antenna.
Development not permitted
B.1 Development is not permitted by Class B if-
(a) the building is a dwellinghouse or the building or other structure is within the curtilage of a dwellinghouse;
(b) it would consist of development of a kind described in paragraph A of Part 24;
(c) it would consist of the installation, alteration or replacement of system apparatus within the meaning of section 8(6) of the Road Traffic (Driver Licensing and Information Systems) Act 1989 (definitions of driver information systems etc.);
(d) the size of the antenna (excluding any projecting feed element, reinforcing rim, mountings or brackets) when measured in any dimension would exceed-
(i) 90 centimetres in the case of an antenna to be installed on a building or structure on article 1(4) land;
(ii) 70 centimetres in any other case;
it would result in the presence on the building or structure of
(i) more than two antennas;
(ii) a single antenna exceeding 100 centimetres in length;
(iii) two antennas which do not meet the relevant size criteria;
(iv) an antenna installed on a chimney, where the length of the antenna would exceed 60cm;
(v) an antenna installed on a chimney, where the antenna would protrude over the chimney;
(vi) an antenna with a cubic capacity in excess of 35 litres;
(e) the highest part in the case of an antenna to be installed on a roof without a chimney, the highest part of the antenna would, when installed, exceed in height be higher than the highest part of the roof;
(f) there is any other satellite in the case of an antenna to be installed on a roof with a chimney, the highest part of the antenna would be higher than the highest part of the chimney stack, or 60cm measured from the highest part of the ridge tiles of the roof, whichever is the lowest the building or other structure on which the antenna is to be installed;
(g) it would consist of the installation of an antenna on a chimney in the case of article 1(5) land, it would consist of the installation of an antenna
(i) on a chimney, wall or roof slope which faces onto, and is visible from, a highway;
(ii) in the Broads, on a chimney, wall or roof slope which faces onto, and is visible from, a waterway;
(h) it would consist of the installation of an antenna on a wall or roof slope which fronts a waterway in the Broads, or a highway elsewhere.
Condition
B.2 Development is permitted by Class B subject to the following conditions-
(a) the antenna shall, so far as practicable, be sited so as to minimise its effect on the external appearance of the building or structure on which it is installed;
(b) an antenna no longer needed for the reception or transmission of microwave radio energy purposes shall be removed from the building or structure as soon as reasonably practicable.
B.3 The relevant size criteria for the purposes of paragraph B.1(d)(iii) are that:
(a) only one of the antennas may exceed 60 centimetres in length;
and (b) any antenna which exceeds 60 centimetres in length must not exceed 100 centimetres in length.
B.4 The length of an antenna is to be measured in any linear direction and shall exclude any projecting feed element, reinforcing rim, mounting or brackets.
ODPM Circular 10/2005
The opening gambit at para 3 of the circular sets out rather blandly that the purpose of the GPDO is to deregulate the planning mechanisms for 'relatively uncontentious developments'. As mobile phone developments are amongst the most contentious of development types this seems a strange statement to make in relation to these new provisions. Most of the info in the Circular is of a very general nature, it does though in relatively simple terms et out in its three annexes the size and height restrictions under the new provisions, we have reproduced these below for your convenience:-
Annex A
Permitted Development for Antennas on Dwelling Houses
The regulations relating to antennas on dwelling houses are contained in the following table:
| Numbers of antenna(s) | Up to 2 antennas are permitted. |
| Size of antenna(s) | Single antennas are permitted to be up to 100 cm in length.
For 2 antennas, one is permitted to be up to 100cm in length; any second antenna is limited to 60 cm in length.
Chimney-mounted antennas are limited to 60cm in length.
All antennas should be no greater than 35 litres cubic capacity. |
| Location restrictions | In dwelling houses which have a chimney stack:
antennas should not protrude above the highest part of the roof by more than 60cm, or the highest part of the chimney, whichever is the lower.
In dwelling houses without a chimney stack: antennas should not protrude above the highest part of the roof.
Antennas should not protrude above the highest point of the chimney. |
| Restrictions in Designated Areas | Antennas are not permitted on a chimney, wall or roof slope which both faces onto and is visible from a road or a Broads waterway. |
Annex B
Permitted Development for Antennas on Buildings under 15m in height
The regulations relating to antennas on buildings under 15m in height (but not dwelling houses) are contained in the following table:
| Numbers of antenna(s) | Up to 2 antennas are permitted. |
| Size of antenna(s) | Single antennas are permitted to be up to 100 cm in length.
For 2 antennas, only one is permitted to be up to 100cm in length; any second antenna is limited to 60 cm in length.
Chimney-mounted antennas are limited to 60cm in length.
All antennas should be no greater than 35 litres cubic capacity. |
| Location restrictions | In buildings with a chimney stack: antennas should not exceed the highest part of the roof by more than 60cm, or the highest part of the chimney, whichever is the lower.
In buildings without a chimney stack: antennas should not exceed the highest part of the roof.
Antennas should not protrude above the highest point of the chimney. |
| Restrictions in Designated Areas | Antennas are not permitted on a chimney, wall or roof slope which both faces onto and is visible from, a road or a Broads waterway. |
Annex C
Permitted Development for Antennas on Buildings 15m or more in height
The regulations relating to antennas on buildings 15m in height or more are contained in the following table:
| Numbers of antenna(s) | Up to 4 antennas are permitted. |
| Size of antenna(s) | All antennas are permitted to be up to 130 cm in length.
Chimney-mounted antennas are limited to 60cm in length.
All antennas should be no greater than 35 litres cubic capacity. |
| Location restrictions | Antennas should not exceed the highest part of the roof by more than 300cm. |
| Restrictions in Designated Areas. | Antennas are not permitted on a chimney, wall or roof slope which both faces onto and is visible from a road or a Broads waterway. |
In addition to the above considerations there are those in direct relationship to the award by OFCOM of the licences to operate the new system. There are to be between 7 and 12 new licences for broadband, controlled by OFCPM, the process is to be set out in 4 new regulations drafts of these can be found in OFCOMs Briefing on the new process. We are not reviewing those aspects as they fall outside of the planning regime, however, you can download that paper from the OFCOM WEB site.
As I set out above the combination of the alterations to Parts 1 and 25 will effectively allow this whole new network to be rolled out without any ability for objection or interference by the public, elected representatives (councillors, MPs, AMs or MEPs) or the local planning authority. Only political action will reverse this position, we therefore need to ensure that we are pushing all the buttons, that we challenge this arrogant policy and bring back some resemblance of public participation to the planning process. The implementation of this process is a bad day for local justice in the UK.
It is intended that a process of lobbying of MPs, of challenges in the courts, of pressure from the media and the publication of all research undertaken into this section of telecommunications will be undertaken in an attempt to reverse this negative legislation.
© 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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