OBJECTION TO OVERHEAD APPARATUS
THE ELECTRONIC COMMUNICATION CODE

Local communities and residents affected by mobile phone masts have few rights to object to permission being granted for them, even though they have limited rights to be consulted and to make objections, those objections are frequently ignored. However the Electronic Communication Code gives a right to object, and ultimately to take those objections to the courts, who can order the removal of a telecoms development.

Phone operators are under an obligation to follow a code of conduct as a consequence of Section 10 to the Telecommunication Act 1984. That code is annexed to the Act as Schedule 2, and was updated in July 2003 by the Communication Act 2003. We are primarily concerned with paragraphs 17 and 18 of the Code.

This should be looked at as an appeal structure for land owners and occupiers affected by the installation of the mast and its equipment (does not apply to apparatus below 3 metres in height). Most masts within the planning system come under the General Permitted Development Order (GPDO) procedure, those that do not are normally much larger, or are covered by an increasing number of loopholes, nevertheless all installations what ever the process used to determine the planning permission are covered by the Code (providing they are above 3 metres from the ground).

The procedures set out in this briefing are not alternatives to the planning procedures, they are additional. Therefore even if you have lost at the planning stage, or are looking at some form of legal challenge, such as judicial review of the planning decision, it does not mean that you cannot use this process, or indeed visa versa, or even both, as one is not dependent on the other, you could challenge the planning decision by judicial review, and go to the county court under the Code, neither application would be dependent on the other.

However, a word of warning, as we have tried numerous times to warn people this is NOT a process for the challenge to health concerns, whilst the issues and questions relating to health might be at the backbone of a challenge anyone foolhardy enough to challenge using this process on on the grounds that they have an adverse health effect will get into very murky water. Follow the advise that we outline here, then get appropriate (specialist) legal advise on the specifics of your case and you should be okay. Particularly look at the section below on the Petursson case and you will understand why this is so important.

The provision applies to all new apparatus (masts are apparatus) higher than 3 metres from the ground [17(1)], so equipment housings would not be covered, except presumably those erected on buildings higher than 3 metres. It also applies to apparatus which is being replaced, if that apparatus is substantially different, and is in a significantly different position [17(3)(a)&(b)]. What amounts to substantially different, or a significantly different position will need to be tested in the courts. However, Planning Sanity believes that whilst every mast would need to be looked at individually, examples might be:

• an increase in the number of antennas or dishes;
• an increase in the frequency;
• an increase in the height of the mast;
• an increase in the number of masts;
• an alteration to the design of the mast, such as to have a detrimental affect on the applicants property;
• a move that brought the mast within say 20 metres from a residential property

This list is not intended to be exhaustive, each objection would need to be decided on its own merits.

The applicant, or better referred to as the objector, cannot make an application until the mast, including antennas is completed [17(1)]. The objection must then be made in writing (sample letter of objection at Annex 2) to the operator within 3 months of the completion of the installation (17.2). By a person who is the 'occupier or owns an interest' in any land that the installation has been installed on, or it passes over [17(2)(a)], or:

any land the enjoyment of which, or any interest in which, is, because of the nearness of the land to the land on or over which the apparatus has been installed, capable of being prejudiced by the apparatus [17(2)(b)].

It should be noted that the operator must fix a notice of completion on the main piece of apparatus as a consequence of the provisions contained in Code 18 of the Code. The notice must be placed where it is reasonably legible, and shall give the name and address of the operator. That is important because it is that address where objections must be sent. The interesting point of this is that it is a criminal offence if the Operator contravenes Code 18, to the degree that the Operator can be fined in the Magistrates Court at level 2 on the standard scale.

However, unfortunately the Court of Appeal has found in our view wrongly, that there is no correlation between Code 17 and the notice that must be fixed in Code 18. Which makes a nonsense of fixing the notice as a means of letting the public know of their rights to object, and that the installation has been completed. The court found that it was a simple case of the person affected by the installation to be able to see as a matter of fact that the apparatus has been completed, as such it is not a question of the installation being operational, but one of whether the physical installation looks complete to the person affected. See Sarah Lloyd-Jones and Ors v T Mobile (UK) Ltd [2003] EWCA Civ 1162 (31 July 2003). But of course this does not take account of those installations that cannot be seen easily, such as on a roof of a building, or partially obstructed, such as one contained on private land.

The letter of objection must be sent to the OPERATOR within 3 months of the completion of the installation. The objector must then wait a minimum of 2 months from the date of the letter of objection, that is very important as it is the date of your letter that starts the next two time periods. If the operator has not dealt with the objection to the satisfaction of the objector within that 2 month period the objector can then make an application to the 'County Court' to have the objection upheld [17(5)]. It follows from this that it is very important that the letter of objection is worded correctly, the subsequent court case would be based on that objection, it would not be possible to bring in new points (although you could substantially expand upon any points made), and it may even be fatal if the objection was unreasonable. That does not mean that your letter has to be detailed, you could for instance if you were relying on a drop in value of your land simply state 'the depreciation in value of my home and garden as a consequence of the closeness of the installation'. Planning Sanity can help with drafting letters. It should also be noted that the Objector's only have a further two months in which to lodge their application in the County Court. That is counting 4 months from the date of their letter of objection, just one day over that time limit would prevent the challenge being made. It is therefore very important that you keep a diary of events, and that everything is sent by recorded delivery.

The court can only uphold the objection if it is demonstrated by the objector that the 'apparatus appears materially to prejudice the applicant's enjoyment of, or interest in, the land' [17(6)]. There are though 3 tests to be shown that the alterations of the apparatus will not prejudice the operator [17(6)(a, b and c)]. This aspect is very important when matched against the finding of the High Court in Petursson v Hutchison 3g UK Ltd [2005] EWHC 920 (TCC) where the applicant owned the land at the time of the application but had sold it before the case came to trial (more info on this case below).

1. substantially increase the cost or diminish the quality of the service provided by the operator's network to persons who have, or may in future have, access to it, or
2. involve the operator in substantial additional expenditure (disregarding any expenditure occasioned solely by the fact that any proposed alteration was not adopted originally or, as the case may be, that the apparatus has been unnecessarily installed), or
3. give to any person a case at least as good as the applicant has to have an objection under this paragraph upheld.

A residential user of land could claim that the 'perceived' health effects of the mast was such that he was unable to use the garden or have his grandchildren to visit (but be careful of using this argument on its own, see the Petursson case below). It might also be claimed that the mast has affected the value of the property (we deal with this in more detail below). There will be many more examples, each site would need to be looked at on an individual basis. It should also be kept in mind that this is a personal interest, though a whole neighbourhood might equally be effected, each person (if they so choose) would need to lodge separate objections and start separate proceedings, although in reality there would only be one court case, as all the cases would either be amalgamated or heard simultaneously, although technically separately.

The tests to be proved may in a number of cases be insurmountable. The first point would not be arguable by the operator if there was other masts close by that could be used for mast sharing. But experience shows that Operators will use the argument that for technical reasons no suitable alternative site can be found. It may need to be proven that there would not likely be any significant difference in the quality of service after the mast was erected. Thus if mobile phone users of that specific operator were to give evidence as to the quality of the service before the installation was installed, it would go some way to counter the expected evidence from highly qualified expert witnesses that the service would be diminished, without the need to spent a small fortune countering the loss of service by the removal from their system of that specific mast.

The court must have regard to the principle that no person should be denied access to a telecommunication system [17(8)]. This is clearly intended not for mobile phones, but for landlines, where a person may object, thereby preventing a neighbour from being connected. The court upholding the objection clearly would not be preventing anyone from being denied access to the system, they may not have a clear signal, or a strong signal at a given location, but they would not be denied access. Of course there is always the exemption to the rule, circumstances might just create such a scenario.

Point (b) is easier to counter, because if point (a) is won then the argument would be that there was no demonstrable need for the mast and therefore permission should not have been granted. Cost is always a reasonable argument for us to argue in that, the wording makes the point that it is only if the cost of the two installations, that is the application site, and the suggested alternative site were significantly different, the reality that would only apply in the rarest of cases.

Point (c) is the danger point, although it is unlikely that operators would want to rely on it too strongly, because if they lost and were finally forced onto the second site the local community at that location would have an arguable case based upon any such evidence presented by the operator to the first application. However, if the operator (crafty as a fox) puts out a statement in the other area that if they lose they will put the mast up on that site, thereby encouraging that community to make representations to the court that they will be just as affected. (It must be pointed out that it is the policy of Planning Sanity not to support campaigns that are based upon NIMBYism. It is fundamentally wrong to encourage development proposals elsewhere, that you find offensive in your own locality, unless the criteria is such that it is acceptable to the residents of that other locality). The court also has power to order the applicant to bring to the notice of any other person that may be affected if the mast was moved to another part of the same site, or another site altogether [17(11)].

There is a limit on the courts power to uphold the objection, if the applicant had entered into an agreement to allow the operator to use the land. However, it is unlikely that someone who grants permission is then going to object [17]. But even then the court has to consider the way in which the applicant entered into the agreement with the operator, and whether it is reasonable in all the circumstances not to uphold the objection. We though in this briefing are only concerned with neighbouring land, that is those who have not given permission for operators to be on their land.

The court is limited in the order it can make (therefore make sure you cover all the relevant points). (17(9))

1. direct the alteration of the apparatus to which the objection relates;
2. authorise the installation (instead of the apparatus to which the objection relates), in a manner and position specified in the order, of any apparatus so specified;
3. direct that no objection may be made under this paragraph in respect of any apparatus the installation of which is authorised by the court.

The first point is the order to uphold the objection. However, the way it is worded is such as to allow the court to order anything it thinks is right and proper. This could be to move the mast 1 inch or to another site, it does not have to order exactly what is being asked in the letter of objection. This is where the legal arguments come in, it is important that the case is well presented, otherwise a good case will be lost on technicalities. The operators will fight these application tooth and nail, because if they lose the flood gates will be opened up, and no new mast will be safe.

The difference between the case put to the courts and the objections to the planning application are simply just that, it is not a planning application. The planning merits whilst they may have a bearing on the case will not be as important. The question that must be answered by the courts at the end of the day is, has the applicant lost the enjoyment of, or his interest in the land has been prejudiced by the installation. If the answer is yes to either of those questions, and the operator will not be prejudiced if the objection is upheld, and his system will be able to function after any proposed order of the court has been applied, and lastly that he will not be substantially out of pocket, then you win.

Where the arguments on planning does come in, is by response to any argument put up to point 17(5)(b) by the operator. But even then only to a limited degree in the argument relating to need. In this respect it is for the operator to prove the need. It is for the applicant to show that if an installation was installed on an alternative site then the operator would have his system intact, or would not be materially different. In other words the need could be catered or by other means. But in any event the operators system needs would need to be such as to override the rights of the applicant.

It is our intention to do a comprehensive briefing on the devaluation of property as the result of various forms of development, as it is an important issue for home owners affected by adverse developments, and normally the planning system does not take property values into account. That is not the case with Code challenges under Code 17 as the primary argument relates fully to the depreciation in value of a home. You can usually get a before and after valuation from local estate agents to give an indication of the likely drop in value of your home. There are a number of specialists who for a fee will undertake a comprehensive report, Planning Sanity can put you in contact with professionals prepared to do that. Much of the research in this area relates to that of the effect on property values of living close to High Powered Cables (National Grid Power Lines), on average it seems that a mast reasonably close (tens rather than hundreds of metres) is likely to drop by on average 25%, but there are reports of homes being virtually unsaleable. If you live in a desirable area in a sought after property then you might weather the storm, but if you live in an average home in an average area, then given the choice prospective buyers are likely to look else where.

Although the Code was not brought into being with the European Convention on Human Rights (ECHR) in mind, it just might as well have been. Article 8 of the ECHR sets out the right to respect for his private and family life, and his home. And Article 1 of the First Protocol to the peaceful enjoyment of your possessions. These considerations will play a large role in any challenges under these procedures, so it is worthwhile looking at this issue in more depth (see the Planning Sanity briefing on Human Rights). Keep firmly in mind that for the purposes of the ECHR an Electronic Communication Code System Operator is a public authority, and therefore they are subject to the requirement to take Human Rights into account in all their actions.

Peaceful enjoyment of your home would most certainly be an issue to argue in any proceedings. Remembering that your home includes your garden. The interference not only come from the potential health risk, but could also be loss of light, noise, visual intrusion, lose of amenity..........

In NEWPORT COUNTY BOROUGH COUNCIL v. THE SECRETARY OF STATE FOR WALES and BROWNING FERRIS ENVIRONMENTAL SERVICES LTD [1997] EWCA 2221 (18th June, 1997) it was found that the perception of an adverse health effect can amount to a material consideration. It follows from this that, if say someone with a pacemaker, or a young child had a real fear over that masts could affect their health. It matters not that there is no real prospect of that threat being proved or disproved, the perception of fear is sufficient to mount the challenge.(Note with TETRA installations that the Medical Devices Agency has raised concerns over the effect on pacemakers, albeit they did not test TETRA base stations only the handsets).

Therefore, if a person with a pacemaker was fearful for his life. Perhaps this fear was such that the mast might interfere with his pacemaker if he left the house, thereby keeping him a prisoner in his own home. It would be arguable that no other consideration is needed. Although Planning Sanity would not want to trust to only that consideration, nevertheless the argument is there. You should also consider the stress aspect prior to the installation taking place, as well as the actual health effects after installation, as the fear aspect will continue irrespective of whether your health is actually affected, this is particularly important when stress is caused over the concerns of childrens health as opposed to the objector personally. You simply have to be constructive in the ways that it affects your 'land'.

Because you can go to the county court the process is cheaper than going to the High Court. But nevertheless could still be several thousand pounds if you lose. Therefore it is better to find someone eligible for legal aid, and then support them rather than make the application your self. Having said that there is no reason why someone should not go to court without legal representation, although you would still be liable for the other sides costs if you lose (although though that in one case in the Gloucester County Court has been allocated to the 'Small Claims Track', this is significant in that win or lose each side pays its own costs, thus if the court can be persuaded to allocate a case to the Small Claims Track then the risks are considerably reduced). However, because of the complicated arguments that would need to be put forward both legal, and on the affects of masts, remember they must prove need, as such they will submit complicated technical reports, your case is unlikely to be allocated to that track. Therefore unless you are very confident that you can argue these fine technical points, then it would be best to ensure that you have good legal representation. Planning Sanity can help out here (not financially) by putting you in touch with specialist environmental solicitors. We may even be able to point you towards experts who may consent to be witnesses in any cases (no promises).

The Petursson Case
The effect of the Petursson case illustrates the points we raise above about getting it right and NOT going in with your eyes closed. Petursson and Anor v Hutchison 3g UK Ltd. [2005] EWHC 920 (TCC) (9th May 2005) was strangely agreed to be taken to the Construction Court, in our view a totally inappropriate court for what is not after all a contractual issue, but one of public interest, more suited if it was to be dealt with in the High Court in the Administration Court. Albeit the Code stipulates that the process must start in the County Court, it is though open to any party to argue that the case is more suited to the High Court, the counter argument being that the process is not that complex, and can be dealt with more naturally in the County Court, Parliament clearly felt that was the appropriate court, and legislated accordingly.

I consider that this case had no merits what so ever, it could have had, but the grounds that were advanced were without any doubt inappropriate, the claim would have stood a reasonable chance of success had the claimants actually stayed as owners of the property, but they did not, they sold the premises half way through the case, from that moment on they had lost the case, the Code is clear it relates to those with an interest in the land, dispose of your interest and you lose the case. The second clear ground as to why the case from the outset was lost, was that of relying solely on the effect upon the occupants (that is their ill health) rather than on the effect on the property. Our advise on this aspect has been consistent, the fact that people are concerned about health, and that fact reduces the value of the property is a relevant consideration, but it must have the negative effect on the property, not simply on the people, even if the occupants are climbing into their graves from the effect this process will not apply, unless the property also is affected.

The fear reduces the value of the property as a direct consequence of the phone mast, if that is a demonstrable fact, then a basic case is made out, albeit that other factors as set out above come into play. Now on top of that (or even separate to that fact) there might be other negative effects on the land, for instance your fear might be such that you no longer consider that you can live in part of the property, there is then an adverse effect on the property, a much harder case to demonstrate than the straight forward drop in value case, but in the right circumstances a case could in theory be made out. Far better to take all such negative effects and use those to support a primary argument of a drop in house value, thereby giving a much stronger case.

In Petursson they first tried to argue that as all the members of the house including their pets became ill from the installation there was a negative effect on them personally, they did not it seems argue that it was a negative effect on the property. They of course then moved out, and eventually sold the property. It would not have mattered to the case that they had moved out, indeed had they argued that it was a negative effect on the property, that is they could no longer live in the property, and had not sold up they might have won, or at least not lost so heavily. The judge found the following in that respect:-

• "In my judgement, the claimants are no longer entitled to seek an order that the apparatus be moved or removed. Paragraph 17(6) permits the court to uphold an objection if the apparatus "appears materially to prejudice the applicant's enjoyment of an interest in the land...". That is expressed in the present tense. Now that the land has been sold the claimants cannot demonstrate that it appears materially to prejudice their enjoyment of the land. Further, having disposed of their interest in the land and no longer potentially being affected by it, the claimants can have no interest in continuing to seek an order that the apparatus be moved or removed. No such interest has been demonstrated here."

One aspect that has come out this case which might conflict with advise given elsewhere on Planning Sanity is that the Acousti-Com Metre manufactured by PowerWatch for measuring emissions was accepted by the court as enabling the Claimant to keep a contemporaneous and accurate running record of events related to the base station. We have always stated that whilst the Com Metre is a useful guide it was not sufficient to enable its findings to be accepted in court, this judgement clearly sets out that the court accepts it is, and therefore justification for everyone to use the metres to keep regular reading for potential later use.

The following is typical of the potential problems that attempting to prove adverse health effects in court from telecoms. The fact that the Claimant fails to verify any symptoms with hiss doctor, that he fails to bring in credible (truly) independent confirmation of the alleged ailments. All of this could have been avoided had he relied on the fears of potential purchasers of his property rather than his own fears:-

• "I believe that the claimants, Mr Niels Eiriksson, Mr Henrik Eiriksson and Mr Waghorn have all experienced the unpleasant symptoms each has described. There is no expert medical evidence available to me. Some of the claimants' medical records have been disclosed. There is no record of symptoms such as those which the claimants say they experienced while living and working at 57 London Road. The claimants did not seek medical help with the symptoms they describe. Both Mrs Ingvarsdottir and her son Niels said that they had no confidence that they would receive any effective medical help or treatment. I have no medical evidence to help me ascertain a cause of the symptoms described.
  I accept that the claimants believe that the transmissions caused their symptoms. Mr Petursson had, from the beginning, protested about the proposed siting of the apparatus. He was particularly concerned that emissions from the base station would adversely affect his health and that of his family. The claimants and Mr Niels Eiriksson had followed the public debate about possible adverse effects on health of telecommunications antennas and base stations. They expected to experience difficulties. They were anxious to move out of 57 London Road as quickly as they could. Mr Petursson took steps to try to protect the property by fitting metal netting to the walls of the house adjacent to the apparatus and by hanging nickel coated curtains, which he earthed. They hired then purchased measuring devices. Mr Petursson, his wife and son, Niels, wore foil hats when in the property. It is clear from their evidence that the claimants experienced a high level of anxiety. One can see how this may have been communicated between themselves and to others including their sons and Mr Waghorn.
  It is clear that as soon as they knew that the defendant proposed to install apparatus, the claimants expected to suffer adverse effects. The claimants and Mr Niels Eiriksson had read about possible adverse health effects from emissions. The claimants were plainly very anxious about having apparatus so close to the house. It is also clear, as I have explained, that the claimants began to experience symptoms in June 2003 as soon as they believed that transmissions had begun, even though in fact the apparatus had not begun to operate. Mr Petursson accepts that, if - as is the case - the apparatus had not become operational by 20 June 2003, the symptoms he describes in his log for the period 20 June until 7 August cannot be said to have been caused by emissions and it was possible that the symptoms were psychosomatic. It seems to me that it is quite possible that the feelings experienced by the claimants, their sons and Mr Waghorn were psychosomatic."

We end up with a situation where the Claimant was attempting to prove the impossible on a property that he had at the date of the trial no rights over, the claim was therefore doomed to fail. There are many useful pointer in the judgement, the judge for instance found that the test of affects that the claimant must prove is that of an objective test not a subjective one. The claimant must demonstrate that the defendants installation caused the adverse effect, that is reasonably easy with that of a claim where it is demonstrated that due to the location of the mast potential purchasers of a property would not pay the real value, and therefore the property has dropped in value as a direct consequence of the presence of the apparatus.

If you do go to court please do tell us, and please keep us informed especially of any decisions. Only in this way can we advise others on the best course of action. If seeking our help in compiling letters or putting together your case, remember that Planning Sanity is unfunded, and therefore we rely on donations to pay for this work, therefore please give generously.

If you discover that the Operator has failed to put up a notice as required by Code 18, even though it is not any longer relevant to these objections, please complain to OFCOM or the DTI in order that the Operators are taken to task for failing to undertake their legal obligations.

Compensation cannot be claimed under the process set out in Code 17, however, there is some ability under Code 16 (see Planning Sanity briefing) of the Code to go to the Lands Tribunal where land is adversely affected to claim compensation.