Appeal No. APP/P1615/A/01/1065956

1. The Application
1. This appeal is for a proposed telecommunication installation consisting of a 35m lattice tower with 4 stack dipole antennae, and the transfer of existing equipment and demolition of mast, the erection of cabinet and associated security fencing. On land at Littledean Service Reservoir, off Littledean Hill Road, Cinderford, Gloucestershire.
2. The Siting & Design Case
1. The site lies within a Special Landscape Area. As a consequence of PPG8 paragraph 16 priority should be given to the need to safeguard these areas, in particular reference should be made to PPG7. We shall set out to demonstrate the adverse effect the proposed installation would have in this sensitive area, and how it will conflict with the policies contained in PPG7.
2. The proposed installation will be visible over a wide area. It is therefore our case that the installation if approved will have considerable adverse affects on the visual amenity of the area.
3. The proposal also conflicts with policies within the County Structure Plan and the Forest of Dean Local Plan. We shall demonstrate that the proposed installation will be contrary to these policies. In this respect we argue that the proposed installation will:

1. Adversely affect the natural beauty of the area
2. Cause interference with the character of the countryside

1. Contrary to the obligation on the part of the Appellant to demonstrate that they have considered all possible alternative sites, and the use of existing masts and structures (PPG8 para 21) they have failed to do so We shall demonstrate that this is sufficient grounds for the appeal to be dismissed.
2. The policies on sharing of sites and other structures are replicated within the Licence agreements, and the Regulations that brings them into affect (The Telecommunications (Licence Modification) (Standard Schedules) Regulations 1999(S.I. 2450 1999)) at Schedule 4 Part 2 Condition 10(q), which again have not been adhered to, either by presenting written evidence to the LPA or this inquiry.
3. It is our case that the criteria set out in Annex 1 para 13 of PPG8 which lists factors that may involve siting should be applied to full planning applications, although this section specifically relates to the prior approval process, all these criteria are relevant:

• the height of the site in relation to surrounding land;

• the existence of topographical features and natural vegetation;

• the effect on the skyline or horizon

• the site when observed from any side, including from outside the authority’s own area;

• the site in relation to areas designated locally for their scenic or conservation value;

• the site in relation to existing masts, structures or buildings, including buildings of a historical or traditional character;

• the site in relation to residential property;

• any other relevant considerations.

1. It is our case that the proposed design of a 37m lattice work tower is the most intrusive of all the potential designs, and will as such be visible to a far greater degree that other designs.
2. In relation to the sites existing use, we shall demonstrate by reference to present legislation that this site would not previously have been approved for telecommunication purposes, had present legislation been in force at the time of the original approval. It is therefore our case that the past installation has no justification under present policies and legislation on the erection of telecommunication base stations. The present case must be decided on today's criteria.

1. Coverage
1. The appellants have not demonstrated that the base station in its proposed location is required to the degree set out in legislation. We argue that the operator must show much more information than has been supplied. They must demonstrate that the site in question, and only the site in question, will fulfil the required degree of coverage, in clear and precise terms. Nor do we accept the argument forwarded by BT Airwaves that information on coverage should be excluded from the public on national security grounds, and we shall demonstrate that this information cannot be excluded on those grounds.
2. The Health Case (perception and fear)
1. It is our case that the perception or fear that the local community hold that a proposed development can potentially have an adverse health effect is a material planning consideration that decision makers 'must' take into account, as a consequence of the decision by the Court of Appeal in Newport County Borough Council v The Secretary of State for Wales and Browning Ferris Environmental Services. Coupled to other cases such as R v Tandridge District Council exparte Mohamed Al Fayed and the Case of Hatton and Others v. The United Kingdom (ECHR Application no. 36022/97) and paragraph 29 of PPG8.
2. It is our case that the question of health effects and whether the proposals exceed the ICNIRP guidelines are limited to those effects that are measured by the guidelines and not issues relating to the biological effects, or the mental state of the local community resulting from the fear expressed by the community, and other issues relating to emissions not covered within the criteria that the ICNIRP guidelines are based. As such we shall set out to demonstrate that health can and must be taken into account even where the ICNIRP guidelines are not exceeded.
3. Whilst it is our primary case that the local community do not have to go on to demonstrate anything more than the fear they hold. Nor do they have to present any evidence as to whether there is or is not a provable link between the proposed installation and an adverse health effect. We shall nevertheless set out to demonstrate that there is indeed more of a likelihood of a risk, than there being no such risk by reference to the reports by the BMA, Dr Hyland, Mr Philips and Dr Trower.
4. We shall also set out to demonstrate that there is little or no research that has been produced (at least into the public domain) that categorically demonstrates that there is no harm from the specific emissions created by the TETRA system, as such we shall argue that no reasonable decision maker could conclude on the available evidence that there is no risk to health.
5. Local concerns over the potential adverse health effects were further strengthened by the representation by the appellants sister company BT Cellnet to the Trade and Industry Committee of the House of Commons, which is contained at page 50 of the Tenth Report at para 9 of the memorandum submitted by BT Cellnet which states:

'We believe the risk 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 account 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'.

It is our case that this raises the question of whether it acceptable to allow 3,500 deaths a year on the roads, or whether we should be striving to reduce that level of fatalities. Naturally the answer must be that we cannot accept one death on the roads as being justified, if the inquiry accepts that statement, then it must also accept that it is not acceptable to allow one death from RF irradiation, or potentially put at risk one persons health, even if the adverse health is caused by no more than the anxiety of the adults for the health of their children.

6. We shall produce evidence from Dr Barry Trower commissioned for the Police Federation which points to a range of potential adverse health effects in particular those listed at page 20 of that report:

Two recent surveys printed in Electromagnetic Hazard & Therapy 1998, Volume 9 and 2000, Volume 11; the first of a study of 11,000 mobile phone users, the second a study of 17,000 mobile users showed the symptoms already mentioned of fatigue, headache, warmth behind the ear, warmth on the ear and burning skin in various degrees, depending on the use and type of person. From the 17,000 persons studied, these symptoms varied from 31% to 78% of the users.

7. We shall point to the fact that a local resident of Stockport have been granted leave to apply for judicial review (R v. Stockport MBC exparte Smith) in order to clarify the perception of an adverse health effect in specific relation to phone masts. In granting leave The Honourable Mr Justice Ouseley stated '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'.
8. It is our case that the Stewart Report points over and over again to instances of concerns on potential risk. Para 1.16 sets it out clearly, that there is little research and little published scientific evidence, this fuels the fears of the public. And that is what the perception aspect is about, it is not about some provable link, merely the fear caused by there being no scientific evidence either way. Thus the Stewart Report concludes that a precautionary approach should be adopted.
9. The Stewart Report put it into context when referring to adverse health effects, by pointing to the stress suffered by the local community, caused by the fear of the unknown, rather than the actual irradiation. It is this same aspect that Lord Aldous was referring to in the Newport case, albeit that case was related to waste incineration, rather than the effects of EMF emissions. We therefore put it that we do not have to go so far as proving an actual health link, only the psychological effects of not knowing whether there is or is not an adverse health effect.
10. We shall also point to what Mr Justice Carnwath in R v Tandridge District Council exparte Mohamed Al Fayed (1999) termed right questions to be asked by the decision maker:

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

1. Human Rights
1. We shall demonstrate that there will be a violation of the Human Rights of certain members of the local community. In particular in respect of Articles 6.1; 8 and Article 1 of Protocol 1 of the ECHR.
2. Other adverse effects
1. The trials of the TETRA system in Lancashire has demonstrated that there is an adverse effect upon sensitive electronic equipment, in particular police breathalyser testing equipment (see report from Police Federation). Recent newspaper reports have demonstrated other adverse effects from TETRA installations such as the locking of car security systems (Manchester Evening News - Nov 23^rd 2001), in some cases destroying the systems completely. The AA have indicated there are at least 24 similar locations nationally. These problems are causing the local community some considerable concern, thereby causing stress. The local community have particular concerns about the potential for any adverse effect on life support systems such as pace makers.

 

 

3. The economic case
1. The adverse effect of masts are such as to cause a downturn in the amenity value of local communities living close to masts, with a drop in house prices, children being removed from schools, businesses suffering loss of trade, thereby turning thriving local communities into areas where people are reluctant to live, work, or have their children educated.
2. With TETRA the economic argument is further complicated due to the need for the changing of security devices and other preventative measures to counter the effect on sensitive equipment (see 6.1 above).
4. Wildlife & Domestic Animals
1. We shall demonstrate that there has been little or no research into the effects of TETRA on non human life, and further that the fear of owners of domestic animals and farm stock can and does cause owners stress as to the effect on their pets/livestock. And further real stress is caused to those with concerns for wildlife. We shall also demonstrate that the affect on these animals, especially livestock, can have an adverse effect upon the health of humans, by the effect upon the food chain.
2. The site is reported to be affected by a 'Badger Set', there has been no evidence put forward by the Appellant as to the course of action they propose to take when dealing with this protected species, or any information that they have informed the statutory body charged with granting licences in respect of badger sets, English Nature. It is our case that the Appellant should put before the inquiry details of any remediation measures they intend to take.
5. Previous Phone Mast Decisions
1. There have been 6 planning appeals to the High Court. In two at Thurrock APP/M1595/A/00/1052881 &2 which were appealed to the High Court there was no challenge by either the local authority or the Secretary of State, and therefore the decisions have been referred back to the Inspector for reconsideration (those cases are still awaiting redetermination). One at Guildford APP/Y3615/A/00/1044138, and another at Stevenage APP/K1935/A/00/1045220 were again not contested, and therefore were referred back for redetermination. In another at Basingstoke and Dean BC APP/H1705/A/00/1038665 the case was not resisted by the Secretary of State or the Local Authority, however a member of the local community raised the issue of health but the case was dismissed on the grounds that the issue had not been raised before the Inspector (which is not the case in the present appeal). Which leaves one outstanding appeal before the High Court, however our inquiries at the beginning of November revealed that a decision by the Secretary of State whether to contest the Appeal had not been taken. It is clear therefore that no decision challenging any question (including health) on an appeal of an inspectors decision on phone masts has been 'determined' by the courts.
2. We shall demonstrate that there are a large number of decisions on phone masts, decided on as many grounds as there are appeals. The evidence will show that of the 293 planning appeals involving phone masts that have been heard this year up until the beginning of November, 189 were approved, and 104 were dismissed. There were another 9 appeals on enforcement, 5 of which the enforcement notice was upheld, and in 4 the enforcement notice was quashed and planning permission was granted, there were a further two appeals that were quashed on legal grounds.
6. Conflicts of Policy
1. We will demonstrate that the proposed development conflicts with National, Regional, European, County and Local Authority Policies and Guidance.
2. In particular the proposal conflicts with Regional Planning Guidance10 The South West. In particular policy 5.21 which sets out that telecommunication installations due to the large extent of areas of high quality landscape and environmental sensitive areas it is important that the location and design of equipment for these sites gives adequate regard to their surroundings and potential impact, in particular the policy is to 'promote the choice of location of sites and design of necessary equipment that has regard to local environmental and amenity considerations'. Other policy areas for consideration are 2.1; 2.6 and 3.80.
3. The proposal conflicts with the Gloucestershire Structure Plan Second Review (Adopted Plan) policies NHE2; NHE5; & TEL1.
4. Areas of local authority policies that the proposal will conflict with are policy FC.10; FCL.1 and FBE.2. And policy (R)FBE.16 of the First Deposit Draft Local Plan.
7. Policy & Supporting Documents
1. We will refer to relevant national, regional and local planning policy, court cases and academic and other reports as follows:
2. Legislation

• Human Rights Act 1998
• European Convention on Human Rights and Fundamental Principles: Article's 6.1 and 8; and Article 1 of Protocol 1

1. National Planning Policy:

• PPG7: 1.3; 2.3; 2.14; 3.12; 4.1; 4.8;
• PPG8 (Aug 2001 version): para 29;
• Schedule 2 to the Telecommunication Act 1984 - The Telecommunication Code.

1. Regional Planning Policy: RPG10 South West
2. Local Planning Policy:

• Relevant Sections Gloucester Structure Plan
• Relevant Sections of Forest of Dean Local Plan

8.5 Relevant Court Cases & Planning Appeal Decisions:

• Newport County Borough Council v Secretary of State for Wales and Browning Ferris Environmental Services Ltd
• Lopes Ostra v Spain (A 303-C - 1994
• Powel & Rayner v UK (A 172 - 1990)
• Hatton & Others v The United Kingdom.
• R v Tandridge Borough Council exparte Mohamed Al Fayed
• R v Stockport Metropolitan Borough Council ex parte Smith

• Planning Appeal Decisions - Hillcrest, St Briavel's Common APP/P1615/A/01/1059358 and Lydney Telephone Exchange, Lydfield Road, Lydney APP/P1615/A/01/1059366.

1. Additional List of Documents to be referred to

• Article Police Magazine September 2001 'Airwave goes live in Lancs'
• Article Police Magazine March 2001 'Airwave Radio - Are we receiving the facts ?'
• Police Federation Policy Statement 'Airwave - The new police radio system'.
• Police Federation Report on TETRA - Dr B Trower
• Tenth Report of the Trade & Industry Committee 'Mobile Phone Masts'
• Stewart Report
• News Report - Manchester Evening New 23^rd November 2001 'Signals on the roof puts cars in a jam'.
• National Radiological Protection Board Report on TETRA - July 2001

• Report by Dr Hyland in the Lancet
• Report by Dr Alastair Philips
• National Radiological Protection Board's (NRPB) Report on TETRA dated July 2001
• European Commission Correspondence and Investigation
• European Commission Committee Report & Findings
• Information from Power Watch WEB site
• Data from Electromagnetic News
• British Medical Association - Report 'Mobile Phones and Health'
• New Scientist Page

• Any other documents that Mrs Evans may consider relevant.

1. I shall be calling the following witnesses

• Local Resident
• Local Resident
• Mrs Frankie Evans
• 2 other witnesses to be announced

• Chris Maile - Planning Policy - 'CfPS'
• Dr Barry Trower - Health Effects of TETRA
• Dr Hyland - Affects of telecommunication masts

For all the reasons set out above I ask that the Secretary of State does not confirm this appeal.

Mrs Frankie Evans

December 2001