Sample Closing Submission for a TETRA Public Inquiry by local residents

This appeal has heard evidence that the proposed installation will be contrary to planning policy at local, county and regional level, as well as being visually intrusive in an AONB, and that the local community holds an real fear that the proposals will effect their health. Other areas that have been raised are questions as to whether the Appellants have demonstrated a need for the installation on the site in question, and whether these issues are sufficient grounds to enable the Inspector to uphold or reject the appeal. I argue that it is clear from the evidence presented coupled to the various documents before the inquiry, and past precedents that this appeal should not be upheld.

There are major questions relating to health hanging over the whole topic of the TETRA system, as well as questions relating to the commercial viability of TETRA should the Ambulance and Fire Brigade fail to take up the system. And of course a major question mark hanging over whether the Police Federation will eventually recommend to its members to boycott the system. All of this puts into doubt the long-term future of TETRA, which opens up the issue of need, which in my submission is one of the major questions that the Inspector must address. If the Operator cannot demonstrate that there is a need for this development then approval cannot be justified, and, as such the appeal must fail.

Para 29 of PPG8 sets out that heath can be a material consideration, it then goes on to say that it is for the decision maker to decide what weight if any to attach to health or fear. In this respect I would put it this way, the decision-maker can attach considerable weight to health as a consequence of para 29, the fact that the following paragraphs in PPG8 seek to severely confine that consideration is unrealistic given the nature of public concern. If the public concern is capable of being a material consideration then it must be capable of constituting a reason for refusal. Indeed the High Court in Regina v. Stockport Metropolitan Borough Council exparte Smith have granted leave for judicial review because the local authority failed to consider health. In that case 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".

A copy of the Order being attached at my Appendix 'N'.

That I believe fairly sets out the argument, especially when taken with the arguments that I advance in my proof of evidence, in relation to the precautionary principle. In particular I would refer to paragraph 89 of the Appendix of PPG8 which states:

"the possibility of harm cannot be ruled out with confidence and that the gaps in knowledge are sufficient to justify a precautionary approach"

Health cannot be disassociated from the precautionary approach as set out in the Masstrict Treaty, and restated in not simply the Stewart Report but also PPG8, and other Government advice notes. It has been accepted within this inquiry, indeed even the Government accepts that fear can affect the health of the local community. That being so we have to do no more than look to see whether the present case is one where the fear is so tangible as to override the need for this installation. My argument starts first and foremost with the precautionary principle. If there is a fear, and that fear is not so irrational that members of the community could not possibly believe that fear, then the precautionary principle must hold sway over the decision making process.

We have looked at the Reports by eminent scientists, as well as reports by Government bodies such as the Stewart Group and the Medical Devices Agency who indicate problems all of which require further research. They are the very criteria that the precautionary approach envisaged. Which is where uncertainty prevails then precaution must also prevail. But in the case of the interference with medical equipment, it is not unproven, but a provable fact established by the Medical Devices Agency, as is the effects on other equipment, which was reported on to our knowledge as early as 1999, so much so that all the organisations involved, including the Police Scientific Development Branch (see page 2 para 3 of the report in Engineering my Appendix P and the Manchester Evening News Article at Appendix J)

In Guerra and Others v Italy (1998) the European Court of Human Rights found that there was a violation of Article 8 of the Convention where the authority failed to release information that enabled the local community to make a decision as to the harm a local chemical works was causing to their health. The important thing to note from that case is that the "circumstances" do not have to have been created by the government or public authority involved; it is that they had the power to stop or avert the problem and did not do so.

The factual background to this conclusion was a history of incidents at the works, including one explosion in 1976 where 150 people had to be hospitalised with acute arsenic poisoning. The complaint was against the local authority for failing to act. The applicants could not show that they had been directly injured by that failure. They claimed an order against the State to decontaminate the area and to carry out an epidemiological study to identify the health effects of the past emissions.

The notable feature about the judgment is the emphasis upon a positive obligation to inform local people about health matters. That extends beyond a duty to provide existing environmental documents (as is provided for domestically in the Environmental Information Regulations 1992) but also to carry out and publish a review of the health risks if circumstances warrant it.

On the one hand we have the situation that the Government say there is no health risk (yet can point to no conclusive proof) if the guidelines are not exceeded. The primary issue here is not is there a health risk, but what is the state of mind of the local community. That has been more than adequately demonstrated, and I do not propose to expand upon the question of their state of mind further.

The question of whether health is a material consideration has also been considered in depth. Without question it is, indeed PPG8 says it is, so does the High Court in Regina v. Stockport MBC exparte Smith when it granted leave to seek judicial review. And of the Court of Appeal in the Newport and Al Fayed cases have clearly stated that it is. A whole list of European cases could be quoted, Hatton, Rayner and Powell, Bulmer and so forth. That being the case all that is left for the decision-maker is decide what weight he will attach to the fear the community holds.

There is widespread fear of the effects on the health of local people from phone masts generally, and in particular those using the TETRA system. Whilst this concern may have as its basis newspaper and other media reports, nevertheless it has at its heart, not rumour, but hard scientific evidence.

We have heard how the Stewart Group recommend due to concerns they held that 16Hz amplitude modulation should be avoided, You have seen the report by Barrie Trower which sets out in plain English the effects of the TETRA system, the letter of Dr Preece, and Dr Hyland, we have see the report of the Medical Devices Agency and the British Medical Association, as well as numerous media articles, all of which point to a problem with TETRA. As an illustration of that I would refer you to the BMA report on the effect on the eyes, an area that seems to have been ignored by the majority of researchers in this country (found at appendix 'C').

"The eye has limited capability to dissipate heat and is not protected by bone like the brain. Hence, the Royal Society of Canada has concluded that the possibility of adverse effects to the eye by RFR should be treated with caution and concern. Studies have demonstrated that high level (thermal) exposure to RFR may produce adverse effects in the eye, particularly in the retina, iris and cornea....."

In similar vein we could revisit all of the numerous reports and demonstrate the adverse effects that will result from this technology.

Lord Justice Aldous said in the Court of Appeal in Newport County Borough Council v Secretary of State for Wales and Browning Ferris Environmental (1997):

"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"

This sets the scene for the likely view that the courts will take on the fear that local communities hold in relation to phone masts, and in particular TETRA systems. This is further demonstrated in Regina v. Stockport MBC exparte Smith when granting leave for judicial review which I have already referred to. Clearly from this it can be seen that if health is not given due consideration then the courts will look to overturn the decision. That is not simply a matter of giving lip service to the issue, but instead the issue must be set out in clear and precise terms.

Siting and Design

The site is within an AONB PPG8 provides that in relation to sites within such special areas of protection greater consideration should be placed on the siting of the installations than in other locations (included within this would be Coastal Protection Zones). Para 16 stating:

"In accordance with PPG7 high priority should be given to the need to safeguard areas of particular environmental importance. In National Parks and Areas of Outstanding Natural Beauty proposals should be sensitively designed and sited and the developer must demonstrate that there are no suitable alternative locations".

In my submission the Appellant has not demonstrated that such special circumstances apply to this installation, and therefore the local authority were correct in refusing the application, and the Appeal should be dismissed.

As I have set out in my evidence, it is not only the physical health of the population that is at risk, it is also the welfare and economic stability of communities where masts are sited. The adverse effects of TETRA installations can affect sensitive electronic equipment, in particular police breathalyser testing equipment, the locking of car security systems, and medical devices such as pacemakers and hearing aids. These problems are causing the local community some considerable concern, thereby causing stress. The result is that local communities are reluctant to send children to schools close to masts, many people are attempting to sell property which they are finding impossible, and therefore areas close to installations are seeing a downturn in.

Catherine Harris - February 2002