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The first thing to remember about the phone mast planning system and adverse health effects is that as every application that has approval by the local planning authority has an ICNIRP certificate and therefore health concerns are relegated to only the effects in an exceptional case, and the effects upon the amenity (willingness for people to live, work, and play within the locality of the installation).

However, it does not matter about proving there is a risk. It is not a question of the proof is in the eating, in fact quite the reverse, if you could prove an adverse health effect, then there are other forms of legislation, and policing of the threat, such as the process for statutory nuisance under the Environment Act 1995, or the powers available to the Heath and Safety Executive. The only issue that is a material planning consideration is the FEAR, or perception that the local community hold that there is an adverse health effect. You have therefore too clearly get the message over to the planners that it really does not matter about any proof, you have the required degree of fear. But as we shall set out below that will still only apply in the exceptional case.

We set out the law more clearly below, but far too often local planning officers tell the public that health is NOT a material planning consideration, that though is a factually incorrect statement, health, or the fear is a material consideration and MUST be taken into account, any decision that fails to take health into account will be contrary to law. However due to the decision in T-Mobile UK Ltd & Ors v The First Secretary of State & Anor [2004] EWCA Civ 1763 (Harrogate) some of the emphasis has changed. This effectively means that on a case by case basis the local planning authority must look to see if there are special circumstances that should override the presumption that due to an ICNIRP certificate being submitted that the installation is safe. As we set out below this might be due to someone living in the locality that is at greater risk than other members of the community, it might be due to the significant effect upon the amenity of the area, or indeed some other reason. The point we make here is that the LPA cannot just dismiss health due to an ICNIRP certificate having been submitted, but must on a case by case basis look to see if there is sufficient grounds to override the fact of the certificate having been submitted.

BT Celnet in its representation to the Trade and Industry Committee stated:

"We believe that the risks which are associated with radio frequency emissions (RF) must be set into the context of the everyday risks which most of us take each day without a thought. For example, ROSPA figures indicate that accidents at home accounted for 4,000 deaths and 2.7 million injuries in 1995 and road accidents accounted for 3,500 fatalities and 316,000 injuries the following year"

The most common statement of the Government is that there is no risk to the health of the GENERAL population, the emphasise on the word general. It has been clearly stated in public by just about every scientist going that no one can state categorically that there is no risk to health. Indeed even Dr Clark of the NRPB, is on record as saying that whilst he knows of no evidence, you cannot state that there is no risk. The Industry (MOA) are on record as stating that there is potentially a biological effect. Indeed in the latest Government report (Dec 2004) chaired by Sir William Stewart has reiterated what was said in the original 2001 report that there are unknown biological effects and that the Government must take a precautionary approach to mast siting.

As I say the most common term is that there is no risk to the 'General Population'. This of course implies that there is a proportion of the public that is at risk. '02' clearly admit this, albeit they try to justify it by saying that everything we ever do entails a risk, which is of course very true, that does not mean that we have to accept having our families exposed day in and day out to a potential health risk. If we are concerned about the modern hazards around the home we have the ability to refuse to have appliances, or other dangers in our home. That is about choosing the risks that we take, we may decide not to use a route when walking, or driving, as it is known to be more hazardous than another route, that is a choice we can make, we cannot choose whether or not to have a mast close to our home, that choice is made by others, therefore the potential risk is out side of our control, and that is what makes the system wrong.

Planning Sanity has a formal policy of not advising on actual health effects of masts. We are a planning advisory group, we deal with planning issues, and how best local communities can tackle developments that local communities, not Planning Sanity, find unacceptable for their communities. We therefore advise on health issues that are a material planning consideration, in the case of phone masts that is the fear, not just about the fear of the actual effects, but the stress you suffer as a consequence of the adverse development. And it is that, and that alone that you can ask the decision maker to take into account, and it matters not that you can prove that your child has been smitten with leukaemia as a direct result of emissions from phone masts, however, it would help in heightening the fear, and therefore the consideration to be taken into account. But unless you can go down that proof road of stating that the fear is real in relation to your child then the degree of weight to be attached would be reduced. But if it is argued in the general sense that the effect is such that effects the amenity of the area, then that is a different context and will require greater weight to be attached to it than the individual concern.

In the above context there are clearly cases where the fear may be more genuine than others, indeed it is a well known fact that stress can subconsciously be caused by the believe that something adverse is happening, when in fact unknown to the person with the fear that it is not, that will cause the same symptoms as the actual effect. Whilst on the other hand there are many people who are hyper sensitive to electromagnetic fields, and they may well have a far greater anxiety level than the average person, or indeed may have genuine ill health caused by the excessive emissions that the new installation brings about, but as this is before the event, we cannot state that the person will get ill, only that there is a greater chance of that person becoming ill as opposed to another member of society who is not ultra sensitive to electromagnetic fields. Therefore, the system allows for the exception to the rule, if it could be demonstrated that those in the community would be at greater risk than the 'general population' then on an individual basis there would be grounds for refusal. Otherwise in relation to health concerns then you would need to rely upon the wide spread concern, that is affecting the amenity of the area as a consequence of the presence of the telecoms installation.

In the 2005 High Court case of Petursson and Anor v Hutchison 3g UK Ltd. [2005] EWHC 920 (TCC) which was not a planning case, not even a public interest case, but one heard in the Technology and Construction Court (in our view an inappropriate forum for looking at public interest/health fear cases) of an application under Part 17 of the Electronic Communication Code (also see our briefing paper on the Coms Code) removal of a mast after it is installed. The court all but destroyed the argument on health that activists have relied upon for some time, this was mainly due (very unfortunately) to the fact that evidence for the residents on health concerns was put forward by Dr Gerald Hyland, whilst Planning Sanity in no way wish to critise Dr Hyland the fact is that Dr Hyland has given evidence in many forums and on every occasion the courts and inquiries have rejected his evidence, as they did in this case, he is therefore now too tainted unless he can put forward new evidence to be seen as a credible witness, which is a great shame because Dr Hyland has done some sterling work on behalf of the mast movement. The judgement is too long to go into in detail, and anyone wishing to see the destruction of his well argued theory should read the judgement, other than that, let us just say it is better not to use the present material produced by Dr Hyland to avoid all your arguments being destroyed, however, we eagerly await to see if Dr Hyland counters the arguments. (it should be noted though that in terms of presentations at public meetings Dr Hyland gives a very good illustrated presentation that can bring your community together, therefore it is well worth asking Dr Hyland to speak at your meetings, albeit he does make a charge)

We have a constant battle with local authorities, who in 90% of cases will state that health is not a material consideration, and therefore cannot be taken into account. We must though point, not only to the council officers, but also the actual decision makers (councillors - inquiry inspectors) to the legislation that allows them to take the fear into account, this is set out in para 29 of PPG8:

"Health considerations and public concern can in principle be material considerations in determining applications for planning permission and prior approval. Whether such matters are material in a particular case is ultimately a matter for the courts. It is for the decision-maker (usually the local planning authority) to determine what weight to attach to such considerations in any particular case".

Even if we look at para 30 of PPG8 we see that it is not a command not to take into account health effects, but simply an expression of a view. The terminology used is 'it should not', as opposed to the more instructive 'shall'. It is therefore our case that it must be concluded that the decision maker can take into account the fear that the local community hold of an adverse health effect, even when the ICNIRP guidelines are not exceeded. However, because of the finding in Harrogate that para 30 is policy, and that para 29 and 30 must be read together this argument has less weight and should only be run in the rarest of cases.

They go on to try and limit the degree of consideration that can be taken into account by stating that if the ICNIRP guidelines are not exceeded then health should not be considered further. But this would fetter the right that the courts have said that the public have an expectation that should be taken into account, and therefore potentially violates Article 6.1 of the ECHR (Please see Human Rights briefing).

There is also the question of other types of health fears not related to emissions, such as that of stress caused by the devaluation of homes. This is a material planning consideration as much as any other form of health effect, not only for phone masts but any form of development. Although a drop in house values is not a material planning consideration. This aspect was accepted by the Steward Committee as a material planning consideration, as well as being accepted by the courts. This form of stress cannot be treated in the same way as that of stress related to emissions because the ICNIRP guidelines do not come into the equation. This has to be looked at from an amenity view point, with the drop in house prices being the barometer of the effect on the amenity of the area, and the stress being the common factor that causes the adverse effect upon the amenity of the locality.

Irradiation is not the only source of potential adverse health effects (See Appendix 2 to our telecommunication briefing - the appeal decision letter for the Leeds Public Inquiry). Para 17 refers to the noise from wind whistling through the stabiliser wires, although your project may not have stabiliser wires, there is the potential for noise from wind whistling through the antenna, or the fans from the cabinets, clearly these are material considerations, and para 17 should be quoted as the precedent for the argument, taking the direct quote from para 18 My conclusion on this issue is that the retention of the development would materially harm the living conditions of neighbouring residents. There are now more decisions where inquiry inspectors have upheld local authorities decision to reject on health grounds. The latest in relation to the update of this briefing was in February 2005 in Manchester (note post Harrogate)

This is a perceived health effect, where residents would have potentially many sleepless nights. The stress of this is such that it could be argued that it is a material consideration. This question of sleepless nights has been given clear authority from the European Court of Human Rights in the 'Heathrow' cases, where a number of people under the flight paths of Heathrow won damages for the loss of sleep, they made the distinction between continuous noise and intermittent noise, that is a constant hum has less of an adverse effect than an intermittent noise, as one may get used to the constant, whilst the intermittent will continually wake the dozing sleeper.

Article 8 of the European Convention on Human Rights and Fundamental Freedoms sets out that every person has a right to to respect for his private and family life (see Planning Sanity Briefing on Human Rights). As such we look at the question of health concerns in conjunction with domestic and European Court rulings. There is an obligation on the state to protect the rights of people to enjoy their homes free from the fear that developments will adversely affect their health, that is probable a very broad statement, but that is the effect of both legislation and court decisions. Indeed Section 6 of the Human Rights Act 1998 sets out that all public bodies must have a mind in all their actions and decisions that the effect is Convention Compliant, that is in respect of this argument that Article 8 right to peaceful enjoyment of your home is not violated. However, it would be wrong to imply that human rights legislation holds some magic key, it does not, the courts have made it clear they will only interfere on human rights grounds ion the exceptional case, but nevertheless it is still an argument that can be run, and should be put forward to strengthen other arguments such as health concerns.

Whilst Planning Sanity accept that there is no conclusive evidence either for or against whether there is or is not a health risk from telecommunication base stations. The reality is that there is a 'real' health effect from the 'perception' that telecommunication installations are harmful to health. The Court of Appeal in Newport County Borough Council v the Secretary of State for Wales and Browning Ferris Environmental Services Ltd (1997) concluded that the perception of a health risk by the public was a material planning consideration.

Lord Justice Aldous stated in his final paragraph of the judgement in that case:

"In my view the judge was wrong to come to that conclusion. The Circular does not have that meaning. The Circular states that local opposition is not a reasonable ground for refusal. Mr Howell did not suggest that it was. However, there is a difference between local opposition and a perceived fear which by itself could affect the amenity of the area. The Circular makes it clear that if there are planning reasons, refusal may be reasonable. A perceived fear by the public can in appropriate (perhaps rare) occasions be a reason for refusing planning permission, whether or not that has caused local opposition. It follows that the Circular contemplates 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. That being so, I conclude that the judge wrongly interpreted the Circular".

Clearly the public have a perception that there is a health risk from telecommunication installations, that perception is real and tangible. There are many instances where people have become obsessed with the fear, thereby seriously affecting their health. An example of this is the middle aged gentleman in Ashton-in-Makerfield who had a pacemaker fitted, and now refuses to leave home because to do so would mean that he needs to walk past a base station. He believes the emissions from the base station would interfere with his pacemaker, potentially causing it to malfunction, and thereby threatening his life. The issue is not whether the mast will, or will not, interfere with his pacemaker, but his perception that it will, which is not as far fetched as it seems, it is a known fact that emissions from both handsets and base stations can and do interfere with sensitive electronic equipment, such as pacemakers (particularly from TETRA installations and handsets), the Medical Devices Agency (now the Medicines and Healthcare Products Regulatory Agency (MHRA)) conducted research into this area, and concluded that at 2 metres from a handset pacemakers malfunctioned. On the first day that the Trafford Centre in Manchester had its TETRA mast turned on 168 vehicle car locking systems malfunctioned forcing 02 Airwave to reposition the antennas to avoid the beam directly falling onto the car park area, at the time the AA stated they were aware of another 24 similar locations.

In Rayner v UK No. 9310/81, 47 DR 5 (1986) in which the Court ruled against the UK that the intensity and persistence of aircraft noise interfered with the applicants rights to respect for his private life and home. An analogy can be given to this and the persistent noise from other sources.

The Court concluded indirect intrusions which are unavoidable consequences of measures not directed against private individuals . considerable noise nuisance can undoubtedly affect the physical well being of a person and thus interfere with his private life

In Lopes Ostra v Spain A 303-C (1994) the applicant demonstrated to the Court that the failure by the state to act to prevent or to protect her from serious pollution damage (fumes from a waste disposal plant) constituted a failure to respect her home and her private and family life.

Having said that other cases have ruled out noise, but these are usually on specific grounds, including the economic well being of the country, and that the noise was insignificant in terms of the numbers of people affected, nevertheless the argument is there, the case is there to support the argument, and therefore they must give consideration to it, especially if you flag it up.

The argument is then extended into the various health threatening effects of masts. The same basic argument is there, whether they are visible or covert

There is also an argument under Article 1 of the 1^st Protocol,The Right to Peaceful Enjoyment of Ones Possessions. This simply adds on to the above arguments, but extends them to the self interest arguments, and the right not to have your possessions put at risk from environmental pollution. This would be argued that you would no longer be able to enjoy the benefits of sitting in your gardens, due to the perceived health risk in doing so, especially where the household has anyone from a high risk category such as young children.

The right to a family life has been interpreted by the Commission in a very wide sense Z & E v Austria No. 10513/83, 49 DR 67 (1986) In shaping the domestic law, the state must act in a manner calculated to allow those concerned to lead normal family life The Commission is of the opinion that this consideration applied not only to legislation regulating family relationships, but also to legislation regulating the use of property insofar as it interferes with the possibility to use this property for family purposes.

The governments main advise booklet to local government employees A New Era of Rights and Responsibilities Core Guidance to Local Authorities states at para 55 Article 8 covers a vast range of issues and subjects, including to be free from severe environmental pollution.

Article 2 The Right to Life

This we argue is a right to a healthy life. The state should do nothing that threatens life except by rule of law. The erection of a phone mast although not proven to cause the many life threatening illnesses thought to be caused by irradiation and biological radiation, cannot be disproven. Therefore Article 2 applies to such applications. And local authorities are under an obligation to consider the health implications of telecommunication applications.

The Commission found in X v UK No. 7154/75, 14DR (1978) that the first sentence in Article 2(1) enjoins the state not only to refrain from taking life intentionally but, further, to take appropriate steps to safeguard life. We argue that this should be read very widely, so as to require a state to take positive steps to ensure a healthy working and living environment. Obviously tele masts are contrary to that obligation, not only from the potential physical, but also from the mental health, stress, worry ....... However, the threat must be to life, and not simply to health, therefore the argument should be raised specifically to all those potential illnesses where there is a danger that they could lead to premature deaths.

Moving away from human rights and directly into telecommunication legislation we have specific obligations within the Communication Act 2003 (Planning Sanity Briefing) and the The Electronic Communications Code (Conditions and Restrictions) Regulations 2003 (Planning Sanity Briefing) for first the Secretary of State to implement regulations for the protection of the vulnerable, and then on OFCOM to protect children and the vulnerable, we shall not go into this in detail within this document as we fully explore those provisions within our topic briefing's on the Coms Act, and the Regulations. These provisions should in your representation to the planning authority be interlinked to the human rights issues discussed above, you can also refer to the general theme set out the the Childrens Act 1989 to protect children, albeit that the provisions within the Coms Act have more relevance, but nevertheless that Acts provisions are another string to your bow.

Far too many planning departments give the advise that health cannot be taken into account when considering applications for prior approval or full planning for telecommunications masts. That has now been demonstrated to be wrong in law in four separate High Court cases. Unfortunately far too many masts have been approved that had health been taken into account would not have been approved. As we have already stated above Harrogate reduces this argument, but does not alter the basic argument only the degree of consideration is changed.

It is now not possible for any local authority to argue that health is NOT a material planning consideration without running the risk of having decision overturned, and thereby costing the local council tax payers tens of thousands in wasted court costs.

First it must be clearly kept in mind that Government Planning Policy Guidance Notes/Statements are just that guidance, although they cannot be ignored, they are not so rigid that they must be followed to the letter S & Ors v London Borough of Brent & Ors. Oxfordshire County Council, Head Teacher of Elliott School & Ors [2002] EWCA Civ 693 Paragraph 16 of that judgment Lord Justice Schiemann states:

"The first consequence of this is that Appeal Panels, and schools too, must keep in mind that guidance is no more than that: it is not direction, and certainly not rules. Any Appeal Panel which, albeit on legal advice, treats the Secretary of State's Guidance as something to be strictly adhered to or simply follows it because it is there will be breaking its statutory remit in at least three ways: it will be failing to exercise its own independent judgment; it will be treating guidance as if it were rules; and it will, in lawyers' terms, be fettering its own discretion. Equally, however, it will be breaking its remit if it neglects the guidance. The task is not an easy one".

This aspect was then upheld in relation to telecommunication installations in Susan Trevett v Secretary of State for Transport, Local Government and the Regions (unreported) a Section 288 Appeal heard before Mr Justice Sullivan on the 25th November 2002 (para 23 of that judgment). Whilst Mr Justice Sullivan found no fault with the decision of the Inspector he clearly clarified the position by stating at paragraph 23 of that judgment:

"If there was any error, then the error would be in the costs decision letter and not in the decision letter on the substantive appeals; but I do not accept that the Inspector fell into any error in the costs decision letter. The council, in refusing planning permission (in the case of two of the appeals, contrary to advise of officers) was pursuing what appeared to the inspector to be "a blanket restriction on TETRA proposals". Thus the Council, which did not attend the inquiry to justify its reasons for refusal, had failed to examine the basis for the public's fears to see what, if any, weight should be given to them and whether they justified a refusal of planning permission, given the benefits of the proposals. It would clearly be unreasonable to proceed on the basis that perceived health risks cannot justify a refusal of planning permission unless they are objectively justified, so it is equally erroneous to assert, as was the council in effect, that merely because there are perceived risks to health, that justifies a refusal of planning permission without any regard to the extent as to which those fears are objectively justified in the circumstances of the particular case and given the particular characteristics of the site in question. Those are the factors which the Inspector considered in concluding that the perceived risks as to health, whilst material considerations, did not justify a refusal of planning permission in these three cases".

Therefore it is clear from this that whilst it would be wrong to have a blanket policy of refusal of planning permission if there was public concern, equally it would be wrong to have a policy that fettered the ability of the decision maker to rise above a level set out in the guidance, that is to stop at the ICNIRP guidelines. Each application must be looked at on a case by case basis, whilst in one case public concern might be rejected, and in another accepted. It follows that your stated procedure of following Government guidance without taking into account the individual circumstances of each case would be contrary to law.

It should also be clearly kept in mind that the fear held by local residents may not be on its own solely, or even partly connected to emission levels that the ICNIRP guidelines refer to. Examples of this are fears relating to the installation as a development, and its towering effect upon the individual homes of those objecting, or the visual amenity of the area. It may also relate to health concerns that are not taken into account within the ICNIRP guidelines, such as the biological effects of the emissions. There is also the specific make-up of the community, the Government advise is that there is no risk to the general population, it is widely accepted that those at greatest risk are children, therefore a community with greater numbers of children might require greater consideration than other areas. Equally other communities might have greater numbers of residents that already suffer the effects of illnesses that might be more susceptible to emission levels than other communities. From this it follows that there are potential categories that might fall out side of that special group described as the 'General Population'.

We must look at the question of the correct interpretation to be placed on health as an amenity issue. The word amenity is a wide term it covers all aspects that affect a community as a consequence of a development proposal, that is the effect on the community as opposed to the effect on the individual. Lord Justice Aldous first dealt with this in the context of health and development in Newport, I flag up below many of the actual findings that he made in this respect. The basic argument is that first it must be accepted that health fears are a material planning consideration, then if this affects the quality of life of the community as a whole that would be said to have an effect upon the amenity of that community. The easiest way of looking at that is the willingness of people to live, work or play in an area, with masts that might be most evident when considering the concerns of parents where masts are close to schools. The barometer of these effects might be seen by a drop in house prices, the number of homes being offered for sale, and the withdrawal of children from a school. Thus you would argue that your concerns about health affecting as it does the whole community will down grade the quality of life (feel good factor) to such a degree that the amenity of the area will be adversely affected.

We now turn to the actual decisions of the courts when local authorities have failed to consider health. These decisions cannot be taken in isolation to other cases, so first read the whole section before putting your arguments forward. But first consider the following, in the week that I am updating this briefing paper (January 2006) two separate inspectors decision letters on telecom appeals have been released in one, the inspector awards costs against a local planning authority for refusing a mast application on health grounds, and in the other the inspector refused the application on health grounds, and that is the problem we have, planning authorities do not know which way to turn, but it could also be looked at in the context of individual applications being decided on a case by case basis on its merits, and thus where it is appropriate applications can be refused on health grounds.

NEWPORT COUNTY BOROUGH COUNCIL v. SECRETARY OF STATE FOR WALES and BROWNING FERRIS ENVIRONMENTAL SERVICES LTD [1997] EWCA Civ 1894

Newport is not a telecoms case but relates to an incinerator, nevertheless it is an important case in that it has become the accepted starting point for cases where there is a perceived health risk. Lord Justice Aldous sets out the contention first of health concerns being an amenity issue, and then goes on to find that this applies even where there is no scientific evidence, that is the state of mind of the community that is important.

Lord justice Hutchison said:-

"The principal argument advanced by the applicants in support of the detailed grounds of appeal can be simply stated. What is said is that, once it is accepted that the public's perception and risk to their safety inherent in the proposed development, even if objectively unfounded, is a material consideration, it must follow that the unfounded perception alone can, in an appropriate case, justify refusal. The Inspector and the Secretary of State failed to consider whether the present was such a case, but instead approached the case on the basis that unless there was evidence to substantiate the public's perception, that perception could never be a ground for refusing permission. This was inconsistent with their acceptance of the proposition that the perception was a material consideration. The Secretary of State therefore erred in law by approaching the question of the reasonableness or otherwise of the council's refusal of permission on the basis that, absent reasonable grounds on which the public perception was based, it was necessarily unreasonable.
It is also contended, as I have already noted, that the judge in determining the application for judicial review did not address this argument because he based his judgment on the assumption that the Inspector had found that there was no substance in planning terms in the public's perception, whereas the Inspector had held that it was a planning consideration, but one which in the light of all the evidence was "insufficient to override the acceptability of the proposals in terms of the development plan policies and the lack of demonstrable harm to the public or the environment".

It is submitted that the source of error into which the Inspector and the Secretary of State fell was their misconstruction of paragraph 9 of Circular 5/87. That paragraph, it is argued, is concerned with local opposition to a proposed development and is saying that there should be reasonable grounds for the opposition. It is not saying that there must be reasonable grounds for the perception. On the contrary, it is the perception which may constitute a ground for the opposition. The argument is that the Inspector and the Secretary of State, who adopted his reasons, misconstruing this paragraph and paragraph 18 of PPG1, treated them as in effect requiring that there should be objective grounds for the perception rather than for the opposition. It is said that the judge did not address this argument, but wrongly treated fear as synonymous with opposition and therefore regarded the Circular as applying.

I accept Mr Howell's submission that the only sensible construction of the material words is that the Inspector, and therefore the Secretary of State who adopted his reasoning, was approaching the question whether the council had behaved unreasonably on the basis that the genuine fears on the part of the public, unless objectively justified, could never amount to a valid ground for refusal. That was in my judgment a material error of law. In the circumstances I consider it unnecessary to deal with any of the other points raised and relied on by Mr Howell. I would on that ground quash his decision and remit the matter for reconsideration."

This argument is of course furthered with the new Planning Act (2004) because the new Act presumes a greater involvement of the public than previous procedures, and therefore arguably (although the point has never been raised in the courts) that the concerns of the public must have considerable weight attached to the decision.

Lord Justice Aldous starts out by stating that he agrees with Lord Justice Hutchison and then goes on to give his own concurring judgement, with some very salient points:-

"A planning authority may properly take into account the perceived fears of the public when deciding whether a proposed development 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. It is therefore in my view "another planning reason" within paragraph 9 of Circular 14/85.
That being the law, the Inspector should have considered whether the council acted unreasonably so that it was not necessary for the case to come before the Secretary of State. In so doing, he should have accepted that the perceived fears, even though they were not soundly based upon scientific or logical fact, were a relevant planning consideration and then gone on to decide whether, upon the facts of the particular case, they were of so little weight as to result in the conclusion that refusal by the council was unreasonable.

....... there is a difference between local opposition and a perceived fear which by itself could affect the amenity of the area. The Circular makes it clear that if there are planning reasons, refusal may be reasonable. A perceived fear by the public can in appropriate (perhaps rare) occasions be a reason for refusing planning permission, whether or not that has caused local opposition. It follows that the Circular contemplates 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."

Albeit that one of the 3 judges differed from the above the decision was carried and therefore became a statement as to the meaning of the law, in that even where there is no scientific evidence health concerns of the public can be a material planning consideration, and nothing in any judgement since including Harrogate differs from the general thrust of that argument. It follows that whilst as they say it might be a rare case where health must be taken into account, it is clear that the LPA must consider health concerns, if only to determine whether the case under consideration is, or is not, one of those rare cases.

R. v. Stockport MBC exparte Smith - The Honourable Mr Justice Ouseley - Case No. CO/159/2001 (copy of judgement on request)

This was a 15 metre street lamp mast to be sited in Gatley, Stockport. There was a major campaign that was lost at the planning stage by the advise of a Planning Officer that health was not a planning consideration. Local residents supported by Planning Sanity applied for judicial review of that decision.

At the leave hearing Mr Justice Ouseley granted leave on the primary ground that health was a material consideration and that it was not taken into account. However the matter never came on for trial because the operator One2One gave a commitment to the court that they would not implement the permission, in other words the mast would not be erected. Nevertheless the principle was established that leave would be granted if health was not taken into account.

The Honourable Mr Justice Ouseley said in his decision-

"It is arguable that actual and perceived health risks are relevant to siting of these masts, and that the latter was not taken into account"

It follows from this that a decision maker MUST take health concerns into account, and where they do not the LPA run the risk of the application being returned to them in order that they make a lawful decision. It matters not that the matter was eventually settled without a trial, the principle is made.

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

This is a more complex case in that the local authority again refuse to take health into account, although it seems on the surface that the decision maker may have actually taken health into account, nevertheless a number of senior councillors and officers, including the Chair of Planning and the Chief Executive informed residents that health could not be taken into account. The matter was taken to court by a number of children on the argument that their health was being put at risk due to the closeness of the mast to their school. The judgement itself does not give the full picture, so you should understand what actually happened as opposed to the just the wording of the short judgement.

The claimants had not simply sought the advice of one solicitor, but had sought the advice of no less than 4, all of whom concluded that health was a material planning consideration, and that the LPA failed to take it into account. The Council were repeatedly warned that they would lose the case if they continued to oppose the application, but nevertheless soldiered on. The matter was first considered on the papers, but the judge did not have all the documents, and refused leave, the Claimants renewed the application by way of an oral hearing, which then came before Mr Justice Hooper.

The judge effectively instructed the Defendants (local authority) that they should settle or run the real risk of losing, giving them 35 days to come back to court with an agreed order, which was the subsequent outcome, where Mr Justice Ouseley rubber stamped the Order as drafted and agreed, presumably also by Orange who were also a party the proceedings.

The matter was then referred back as per the Order to the LPA. A new application was then submitted by Orange, which the LPA refused on health grounds as well as other reasons, Orange then appealed that decision, and the inspector upheld their appeal, and awarded costs against the LPA, which seems very strange given that the LPA clearly only acted as a consequence of the decision of the court. The case St Leger-Davey was then challenged by children which went to the Court of Appeal was lost and is now on further appeal to the Lords (see that case below)

The Herman JR was not reported, the judgement is only two pages, with just two paragraph's dealing with the primary decision which is set out below. This clearly has profound significance for every local authority in the country as it clearly makes the point that not only is health a material planning consideration, but that members of the public should expect that decision makers give reasons for their decisions, in order that the public might know why the application is approved.

Mr Justice Hooper:

1. "This is a renewed application for permission to apply for judicial review of a decision by the defendant made on the 26th January 2001. The effect of the decision was to permit the building of a mobile phone mast within close proximity to a school. The claimants rely heavily upon passages in the Stuart report, particularly the passage at 6.68. The claimant points to a number of comments made by the defendant's officers which would only be understood by those interested in this matter as meaning that health issues are not to be taken into account when making this kind of decision. Those passages are set out helpfully at pages 143-144 of page 4 and page 5 of Mr Water's skeleton argument. Some of those were not available to the learned judge when he refused permission on paper. Mr Findlay, in an attractive argument, submits that those statements should be viewed against the background of the report written by Lorna Hutchings (at pages 90-91) and the government guidance on masts. He submits that, having regard to the report of Lorna Hutchings and to what Mr Hearn has written, the health issues were taken into consideration. Secondly, he submits that even if he were wrong on that, the result would inevitably have been the same if the proper test had been applied. It seems to me that arguably local residents are entitled to a decision which explains why it is appropriate for a mast to be built so close to a school, given, in particular as, what they say they were told by the officers.

2. It may be that the defendant will decide not to oppose a full hearing, but instead to make a reasoned decision one way or the other, taking into account the obvious concerns of the parents based on the Stewart report".

Para 6.68 of the Stewart Report (2001) referred to above is of course that infamous statement that no beam of maximum intensity should fall on any part of a school grounds:

6.68 We recommend, in relation to macrocell base stations sited within school grounds, that the beam of greatest RF intensity should not fall on any part of the school grounds or buildings without agreement from the school and parents. Similar considerations should apply to macrocell base stations sited near to school grounds.

The final Order of Mr Justice Ouseley which has to be remembered is by consent, first quashes the original permission, and then goes on to refer the case back for a proper determination in accordance with the law. It is useful to note here that Orange were a third party, but there is no indication as to whether they consented to the order:

"1. The decision of the Defendant dated 26th January 2001 approving the sitting and design of a mobile telephone mast at land at Byron Avenue, Winchester, Hants be quashed.

2. The Defendant do re-examine the application for prior approval as if it were an existing application properly made under the amended provisions of the Town and Country Planning (GPD) Order 1995 (as amended) in accordance with procedures set out in the Order and in accordance with the law and the guidance set out in revised PPG8."

The final decision of Winchester City Planners made on the 12th March 2002 was:

"The proposed telecommunications equipment by reason of its siting and its proximity to residential properties and the Western Primary School, is perceived by the community as having an unacceptable health risk which outweighs the fact that the equipment is in compliance with the ICNIRP guidelines referred to in PPG8. Its installation will therefore be harmful to the amenity of those who live, learn and work in the area".

There were two other grounds of refusal that of failing to demonstrate that all alternative sites had been investigated, and that of visual intrusion.

The following should be read in conjunction with the above cases, particularly the Stroud case. We start with the text of PPG8 paragraphs 29 & 30, which states:

In the Stroud case the Inspector rightly ruled that 'such weight as might be appropriate in the particular circumstances of the case' should be given to the question of health. But he then failed to consider what weight, if any, he would give to the public concerns. In one of the three cases under review, the concerns related to the residential nature of the site and the proximity of schools to the site. See also our comments above on the Yasmin Skelt case.

In Tandridge DC and One 2 One Personal Communications Limited ex parte Al Fayed Schieman LJ held it was 'common ground' that the existence of objectively unjustified fears in the locality can, in some circumstances, be a legitimate factor for a local planning authority to take into account. And the weight to be attached to them was for the local authority.

In the Herman case he held:

It seems to me that arguably local residents are entitled to a decision which explains why it is appropriate for a mast to be built so close to a school, given, in particular as, what they say they were told by the officers.

The correct approach that should be adopted on the question of the fear of the local community of an adverse health effect was expressed by Aldous LJ in Newport:

"He (the Inspector) should have accepted that the perceived fears, even though not soundly based upon scientific or logical fact, were a relevant planning consideration and then gone on to decide whether, upon the facts of the particular case, they were of so little weight as to result in the conclusion that refusal by the council was unreasonable".

Clearly the Inspector having accepted the perceived fears of the public could amount to a material consideration, ought to have reached a decision as to what weight should attach to them in relation to the facts of each site. Therefore, the Inspector fettered his discretion in this respect by undue reliance on the approach set out in paragraph 30 of PPG8.

Aldous LJ then continued:

"It follows that the Circular contemplates 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".

Hutchison LJ (Newport case) found that "approaching the question whether the council had behaved unreasonably on the basis that the genuine fears on the part of the public, unless objectively justified, could never amount to a valid ground for refusal" was a material error of law. In other words once you find that health is a material planning consideration, then the decision-maker must go on to decide what weight (if any) to attach, and whether that weight outweighed other considerations, such as the ICNIRP guidelines. Because to go down that route the Inspector by relying upon PPG8 and the ICNIRP guidelines was seeking to objectively justify the fears of the local community.

He particularly failed to acknowledge the local residents fears and anxieties concerning the unknown and unquantified risks identified by the Stewart Committee in relation to the exposures such as biological effects which are not accounted for within the ICNIRP guidelines. Paragraphs 1.19; 1.21 and 6.63 of the Stewart Report being flagged up:

1.19: We conclude therefore that it is not possible at present to say that exposure to RF radiation, even at levels below national guidelines, is totally without potential adverse health effects, and that the gaps in knowledge are sufficient to justify a precautionary approach.

1.21: We note that a precautionary approach, in itself, is not without cost (paragraph 6.16) but we consider it to be an essential approach at this early stage in our understanding of mobile phone technology and its potential to impact on biological systems and on human health.

6.63: There is evidence that at the frequencies used in mobile phone technology, children will absorb more energy per kilogram of body weight from an external electromagnetic field than adults (see paragraph 4.37). A one year old could absorb around double, and a five year old around 60%, more than an adult. Additionally, since children are being exposed to RF radiation from base stations (and from mobile phones) from a younger age than adults, they will have a longer time in which to accumulate exposure over the course of their lives, and a longer time for any delayed effects of exposure to develop.

The question also has to be raised in relation to human rights, and the obligation of public authorities obligations to take human rights issues into account. In this respect we would refer you to Davis & Anor v Balfour Kilpatrick Ltd & Ors [2002] EWCA Civ 736 Mr Justice Jackson said:

"I can well understand how the principles emerging from S v France and Marcic might apply to a resident in the immediate vicinity of a transmission mast. If such a resident could prove that personal injury or damage to property had been caused by electromagnetic radiation, then Article 8 may require that he has a remedy against any relevant public authority. The common law requirements of unreasonable user (in the case of nuisance) and lack of reasonable care (in the case of negligence) may have to yield in the face of European human rights law".

From this it will be seen that human rights overrides such doctrine as that established in Ryland and Fletcher, and brings home the clear prospect of public authorities becoming liable for their decisions if they fail to fully take human right issues such as Article 6.1, the right to a fair hearing (failure to fully consider the perception of an adverse health effect could be argued here). Article 8 the right to a home (which could be argued that the home should be free from potential health risks). Article 1 of the First Protocol right to property (which could be argued that any drop in property values, or effective use, would constitute a violation of the right to peaceful enjoyment).

There are other emerging cases where the situation might be altered, for instance in Jodie Phillips v First Secretary of State Mr Justice Richards said at para 41:

"Further, although the guidance states that it should not be necessary to consider the health aspects of a development that complies with specified standards for public exposure, it recognises that public concerns about the health implications of a development can still be a material consideration (see paragraphs 97ff of the Appendix). No doubt the existence of such concerns is one of the reasons why the location of telecommunications structures is such a sensitive issue. 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."

Making it clear that health when related to site selection can be a material planning consideration.

Leger-Davey and Anor v First Secretary of State and Ors [2004] EWCA Civ 1612 (01 December 2004)

T-Mobile UK Ltd and Ors v The First Secretary of State and Anor [2004] EWCA Civ 1763 (12 November 2004)

This was a strange appeal in that the Secretary of State despite his stance on the issue was actually arguing our case that health was a material consideration. It is being portrayed by the operators as the case that decided that health health concerns are not a material consideration. But that is factually incorrect, though this case done us no favours it maintained the general stance that health concerns are a material consideration ad that even when there is an ICNIRP certificate where it is justified health concerns can overrule the general stance.

The issue before the courts was very limited, it was not a question of whether health concerns were or were not material, it all came down to the question of whether the Inspector had given sufficient reasons to go against the policy considerations contained in para 30 of PPG8, in the end the Court concluded that he had not. Had he stated his reasons for going against the policy then the case would have been won. Therefore it is now very important that every decision maker must state clear and precise grounds why any specific installation should be refused on health ground, effectively what is the special grounds for going against the ICNIRP certificate.

It must be clearly stated that this case is not helpful, it places a great hurdle in the way of health concerns being effectively taken into account. But it does not put a blanket ban on such considerations. It is note worthy that Mr Justice Laws was an Appeal judge in this case and that of the Nunn case below, therefore his comments on health in that case must be kept in mind as they clearly negate some of his comments in this case, particularly as the Nunn case is the later of the two cases.

Harrogate being lost in the Court of Appeal it was reversed back to the decision of the High Court which was to refer the case back to a new Inspector with a new Public Inquiry. At the time of revising this briefing that inquiry has yet to give its decision. If anyone wants a copy of the actual local community representation submitted to the new inquiry which sets out our arguments on health post Harrogate Court of Appeal then please email us.

Nunn, R (on the application of) v First Secretary of State & Ors [2005] EWCA Civ 101 (08 February 2005)

The Nunn case was not a case that in it self related to health concerns the primary case related to whether the 56 day brick wall of the GPDO was lawful. However, as with many of these cases health was at the fore, there are a number of references to it including an acceptance that health fears are a material planning consideration. And could be said to be inconsistent with the stronger finding in Harrogate.

Lord Justice Waller who states:-

"It seems to me clear that Dr Nunn's Article 6 rights were here infringed. She and others affected had the right to make representations to the LPA on the effects on health and on the appearance of the mast as it affected them and the value of their homes. T-Mobile of course contested that their health could be affected and contested that the appearance affected the value of their homes. Both T-Mobile and Dr Nunn had, under Article 6, the right to expect that those points would be determined by the LPA, by an effective decision which might be the subject of an appeal to an Inspector, controlled by the court by Judicial Review or even such as to be under the direct control by the court by Judicial Review. In this instance she was deprived of her right under Article 6 to such a determination."

The Court at the end of the day having concluded that her rights under Article 6.1 of the ECHR were deprived, but that her only recourse was against the LPA in a civil claim for compensation, or via the Ombudsman for maladministration.

And we now come to the final court case that unfortunately does our arguments much justice, and whilst as I set out above it is not a planning case it is the only case in which a judge analysis both arguments on health, and unfortunately rejects the residents evidence. This is the case of Petursson v Hutchinson 3G Ltd where Dr Hyland was unmercifully savaged. The judge makes it clear that there is little direct evidence that there is a health risk from mobile phone masts, although Her Honour Judge Frances Kirkham was dealing with the argument relating to actual health risk as opposed to perceived risk, it is very damming, and will be jumped upon by the operators. I suggest that every activist reads this judgement before forwarding any arguments on health.

Whilst this case relates to Code 17 of the Electronic Communication Code it is a good illustration of the advise that Planning Sanity regularly gives that under Code challenges then health concerns should not be the primary argument, supporting argument yes, primary no, those challenges should always, which was not the case here, be based on the affect of the value of the land/property.

"I consider, first, what is meant by appearing materially to prejudice enjoyment of land. The claimants believed that the emissions affected their health. I accept that, in that sense, the claimants' perception of the effects of the apparatus constituted material prejudice to their enjoyment of their property. They have a perception of material prejudice caused by the operation of the defendant's apparatus. That however in my judgment is not sufficient. The test set out in paragraph 17(6) of the Code is, in my judgment, objective not subjective. The claimants' subjective perception is insufficient. In my judgment, the claimants must demonstrate, on balance of probabilities, that the apparatus caused the ill effects of which they complain in order to prove the matters set out in paragraph 17(6) of the Code."

Whilst keeping firmly in mind that we are not talking of a planning challenge but a Code challenge which has considerable differences in the matters to be taken into account, this paragraph hinders the arguments on health in the planning forum. Once we then get into the judgement where the judge dissects the arguments of the two experts (Hyland and Chadwick) that is where we get into real difficulties. It is a shame that Hyland was used in this case, there are others that have not been tainted by past judgements against them, such as Coghill, having said that again I stress this is not a knock at Dr Hyland, but we have to be realists, if the High Court rejects his evidence, then other lesser forums will also reject his evidence, it is therefore worthless putting forward a well structured argument that is then destroyed because part of the argument is based on a discredited expert, therefore papers that are circulating by Dr Hyland can in our view no longer be relied upon.

"Dr Hyland lacked balance and impartiality in relation to his evidence in this case. He did not adopt the objective approach which a court expects from an expert witness"

When faced with that sort of statement by a judge it can soon be seen that any evidence given is going to be reduced into little more than pure unsubstantiated theory, a shame but reality. So to run our health arguments we have to be more pragmatic, we need to run the arguments stretched across many experts, taking the findings of this or that expert and saying look how many say there is a problem, they cannot all be wrong, in that way we will get over the problems caused by this case.

A final consideration is the degree of acceptability of any expert evidence, or supporting research, the Government states in relation to nearly every academic report that indicates a health threat that it has NOT been replicated, which in the majority of cases is true. However, they accept without question any report that indicates that there is no health threat despite the fact that similarly the majority of that research has not been replicated. It is therefore worth looking at any research indicated by the operators and the government and pointing out whether it has or has not been replicated, in other words attempt to discredit as they do our evidence that it is unwise to fully trust the evidence that there is no health risk until all evidence has been replicated. That is a strong stance to take when talking about the perception (fear) that your community holds of an adverse health effect.

We hope that this is useful in formulating your legal submissions on the question of health fears to local planners and inquiry inspectors. As we demonstrate if they fail to undertake the right test, then they run the risk of having their decisions challenged. You should always keep in mind that more research is being published all the time and therefore even recent court decisions may suddenly become invalid due to the findings by the scientists on health effects. Therefore always argue this or that has recently been published,or at least been published post the relevant court case.