| QUESTION |
ANSWER |
| What is the 'Prior Approval' process? |
This is intended to be a fast track through the planning procedures. In effect Government has already granted planning permission, thus planning officer regularly tell members of the public that planning permission is not required, which is very misleading. There are in fact two types of Prior Approval, those that are known as prior notification installations, and require no more than the giving of 56 days notice to the local planning authority, therefore any installations that fall within this category require no application to the Local Planning Authority, this is too complex for this short FAQ, therefore see our section that lists the mast briefing papers for more info.
The other category is where certain height conditions apply in those which is the vast majority of applications, an application has to be made as to whether the prior approval is required for the installation, successive Planning Ministers have made it clear that this should result in the same consideration as a full planning application in all but name. The main aspect is what is effectively a brickwall on the time when an application must be n ot only determined but notified to the Operator, currently this is 56 days. The process is set out in the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2001. The limitations and exclusions are set out in this document. Often the public are told that this process only takes into account the siting and design, this is though factually incorrect, although that is how it is worded, again see our main briefing for how the process works out in practice.
It should also be noted that Wales has it own very similar structure, but that Scotland has reduced the number of installations that can use the prior approval process, the majority of applications require full planning permission. |
| Is health a material planning consideration? |
The simple answer is yes health is a material planning consideration that MUST be taken into account. Our briefing on what the courts have said sets this out in clear terms - Courts and Health Concerns. When refering to health we are mainly refering to health concerns, there is the provable health effect (not yet proven), and the fear or perception of an adverse health effect, in otherwords the state of mind of those effected, including the effect of the community as a whole. However, tthe Court of Appeal has ruled that only significant concerns can be taken into account where there is an ICNIRP certificate submitted, which is all applications. |
| What is Planning Policy Guidance Note 8 (PPG8)? |
PPG8 is the Governments main planning guidance to local authorities, it is though only that guidance, whilst it cannot be ignored, it is not to be treated so strictly that it must be obeyed to the letter. It should be viewed in conjunction with the Code of Best Practice. There are in all 25 Planning Policy Guidance Notes, others may also come into play, such as PPG7 Countryside and PPG2 Greenbelt, links to all the PPGs can be found on our WEB site |
| In planning terms is there any difference between phone masts and TETRA masts? |
No: The processes are exactly the same. Although 02 Airwave like to argue the emergency service angle, but that should not if the planning autority give the correct consideration make any difference to the decision. |
| Where can I get advise on public inquiry procedures? |
Look at our Planning Inquiry Forum. We can also arrange training seminars on public inquiry procedures, we are also always happy to help put together cases for local communities faced with a public inquiry. The Planning Inspectorate also have a wide range of briefing papers on the processes involved. |
| What are the time limits for challenging the grant of planning permission, and/or prior approval determinations? |
The public do not have the right to appeal against local planning authority decisions, except through the process known as Judicial Review (JR), and leave of the High Court is required for an application to be made. However, there is a statutory right of appeal of a Planning Inspectors decision under Section 288 of the Town and Country Planning Act 1990 (T&PCPA) (technically an appeal against the Secretary of States (SofS) decision, the inspector acting as the agent for the SofS).
The rules relating to JR have always been that an application should be made promptly, but in any event within 3 months, however, the Lords have now ruled that to restrict JR to 3 months would not be compatible with Article 6.1 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), therefore the present rules should be read as that applications should be made promptly.
The 6 week rule comes into play with statutory appeals under Section 288 of the T&CPA 1990 which is effectively a brickwall cut off at 6 weeks. But of course that would not prevent an application for JR, although pre HRA the courts had found that a challenge could not be made by JR where S288 applied, but of course that would now be deemed to be incompatible with Article 6.1
But of course the advise must remain that it is always best to get challenges in within the 6 week time limit for S288 appeals even where JR is the legal route, but that in any event 3 months should be the time limit except in the most exceptional case, this would avoid the potential for the courts to find that the phone operator had been prejudiced by the late application, especially if they had installed the mast prior to a late application being made. |
| A campaign has been told that the planning officer is to determine an application before it goes to committee and before the final date for submission of objections. Does the Planning Officer have this power? |
It would be deemed to be procedural improprietory, the failure to give the public the
opportunity to make comment would be incompatible with Article 6.1 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Any decision would certainly be challengable by Judicial Review (JR).
But it is quite right and proper for a planning officer to go back to a developer and point out flaws in an application that require amendment. It would then be up to the developer to withdraw the application and to submit a new application, or to procede and risk tthe application being rejected.
You therefore have to distinquise between whether the application is being rejected due to failures in the application, and therefore rejected, as opposed to making a decision to grant permission before comments by the public and statutory bodies are made. |
| We are fighting an 8 transmitter mast that 02 want to put up in a London Suburb. We want to deal with the issue of alternative sites. This is a densely populated area surrounded by other densely populated areas. A large heathland is perhaps half a mile away, but I'm sure 02 would say this would not offer them the coverage they are looking for. Do you have any pointers? |
This always a problem in inner city areas. You say 02, is this a TETRA (Airwave) or normal G3 phone mast, as this would determine the range of the installation. Potentially TETRA has a range of between 20 to 30 miles, on flat open land, G3 installations have a range of between 2 to 3 miles. Of course topography, tall buildings and other obstacle's reduce these capabilities.
Therefore in relation to alternative sites you have to be realistic as you already indicate there would be very limited choices, the heathland at face value would seem to be the best option, and most certainly at half a mile would be within the range, depending on the number of tall buildings and natural features such as hills, as well as other local coverage problems. You might want to look at other options such as industrial estates/commercial complexes and so forth.
Site selection is raised in the Jodie Phillips case it would be worthwile your reading this particularly paragraph 41 you can download the judgment from the BAILLI WEB site.
You might also want to look at Site Finder you can type in your post code and get a map of all sites within the range set. You then argue that the installation could be site shared, it matters not whether it is the same operators mast, and or site share. The pecking order of the sequencial approach to site selection is mast share - site share - use of existing buildings or structures - new ground based sites. |
| What are the time limits for challenging planning applications to the courts?v |
A challenge to a local planning authority must be made by Judicial Review (JR). A challenge to a public inquiry (including those using both the written and hearing procedures as well as full inquiries) is normally an appeal to the High Court under Section 288 of the Town & Country Planning Act 1990, but could if the circumstances were right also be made by JR.
The rules relating to JR have always been that an application should be made promptly, but in any event within 3 months, however the Lords have now ruled that to restrict JR to 3 months would not be compatible with Article 6.1 of the ECHR (human rights), therefore the present rules should be read as that applications should be made promptly.
With statutory appeals under Section 288 there is a 6 week time limitation period which is effectively a brickwall. But of course that would not prevent an application for JR, although pre HRA the courts had found that a challenge could not be made by JR where S288 applied, that would most likely now be deemed to be incompatible with Article 6.1 of the ECHR.
But of course the advise must remain that it is always best to get challenges in within the 6 week time limit for S288 appeals even where JR is the legal route, but that in any event 3 months should be the time limit except in the most exceptional case, this would avoid the potential for the courts to find that the phone operator had been prejudiced by the late application, especially if they had installed the mast prior to a late application being made. |
| Can a para 17 of the Electronic Communication Code challenge be made at the same time as planning challenges under Section 288 of the T&CPA 1990 and Judicial Review? |
There is no reason why a JR/S288 challenge could not be made at the same time as a Code application, they are different proceedings under different legislation, and for different purposes, and by different courts. |
| Can the landowner refuse permission for the phone mast to be sited on their land, in other words can they go ahead without the landowners permission? |
The simple answer is that they can not install a mast without the landowners permission, this would be trespass, and a claim in damages could be made. But nothing is simple, legislation allows an Electronic Communication Code System Operator to first serve a notice on a land owner, and then if the land owner objects to apply to the County Court for an order effectively forcing the landowner to have an installation. But we know of no case where this has ever happened. But we do know of cases where masts have been put on the wrong land by mistake and where it has been very difficult to get them moved.
Another equation is that with the introduction of the Communication Act 2003, under Section 118 Phone Operators have been given compulsory purchase powers, it has yet though to be seen how these powers will work out in practice, they do though need the consent of OFCOM before the Order comes into effect. |
| Is there any law that allows a mast to be removed? |
In planning law there are two provisions where development permission can be withdrawn, both of these processes apply equally to all forms of development including phone masts. The first course is revocation of a permission already granted, but where the development has not been started. This process is set out in Section 97 of the Town & Country Planning Act 1990 (T&CPA 1990). Discontinuance of use where an development has already taken place is set out in Section 102 of the T&CPA 1990. See our briefing on Revocation and Discontinuance of Use.
There is also the process set out in Paragraph 17 of the Electronic Communication Code which allows for a County Court to order the removal of a mast, however this process has very strict time limits, and relates solely to land effected by the installation, see our briefing on Code Para 17.
These are the only means of removal of a mast, complaints of maladministration to the Ombudsman might be a course that will allow an investigation of council behaviour or failures, you might even obtain an award of compensation, but it will not get a mast removed. |
| Can permitted development rights be withdrawn for phone masts and Network Rail masts? |
Yes: Under Article 4 of the Town and Country Planning (General Permitted Development) Order 1995 a local planning authority can make an Order that specific sites or localities are exce mpt from the Class of development set out in the Order. This would need to specifically set out the type of telecommunication installation. The process cannot be used as an aid to creating a borough wide ban on phone masts, or to create exclusion zones. it does not prevent an application being submitted for full planning permission.In November 2004 the National assembly for Wales confirmed the first Article 4 Order that we are aware of (in England it would be the Secretary of State who confirms the Order). The process is that the Local Planning Authority makes a resolution they are minded to approve and the passes it to the Secretary of State (Welsh Assembly in Wales) for confirmation. |
| What rights do employees have not to be subjected to emissions from phone masts? |
The simple answer is very few. An employer has a duty of care, but providing the employer does everything to protect its staff that a reasonable employer could do, then in reality they are protected from claims. But of course if they allowed a mast on the roof of a block of offices, knowing as they must that there is a risk because no scientist will ever say there is no risk, and then a member of staff was to fall ill as a direct and provable consequence of the installation, then they would be liable. If the installation was on another building not owned by the employer, and it was brought to the attention of the employer that there was a greater risk to pregnant women, and the employer failed to move any pregnant woman to a safer place of work, or was made aware of processes that can reduce emission levels, such as Faraday mesh that can be fixed to walls, then they might be said to be negligent. Much though would depend on circumstances and the degree of harm caused, in general terms it would be a hard case to prove. |
| How do operators deal with concerns of the public? |
There are two connected processes they use, the so called Ten Commitments, and the Traffic Light Scheme for site selection. Otherwise they leave direct contact in the majority of cases to their PR departments. Their trade organisation MOA sets out the recomended way to deal with the public in a booklet Risk Communication Handbook. This is very informative, in the context of knowing your enemy will set set you on the path to winning. |
| What about masts in churches? |
See our briefing on churches |
| What is the 15 metre rule? |
The full effect of the 15 metre rule for ground based masts is set out in our briefing. The simple answer is that the calculation is taken to include the mast and any headgear (frame that hold the antenna) but not the antenna, thus the antenna can be higher than 15 metres, but not the mast or head gear. Under 15 metres then the prior approval process applies above 15 metres full planning is required. |
| If the building is under 15 metres can they only install 2 antannae systems (not the individual antennaes)? |
With installations on building or structures other than masts then the GPDO provides that on a building that is not more than 15 metres high there should only be two antenna systems, on a building over 15 metres there can be 3 antenna systems. But remember with all these clauses that the restrictions only apply to those systems approved by the prior approval (Prior Notification) process and not full planning, with full planning you can have as many as you like. |
| Can a phone mast operator install a temporary phone mast without planning permission? |
Tempoarary masts require the same level of permission as permanent masts. Often Operators will tell local planning authorities that as a consequence of provisions in their licesnces they can put up installations for a tempoary period of 6 months. However, that provision does not overule the requiremet to apply either for full planning permission or prior approval.
The only two instances where installations can be installed without first applying for permission is under the general rules relating to temporary use for a period not exceeding 28 days in any 12 month period, normally used for events such as markets, but could be applied to a portable installation. The other is where there is a broken down installation and in that emergency a new installation can be installed but only as a tempary replacement, which must be on a moveable structure such as a lorry or trailor.The local planning authority should take enforcement action, coupled to a stop order where installations are unlawfully installed. See our briefing on temporary masts. |
| Do land owners and Phone Mast Operators have public liability insurance? |
In about 1997 Phil Willis MP (Lib Dem) asked a number of insurance companies if they would insure against public liability, from this it was established that Lloyds of London had recommended to its members not to insure. Also a number of specific companies have said they will not insure against public liability. The story line can be found on the British Library WEB site.
In the mean time we have made inquiries of various bodies, including MOA and OFCOM if there is an obligation on the part of operators and/or landowner to have public liability insurance. The responses have been negative, making it clear that whilst some operators might have liability insurance there is no requirment that they should.
It is our view that in all probability operators will have cover, as will some large landowners, but that generally land owners will not have cover, but that in all probability they will not realise that they are not covered, especially those who have held public liability policies for some years, as the annual reviews might have put in exclusion clauses. |
| How can I best lobby councillors making the decision on the installation? |
You should do a bullet point list of the main issues maximum of one page and ensure that each planning committee member getsa copy a day or twoo before the planning committee meeting. A list of committee members can be got from the members desk at the council. As councilors get hundreds of reports they do not read (cannot read) them all, they will though be more likely to read a somple bullet point list, if you are then to address the committee (normally a 3 minute slot for the public) you have something to refer them too, and thus your speech can be directed to the list, if you then run out of time you at least know they have the remainder of our points before them. |
| I have sheep and cattle on my land. How will it affect them, and is this a material planning consideration? |
One issue that will be very relevant to you but that would not normally be raised is the effect on the sheep (and Cattle) you say you have, Dr De Pomerai at Nottingham University has proven that the nemenode worm increases its fertility by 10% and its size by 30% this will certainly be detrimental to the welfair and health of your animals. |
| Is it unlawful for a council to get rent from a phone mast. As well as also being the planning decision maker? |
It would not be unlawful for a Council to get income from the rent of a site for a commercial purpose, including the use by telecoms companies. In fact quite the reverse they are under a legal obligation to obtain the best deal they can. But within that process they have to weigh up competing obligations such as the well-being of its residents, many local authorities making resolutions not to allow telecoms installations on thier property.
You also have to make the distinction between the local athority and the local planning authority, albeit that in most cases they are effectively one in the same, in law they are not. However, it is arguable that if a councillor sat on the committee that approved the contract to the telecoms company, he would could no longer be said to be imparcial if he was then to sit on a planning comittee that determined the planning application, he would therefore need to declare an interest and take no part in the planning decision on that installation. |
| Can you recommend an expert to compile our presentation to the Planning Authority, or to a Written Public Inquiry, or to represent us at a formal public inquiry? |
It can be very expensive to employ a planning consultant and even more expensive to employ a barrister/solicitor. Planning Sanity might be able to help with some drafting of documents, and in some cases (subject to our minimum donation requirements) provide witnesses and/or lay advocates. We are always willing to help out in any way we can in checking documentation, and ensuring that you your case is well thought out and presented to give you the best chance of success. There is no reason though that you cannot put forward a case, whether that is on the papers or at a full enquiry why a local community cannot win without the use of so called experts.
We could suggest some experts but the likely cost would range or a planning consultant in the bracket of about £300 to to £1000 per day, whereas with solicitors and barristers you could look at between £500 to £2000 per days work. Reviewing the papers and putting forward a written presentation would be between 2 to 3 days, whereas an average public inquiry would be about 3 days, plus 2 days for preparation of the case. However, it is possible that an inquiry could last much longer (2 or 3 weeks). I would though first look locally for a planning consultant, ask the direct question of whether they have dealt with masts previously, that will save you any travel and other expenses (you would have to pay someone to visit the site, which irrespective of how long that took would be a minimum of a day plus expenses, whereas that would be saved by using local resources). The minimum donation for a Planning Sanity lay advocate to attend an inquiry is £100 per day plus out of pocket expenses. |
| Can we obtain insurance to cover the loss in the value of our home if a phone mast is put close by? |
Yes, although you can only obtain it before the application for the mast is submitted, or it is announced that a mast will be sited close to your home. The policy (at the date of this FAQ) costs £12 per month, but gives cover of up to £100,000 or 25? of the value of your home before the development took place, the other condition is that you must sell up and move. The agents offering the policy are Lucas, Fettes & Partners 0207 413 0999. |
