.................................................. Director of Planning

...................................................Borough Council

...................................................

...................................................

.....................................200........

Your Ref: ...................................

Our Ref: .....................................

Dear Sir,

RE:TELECOMMUNICATIONS - HEALTH AS A PLANNING CONSIDERATION

We have been instructed by local residents to put forward the following representation setting out the question of health and the degree of weight to be attached to the fear or perception of an adverse health effect from telecommunication installations. As you will be well aware this is an emotive topic and one where even the procedures are not fully understood by professionals let alone the general public, mainly due to the conflicting wording of PPG8 ¹ Unfortunately even the courts have confused the issue further with conflicting judgements. However, we would particularly like to draw your attention to the fact that the Planning Inspectorate have now conceded that they have got it wrong in refusing to take health concerns fully into account when an ICNIRP compliant certificate is supplied by the operator (see comments on Bath case below, which is by no means the only appeal that has recently been been dismissed on health related grounds). However, it is clearly important to point out the findings of the Court of Appeal in Nunn, R (on the application of) v First Secretary of State & Ors² (Bardsey case) which is the latest court case.

First the question of health has to be split into 3 distinct groups, that of the actual adverse health which has been caused, or is demonstrated to be a contributing factor affecting the health and/or well-being of a specific member of the public. The cases where this category comes forward for consideration will be rare, and would require specific medical evidence to support the concerns, nevertheless in a case where the evidence of harm is strongly supported, then it is clear a high degree of weight would need to be attached to the fact that a provable risk has been demonstrated. There may be though a greater number of cases where there is also a high powered cable network (National Grid) within 100 metres of residential property, particularly in light of the serious risk of leukaemia in young children from such installations, and the potential for combined emissions increasing that risk. It should also be kept in mind by LPAs when considering such important questions that they have full regard in their determinations as to their obligations both under the European Convention on Human Rights, and the connected obligation under the Human Rights Act 1998, as well as other rights and obligations that may apply as an example the obligation by the local authority to protect children as enshrined within the Childrens Act 1989 (see comments on the Bardsey case to see how some of those obligations may have financial implications for public authorities).

The second category is that of health effects caused by none emission fear and concerns, these might arise from the fear of the drop in value of a persons property, or some other amenity related concern (Court of Appeal in the Bardsey case has found that if an LPA fail to take devaluation of a residents property into account that failure may affect the residents Convention rights giving the resident a potential claim in damages against the LPA - therefore arguablyproperty devaluation is a material planning consideration in mast cases). It is note worthy that Sir William Stewart in his report alluded to these concerns, which he states were raised in the groups consultations with the public, and rightly states that these health concerns brought about by nothing more than stress are a material planning consideration. It should be clearly kept in mind that this category of fears by local residents may not be 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 brought about by emissions that are not taken into account within the ICNIRP guidelines, such as the biological effects of the emissions. Some these fears may be connected to other issues that on their own are not material planning considerations, but when they cause stress, or generally affect the amenity of the area (well-being), then they are material considerations, a good example being that of a drop in property value, therefore this category of fear must clearly be given the appropriate degree of weight irrespective of the fact an ICNIRP certificate may, or may not have been issued.

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', a category in which BT (now 02) conceded to the Trade and Industry Select Committee (see their Tenth Report ³) in their inquiry into mobile phones and base stations there was a risk, potentially equal to that of the accidents within the home, and on the roads, as evidenced by the figures produced by ROSPA.

"We believe that the risks which may be 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 final area is that of the fear or perception of an adverse health effect caused by emissions from telecommunication installations, it is this category where most objections, including the presentobjection falls.

First it must be clearly kept in mind that Government Planning Policy Guidance Notes are just that guidance, although they cannot be ignored, they are not so rigid that they must be followed to the letter (see London Borough of Brent)⁴ in paragraph 16 of that judgement 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 judgement; 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".

Thus whilst guidance cannot be ignored, equally it MUST not be followed blindly, this aspect has been highlighted consistently in relation to the courts (see Trevett ⁵). Whilst Mr Justice Sullivan found no fault with the decision of the Inspector he clarified the position by setting out:

"It would clearly, be unreasonable to proceed upon the basis of a blanket restriction on TETRA proposals. Just as it is erroneous to proceed on the basis that perceived health risks cannot justify a refusal of planning permission unless they are objectively justified".

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 any stated procedure/policy of following Government guidance without taking into account the individual circumstances of each case would be contrary to law. Albeit that in T-Mobile UK Ltd & Ors v The First Secretary of State & Anor⁶ (Harrogate case), the court found that only in exceptional circumstances should health concerns override the fact that an ICNIRP certificate has been issued (which has been superseded in some respects by the Bardsey case), we return to this case below.

In as far as the ICNIRP certificates are concerned it is important to know and understand why the Secretary of State conceded that his inspector acted contrary to law within the inquiry decision that resulted in the Yasmin Skelt⁷case, and why the Secretary of State challenged the phone operators in the Harrogate case. This case clearly has its basis in the judgement of Lord Justice Aldous in Newport⁸when looking at the public's concerns on health in a case relating to a chemical waste plant he states:

"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".

Clearly based on that dicta, the mere fact that a certificate setting out what is believed to be a safe level of emissions would not alter the basis of the argument behind Lord Aldous words, it is understandable why the Treasury Solicitor decided to concede the case on behalf of the Secretary of State. Indeed the Annex to PPG8 para 97 (copying the words of para 29) expressly takes on board the words of both Lord Aldous and Lord Hutchinson, by setting out a reference point to that case:

"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".

If we then look firmly to the action taken by the Secretary of State in Skelt, and the words of para 29 (97), then pass to the words of Mr Philip Coppel on behalf of the Secretary of State when arguing for leave to appeal in Harrogate, setting out clearly that it is of considerable concern to both the public and the Secretary of State that health concerns are very much part of the decision making process that requires due weight to be given to the concerns.

Whereas para 30 sets out the Governments view, although it is expressed as a firm view that where an ICNIRP certificate has been issued then the planning system is not the place to look at health concerns:

"However, it is the Government's firm view that the planning system is not the place for determining health safeguards. It remains central Government's responsibility to decide what measures are necessary to protect public health. In the Government's view, if a proposed mobile phone base station meets the ICNIRP guidelines for public exposure it should not be necessary for a local planning authority, in processing an application for planning permission or prior approval, to consider further the health aspects and concerns about them".

If it is accepted (as it must) that health concerns are a material planning consideration, indeed even in Harrogate that is accepted, and that it would be wrong in law in accordance with the dicta in Brent, then it comes down purely to an issue of consideration on a case by case basis, what degree of consideration should the decision maker give to the concerns of the public, any supporting references and reports they provide, matched against the references and reports supplied by the applicant/developer/operator. However, Harrogate makes the point that it must be a significant case that would override the ICNIRP certificate, a case that has clear and distinct evidence of a risk that is not measured by the criteria applied in determining whether to issue an ICNIRP certificate. We argue this is such a case, attached are a list of academic reports some of which have been commissioned by and form part of official Government policy, that demonstrate without any doubt that there are effects that are not measured by ICNIRP that are likely, or could potentially lead to an adverse health effect on the special category of people that are either children, the elderly and those that are hyper sensitive to electro-magnetic emissions.

However, the Bardsey case appears to fly fully in the face of the Harrogate judgement in that it states clearly that if an LPA fails to take into account health concerns of affected residents then either a claim under Section 8 of the HRA and/or a complaint to the Ombudsman would be the effective remedies open to the disaffected residents. It is also of some relevance to note that Lord Justice Laws was on the panel in both the Harrogate, Winchester and Bardsey cases, and that Bardsey was some two months later than the Harrogate judgement, and therefore is the later of the 3 telecom cases to be heard by the Court of Appeal. In this case the Secretary of State conceded that the Claimants rights under Article 8, Article 1 of the First Protocol and Article 6.1 were engaged (para 21 of the judgement).

Para 22
"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."

para 31
"The remedy for Dr Nunn appears to lie or to have lain against the LPA who failed to make their determination in her favour effective. The LPA were not represented before us and I will say nothing more other than if Dr Nunn has or had a remedy against them it may not be limited to a claim before the Ombudsman, but may include a claim for damages under Section 8 of the HRA."

Para 34 (Lord Justice Laws)
"At paragraph 22 my Lord concludes that Dr Nunn was deprived of her right under ECHR Article 6 to a determination of her claims relating to health, the appearance of T-Mobile's mast and its effect on the value of her home and the homes of others......"

Para 38
"In a wholly public spirited fashion, Dr Nunn has sought to represent the interests of her local community whilst, at the same time, striving to protect the well-being of her family. In the result, her efforts, through no fault of her own, come to nothing. The planning permission remains in place, as does T-Mobile's mast. Dr Nunn has been deprived of her ECHR Article 6 rights; she has lost the opportunity to have her objections to the grant of planning permission heard and adjudicated upon by an Article 6 compliant body; and she is left with a monetary remedy which, if she is to pursue it, either through the Local Government Ombudsman or by means of an action pursuant to section 8 of the Human Rights Act, 1998 will require further time, effort and expense. She may well feel that this is a poor reward for her altruism."

Para 43
"The answers to the first two questions which I pose in paragraph 39 of this judgement can only be answered in one way. It is the LPA which has breached Dr Nunn's rights, and the consequence of that breach is that she had been deprived of the right to a determination by the LPA (and on any appeal by a planning inspector) of her claims "relating to her health, the appearance of T-Mobile's mast and its effect on the value of her home and the homes of others", as Laws LJ expresses it in paragraph 34 of his judgement."

Whilst it is true that this case in it self was not directly related to the merits of whether health concerns formed a valid question within the planning process, but instead related to the failure of the LPA to notify the prior approval determination within the statutory 56 time period, nevertheless it is abundantly clear that the finding of the court is that where an LPA fail to consider health the LPA would be acting contrary to their obligations to take into account not only health concerns, but also very importantly and contrary to all past court finding in regards to the devaluation of property they state that if an LPA fail to consider property devaluation then they will have violated the rights of residents to have devaluation and health concerns taken into account. Does that finding override Harrogate, we say it does because there would be no proper consideration of a residents concerns if those concerns were not fully and appropriately taken into account, clearly if the degree of consideration was crippled by only being able to take into account a consideration that was limited to whether the operator had supplied an ICNIRP certificate would not be a full and appropriate consideration that would accord not only with the residents rights under the ECHR but also within the context of para 29 (97) of PPG8 leaving it to the decision maker to determine the weight that needs to be given to such concerns. Those considerations of course are then highlighted by the consequences of the finding in that if there is a violation of the ECHR that the residents would at face value have a prima facia case against the LPA that could arguably amount to a sum equal to any devaluation of the residents property brought about by the grant by the LPA of the development consent or resolution that prior approval was not required.

One particular aspect that requires special consideration is that of when the Beam of Greatest Intensity transmitted from a telecoms installation falls specifically on school grounds (including nursery schools), and in our considered opinion any place where children and young adults are likely to congregate (or reside). Sir William Stewart specifically referred to the potential increased health effect from these strengthened parts of the transmission, indeed the Government to a degree accepts those concerns by setting out within PPG8 a requirement for both the Operator and the Local Planning Authority (paras 11 and 13) to consult with school governing bodies. The concern of Stewart was particularly in relation to the way in which the skull of children does not become fully developed until the child reaches the age of 16, and therefore is likely to absorb a greater degree of emissions over a longer period than adults. The Courts have now picked up on this aspect in a number of cases (see the first Winchester case below, and the Jane Lee part of the Levy Davy case) Mr Justice Sullivan at para 56 of his judgement that if the issue was raised with the inspector (i.e. decision maker) then it would arguably been one of the principle issues (i.e. considerations).

"The point about the claimant living within the zone of greatest intensity of the beam does not appear to have been endorsed by the Council's consultants, or to have been mentioned by the Council in its written representations as a reason for objecting to the proposal. Moreover, the claimant's own representations do not make this point: if the claimant had said in terms, 'Even though my dwelling is 150m away from the mast, I would be in the zone of greatest intensity of the beam, and that is a matter of very great concern to me', then it would have been arguable that the Inspector should have dealt with that contention as one of the principal issues".

In respect of this application there are many dwellings and places (including schools/nurseries) where children are like to be for considerable periods within the beam of greatest intensity, therefore we argue that the weight to be placed against this proposal is considerably greater than it would be in a case where no children were exposed in this way. But again Harrogate has watered down to some degree the cases that might come within this special category, but we argue that in this specific case there is a clear case where a special consideration should be applied.

On the question of the decisions of the courts when local authorities have failed to consider health, there have been a number of cases, the main points of each I set out below, albeit it is fair to say that Harrogate has watered these decisions down, nevertheless we again stress that even in that case the court found that there will be exceptions to the rule:

R. v. Stockport MBC exparte Smith - Case No. CO/159/2001(unreported leave hearing)

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. 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"

The Queen on the application of Julia Herman & Others v Winchester City Council and Orange Personal Communications Services Limited - Case No. CO/956/2001 (unreported) (not to be confused with the Levy Davy Case above, although it is the same development proposal, it is not the same decision under challenge).

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. Mr Justice Hooper said:

"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 officers.

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".

Jodie Phillips v First Secretary of State⁹ 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."

This principle is important because it becomes a theme in other cases where in principle the judges state they are in agreement with the sentiments expressed by Mr Justice Richards. This is particularly so in one of the most recent case that of that of R on the application of Heather Richards v South Bucks District Council¹⁰ The case though relates to the procedural issue of decisions not being made within the statutory 56 day period. This on its own is a very important ruling because the judge makes it clear that where an LPA who are minded to refuse an application fail to notify the decision within the statutory period then the courts will in most cases find for the resident who because of the failure are disenfranchised from having their concerns taken into account within the decision.

We would also refer your authority to a letter ¹¹ from Ms Lucy Delve a Quality Assurance Officer at the Planning Inspectorate dated the 22nd October 2004 relating to a telecommunication planning appeal at Bloomfield Road, Bath reference number APP/F0114/A/04/1140730 which apologises to a local resident for the failure/refusal of a planning inspector to take health concerns into account in that appeal:-

"Having considered very carefully all the evidence, I accept that the reasoning in the inspectors' decision was inadequate in that it failed to deal properly with local residents' health fears. I can only offer our sincere apologies for the error......... Whilst we now recognise that there is a flaw in the decision, we have no legislative powers to reconsider it; this could only have been done following a successful challenge in the High Court."

We are sure you will agree that it is clear from this passage of the letter that the previous practice of the Planning Inspectorate not to take health concerns fully into account is now being reversed. It also follows from the rational of this letter that where health concerns are not fully taken into account by decision-makers that those communities most affected should seek the intervention of the courts.

To sum the facts up in the context of health fears and concerns, and as the best case scenario, if we take the conclusions of the Governments own sponsored report undertaken by AGNIR the Health Effects from Radiofrequency Electromagnetic Fields then it is no wonder that local residents such as our clients continue to have considerable concern as to the potential ill health effects from telecoms developments:-

"In aggregate the research published since the IEGMP report does not give cause for concern. The weight of evidence now available does not suggest that there are adverse health effects from exposure to RF fields below guideline levels, but the published research on RF exposures and health has limitations, and mobile phones have only been in widespread use for a relatively short time. The possibility therefore remains open that there could be health effects from exposure to RF fields below guideline levels; hence continued research is needed."

In addition to the points raised above in Bardsey in relation to human rights there are other obligation on public authorities to take human rights issues into account. In this respect we would refer you to Davis & Anor v Balfour Kilpatrick Ltd & Ors¹² when 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).

I am sure that you will agree that for the above reasons that consideration must be given to health concerns, and in appropriate cases, of which we suggest this is one, weight can be given to the issue that will override the fact that an ICNIRP certificate has been submitted by the Applicant with their application, and indeed must if the LPA is to avoid the consequences of the failure to do so as a consequence of the Bardsey case.

In concluding we would also point you to the overall results of telecom planning appeals as published by the Minister ¹³ Yvette Cooper (Minister of State (Housing and Planning), Department for Communities and Local Government)) for the last 6 years, which clearly demonstrates first that there is a large number (average 33%) of appeals that are refused and that the clear evidence that in 2006 a larger percentage of appeals were refused than in previous years. There can therefore be little justification today for an LPA taking the view that they should not refuse an application merely where there is the prospect of an operator appealing a refusal, and the potential cost of such an appeal to the LPA.

On the question of how much weight to attach then I would refer you to the attached list of documents, which sets out the findings of many academic reports, all of which indicate a potential adverse health effect, or indicate a potential risk that has not as yet been quantified. For all these reasons we respectfully request that you refuse the application before you, we do though stress that in such refusals you should set out in clear and precise terms why you have concluded that this case is a special case that should be refused on health. However, should you require further information, or clarification on any point, which can if your authority think it is appropriate be put forward by a presentation/seminar to your authority, either on this specific application, or more generally on the issue of telecoms developments, as such please do not hesitate in contacting us, if we can be of further assistance.

Yours sincerely

Chris Maile

Director