PLANNING SANITY BRIEFING
OPPOSING PHONE MAST PLANNING APPLICATIONS

This briefing pack has been compiled to enable local communities to put forward meaningful objections to proposals to install telecommunication base stations. It is compiled from a planning view point and not from a scientific stance, there are many briefings and reports setting out the scientific and health arguments on the adverse effects of both mobile phones and base stations, therefore there is little need to repeat those here, except where they have a direct relevance or bearing on planning procedure. However, for those wanting to put forward arguments on health/precautionary principle grounds, a useful list can be found on our Phone Mast Forum, more specialist help on the effects of phone masts can be obtained from organisations such as Mast Sanity and Power Watch.

This briefing sets out to deal with the general principles and procedures. There are other more specialised (planning/legal) briefings available on our Phone Mast Forum. It should also be kept clearly in mind by those opposing TETRA (02 Airwave) installations, that in planning terms there is no difference between TETRA and other telecoms installations, therefore this briefing equally applies to those masts, but for those opposing installations by Network Rail or private telecoms systems then the procedures are different. It should also be kept in mind that this briefing relates specifically to England, whilst Welsh legislation is more or less the same different guidance/legislation applies (but this is slowly changing), and that with Scotland and Northern Ireland altogether different procedures and legislation applies.

The burning issue for you all is health. Can mobile phone base stations affect you and your health, the short answer must be that no one can say with clarity one way or the other. The official policy of Planning Sanity is that it is irrelevant whether there is or is not an adverse health effect, what is valid from a planning view point is that of you, your families and your communities state of mind. We do not then need to enter the world of positives or negatives. Fortunately within the planning system that is also the case. Below we set out in some detail the situation in as far as phone masts and health are concerned. For now we want you to think of the adverse health effect not in the context of a provable affect, but rather the fear you hold, or more precisely the perception that you hold that there could be an adverse health effect (this includes side effects such as the actual stress suffered, worry in relation to the loss of value of your home etc.).

The planning process for base stations can be divided into 8 distinct groups:

1. ground based masts under 15 metres in height;
2. ground based masts above 15 metres in height;
3. those attached too, or on the roofs of, existing buildings, or structures (other than masts) above 4 metres in height.
4. those that are on buildings or structures that are not higher than 4 metres of the building or structure - see our A.2(4)(b) Briefing
5. those that are deemed to be 'de minimis' minor dishes/antenna - see our de minimise Briefing
6. Those on Church Property.
7. Those on Network Rail Property and form part of their internal phone network.
8. Those of private companies, and organisations, including traffic control systems operated by the Highways Agency.

(It should be noted that other new systems are coming on-line that will increase the type of installation, as well as changes to Parts 2 and 25 of the GPDO that will in effect make it easier to beam signals direct into the home, those changes are such that there is a considerable reduction within the planning regime to allow for public objection, or local decision making, but at this stage of the new provisions it is difficult to see how they will impinge until the more information is available on the required infrastructure required for the new systems, it is though likely if the wording in the altered Part 2 is an indication likely to be via satellite style dishes, we will though have to wait and see.)

Electronic Communication Code System Operators originally held licenses under Section 7 of the Telecommunications Act 1984 to run public electronic communication systems (see also the Standard Licence Conditions). But these have now been superseded by provisions within the Communication Act 2003, which is controlled by the new super Government Agency OFCOM (note that health issues are now the responsibility of the Health Protection Agency). Operators have been accorded rights similar to public utilities, such as water, gas and electric, which are contained in Schedule 2 of the Telecommunications Act 1984 now to be known as the Electronic Communication Code, which allows them to install their systems in the maintainable highway, and with appropriate consent on private land, that is the permission to use the land, not planning permission/prior approval which would still be required. However, these rights are not without some obligations. There is a draft Planning Sanity briefing on the changes brought about by the Communication Act 2003 and another for the Code and Regulations.

Ground based masts over 15 metres in height require full planning permission, which will be dealt with later. Those under 15 metres and in most cases on or attached to buildings, or other structures, are covered by Part 24 of the GPDO The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2001, which grants many rights for Telecommunication Code System Operators, and which gives us the greatest problems (but is now being surpassed by the growing number of installations installed through loopholes and without direct local planning approval). These allow operators to carry out specified development, subject to certain conditions and limitations, without the need to make a full planning application. There are though special provisions relating to the installation of masts in designated areas such as National Parks, Areas of Outstanding Natural Beauty, Conservation Areas, and Sites of Special Scientific Interest, in these special areas masts do not enjoy the benefits of GPDO and an application must be made for full planning permission.

Under Part 24 of the GPDO an operator obtains a decision from the local authority that the development does or does not require prior approval (full planning permission). The Local Planning Authority (LPA) have 56 days to reach a decision, and notify the Applicant (This is effective a brick wall - if the decision is not made and notified to the Operator within the 56 days then the permission is granted by default. See our separate briefing paper on this as where the requirement to lodge within 56 days is not undertaken it could lead to a claim for compensation from the local planning authority). Publication of the proposal is now the same as for full planning applications. These conditions are intended to give the public an opportunity to comment on its siting and appearance (21 day consultation period). There is also an obligation for LPAs to consult parish councils, should the parish council request such a right, as well as statutory undertakers, and many other official bodies, however, the majority of them rarely comment.

The only positive avenue for rejection of an application is by the LPA considering that the proposal will have a detrimental effect upon local amenity, siting and design. However, they must first look at how the siting or appearance could be modified rather than refuse permission. This will be looked at in more detail below.

There are effectively 4 different planning policy structure's for GPDO telecom permissions in England, Wales, Scotland and Northern Ireland. Albeit that the rules in England and Wales are very similar. The Scottish Parliament on the other hand is taking a more robust approach than England and Wales, with all applications being decided by the full planning process, this will be looked at in more detail later.

The following is the relevant legislation:-

• GPDO - The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2001
• PPG 8 - Planning Policy Guidance Note 8 - Telecommunications - August 2001
• OPDM Circular 04/99 - Planning for Telecommunications (hard copy on request from Planning Sanity)
• GPDO Part 24 - Wales
• TAN 19 - Telecommunications This is the Welsh version of PPG8
• NPPG19 - Radio Telecommunications Scottish
• PAN 62 - Radio Telecommunications Sctottish
• Telecommunication Act 1984 (This is an updated version that incorporates the changes made by the Communication Act 2003)
• Scottish Circular 05/2001 - Telecommunications
• Scottish Circular 03/2004
  The Town and Country Planning (Electronic Communications) (Scotland) Order 2004
• Town and Country Planning (Electronic Communications) (Scotland) Order 2004
• T&CPA 1990 - The Town and Country Planning Act 1990
• Code of Best Practice on Mobile Phone Network Development
• Treaty of European Union (Maastricht, 1992) Article 130r (PDF file)
• Regional Planning Policy Guidance for individual regions may also have some relevance. (See the Planning Sanity Regional Planning Guidance Forum)
• PPS10 Northern Ireland - Planning Policy Statement - Telecommunications
• Draft Development Control Advise Note 14 - Northern Ireland - Siting and Design of Radio Telecommunication Equipment
• Electronic Communications Act (Northern Ireland) 2001

For a full listing of legislation relating to phone masts go to our main phone mast forum legal section. A listing of references and documents are included at the end of this briefing, however where appropriate the relevant passage is included in the text.

PPGs and PPSs should be taken into account by Local Authorities as they prepare their development plans and is a material consideration in planning decision making, which in any event should be in keeping with the development plan, unless material considerations dictate otherwise. The main one as far as masts are concerned is PPG8 "Telecommunications" (updated 22nd August 2001). However you should also look to PPS7 "Sustainable Development in Rural Areas" and PPS 9 "Biodiversity and Geological Conservation" and PPG2 "Green Belts". PPGs are supplemented by Circulars, which are explanations of policy structures, and should be taken into account in the planning process, many of these though are not on-line. It should though be pointed out that we are in a transition period of implementation of a new planning regime, albeit similar to the present system the document structure has altered, this entails a more flexible local plan, with a number of supporting documents that should be read as part of the plan, the most important for our purposes is that of Supplementary Planning Guidance (SPG) which are topic led local planning authority document's, thus one may be headed 'Telecommunications', whilst many of these have been around for years, the new system gives them a formal status and makes them part of the local plan, not all LPAs have a telecoms SPG but most have, so you need to obtain a copy of that.

Government policy is such that masts should be kept to a minimum and that where ever possible mast sharing should be encouraged. The licenses (licences should now only be taken as a term of reference, as licences were scrapped in 2003 with the control of operators passing to OFCOM and a notification process replacing the licences, although for all intents and purposes the same conditions apply that applied in the licences) issued to the 5 existing network operators require them to take all reasonable steps to investigate using, or replacing, an existing mast or other structure before erecting a new mast, where a new mast is required, operators are required to investigate co-operating with another operator in erecting a mast for joint use. The provision for this is contained in PPG8 para 19 to 23 (It is also contained within the Code Regulations (see below). Unfortunately far too many installations are installed at new and quite often inappropriate locations, however, according to the operators this has more to do with the insistence of the Government on each operator operating its own system rather than a shared system that is common to all operators, which if the Government had allowed would have seen a reduction of up to 70% of installations.

Mast sharing policy also includes the need to consider erecting antennas on existing buildings, rather than erecting new masts. Para 21 PPG8, states that "LPAs may reasonably expect applicants for new masts to show evidence that they have explored the possibility of erecting antennas on an existing building, mast or other structure". PPG8 is clear that if this info is not included in the application then the LPA may refuse approval, as can the Secretary of State on appeal. Providing the LPA gives clear reasons for such refusal, it is then always worth checking to ensure that this info has been included with the application, and if so, that it meets the criteria. This is best judged by a local organisation that will have a greater knowledge of suitable buildings and potential sites than operators, albeit that locals may not be fully aware of the technical issues at stake. However, it is always a good tactic to look to see if there are other more suited sites (ensuring you are not simply dumping your problem on others), and to ask why the operators have not considered these. Of course if they have failed to fully consider a more suitable site, or indeed failed to consider any other site, or supply the required information, then this should be used to encourage the LPA to reject the application. It is the LPA in the first instance that should satisfy itself as to whether the information which has been provided, is satisfactory not the operator. Indeed when all applications that were referred to the Planning Inspectorate in the last 3 years are analysed it is seen that this is the second most common ground for refusal, all decisions between Jan 2001 and Jan 2003 are included in our on-line data base of decisions. Before looking at other sites you should look at the Operators Risk Assessment handbook which is aimed at their Site Acquisition Agents and PR staff, then look at paragraph 41 of the judgement of Mr Justice Richards in Phillips v First Secretary of State & Ors [2003] EWHC 2415 (Admin) which states:-

"...... It seems to me to follow, again as a matter of principle, that if there were two alternative sites each of which was otherwise acceptable in environmental terms, it would be open to a decision-maker to refuse approval for one of those sites if the location of a mast on that site would give rise to substantially greater public concerns than its location on the alternative site. To take an example close to the facts of the present case: if one of the sites were close to a nursery school and residential properties, whereas the other was in an industrial estate some distance away from the school and residential properties, the greater public concern about the former might tip the balance against the grant of approval for it. I am not saying that that is how a particular application would be decided or ought to be decided, but only that it would be lawful for a decision-maker to approach the matter in that way."

Taking that as a starting point, then it is arguable that if you can identify an alternative site that is better placed than the application site in terms of adverse effects, not only on health, but on other environmental grounds such as visual intrusion than the application site, irrespective of whether the operator has considered that site, then the LPA can refuse the application, with the reasoned justification being set out as the adverse effect upon the amenity coupled to the availability of an alternative site.

The policy relating to alternative sites is also included within the Code Regulations and so can be looked at from a licence to operate stance and therefore outside of the planning regime a complaint can be lodged with OFCOM). There can therefore be no doubt as to the obligation in every application for the operator to have considered other sites, mast sharing or multi use of a site, and that they must include a full report of those considerations to the LPA with their application (such considerations do not need to be to the same degree as the application site, but the detail should be sufficient to enable the decision maker to make an informed decision). PPG8 (Appendix para 70) also suggests the use of Section 106 agreements (enforceable planning obligations, under Section 106 of the Town and Country Planning Act 1990) to ensure that if any mast site is approved on the understanding that it will be made available to other operators, for mast sharing, that such sharing does happen. A refusal to share is also a matter for complaint to OFCOM who can suspend an operators licence, or even revoke it.

It may also be worthwhile at this stage to look at individual licence obligations on coverage. The G2 licences require an 90% coverage, whereas G3 has no coverage requirement, and the '02' TETRA licence has an 80% coverage requirement (Note though that the Code Regulations now provide for best coverage, nevertheless it is arguable that the above figures are those that apply as the minimum coverage and not some other operators preferred coverage level). Although many police forces have private contract obligations with '02' for 96% and even 100% coverage, but that requirement is no more that a commercial contract and has no bearing on planning permissions, which are linked to the licence obligation, thus with the Police they cannot claim that they have to have a high coverage rate, they do not. Therefore arguments on the question of need for any given installation must be discounted to the context of the licence obligation. Although PPG8 sets out that the LPA should not question the network need for an installation, it is though a material planning consideration to demonstrate that there is not a need for the installation, and that there is good coverage again in the case of TETRA to 80% of the specific locality.

The Appendix to PPG8 (para 72) also suggests that LPAs should compile a register of potential sites for masts, and that it would be reasonable for LPAs to expect operators to show why no site on the register would present a practical alternative to the location. So do your LPA have such a register, if so is your site on that register, if not would one of the other sites on the register serve the needs of the operator, as good, or better, than the proposed site. This also raises the question of those not yet affected by masts checking the sites on registers and applying to remove any sites that could prove problematic in the future. However, very few LPAs have actually compiled registers (Planning Sanity would be keen to hear of any such registers and the attitude of the LPA in response to a member of the public requesting a site is removed from the list), known LPAs with lists are set out here.

Alternative sites that are being considered for sharing should have the potential adverse effect's taken into account (from the view point of Planning Sanity swapping one site for an equally unsuitable location is not the answer, albeit NIMBY's might consider that acceptable, Planning Sanity would certainly not support a campaign that was supporting the move to another site that was just as bad for the local communities adjacent to that site). A balance needs to be struck, whereby the tactic of suggesting alternative sites is an integral part of a campaign, providing that suitable research of the adverse effects that would be associated with the new site have been taken into account by the group, and found to be the best available site, with little or no adverse effects on areas of a sensitive nature, such as schools and hospitals. It should though also be kept in mind that the suggestion of an alternative site is not of it self a serious suggestion that the alternative site should have a mast, only that it potentially could have an installation and that it was better placed than the application site, the LPA cannot for instance refuse yours and grant permission for the other site, that would require a new application, and therefore can be tactically acceptable to suggest another site that may not be the best site.

Operators are also under an obligation from PPG8 Appendix para 57 to hold pre-application talks with LPAs on the application in order that the best design and layout can be included with the application, this should also be in the wider context of all its operations and proposed operations in the area, this will enable the LPA to better judge the merits of individual applications, and to consider applications along with the plans of all operators in their area.

PPG8 (paragraph 10) also states: "Pre-application discussions should also be carried out by the operator with other organisations with an interest in proposed development, such as residents groups, parish councils or amenity bodies". We rarely hear of these discussion's taking place, all too often the first that local communities know of an application is after the application has been submitted. Operators do not want to give local communities the time to enable them to organise campaigns. In the right set of circumstances, we argue that this 'could' give grounds for a legal challenge, however, in order to ensure that 'bad law' is not created, the set of circumstances would need to be at least 80% sure of success before involving the courts. Having said that once such a ruling was held in favour of consultation at the pre-application stage, then many sites in sensitive areas would be averted through early community pressure. Nevertheless we urge local community groups to approach LPAs to ensure they are included in such talks.

A code of best practise which all the mobile phone operators have signed up to is now in place. Many of its provisions we feel unable to sign up to, although the sentiments behind it may be genuine. Similarly the Operators through their trade organisation the Mobile Operators Association (MOA) have compiled their own code, called the Ten Commitments, which is coupled to the so called Traffic Light Scheme. In practice both of these schemes are only used when it best suits the operators. Planning Sanity refused to participate in the MOA review of their scheme on the grounds that we did not want to appear to legitimise the proposals, Planning Sanity would prefer a statutory scheme, with powers to enforce, indeed our position since 2001 has been that we do not have dialogue with MOA until they agree to include on the agenda the following issues:-

• The removal of existing masts that are insensitively sited;
• A scheme where a percentage tax is placed on all mobile phone calls to be used for the funding of research into health concerns;
• The implementation of a statutory policing scheme for complaints lodged against operators;

MOA refuse to even entertain such reasonable requests, but instead only want to talk about issues they want to include on the agenda, in other words a one way debate, they continued right through until 2003 sending us invites to meetings, until we started returning their communications un-opened, if the entire movement took the same stance it is our view we would force them to talk to us, but as others insist on pandering to the operators they gain legitimacy for the schemes that in reality only play lip service to the concept of public involvement, albeit there may be some justification for debate on a case by case basis by the affected residents of an installation.

The only reason's given for refusal contained within the direct legislation concerned with masts, under the GPDO Regulations for a direction that prior approval is required, relates to amenity, siting and design. These reasons though are intended in the first instance as a means of considering changes of the design to overcome the problems concerned. However, we must make the best use we can of the wording of the legislation that clearly indicates over and over again that applications can be rejected on amenity grounds. There are good sound arguments relating to amenity that can be flagged up (see Appendix 2 for a planning decision letter, with many useful pointers).

A useful planning inquiry decision sets the context of amenity to health (Combe Down Rugby Club - Bath - 15th May 2003). The Inspector rejected the strait forward concerns of the residents on health, but accepted the local planning authorities grounds for refusal of the mast "..... outlook and living conditions of adjoining residents taking into account their concerns about the health implications of such installations". The inspector then went on to reject the appeal for that reason stating "Nonetheless, I do not consider the need for this installation or the number of alternatives considered and rejected by the appellant outweigh the unacceptable harm I consider the proposed monopole would cause to the outlook of nearby residents". Although, the courts have move the debate on in regards to health since that decision, nevertheless a decision to refuse permission on those grounds would still be justifiable, but LPAs should be very careful in the way the word the decision letter, and that there are no technical reasons that might give grounds for the operator to appeal.

Size is the first and easiest to put forward, but this would have to have a real detrimental affect on the local community, or be such that it is likely to significantly alter the 'openness' of the countryside (especially if the site is in, or can be over seen from the Green Belt). If a structure is such that it is totally out of keeping with its surroundings, then it is right and proper to point this out as a legitimate reason for not confirming the application. This might be the case in a residential area, or sensitive locality. But would be less likely to be arguable in an area that is primarily industrial.

A further consideration on size is those that determine whether the application is one that is determined by the full planning process, or prior approval. There were thousands of installations that were installed over 15 metres in height under prior approval process, that have now been effectively ruled as unlawful by the courts, this point is set out in a separate briefing. The gist of it is that any that have been installed that exceed the height requirements could potentially be declared unlawful, giving the opportunity for the LPA to order their removal.

Design, is another reason for rejection on amenity grounds, however, this can be easily solved by applicants alteration of the design. Nevertheless as it can form the basis of a decision not to confirm the order, it should be used where appropriate. As with any reason, the reasons for refusal must be sound, in order that the Applicant does not have grounds for appeal, and then have an inspector grant permission with hardly any conditions attached, if that is a real possibility, then it might be more beneficial to ensure that the design of the proposals is such that it causes the least problems, from the outset, and look to other reasons for refusal.

Appearance should not in its self be seen as design, appearance can be overcome by changing of the colour, or the screening of the proposals with foliage. It will though add to any argument for rejection on amenity grounds. Appearance and design though is now becoming the big issue for operators, who are designing them as trees and sculptures.

Annex 1 to PPG8 para 13 lists factors that may involve siting:

• the height of the site in relation to surrounding land;
• the existence of topographical features and natural vegetation;
• the effect on the skyline or horizon
• the site when observed from any side, including from outside the authority's own area;
• the site in relation to areas designated locally for their scenic or conservation value;
• the site in relation to existing masts, structures or buildings, including buildings of a historical or traditional character; and
• the site in relation to residential property
• Any other relevant considerations

There are many planning appeal decision on siting and design, an example is the Leeds case Appeal Number T/APP/N4720/C99/1028315 (see Appendix 2), although that case is a little old now.

The choice of any site in close proximity to a school is contrary to current government guidance, whereas the Stewart Report set out that the beam of maximum intensity should not fall on any part of a school premises (including the grounds) without first consulting the School Governing Body. Albeit that the Government watered this down to:

• para 11 PPG8
  "Where a mast is to be installed on or near a school or college it is important that operators discuss the proposed development with the relevant body of the school or college concerned before submitting an application for planning permission or prior approval to the local planning authority."
• para 13 PPG8
  "Where a mast is to be installed on or near a school or college the local planning authority should consult the relevant body of the school or college concerned and should take into account any relevant views expressed."

It is the view of Planning Sanity that amenity grounds is far more than this, and should be extended to include issues such as potential health risks, traffic increases, construction noise, vibration and dust. There are many complaints relating to noise from base stations, late at night repair work, whistling, banging of cables against structures, and so on, causing problems for local residents, operators so far are not seen as good neighbours, doing little to reduce adverse effects (Many of these adverse effects are statutory nuisances which can be prosecuted either by the local authority or residents in the magistrates see our briefing on statutory nuisance). Along with interference with existing services or facilities such as the blocking of TV reception, flight paths of birds, and so on. Each such objection based on amenity or otherwise should be backed by as much information as possible, with references to regulations and past precedents where applicable.

Amenity should be looked at in planning terms as that which could have an effect on the local community, or indeed individuals. And therefore can be wide ranging in the areas that it covers, and does not only cover the actual mast but the ancillaries, an example might be the blocking of a view by the erection of tall growing trees as a boundary fence, in it self the hedge is being provided to shield the sight of the mast, however even though the mast is obtrusive, in our sample it is not as obtrusive as the hedge, which blocks all distance views over what would otherwise be open countryside.

The perception or fear of health in planning terms is a material consideration as a consequence of Newport County Borough Council v Secretary of State for Wales and Browning Ferris Environmental Services, where the Court of Appeal found by a two to one majority that the fear or perception by the local community of an adverse health effect is a material planning consideration even if that fear is not based upon any logic or scientific evidence (see below).

Other cases that we draw to your attention where the High Court have granted leave to apply for judicial review due to the failure of the respective local authorities to take the concern of the local communities on health effects of masts into account - R v Stockport Metropolitan Borough Council ex parte Smith - The Queen on the application of Julia Herman and Others v Winchester City Council and Orange Personal Communications Services Limited - Mr Justice Hooper and The Honourable Mr Justice Ouseley - Case No. CO/956/2001 - R v. Forest of Dean Borough Council. As well as the decision in the Section 288 appeal to the High Court in Trevett v Secretary of State for Transport, Local Government and the Region where the court found that it would fetter the obligation of the decision maker to take the concerns of the public on health into account if they were to restrict their deliberations solely to whether an ICNIRP compliant certificate had been submitted by the Operator. These cases are set out in a separate briefing.

The Newport case takes comfort from Lopes Ostra v Spain (A 303-C - 1994) and Powel & Rayner v UK (A 172 - 1990), albeit to a lesser extent in the Powel & Rayner case, nevertheless there is some interesting stuff in that case (see the Planning Sanity Human Rights Forum).

Authorities may receive representations on health grounds about alleged impact of proposed telecommunications development on property values. PPS1 - Delivering Sustainable Development notes that it is not for the planning system to protect the private interests of one person against the activities of another. Although in a particular case considerations of public interest may serve to protect private interests, the material question is not whether a particular development would cause financial or other loss to owners and occupiers of the neighbouring property, but whether the proposal would have a detrimental effect on the locality generally, and on amenities that ought, in the public interest, to be protected. However, it is arguable that the stress caused by the loss of value of a residential property (ranges from 15% to 30%) is a material consideration, even though the actual loss in value is not. Therefore your objections on this point should be worded in that context.

Another aspect of the value of homes that has recently been brought to the fore is when the LPA due to its failure to follow the correct procedure causes residents to suffer, this is maladministration, which can be reported to the Ombudsman. Whilst the Ombudsman cannot reverse a planning decision in the Swindon case the failure of the Operator under the old rules to notify the Operator within the then 42 days caused maladministration, and the Ombudsman ordered that the local authority pay compensation at the rate of the difference in the value of the property before and after the development was installed. The end result was that the 6 residents received a total of £119.500. In a case involving a farm leaving waste and other materials on the land, (whilst nothing directly connected to phone masts) the LPA was ordered to pay £8.500 in compensation for failing to take prompt and appropriate enforcement action. These decisions clearly demonstrate a potentially powerful tool in persuading the LPA to make the right decision. More info is contained in the briefing. However, since that case the Court of Appeal in Nunn, R (on the application of) v First Secretary of State & Ors [2005] EWCA Civ 101 has confirmed that it is maladministration, but also that potentially a claim could be made for compensation through the courts under Section 8 of the Human Rights Act 1998.

The effect placed on developments in relation to the local area and its community is judged by the adverse or positive amenity of the proposed development. In as far as telecommunication developments are concerned, in the majority of cases the amenity issues comes down to the perceived fear that the local community have of the adverse health affects from the irradiation emitted, including the unknown biological effects see the various reports on our main Phone Mast Forum Reference Section). However, keep in mind that with many of the reports that indicate a health risk that the line the Government takes is that the evidence has not been replicated in further tests (they do not take that line though with reports that state there is no risk), therefore much of the evidence is not accepted by official bodies, although they refuse to pay for the required research that would potentially lead to those results being replicated.

Lord Justice Aldous in the Newport case stated:

• "A planning authority may properly take into account the perceived fears of the public when deciding whether proposed developments would affect the amenity of an area .. perceived fears of the public are a planning factor which can amount (perhaps rarely) to a good reason for refusal of planning permission that planning reasons such as public perception can (again, perhaps rarely) warrant refusal, even though the factual basis for that fear has no scientific or logical reason"

It is much quoted in relation to the Stewart Report that the inquiry found there was no provable health risks from masts, providing emissions are kept within the guidelines.

• "We conclude that the balance of evidence indicates that there is no general risk to the health of people living near to base stations on the basis that exposures are expected to be small fractions of guidelines." (Stewart Report para 1.33)

However to take this on its own is to overwhelmingly mis-read the Stewart Report, quite often advocates of base stations fail to quote the whole paragraph, the final sentence being:

• "However, there can be indirect adverse effects on their well-being in some cases."

The Stewart Report does though state that the balance of evidence suggests that exposure to RF radiation below NRPB and ICNIRP guidelines do not cause adverse health effects to the general population (Stewart Report para 1.17). The optimum words being 'general population', which clearly leads to the conclusion that a percentage of the population is at risk, see comments on the evidence of BT to the Trade and Industry Committee. The Stewart Report follows this (para 1.18) by stating 'There is now scientific evidence, which suggests that there may be biological effects occurring at exposures below these guidelines'.

To get the real flavour of the Stewart Report requires the reading in full of the Summary and Recommendations. The Stewart Report rather than stating that there is no provable risk, points over and over again to instances of concerns on potential risk. Para 1.16 sets it out clearly, that there is little research and little published scientific evidence, this leads to the fears of the public, it should also be kept in mind that there was a follow up report in 2005 that reiterated many of the concerns expressed in the original 2001 report. And that is what the perception aspect is about, it is not about some provable link, merely the fear caused by there being no scientific evidence either way. Thus the Stewart Report concludes that a precautionary approach should be adopted. It also boldly recommends (para 1.36):

• "We recommend that for all base stations, including those with masts under 15m, permitted development rights for their erection be revoked and that the siting of all new base stations should be subject to the normal planning process."

If we only had the Stewart Report to go by there is in our view sufficient concern to give the required degree of fear. However, we have much more evidence, for example the research findings of Nottingham University. There is the fact that insurance companies are reluctant to insure the public liability risk of emissions. With TETRA the 352 known Police Officers to have reported ill as a direct result of using the new Airwave radio system, it is also alleged by the relatives of one police office that his untimely death was as a direct result of ailments brought about by the officers the use of TETRA.

From the above it can be seen that whilst there clearly is no provable link to an adverse health effect, there is clear evidence of a potential link, the public then are right to hold concerns, when those concerns are translated into the protection that all society has for its own direct family, then the fear becomes real and tangible, sufficient to cause the perception that Lord Justice Aldous and Lord Justice Hutchinson refer to in the Newport case, and therefore if planning decision-makers find that such fears do exist, then those decision-makers can refuse permission for these masts, albeit that in the Harrogate case the Court of Appeal reduced that to the exceptional case.

The adverse health effects of proposed developments have come before the courts on many occasions, in the majority of cases the point has been won by the objectors. There are a number of cases involving the European Court of Human Rights. This is explored in detail below.

If we look at the case of R v. Tandridge District Council exparte Mohamed Al Fayed (1999). Whilst Al Fayed lost the case there are some interesting pointers in it, primarily to do with the role of the HSE. Mr Justice Carnwath is his judgement set out a number of what he termed right questions to be asked by the decision maker:

1. what is the nature of the Applicant's objection ?
2. What factual material and/or advice is available to that objection, and in so far as advice is obtained, then upon what factual basis is it offered ?
3. What (if any) weight should be given to the objection and such factual material or advice ?

This is a natural progression of questions and are rightly the natural questions to be put, and looked at to arrive at a decision. The problem was though the response of the HSE who took rather a cavalier approach to the question of health and their role as the effective policing authority, and quite frankly makes a mockery of the implication of PPG8 that the local authority should not look at health grounds too closely as this is the primary responsibility of the HSE. However, matters have moved on, and although the advise in PPG8 still relates to that of the HSE being the policing authority, the fact is that legislation now puts some of the responsibility on the shoulders of OFCOM, and with the formation of the Health Protection Agency (HPA) who now have responsibility for many of the health issues, but as yet we do not know how OFCOM will implement their powers, and responsibilities it is difficult to judge whether this will be to the benefit of the public. See the Planning Sanity briefings on the Communication Act and on Code Regulations for an indication of those powers.

It seems to us that from the rational of the judge in Newport case that the HSE should have been consulted (arguably with the new powers under the Coms Act by analogy, so should OFCOM), if not the decision on health should be based upon the evidence before the decision-maker, it is rather a large passage but it is important to flag the whole of it up:

• 42. I see force in Mr Croxford's complaint that the substance of his client's objection was never properly considered by the authority. It is not I think in dispute that Mr Al Fayed's letters raised a serious planning issue which should reasonably have been investigated before the decision. It is clear on the evidence that the authority did not investigate it themselves, because they reasonably treated it as a matter for the advice of the Health and Safety Executive; but it is equally clear that it was never in fact investigated by the HSE, because they were not put on notice that this aspect of the development was something which they had to consider. It is apparent from both the committee report and the Chairman's letter of 5th June, that the authority accepted that Mr Al Fayed's concerns justified investigation and also that they both thought the proper body to advise on this was the HSE. The approach suggested by the Chairman of this letter was, as it seems to me, entirely reasonable had it in fact been carried into effect, but for whatever reason it was not. The HSE were consulted; but, as we now know, they were not sent Mr Al Fayed's letters nor, more significantly, the technical material which he had enclosed, and they did not think they were being consulted on this aspect. Unfortunately, that would not have been apparent to the committee when reading the officer's report. The reference to the HSE's views, as quoted in the report, is perfectly general. The quotation does not include the particular references in the heading to the HSE letter, which might have suggested that the HSE were not addressing this particular issue. A committee member reading that report would have assumed that the issue, which, at the end of the report, is said to be a matter for the HSE, would have been encompassed by the general statement of the HSE which is referred to on the first page. Accordingly, it seems to me that there was a flaw in the decision-making process. That, however, is not enough to get Mr Al Fayed home as far as substantive relief is concerned. The court will not quash a decision of this kind unless the flaw is one of practical significance, in the sense that there is a realistic possibility that the decision might have been different if the matter had been handled correctly. Now, it is here, as it seems to me, that Mr Al Fayed's case must fail.

The determination process first requires the LPA to determine if the application requires prior approval if it does, then the LPA advises the applicant, and then goes on to consider approval or refusal. If it does not require prior approval then the LPA advises the applicant that it does not, all of these decisions must be made within the 56 day period. If no determination is made within the time limit then approval is assumed on the conditions contained in the application. Approval given within the time limit can have conditions imposed by the local authority.

There is a right of appeal by the applicant to the Secretary of State (SofS) against refusal of approval (Section 78(1) (c) of the Town and Country Planning Act 1990), such appeals must be on notice given within 6 months of the date of the notice of refusal. After a refusal a fresh application can be made whether that is a refusal by the LPA or the SofS, and that application has to be considered a fresh, on its own merits, irrespective of whether it is on the same or another site, or if the details have been altered. Any refusal does not remove permitted development rights from a site, it simply means that the individual proposal was not acceptable. See our Public Inquiry Forum for more info on the appeals structure and processes.

Permitted development rights may be withdrawn under Article 4 of the Town and Country Planning (General Permitted Development) Order 1995, it is for the local authority to withdraw the right, but the withdrawal must be confirmed by the SofS. Withdrawal of permitted development rights should not be made unless there is a real and specific threat to the locality in which the development is to take place. Blanket cover will not be confirmed, but sympathetic consideration will be given to specific sites, where the location seems likely to attract obtrusive or inappropriate telecommunication development which would seriously threaten amenity. Not many sites would be likely to fall within this remit, however those opposing sites close to schools and hospitals might attempt to persuade the local authority to make a direction, and then make representation to the SofS to confirm the order. But keep in mind the reason for an Article 4 Direction is based on the affect on amenity.

There are circumstances where no approval is required on emergency grounds. There is no statutory definition of what is an emergency, however PPG8 Annex 1 para 25 points to the definition of 'emergency works' given in para 1(1) of Schedule 2 to the Telecommunications Act 1984 (the Electronic Communication Code) as a useful guide (see the Planning Sanity Briefing on Emergency Installations.

It should be noted that for installations to be classified as emergency works then there has to first be an installation. Planning Sanity has successful defeated on more than one occasion the unlawful attempts by operators to circumvent these regulations and put emergency installation on new sites claiming the emergency was 'their obligation to have 100% coverage', which they could not do without the emergency installation. So watch for such tactics in your area, they are unlawful. Recently (2nd April 2004) a High Court Judge has order 02 Airwave to take a mast down that had been unlawfully installed after Warwick District Council applied to the Judge for an injunction (Planning Sanity have not yet seen the judgement in the case) The argument advanced often by telecoms operators that the installation is an emergency is based on a false interpretation of the law, only installations that are on a moveable structure (lorry etc.) and are to replace broken installations on that site (no other site, not even a close by site), out side of that there is no such thing as an emergency installation.

The 56 Days Procedure is contained in Annex 1 to PPG8, which sets out the criteria for Ground Based Masts up to 15 metres in height. And those on buildings and other structures. But does not apply to Article 1(5) Land, that is land contained in Article 1(5) of the GPDO, which is listed in Schedule 1 Part 2 of the GPDO. If your mast is to be placed on a building or existing structure, you should study carefully the permutations contained in the GPDO, as many masts on buildings exceed the criteria set out, by many times.

1. a National Park;
2. an area of outstanding natural beauty;
3. an area designated as a conservation area under section 69 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (designation of conservation areas);
4. an area specified by the Secretary of State and the Minister of Agriculture, Fisheries and Food for the purposes of section 41(3) of the Wildlife and Countryside Act 1981 (enhancement and protection of the natural beauty and amenity of the countryside);
5. the Broads

Or to any land which is, or is within a SSSI, all of which require planning permission.

The procedure is such that the LPA has from the date of receiving the application, to determine whether it requires prior approval and to notify the applicant of its decision, there is no power to extend the 56 day period.

The regulations require that the application to the LPA must be accompanied by:

1. a written description of the proposed development;
2. a plan indicating its proposed location;
3. a copy of the site notice erected by the applicant, together with a plan indicating where it is displayed;
4. where the proposed development consists of the installation of a mast within 3 kilometres of the perimeter of an aerodrome, evidence that the Civil Aviation authority or the Secretary of State for Defence (as appropriate) has been notified of the proposal; and
5. the appropriate fee.

Also the evidence on mast sharing and so forth set out above.

There is also the obligation to erect a site notice, a model notice is reproduced in Appendix 1 of this briefing. The info that must be included is: details of the proposed development, including height of mast, description of mast design/type; number and size of antennas; number and dimensions of radio equipment housing; features of development ancillary to radio equipment housing. Along with info of the applicant, where to object, where plans are available for inspection and the date by which objections must be submitted. The notices should be easily assessable by the public, without the need to enter the site, and wherever possible, especially with larger developments, they should be on the nearest public footpath's and roads.

Unfortunately additional publicity is only at the discretion of the LPA, who should consider the need on a case by case basis, therefore residents may or may not be aware of a development prior to it being erected. Quite often we hear from residents calling us desperately after the mast has been erected, saying we knew nothing of the application, having come home from work to find the thing half erected. It is all to easy for mast operators to put up notices in obscure locations, on country lanes, with few people passing on foot, yet realistically close to large residential areas, and schools, but the operator would be able to claim they acted within the Regulations. So we urge local community groups to read ALL those notices that you see erected relating to planning applications, to ask the LPA if they have a mailing list of forth coming planning applications, and to take what other steps needed from a local view point. Many local authorities now include weekly lists on their section of the Planning Portal WEB site.

No additional development can take place under the GPDO provisions that would take existing masts beyond the permitted 15 metres height, in any such case full planning permission would be required.

Part 24 of the GPDO covers mainly the installation, alteration and replacement of 'electronic communications apparatus' as defined in the Code. All types of apparatus required for the Code System Operator's telecommunications system may be installed in, on, over or under land (including on buildings and on other structures, such as radio masts, electricity pylons or water towers), or altered or replaced, subject to a number of limits and conditions, the principal ones being as follows:.

1. apparatus, such as a radio mast [the term 'radio mast' should he taken to include a radio tower], which is being installed on the ground must not exceed a height of 15 metres above around level, or the height of any apparatus which it replaces, whichever is the greater (this limit does not apply to antennas [where the limits and conditions on the permitted development rights apply to antennas, they apply to all antennas, and not just those operating in the microwave range; planning limitations on antennas are based an site and land use considerations and not on electrical properties] installed on a radio mast);

   where telecommunications apparatus is sited on a building or other structure:
   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 -

   1. 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
   2. 10 metres in any other case;
   
   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 -
   1. 10 metres, in the case of a building or structure which is 30 metres or more in height;
   2. 8 metres, in the case of a building or structure which is more than 15 metres but less than 30 metres in height; or
   3. 6 metres in any other case;
   
   Note : Under paragraph A.1(e) of Part 24. existing masts cannot be extended in height by the addition of further apparatus (other than antennas) which takes the total height of the mast beyond any limit specified in Part 24. This means that
   1. any development, other than the installation of an antenna, which extends a ground-based mast beyond 15 metres in height will be subject to a planning application;
   2. any development which would extend a mast installed on a building or other structure beyond the relevant height limit given in paragraph b(i) above will be subject to a planning application;

For those concerned about antennas these conditions should be looked at in detail, for instance (e) states: "there are no planning limits on the number of antennas that can be placed on a ground-based radio mast". This of course could lead to the ridiculous situation of a base station having 50 or 100 antennas, albeit that such applications would likely be rejected on amenity/design grounds.

• (h) radio equipment housing, including any ancillary works, may be installed, provided that:
• it is ancillary to a telecommunications installation; and
• the volume of housing installed under a single exercising of permitted development rights does not exceed 90 cubic metres, or, if installed on the roof of a building, 30 cubic metres;

The reality of this is that a site may have many separate GPDO approvals granted for it, each as far as this point is concerned would be an individual application, therefore, if there was 4 such approvals, then the whole site could have 4 times 90 cubic metres in the case of a ground base station, that is buildings amounting to 360 cubic metres.

Attached at Appendix 2 to this briefing is a copy of a planning appeal decision letter for a mast in Leeds, this decision letter is interesting because it makes good references to the affect on residents in an residential area, and acts as a good illustration of the sort of points that an LPA could dismiss an application made in either the prior approval and full planning permission procedures.

All masts over 15 metres in height above ground level (and this is a strict measurement) must have planning permission, there are several examples of masts that have been approved under GPDO as under 15 metres that subsequently been measured as higher, having enforcement action taken against the operator, and the mast removed (see Appendix 2 for an example).

Full Planning Permission is carried out under Section 70 of the The Town and Country Planning Act 1990. It is for the LPA to decide if it is, or is not, going to grant permission. The rules are far more stringent than those under GPDO, the time limits are 8 weeks. But failure to keep to these time limits is not a total bar to a later decision, as it is in the GPDO procedures, albeit that if the LPA fails to make a decision within the time scale an applicant can appeal to the SofS, but then a public inquiry is usually held.

A greater number of reasons would be taken into account, including such issues as access and layout, and the LPA would need to consult wider. There is also the prospects that in a few instances that an environmental statement would be required, if this was ordered then in-depth reports are needed on a range of environmental issues, which would include the health effects of the proposal, however Planning Sanity know of no cases where an environmental statement was required.

The planning system is the key part of local administration, and its scope means that it can be a force for protection of the environment, or as is sometimes the case, it can allow the indiscriminate destruction of social, cultural and environmental 'wealth'. The system of local planning is relatively young. The first planning Legislation came about in 1948, and has been improved since then. Today, the planning system is governed primarily by the Town and Country Planning Act 1990. In the past there has always been an underlying 'presumption in favour' of development, but the 1990 Act (as amended by the Planning and Compensation Act 1991) reverses this by requiring (in section 54A) that...

• "Where making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise".

Section 54A is further reinforced by section 70(2) of the 1990 Act...

• "In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations".

This is very important - in theory, types of development not permitted in the development plan should not be allowed to proceed. In practice, it is not always so clear, especially where there are local 'vested interests'. However, these sort of interests are not so likely to arise with base stations, as they would in more profitable developments. Although some land owners will profit considerably from rents that fall generally within the following ranges:

Rural Greenfield	£4,000 to £5,000pa
Rural Rooftops	£6,500 to £8,500pa
Urban Rooftops	£8,000 to £15,000pa
Urban Greenfield	£5,000 to £18,000pa
London Rooftops	£12,000 to £30,000pa

The Town and Country Planning Act must take account of the development plan. Where there is a departure from the development plan those taking the decision must make a reasoned justification for the 'material considerations' that they believe are relevant to the case.

One further restriction is that planning cannot make rulings on matters which are the statutory responsibility of other regulatory authorities. For example, although the waste local plan can set general guidelines for the siting of waste facilities, the terms of waste licenses cannot be set within planning. This would very much come into play with the conditions imposed through the various telecommunication licences, and HSE legislation.

When making objections you must ensure that you base your arguments on "material planning considerations". It is very simple to say hey I don't want that here, its another thing to say "hey I don't want that here because it breaks the planning rules because ...........", therefore as a campaign you must ensure that you are saying the right things to the right people, in this way you will win through. What is and is not a relevant planning consideration is a very difficult thing to explain, but it could be seen as a sliding scale of 'materiality' relating to law, government reports, local authority policies, but always starting with the Development Plan. And in the context of telecommunication masts, the special considerations relating to base stations.

In practice, especially during inquiries, the relevance of documents is one of the cases you may argue. So we must look at not only the policy documents that relate to the project, but also the very latest documents giving the latest feedback from the government on planning policy, we might for instance look at Scottish policy, which quite often is issued as a test before it is introduced into England, however this version of this document has not yet completed such a task.

The main challenges which can be lodged against an application are:

• non-conformance with the requirements of planning law/regulations;
• non-conformance with the publicity requirements of GDO/Circular 15/92;
• non-conformance with EA. regulations;
• technical inaccuracies with the application;
• non-conformance with the development plan;
• non-conformance with PPG's;
• non-conformance with Circulars.

Note that 'non-conformance' need not be on the part of the developer. It could be the planning authority which has breached the regulations - in which case either the developer, or in a few instances the public, have powers to force a new determination.

If the planning authority make a decision which the public do not agree with, they have no right of redress under the English planning system, as third parties are given no rights. If the public can on certain grounds challenge any decision made by the planning authority or the Secretary of State in the High Court. This would normally cost anything between £20,000 to £50,000, and has no guarantee of success, or your money back if you win. There are alternative ways of funding, the main one being legal aid, but obtaining funding from other sources is based mainly on the 'winability' of the case. Note on Third Party Appeals the Scottish Parliament are considering introducing this right for Scotland, hopefully if they do it will put pressure on England and Wales to follow suit.

There are normally three mechanisms for monitoring and complaint by third parties...

• Complaints procedures: most local authorities have their own internal complaints procedures where members of the public can seek redress for perceived offences. However, most of these procedures apply to officers only, not to members. Since the findings are `internal' the results should normally be acted upon (but such an investigation cannot reverse a planning decision);
• The Local Government Ombudsman/Commissioner for Local Administration: This is an arbitrator, appointed by the Government, to investigate any complaint against an officer or member of a local authority. The Ombudsman's findings, are not binding on a local authority, but most local authorities go along with most of the upheld complaints because not to do so would stand against them in any subsequent legal proceedings, compensation can also be awarded, but as decisions are long coming, and would not reverse any grant of planning permission, it is no more than a means of airing frustration; (See the Planning Sanity Briefing on the Ombudsman)
• Judicial Review: where individuals/groups can show that they have a proper case, an application for a review of any decision of a local authority may be granted by the High Court (judicial review). However, this avenue can prove very expensive, with costs running into five-figure sums.

There is an additional way forward of appeal to the High Court under Section 288 of the 1990 Act, however, as this is from the decision of the Secretary of State, it does not lie against a decision of the local authority. Then it has other problems in that it is specifically for 'persons aggrieved'. So that a person would need to show that they are aggrieved. However, if a case is made out then it has the advantage of not requiring leave of the court as is required by judicial review. A similar process is also available where enforcement action is taken against an unlawful development (mast operators are well known for their love of installing unlawful developments) under Section 289 of the 1990 Act.

In terms of accountability, the most effective means of redress for local people is the Ombudsman. Parliament has approved a 'code of conduct' for local administration. If it can be shown that an officer or a member has breached this code, then it is normally regarded as maladministration. However, all that this will achieve is the airing of your complaint, it will NOT reverse the planning decision, although a recommendation of compensation, and of a change in future practices can be made.

The public can influence their local authority to respond to consultations in the way they wish. It is a fact that most consultation responses are written by officers, and approved 'on the nod' by members. If local people can influence the officer, or make the members question the officers approach, changes can be made, with this in mind always look to targeting the relevant officers, but it should be done tactfully, professionals do not like the public telling them they have it wrong.

There are other installations that bypass the local planning process altogether, Planning Sanity have addressed all these areas in separate briefings, therefore I do not intend going into them in fine detail here. The most prominent is that of those by Network Rail who are installing nearly 4000 masts the majority of which are over 30m high, using legislation that was not intended for telecommunications, but for the movement of rail traffic. Those on Church property, who have powers to determine the majority of development decisions by their own planning boards. Those on buildings or structures that do not exceed the height of the building or structure by 4 metres. Small antenna, which are about the size of a television satellite dish. See also the Planning Sanity briefing on temporary installations.

In terms of planning law, unlike say environmental health, the public have no powers to bring their own legal actions to seek redress for offences under law - that is the sole responsibility of the Local Planning Authority (LPA) (the LPA is that part of the local authority which deals specifically with planning matters). But where an LPA fails in its duty to observe the law, the public may seek review through the courts (see above on judicial review).

Of all local authority responsibilities, planning has the greatest effect on the environment. As such, it should receive the most attention. Despite the power of central government, LPAs have quite wide powers to interpret the law and planning guidance. It has to be so, otherwise the system would be too inflexible. There is nothing to say that the guidance must favour the applicant for permission - it could equally favour the environment, or the local community. So unless local people are there, with sufficient knowledge, damaging, unsustainable developments do get passed, that is not to say that simply having local people involved would stop a project. However, contrary to popular believe the majority of planning officers are as unhappy with the present telecom planning regime as the public is, this is illustrated by the results undertaken by the Chief Planning Officer of the London Borough of Harrow which can be viewed here.

The part of planning people most frequently encounter is development control. A developer applies for permission to do something, and the LPA assess the application. It is during the statutory public consultation period of 21 days that people find out about the application, and opposition/support for the proposal begins, while objections should always be made during that period, never stop sending in objections after the deadline, as sometimes the planning application is put on hold, altered or sent to a public inquiry, also some local authorities take a more pragmatic view towards objections and allow them to be received right up to the day of the planning decision, so while the statutory period of objection may have passed there is still a benefit in submitting further objections.

Whilst as already stated above objections should be based on material considerations, that is not to say that 'heart-felt' objections need not be useful - they often are, since to the elected members making the planning decisions these will indicate the strength of public opinion. But you need to use good planning objections too, thereby getting your message over to the planning officers better, and in doing so making life more difficult for the operators.

The idea of relevance is much like that in the rules of evidence used by the courts; evidence/submissions on an issue can be ruled as relevant or irrelevant, and weight/consideration applied accordingly. Unfortunately planning law is made in parts rather than having one central regulation on the relevance on evidence, and so the definition of what is relevant is wide, and may be different in different circumstances.

A ruling in the High Court (Glidewell L.J. - Bolton Metropolitan Borough vs. Secretary of State [1991] JPL 241) found that 'relevant' need not be interpreted narrowly, but can be considered to mean any information which might cause the planning authority to form a different opinion on the application. but this case needs to be interpreted with care, since the reasoning behind consideration of an issue must be testable at any subsequent planning inquiry; but nevertheless a useful decision since it means that the more 'heart-felt' objections can be interpreted by the members and considered relevant, or even lead to grounds of challenge if they do not take them into consideration (which is different to them accepting those arguments, but they should consider them even if they reject them).

Various government publications and High Court rulings have determined the following in the case of planning applications....

• Relevant:
  • planning laws, Circulars and ministerial guidance's;
  • physical site considerations;
  • amenity value of site;
  • existing land use in the area;
  • existence of alternative/better suited sites;
  • development plan considerations;
  • proof of conformance/non-conformance with any of the above.

• Not relevant:
  • economic feasibility;
  • lack of public gain from application;
  • matters relating to other planning/regulatory bodies;
  • previous 'record' of the developer;
  • matters not directly relating to the application or to the exercise of powers under the relevant planning laws, guidance's or structure plans.

Issues related to a development but not directly involved with the application - e.g. the quarrying of aggregates to make the concrete - are not taken as a relevant issue during determination. Only the direct physical effects are taken into account. Where such issues are brought into an application by the developer, they then can be considered as relevant.

The most positive way forward, and an area being promoted by just about every organisation opposing telecommunication masts, is the precautionary principle, this will apply no matter what procedure your mast is being considered under. The 'precautionary principle' means that one should not wait for absolute scientific proof that something is dangerous before taking action to head off the potential catastrophe. It is applied in relation to the environment in the Government White Paper 'This Common Inheritance', PPS23 'Planning and Pollution Control' as well as being enshrined in the Treaty of European Union (Maastricht, 1992) which it is worth quoting in more detail. Title XVI: Environment, Article 130r states- (now Article 170 of the EC Treaty)

1. Community policy on the environment shall contribute to pursuit of the following objectives-
   • preserving, protecting and improving the quality of the environment;
   • protecting human health;
   • prudent and rational utilisation of natural resources;
   • Promoting measures at international level to deal with regional or worldwide environmental problems.
2. Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principles that preventative action should be taken, that environmental damage should be rectified at source and that the polluter should pay... (p39)

The present Government stance is that there is no known risks, but that more research is needed to positively confirm this. Planning Sanity though believe that there is a real and tangible possibility of adverse health effects being established, at the very least, as far as children are concerned, however we have no more evidence of that, than others have that there is no risk.

The Which report on mobile phones states: "We have looked at eight major reviews of all the scientific evidence, including the RSC's. They all conclude that, as the research stands at the moment, no one has proved there definitely isn't a link between exposure to radio waves and cancer or gene damage, but there is only a small likelihood that a link exists". Planning Sanity concludes that this is most likely the case, but more research needs to be carried out, especially on the biological effects,. However an area that seems to be overlooked is the effect on wildlife and domestic animals, and the possibility of any adverse effects from such sources entering the food chain. (While we are not suggesting in anyway that there is a health risk, an example might be cows milk, many masts will have cows grazing nearby, if there is an adverse effect, this could very well affect the milk of those cows (note the report by the Institute of Pharmacology, Toxicology and Pharmacy at the Veterinary Faculty of Hanover on milk yields), this then could put at risk the most vulnerable), the summary of that report sets out that:-.

• SUMMARY: In addition to a considerable reduction of milk yield and increasing occurences of health problems, behavioural abnormalities that have not yet been examined, have been observed over the last two years in a herd of dairy cows maintained in close proximity to a TV and Radio transmitting antenna. The evaluation of possible factors which could explain the abnormalities in the livestock did not disclose any factors other than the measurable high-frequency electromagnetic fields. An experiment in which a cow with abnormal behaviour was brought to a stable in a different area resulted in normalisation of the cow within five days. The symptoms returned, however, when the cow was brought back to the stable in close proximity to the antenna in question. In view of the previously known effects of electromagnetic fields it may be possible that the observed abnormalities are related to the electromagnetic field exposure.

Health effects from masts are more indecisive than phones. Not only is there the effect from emissions, but also the psychological effect of living near masts and not having conclusive evidence, one way or the other of the dangers. As already stated we are not going to go into detail on the health risks, but as it will form the basis of any objection to base stations we do need to get an overview. There is also the potential for litigation against land owners, operators and local authorities. This is set out in other specialist topic briefings.

We would though urge some caution in the use of reports, as already stated many are not accepted by the courts as they have not been replicated. Whilst some academics have given evidence to inquiries and the courts who have not accepted the evidence and therefore they have had what would still be seen as useful reports reduced in value, this unfortunately is very true of the excellent work by Dr Hyland, who has had his evidence rejected by inquiry inspectors, the High Court and the Church Courts, therefore whilst wanting to encourage Dr Hyland in his work, we must recommend that his past reports are not used as justification for refusal, this though is not hard, as he bases his reports on the work of others, therefore take the point that he is making in that report but refer instead to the original report rather than the report of Dr Hyland.

So if it is later proved that there is an adverse health effect from either mobile phones or base stations, it is arguable that any failure to take reasonable precautions to protect the public could amount to sufficient grounds to mount a claim for damages. This type of litigation is now going on in the States over tobacco companies and the health effects of cigarettes. This could very well set those up in the decision making process to crippling claims for damages, thereby increasing local taxation to pay for the damages, as well as seeing many small land owners, schools and other institution in real financial difficulties. The pointing out of these risks is a genuine planning campaign tactic, albeit such tactics should not be used in the actual letters of objection to the LPA or the SofS, but would most certainly be likely to receive considerable local media coverage. One of the sticking blocks to a case for damages was always proving that the specific emission that caused the illness was the emission from the specific phone mast, this aspect has now been overcome in the courts through the asbestos cases, which was based on whether the strand of asbestos that cased workers ill-heath was from one of two firms that the workers had been employed with, the courts found you did not need that level of proof.

Guidelines are based on Thermal Heating, whereas some experts point to biological effects, then there is the stress factor of having masts to close to homes and schools. Those directly below masts are most likely at the safest point, some evidence suggests that the maximum strengths occur at the following distances:

Mast Height(m)	-	At Ground Level	-	First Floor Window (7.5m high)
15m		75-125m		30-80m
30m		175-225m		100-175m
45m		250-350m		150-250m

Maximum fields from the masts at ground level occur between about 30 to 100 metres from the mast.

When referring to human rights legislation, you should always refer to the European Convention on Human Rights and Fundamental Principle rather than the Human Rights Act. The act it self only implements the Convention into domestic law. There are potentially 3 areas of the convention of interest to us Articles 6.1 & 8 and Article 1 of Protocol 1, for differing reasons, Article 14 may also come into play if there is discrimination. Planning Sanity has a more detailed briefing on Human Rights and telecommunication masts.

Article 6.1 relates to the requirement for there to be a fair and impartial hearing, where all the parties enter with equality of arms, there are many precedents in relation to this covering just about every eventuality. For our purposes the main criteria is that third parties are given a fair crack of the whip, that means the ability to ask questions of the opponents, to present your own case on compatible grounds to the main parties, and to have access to 'all' documentation. From what you tell me I think this is not going to be a problem.

Article 8 relates to the right to a respect for a private and family life, home and correspondence. In relation to phone masts this comes directly into being in relation to the quality of life that is potentially destroyed by the development, could also relate to the value of your home, if your home is appreciably depreciated by the development, albeit as of this moment I am not aware of any precedents that relate to the final point. There is though must debate on the question of private & family life, as well as in connection with the loss of the effective use of the home.

In the Rayner case the applicant argued that the intensity and persistence of aircraft noise interfered with his rights to respect for the private life and home. The Government took the view that the claim fell outside Article 8(1) altogether, but the Commission took the view that it covered - 'indirect intrusions which are unavoidable consequences of measures directed against private individuals .. considerable noise nuisance can undoubtedly affect the physical well-being of a person and thus interfere with his private life'. It should though be kept firmly to the fore that this case was actually lost, nevertheless the point is made, that given the right argument, on environmental grounds the affects of developments can infringe a persons private life. In particular the potential health aspects of phone masts, not simply the physical, but the mental state of those affected by this type of development.

This would be particularly relevant to the protection of younger members of the community, where they might be exposed for long periods due to the closeness of the antennae to bedrooms and schools. There may very well be a case to argue that those affected had such fear that their whole fabric of life has been destroyed, forcing them to lead a lifestyle that would other wise be alien to them. A simple example might be that those who are keen gardeners, abandon their gardens and take up a life of seclusion, afraid to step forth from their homes for fear of the effects of irradiation. This may very well seem at first fanciful, and over the top, but reality is that it is more common than might be imagined, with at least one very recent instance coming to our attention, of a man from St Helens, who had a pacemaker fitted, and refused to leave the home for fear that the mast he would have to pass would cause his pacemaker to malfunction. In this context an article in the 'Police Magazine', where TETRA has been known to interfere with sensitive equipment such as breathalysers.

This basic argument is also brought home in the Lopes Ostra case, where the applicant was successful in claiming that the states failure to act to prevent, or to protect her from serious pollution (fumes from a waste disposal plant) constituted a failure to respect both her home and her private and family life. Another instance of the disruption of family life may be where parents refuse to allow their children to visit their grandparents that live in close proximity to a mast.

The context of home in the property sense in covered by Article 1 of the First Protocol. In as far as Article 8 is concerned the issue is one of 'peaceful enjoyment', this is particularly important, as shown by the aircraft noise cases. Is then the fear of an adverse health threat from base stations such that it interferes with the peaceful enjoyment of ones home, I would argue strongly yes, if we are talking about the perceived fear of the inhabitants of that home, especially if children's bedrooms are close to, or in the path of, the beam of intensity.

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. Thus states Article 1 of the 1^st Protocol. This includes for our purposes the property that is your home (not so sure how this affects rented property, but certainly includes leasehold property). This might also affect businesses, where the value or trade of the business falls as a consequence of the development, example a restaurant, where people are reluctant to dine due to the close proximity of a base station, or a hotel, where guests are reluctant to stay.

There are 3 distinct opportunities to potentially see a mast with permission (but not erected) and where they are actually erected. The first two are a result of the Town & Country Planning Act 1990, the third the Electronic Communication Code. Albeit it must be stressed the provisions are there, your case would have to be realistic to win. All Planning Sanity can do is point you to the legislation and the potential grounds, it is then for you to best judge your chances of success, and the risks should you decide to take legal action.

Under Section 97 of the T&CPA 1990 a local planning authority may revoke a permission granted if they deem it is expedient to do so, albeit in as far as masts are concerned a decision that the LPA were minded to revoke would need to be referred to the Secretary of State to be confirmed. And under Section 102 the LPA can order that the use of land should be discontinued, or a building or works altered or removed (even if it has been in existence for many years). Again these orders have to be confirmed. In both cases the Secretary of State holds similar powers. See the Planning Sanity briefing.

As a consequence of Code 17 of the Electronic Communication Code persons with an interest in land affected by telecommunication equipment have a rather archaic appeal structure. The process requires the development to be completed. From which date the objector has 3 months to lodge a formal objection to the phone operator of specific grounds relating to the land and the occupier. On lodging the objection the Operators has 2 months to respond, after which if the points have not been addressed to the satisfaction of the objector then an application can be made within a further two months to the County Court to uphold the objection. See the Planning Sanity Briefing.

There are complex considerations to all forms of revocation therefore reference should be made to the appropriate specialist briefing.

©Planning Sanity - January 2006 (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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1. Under current Planning legislation, Class 67 of the Town and Country Planning (General Permitted Development)(Scotland) Order 1992, Mobile Phone Base Station Transmitter masts fall into the category of Permitted Development and, as such, do not require planning permission if they are under 15m in height. Planning Authorities, therefore, have very little control over the erection and siting of these masts unless they are proposed in conservation areas, national scenic areas, National Parks or in proximity to Category A listed buildings. In plain English, there is little to stop a Network Operator from erecting a mast immediately next to your house if they so wish.
2. In 1998 the Scottish Office issued two consultation papers on proposals to revise the above General Permitted Development Order (GPDO). The intended 'two-tier prior approval procedure' will do little to improve the situation, as Permitted Development rights are still seen as the best way for dealing with this matter and at no point in the recent consultation exercise was the subject of adverse health implications even mentioned. The only other change introduced has been to protect Sites of Special Scientific Interest (SSSIs) from this type of development. Guidance, in the likely form of a Planning Advice Note (PAN), is currently being prepared by the Scottish Office for issuing to Local Authorities. FoE Scotland will be urging the Scottish Office to include the health implications in this PAN. Additionally, the Scottish Office carried out a consultation exercise on Land-Use Planning and Electromagnetic Fields (enclosing a draft of the WHO report previously mentioned) earlier this year. This circular, issued jointly by the Department of Health, primarily offered advice to Local Authorities on managing public concern instead of offering the clear guidance which is so urgently required.
3. Network Operators are also accorded fairly strong legal powers through the Telecommunications Act 1984. Under Schedule II of the Act, the mobile phone companies are awarded licenses to operate networks as Telecommunications Code Operators and as such are required to provide Network Coverage to 90% of the country by 31 December 1999. If this target is not achieved, the operator's Licence can be revoked. In pursuant of their aim to provide network coverage they are also given rights similar to those of Compulsory Purchase Orders. If a landowner rejects their approach to erect a transmitter on his/her property then a Code Operator can apply to the Courts to allow them to dispense with consent for that site and assess the financial recompense to be awarded to the landowner.
4. European Legislation/Treaties: The U.K. already has an obligation under the Maastricht Treaty 1993 (Article 130r) to take a precautionary approach and this was re-inforced more specifically by a recent European Parliament recommendation, 10 March 1999, which stated that people living in member states should be protected from the "potentially harmful long term effects" of electromagnetic fields, as generated by these transmitter masts.
5. What you can do if you are concerned about a Base Station Transmitter: The best course of action open to you is to lobby your Local Councillor and, in turn, get your Councillor to lobby the full Council. If your Council has not already adopted a precautionary policy (see centre pages for further details) we would suggest that you approach a Council which has, for information regarding their policies, and then lobby your local Council to do likewise.
6. Friends of the Earth Scotland believe that it is vital to adopt the policy of 'Prudent Avoidance' at both local and national levels of Government in the U.K. to ensure that transmitter masts are not sited on, or near, schools, health facilities and in residential areas, and urge the NRPB to take a more precautionary approach until more information is known on the long-term, non-thermal, effects of exposure to MW/RF radiation - as recommended by the European Parliament in March 1999. We appreciate that it would not be practicable to lower the public exposure limit below 2W/cm2, but would advise that this limit is adopted until more is known. We also urge the Scottish Office to recognise the gravity of these health concerns and incorporate them into the planning system. Permitted Development Rights clearly do not protect the interests of the public - health implications have to be treated as a major planning consideration.

Proposed development at ________ (NAME AND OS MAP/GRID REFERENCE OF SITE)

I give notice that ______________ (NAME OF APPLICANT)

on behalf of_______ (NAME OF DEVELOPER/TELECOMS OPERATOR, if applicable)

is applying to ___________________ (NAME OF LOCAL PLANNING AUTHORITY)

under paragraph A.2(4A) of Part 24 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 for its determination as to whether the prior approval of the authority will be required to the siting and appearance of - ___________ (DETAILS OF PROPOSED DEVELOPMENT INCLUDING HEIGHT OF MAST DESCRIPTION OF MAST DESIGN/TYPE; NUMBER AND SIZE OF ANTENNAS; NUMBER AND DIMENSIONS OF RADIO EQUIPMENT HOUSING; FEATURES OF DEVELOPMENT ANCILLARY TO RADIO EQUIPMENT HOUSING).

Under Part 24 of the Town and Country Planning (General Permitted Development) Order 1995, _______ (NAME OF LOCAL PLANNING AUTHORITY) are allowed 42 days beginning with the date of application to consider whether prior approval will be required to the siting and appearance of the development proposed and, if so, to give or refuse such approval and to serve that decision upon the applicant.

Members of the public may inspect copies of the application and accompanying plans at __________ (ADDRESS AT WHICH THE APPLICATION MAYBE INSPECTED).

Individuals and organisations wishing to make representations about the siting and appearance of the proposed development are invited to forward their views in writing no later than ___________ (DATE 21 DAYS FOLLOWING THE ERECTION OF THE SITE NOTICE) to

__________ (CONTACT NAME AND ADDRESS OF LOCAL PLANNING AUTHORITY)

clearly stating that comments are being forwarded in relation to the proposed development of a ground-based mast at ______________ (NAME AND OS MAP/GRID REFERENCE OF SITE).

SIGNED: (NAME OF APPLICANT)

ON BEHALF OF: ________(NAME OF DEVELOPER/OPERATOR)

DATED: _________________________________

APPENDIX 2

Appeal Decision
Site visit held on Tuesday, 25 January 2000
By Martin Joyce
An Inspectorate appointed by the Secretary of State for the Environment,
Transport and the Regions
The Planning Inspectorate
Tollgate House
Bristol
BS2 9 DJ
Tel: 0117 987 8927
Appeal 1: T/APP/N4720/C/99/1028315

The appeal is made under Section 174 of the Town and Country Planning Act 1990, as amended by the Planning and Compensation Act 1991, against an enforcement notice. The appeal is brought by Vodafone Ltd. Against the Leeds City Council. The site is located at the G.L. Motors Garage, Sycamore Avenue, Leeds 8. The Council's reference is ENF/415/98/34.The notice was issued on 13 July 1999. The breach of planning control as alleged in the notice is, without the benefit of planning permission, the erection of a telecommunications mast exceeding 15 metres in height together with the erection of a cabin and fencing to form a compound. The requirements of the notice are to

1. remove the telecommunications mast and supporting concrete base; and,
2. remove the cabin and fencing
   • The period for compliance with the requirement is eight weeks.
   • The appeal was made on the grounds set out in Section 174 (2) (c) of the 1990 Act. The deemed application for planning permission, under Section 177 (5) of the Act. Also fails to be considered.

1. The appeal site is a small rectangular-shaped piece of land within the boundaries of the G.L. Motors garage, on the north-western side of Sycamore Avenue. G.L. Motors is a car repair garage, the main buildings of which are situated at the rear of the site. The rest of the street, and the surrounding areas, is residential, with a variety of house types, including older detached properties, such as No 11 to the south-west, sheltered accommodation, such as Mount Pleasant Cottages to the north-east, semi-detached houses and purpose-built flats.
2. Within the appeal site, a telecommunications mast has been erected, together with an associated cabin and other equipment, contained within a 3m-high metal palisade fence. The mast is set on a concrete plinth of about 0.2m in height. The mast was the subject of a 'prior approval' notification to the Council dated 23 May 1995. The notification informed the Council of the intention to erect a 15 m-high telecommunications mast within the permitted development limits set by Part 24 of Schedule 2 to The Town and County Planning (General Permitted Development) Order 1995 (GPDO). On 29 June 1995, the Council confirmed that prior approval was not needed and the mast, with a three-antenna array, was erected in August or September of that year.
3. The appeal on ground (C)
   It is the contention of the Council that the mast, including the concrete plinth and the headgear which supports the antennae, is over 15m in height, thus planning permission is required, and the erection of the mast was unauthorised as it did not fall within the limits permitted by Part 24 of Schedule 2 to the GPDO. The appellants, however, dispute this claim, pointing out that it relies heavily on the contention that the headgear, which is 1m height, is a part of the mast itself, whereas it has been accepted, in other unspecified appeal decisions, that the support for the antennae is 'telecommunications apparatus', and thus permitted by Part 24.
4. There is no dispute that the main body of the mast measures 15m in height. It is set on a concrete plinth which is 0.23m in height, thus the overall height of the top of the mast, above ground level, is 15.23m. It is a matter of fact, therefore, that it exceeds the 15 m permitted by {Part 24 thus, for this reason alone, planing permission is needed and the appeal on ground (c) should fail.
5. The question of whether the headgear which supports the antennae should be included as a part of the mast or not is, however, also before me. In this context I have closely examined the wording of Part 24 of Schedule 2 to the GPDO. Class A permits a telecommunications code system operator to, amongst other things, install 'telecommunications apparatus'. 'Telecommunications apparatus' is defined, in Section A.3, as any apparatus falling within the definition of that term in paragraph 1 of Schedule 2 to the Telecommunications Act 1984, and includes radio equipment housing. The relevant section of paragraph 1 of Schedule 2 of that Act confirms that 'telecommunications apparatus' includes "any structure, pole or other thing in, on, by or from which any telecommunications apparatus is or may be installed, supported, carried or suspended". Thus it follows that the headgear, or frame, to support the antennae on a masts is 'telecommunications apparatus'.
6. However Class A. 1 (dd), of Part 24 states that development is not permitted by Class A (a) if, in the case of the installation of apparatus (other than an antenna) on a mast, the height of the mast would, when the apparatus was installed, exceed any relevant height limit specified in respect of apparatus in paragraphs A.1 (a), (b), (c), and (d). Paragraph A. 1. (a) is that which set the 15m above ground level limit for the installation of apparatus other than on a building or other structure. Further clarification is also provided in Appendix B of Circular 04/99 'Planning for Telecommunications'. The Note to paragraph 5 of Appendix B states that any development, other than the installation of an antenna, which extends a ground-based mast beyond 15m in height will be subject to a planning application.
7. It follows that the frame or headgear which supports the antennae, and which in this case adds 1m to the overall height of the mast, is 'telecommunications apparatus', and should be included within the measurement limit act in A 1 (a) of Part 24 Class A. Therefore, the mast, as erected, has a height above ground level of 16.23m. It thereby falls outside the permitted development limits of the GPDO, and constitutes development for which planing permission is required. As no such permission has been given the appeal on ground (c) fails.
   
   THE DEEMED PLANNING APPLICATION
   Planing Policy
8. The Development Plan for this area is the North Leeds Local Plan, adopted in 1988, but this Plan contains no policies relevant to the development before me. However, the Revised Draft Leeds Unitary Development Plan (LUDP) attracts significant weight in the context of this appeal, having been the subject of a Public Local Inquiry and subsequent Inspector's Report.
9. Policy BD13 of the Revised Draft LUDP states that the installation of telecommunications equipment should normally avoid sensitive locations, excessive visual intrusion, unreasonable detriment to the amenity of neighbours and the creation of an unnecessary profusion of equipment by utilising existing masts and equipment as far as practicable. The Inspector's Report recommends that this policy be modified to state that telecommunications development will be permitted when all practical steps have been taken to locate and design such equipment so that sensitive locations are avoided, visual intrusion is minimised, and mast sharing or existing tall structure are utilised wherever possible.
10. National planning policy guidance is also of relevance to this appeal. Planning Policy Guidance Note No 8 'Telecommunications' (PPG8), issued in December 1992, provides the principal advice on such development, but more recent guidance is contained in the DETR document 'Telecommunications Prior Approval Procedures - Code of Best Practice' (March 1996), and Circular 04/99 (June 1999).
    
    The main issues
11. Having regard to the above guidance and policies, therefore, and from the written representations and my inspection of the site and its surrounding, I consider that the main issues in this appeal are:
    1. the effect of the retention of the mast on the character and appearance of the surrounding area; and,
    2. the effect of the development on the living conditions of neighbouring residents in Sycamore Avenue in terms of overbearing effect.
    
    
    Inspector's reasons
    Effect upon the surrounding area
12. The surrounding area in principally residential in character, although the repair garage within which the mast has been sited is a long-established non-conforming use. In terms of appearance, Sycamore Avenue has a mature and pleasant feel which is created by the mix of housing types, roadside and garden vegetation, including several mature deciduous trees, and the rising land form.
13. The mast has clearly been sited so as to take advantage of the topography, but in so doing it has introduced a prominent feature which, by virtue of its ungainly and stark metallic structure, and cumbersome array of antennae, is over-dominant is a visual sense. It towers over neighbouring property and is inadequately screened, even by the small group of Sycamore trees located within the grounds of Mount Pleasant cottages to the South East. Furthermore, the mast is prominent in views into the area, locally from Past of Potter Newton Park to the south-west and in approaches to the area from both the north-west and south-east.
14. It is accepted that the mast is located within a non-residential site, but the repair garage has a remarkably neutral effect upon the character and appearance of the surrounding area, mainly because of its layout, with the buildings being set well back from the street. Therefore the erection of such a prominent and ugly structure, close to the road and neighbouring houses, results in an alien and unsympathetic intrusion into the domestic environment. The mast, as erected, therefore, conflicts with the advice given in both the 1996 Code of Best Practice and Circular 04/99, and is contrary to the objectives of Policy BD13 of the Revised Draft LUDP.
15. My conclusion on this issue is that the retention of the mast would materially harm both the character and appearance of the surrounding area, contrary to the aims and objectives of the Revised Draft LUDP, and national planning policy guidance.
    
    Effect upon neighbouring residents.
16. Those principally affected by the mast are the occupants of No 11 Sycamore Avenue, 'Stone Gables'. This is an older detached house, sited immediately below, and to the south-west, of the repair garage. It is separated from the appeal site solely by the access road that leads to the garage buildings. Although there are no side windows in No 11, the upper half of the mast can be seen from the rear garden of that property. In such views it appears as a prominent and visually overbearing structure. I have no double that the presence of the mast significantly impairs the occupant's enjoyment of their private rear garden, and thereby materially harms their living conditions.
17. Reference has also been made, in the representations. to noise from the structure in periods of high wind. Although such effects were not apparent at the time of the site inspection, this matter is identified as a factor for consideration in Annex F of the Code of Best Practice. Clearly such noise, from a mast on a prominent and largely unscreened site such as this, would be likely to cause aggravation to nearby residents, and also impair their living conditions.
18. My conclusions on this issue is that the retention of the development would materially harm the living conditions of neighbouring residents, through the overbearing effect of the mast, contrary to the aims of the Revised Draft LUDP and national Planning policy guidance.
    
    Conclusion on the deemed planning application
19. The retention of the development would materially harm both the character and appearance of the surrounding area, and the living conditions of neighbouring residents. The appeal on the deemed planning application therefore fails and permission will not be granted. Other matters
20. All other matters raised in the written representations have been taken into account, including the fact that the Council raised no objection to the development in 1995. However, that decision was taken at a time when there was little guidance available on the effects of such development within residential areas. Subsequent advice, in the Code of Best Practice and Circular 04/99, has emphasised the need to give very careful consideration to the erection of masts within residential areas. As the development that was carried out breached the sanctions given in the GPDO, it is legitimate for it now to be considered in the light of up-to-date guidance.
21. I have also considered the submission that the enforcement notice should not require the complete removal of the mast, merely a reduction in height to less than 15m, in accordance with Part 24 permitted development rights. Although no appeal has been made on ground (f), the question of the fall back position should be considered. However, the Council resolved, in April 1999, that even a slimmer 15m mast on the appeal site would be unacceptable, and that the site was not suitable for this type of development. The rights conferred in the GPDO do not give an absolute right to erect a 15m mast in, say, the same way as a residential occupier may erect a 2m fence around his rear garden. They require that the Council be given the opportunity to require its prior approval. In this case the Council have clearly demonstrated that they would not issue such prior approval, thus wider issues than those canvassed in this appeal need to be taken into account, including the consideration of mast-sharing or alternative sites. In such circumstances it would be wrong to vary the requirements of this notice so as to allow the erection of another, albeit shorter, mast in the same location.
22. These and the other matters raised do not, therefore, outweigh the conclusions reached on the main issues of this appeal.
    
    Conclusions
23. For the reasons give above I consider that the appeal should not succeed and I shall exercise the powers transferred to me accordingly. The appeal is dismissed and I uphold the enforcement notice. I refuse to grant planning permission on the applications deemed to have been made under Section 177 (5) of the amended Act.
    
    Rights of Appeal against Decision
24. This decision is issued as the determination of the appeal before me. Particulars of the rights of appeal against my decision, to the High Court, are enclosed for those concerned.