PLEASE NOTE: THIS LETTER IS INTENDED AS A LETTER FROM PLANNING SANITY TO LOCAL PLANNING AUTHORITIES OUTLINING THE LAW ON HEALTH CONCERNS. IT SHOULD BE SENT SEPARATE TO OTHER LETTERS OF OBJECTION PREFERABLY USING THE WORD OR PDF VERSIONS. A COPY SHOULD ALSO BE FORWARDED TO PLANNING SANITY WITH CONTACT DETAILS FOR THE PERSON IN YOUR GROUP WHO PLANNING SANITY CAN PASS ON ANY REPLIES FROM THE LOCAL PLANNING AUTHORITY.
.................................................. Director of Planning
Your Ref: ...................................
Our Ref: .....................................
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, 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).
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 100metres 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.
The second category is that of health effects caused by none emission fear and concerns, this might arise from the fear of the drop in value of a persons property, or some other amenity related concern. 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) 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.
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 present objection falls.
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 that 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 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) in paragraph 16 of that judgement Lord Justice Schiemann states:
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 Susan Trevett v Secretary of State for Transport, Local Government and the Regions (unreported - copy of judgement can be supplied on request)). Whilst Mr Justice Sullivan found no fault with the decision of the Inspector he clarified the position by setting out:
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, that is you cannot proceed on the basis that as there is an ICNIRP certificate, then health concerns cannot be looked at further. Albeit that this issue is on appeal in the Harrogate case, where Sir Richard Tucker first found that an ICNIRP certificate was sufficient to reject the health concerns of the public, but then granted leave to appeal to the Secretary of State who argued that the certificate was only one of a number of competing considerations, this case is likely to heard in late October 2004.
Before leaving the question of the ICNIRP certificates it is important to know and understand why the Secretary of State conceded that his inspector acted contrary to law in stating in the public inquiry that resulted in the Yasmin Skelt case. This case clearly has its basis in the judgement of Lord Justice Aldous in Newport when looking at the publics concerns on health in a case relating to a chemical waste plant he states:
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:
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. In the face of all the relevant cases, bar that of Harrogate, it is difficult to see how the words of para 30 of PPG8 can stand up to the stronger test of needing to take fully into account health concerns of residents. Para 30 clearly sets out at the very best the Governments view, although it is expressed as a firm view. It is not so instructive as to ban all considerations that go beyond the ICNIRP certificate, indeed if it was to do so then it would be in direct conflict with the findings of the courts and para 29 of PPG8:
If it is accepted (as it must) that health concerns are a material planning consideration, 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.
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).
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.
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:
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:
The Queen on the application of Julia Herman and 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 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 State Mr Justice Richards said at para 41:
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 Council. 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 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:-
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.
Although we concede that the Consistory Courts (see St Margaret Hawes) have taken a different view on health concerns, however those cases are based upon different procedural considerations, so whilst the decisions cannot be ignored, they are in our submission of less value that those of the decisions of the High Court.
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 Electromagmnetic 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:-
The question also has to be raised in relation to human rights, and the obligation of public authorities to take human rights issues into account. In this respect we would refer you to Davis and Anor v Balfour Kilpatrick Ltd and Ors when Mr Justice Jackson said:
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.
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. 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.
Planning Sanity - October 2004 (can be freely used by local communities within their campaigns. Publication by third parties is permitted providing acknowledgement of Planning Sanity is given).