Memorandum submitted by Mast Action UK
1. Mast Action UK was formed in autumn 2000
and held its Launch Meeting on 13 December 2000 at Portcullis
House at the invitation of Mrs Marion Roe MP. More than 250 people
were in attendance.
2. Since its Launch, Mast Action UK has
achieved more than 100 paid up Members comprising Groups of Children's
Parents or Local Residents Groups across England and Wales and
some from other parts of the United Kingdom and in addition, provides
help for more than 100 other Groups or Individuals who are not
presently Members.
3. Mast Action UK's main purpose for the
future is to avoid confrontation with the Mobile Phone Industry
by achieving understanding that the main concerns relate to the
insensitive siting and location of Masts and Base Stations with
regard to.
(1) Local Schools where Masts are either
sited on School Buildings or grounds close to them without any
consultation with the Children's Parents; and
(2) Residential Areas where Masts are often
placed insensitively close to permanently occupied Local Residents'
homes.
It is not part of Mast Action UK's approach
to object to Masts and Base Stations as being ugly on aesthetic
Grounds of appearance as such, or to proper 3G Network Roll Out.
4. Mast Action UK was formed out of total
frustration at the outcomes of the Planning Process and its perceived
failure to protect, either Children in Schools or Local Residents
in their permanently occupied Homes.
The only protection until the Report of the
Stewart Committee (IEGMP) was to be found in the two Court of
Appeal Judgements in the Newport case 1998 and the Tandridge
Case 1999 where the Courts found that genuine Public concern was
a Material Planning Consideration and that it was for the Local
Planning Authority to place such weight as it thought fit on such
concerns.
However, that appeared to have changed once
the main Stewart Report Recommendations were announced and the
Government stated that it was minded in principle to accept the
Recommendations subject to normal consultation on the Planning
Application Recommendation.
5. Those Main Stewart Recommendations concerned:
(1) Full Planning for all Masts and Base
Stations. Paragraph 1.36.
(2) The adoption of the Precautionary Approach
until more robust research with the relevant issues had been carried
out. Paragraphs 1.20 and 1.21.
(3) Main Beams of the Greatest Intensity
not to fall on School Grounds and Buildings without the Schools
and Parents consent. Paragraph 1.42.
(4) Children to be discouraged in their use
of Mobile Phones. Paragraph 1.53.
(5) Warnings as to the Dangers of Driving
whilst using a Mobile Phone—Paragraph 1.22.
(6) A substantial Research Programme should
operate under the aegis of a demonstrably Independent Panel. Paragraph
1.58.
6. The above were the Main Recommendations,
however the much quoted finding that:
"The balance of evidence to date suggests
that exposures to RF Radiation below NRPB and ICNIRP Guidelines
do not cause Adverse Health Effects to the General Population."
was contained in Paragraph 1.17 of the Main Conclusions.
However in the subsequent Paragraph 1.33 of the following
sentence was added after repeating the Paragraph 1.17 finding:
"However, there can be indirect Adverse
Effects on their well-being in some cases".
However, at the end of Paragraph 1.19 the Report
stated:
"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 gaps in knowledge are sufficient to justify
a Precautionary Approach".
Paragraph 1.20 then recommended:
"In the light of the above considerations
(paragraph 1.18 and 1.19) we recommend that a Precautionary Approach
to the use of Mobile Phone Technologies be adopted until much
more detailed and scientifically robust information becomes available.".
7. Previously on 2 February 2000 the European
Commission's Communication on the Precautionary Principle stated
in its Definition Section:
"Where the science is inconclusive or incomplete
the Precautionary Approach should be maintained."
The Department of Health at its LINK Programme
on Mobile Telecommunications and Health Research Programme Workshop
on 9 February 2001 sought Applications for Collaborative Research
Project Grants to investigate possible non-thermal RF Radiation
Effects—since Thermal Effects were not now the main concern—in
the absence of any published Studies as to the possible Biological
Effects on human beings from RF Radiation exposure at very low
levels over Protracted Exposure Periods.
8. Mast Action UK represents the genuine
concerns of the Groups of Local Parents or Residents who fear
that there may well be Biological Effects causing Adverse Learning
Deficits in young children at schools and other effects on people
living in their homes in too close proximity to the emissions
from Antennae or Dishes on Masts.
There was encouragement that Stewart had at
last identified the problem areas where the current Research into
possibly Relevant Issues was absent. The £7.3 million joint
Government/Industry Research Fund should, over the next three
years, enable some of these possibilities to be independently
investigated further.
However, until those findings are published,
it is believed that a proper Precautionary Approach needs to be
in force.
The advent of the Human Rights Act 1998 which
came into effect in England and Wales on 2 October 2000 has provided
some additional legal protections to support the required Precautionary
Approach and also to ensure that proceedings before Local Planning
Authorities are fair, impartial and independent as required by
Article 6 of the European Convention on Human Rights.
The combined effect of Article 6 and the two
Court of Appeal Judgements in the Newport and Tandridge cases
mean that Local Authorities can entertain objections from the
public at large on any grounds.
That means that it is open to Local Planning
Authorities to consider objections from the public expressing
their genuinely held concerns, both generally and also with regard
to possible Adverse Health Effects. This is the meaning of both
the Court of Appeal Judgements and of Article 6.
Accordingly, it is not correct for the Planning
Minister providing guidance to all Council Leaders in his letter
dated 29th June 2000 to state:
"That it should not be necessary for a Planning
Authority in processing an application to consider the Health
Effects further. Most existing Base Stations already meet those
guidelines and we expect all new Base Stations to do so."
without also making it abundantly clear that that
was merely an expression of the Government's view, which Local
Planning Authorities should consider when considering what weight
they should give to Local Public concern objections.
Unfortunately, most Local Planning Authorities
acting on the advice of their Planning Officers take the view
that the letter dated 29 June 2000 was a Directive from the DETR
which has to be followed and which means that genuine public fears
and concerns on possible Adverse Health Effects cannot be considered.
However, in a letter dated 8 January 2001, the
DETR have explained to Mast Action UK that:
"The letter clearly stated that health considerations
and public concern can in principle be material considerations
in determining applications for Planning Permission and Prior
Approval"
It also said that it is for the Decision Maker
(usually the Local Planning Authority) to determine what weight
to attach to such considerations in a particular case. It is the
governments's view that if a proposed Development meets the ICNIRP
Guidelines (as recommended by Stewart on a precautionary basis)
it should not be necessary for a Planning Authority in processing
an application to consider Health Effects further. This view was
also stated in our draft PPG8 which was circulated for consultation
on 31 July 2000.
Unfortunately, whilst that letter dated 8 January
2001 exists, it has not been circulated as a follow up to All
Council Leaders to ensure that their interpretation of the 29
June 2000 is not erroneous.
10. However, recently two Planning Inspectorate
Appeal Decisions issued in February 2001 in cases in Stanmore,
Middlesex and South Ockendon in Essex have upheld Local Planning
Authority Decisions to refuse consent with regard to Prior Approval
Notifications for Masts under 15 metres in height and made it
clear that is necessary to balance the need of the Network Operator
against the harm to the Local Community. In addition, the Decisions
have made it clear that there is the need to consider possible
alternative sites or ways of achieving the Network Operators'
needs.
11. Article 8 of the Human Rights Act makes
it clear that the right to respect for private and family life
and the home can be interfered with or violated in the Public
interest if it is "necessary". Section 6 of the Act
imposes on the Public Authority—including Local Planning
Authorities —a positive requirement to do nothing which
is incompatible with a Convention Right.
Almost certainly this means that for the future
Local Planning Authorities will have to be much more pro-active
themselves in considering whether there are not other locations
or sites, or other technical means of achieving the Network Operators'
requirements but without "unnecessarily" adversely effecting
Article 8 Rights.
12. At the recent Network Communications
Two Day Mobile Phone Conference on 14 and 15 February 2001, there
were Presentations from various Representatives of the Industry
dealing with a number of aspects of ways to achieve 3G Network
Roll Out. These Presentations included more than one on the possibilities
for the future of both Mast and Site Sharing as the necessary
way ahead to achieve the Roll Out but without an over proliferation
of masts.
There were interesting Presentations from one
of the major Network Operators regarding Roll Out in Switzerland
and also Roll Out in Norway—both being countries with geographical
features which are important and relatively low density populations.
In Switzerland, the Roll-Out after consultation
with Local Communities generally was based in tall buildings and
where these didn't exist, on Modern Masts generally between 25
metres and 45 metres in height, which provided the essential coverage
over a large area and generally above most buildings. In Norway
they tended to use existing buildings but without placing the
Antenna and Dishes on top of the buildings, which was disfiguring,
but using the building as the frame to which the various Antennae
or Dishes could be attached but in a way where they hardly showed
at all. Also, in certain situations, the Antennae were placed
within the building.
13. Here, on the other hand, as a result
of the General Permitted Development Order 1995 (GPDO) the tendancy
was to have Masts of 15 metres or less because that avoided having
to go through the full Planning process and generally avoided
the Local Communities having any say in the process at all.
In addition, due to the density of the traffic,
a number of Prior Approval Notifications were being submitted
for Lamp Post Masts on pavements outside people's residences.
The two Planning Appeals referred to above in Paragraph 10 relate
to such proposals.
Technically, it is understood that there are
many ways of achieveing the necessary coverage, provided the need
can be demonstrated and that it is appreciated now that Local
Home Occupiers have rights under Article 8 not to have the value
of their home diminished unless it can be demonstrated in the
Public Interest that this was "necessary". In the light
of the technological possibilities, as demonstrated abroad, it
seems probable that it would be difficult to show that such methods
of coverage are indeed necessary.
14. It has to be appreciated that in addition
to Local Parents' and Local Groups of Residents', genuine concerns
as to the possible Adverse Health Effects, they are also extremely
concerned at the Adverse Effect which arises when a Mast is insensitively
placed, either outside the front or at the end of the back garden
of their homes. It often means that a negative equity position
can instantly arise or the home becomes virtually unsaleable because
there are choices of other homes without Masts. These are real
concerns relating to the value of their main possession, their
home for which Article 8 and Article 1 of the First Protocol to
the Convention provide some rights.
15. As expressed at the beginning of this
Evidence Memorandum, Mast Action UK and the many Groups it represents,
are not against proper Network Roll Out in England and Wales,
but they are against Network Roll Out in ways which are not necessary
and which can be achieved by different methods which do not possibly
adversely effect their children at their schools and also their
homes.
There is some published evidence relating to
learning deficits in children exposed to RF Radiation in Latvia
and some evidence relating to Adverse Health Effects concerning
the Local Population in Berne, Switzerland. Both of these Studies
are causes for concern until the further robust Scientific Research
into possible Biological Effects has published its outcomes in
2004. Accordingly, it is believed that it is essential that the
Precautionary Approach is properly maintained.
16. Mast Action UK, has over the last two
months, been in helpful discussions with the Federation of Electronic
Industries with a view to trying to reach some form of sensible,
modern approach enabling 3G Roll Out but without unnecessarily
Adversely Effecting the rights of Local Residents and of Parents
concerning their children's education.
It is believed that the two recent Planning
Inspectors Appeal Decisions upholding the Local Planning Authorities'
rejection of Prior Approval Notifications, notwithstanding the
Planning Minister's Guidance in his 29 June 2000 letter, are perhaps
signs that at last the legal requirements are being fairly considered
and the necessary balancing exercise carried out in a way which
does not "unnecessarily" adversely effect people's Article
8 Rights.
In the South Ockendon February 2001 Appeal Decision,
the Inspector stated at end of Paragraph 30:
"If, for commercial reasons, the Appellant
wishes to encourage or facilitate greater use of its product locally,
then alternative ways of providing the infrastructure should be
examined.".
28 February 2001
MAST ACTION UK RESPONSE TO THE DETR CONSULTATION
PAPER ON TELECOMMUNICATIONS MAST DEVELOPMENT
1. This Paper has been prepared by Halsey
Meyer Higgins Solicitors acting on behalf of currently, more than
20 groups or individuals and on behalf of the various groups previously
represented in making submissions and giving evidence to the Independent
Expert Group on Mobile Phone Technology (IEGMP) Chaired by Sir
William Stewart.
2. Counsel's Opinion from and Expert Junior
Planning Counsel was obtained in a long written Opinion dated
18 October 2000. In that Opinion Counsel in Paragraph 36 has stated
as follows:
"(1) First, it is to be noted that local
authorities are to have regard to the Stewart Group's report,
paragraph 78 draft Guidance. If that remains, it must mean that
the whole report is material. Any refusal to do so would arguably
give rise to a ground of challenge.
(2) Secondly, Stewart does suggest regard
should be had in indirect effects on well-being (paragraph 1.33).
Any authority which wholly disregarded them, as opposed to giving
them little weight would err.
(3) Thirdly, as set out above (Opinion, paragraph
34), there are arguably three areas in respect of which the Government
whilst accepting the Stewart report has not in fact implemented
the proposals, ie beams falling on schools, houses etc; consent
from parents to siting on schools and taking into account public
views.
(4) Fourthly, there is the suggestion in
the Stewart report that meeting the guidelines is not good enough,
see paragraph 32(v) above. The decision maker should be looking
to do something more.
(5) Fifthly, tied in with (4), there is an
argument that local authorities should consider a policy of "prudent
avoidance"—which given the adoption of a precautionary
approach is arguably well justified ie are there alternative locations
which are less sensitive, can power be limited to actual operational
requirements with, perhaps, a need to justify any increase. Again
any representation to an authority could make these points and
if they were taken into account—all well and good, if not—a
potential ground of challenge."
3. However, in addition to the above quotations,
whilst Counsel has advised that on health risks alone the Human
Rights Act 1988 Article 8 and First Protocol Article I do not
provide substantial additional assistance, he has confirmed the
view that where "insensitive siting" of Masts and Base
Stations continues to take place AND has an adverse affect on
a person's main possession there may well be grounds to seek compensation
where less damaging alternative sites exist which are less "Stewart
Insensitive".
In such instances it will not only be the Public
Authority but also the Landowner and Network operator who may
be at risk for damages or compensation, particularly where a negative
equity position come about due to the Grant of Planning Consent
for a Mast and Base Station permitted "unnecessarily too
close" to existing houses or property.
4. It would appear that the provisions of
Article 6 of the Human Rights Act may well for the future require
a fairer and more proper hearing by the Local Planning Committee
of objections—with far less reliance upon a summary of objections
being made in the Planning Officer's Report on the Application
to the Planning Committee, coupled with the Planning Officer's
Recommendation.
5. It is probably in this area that in "Modernising
Planning" it will be necessary to change in some respects
radically planning practices and procedures which have existed
for many years without any capability of challenge. Now that position
may, or will have to change.
6. Accordingly, the unfortunate letter issued
by the Planning Minister Nick Raynsford to all Council Leaders
on 29th June 2000 should not now be slavishly followed within
this Consultation and particularly as to the proposed content
of the suggested Revised Policy Planning Guidance Circular PPG8.
That letter from the Minister overlooked taking
into consideration the main Stewart Recommendations, the existence
of the two recent Court of Appeal Decisions in the Newport case
and subsequently in the Tandridge case, now reported at (2000)
JPL 604. In addition, it overlooked the advent of Article 6 of
the Human Rights Act 1998 which became part of the Laws of England
and Wales on 2 October 2000, with access directly to the English
Courts under the Act.
7. It is suggested that the revised PPG8
in its paragraphs 63-81 needs a substantial rethink to ensure
both that the Guidance conforms with the law and that it is consistent
with the Main Stewart Recommendations, which the Government stated
on 11 May 2000 that "it had decided to accept the main Recommendations
subject to the necessary Planning Consultation".
Planning Counsel has stated that much of what
is contained in the Draft PPG8—from paragraph 63 onwards—appears
to be inconsistent with the Stewart Recommendations and the Government's
11 May 2000 Statement accepting the Main Recommendations.
"(b) It is to be noted that at paragraph
72, 4th bullet point the Government accept the conclusion as to
schools and beams of greatest intensity.
(c) It gives guidance as to health matters
and public perception in paragraphs 77-81.
(d) The precautionary approach is adopted
but is made clear that no further precautionary measures should
be taken, see paragraph 81.
(e) Paragraph 77 makes it clear that matters
are still ultimately for the Courts and the decision maker. There
is an express reference to the Newport case in the footnotes.
(f) Paragraph 78 advises authorities to have
regard to the Stewart report. It then suggests that if lower international
guidelines are met it should not be necessary to consider health
effects further. As noted above the Stewart report goes considerably
further than that.".
Counsel has also specifically drawn attention
to the following quotations in Part 8 of the Consultation Paper,
which included the following vital paragraphs:
"(i) As to beams of greatest intensity:
7. The Stewart Group recommended, in
relation to macrocell base stations sited within school grounds,
that the beam of greatest 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 (paragraph 1.42). Where
parents and/or schools wish to know whether the beam of intensity
falls on school grounds or buildings, the school should contact
the base station's operator. The operators have agreed to provide
schools with information on the level of intensity of radio frequency
radiation. This should include an explanation of the way in which
the intensity of the radiation falls off with distance from the
antenna. If there is a major concern from the school or parents,
they could ask the network operator to adjust the antenna.
It does not appear to me that this meets the
requirement as set out in this report.
(ii) As to siting of base stations and
level of output:
8. The Stewart Group recommend that
in making decisions about the siting of base stations, planning
authorities should have the power to ensure that the RF fields
to which the public will be exposed will be kept to the lowest
practical levels that will be commensurate with the telecommunications
system operating effectively (paragraph 1.43). The Government
would expect an efficient mobile network operator to ensure that
this recommendation is met already. As our draft planning guidance
makes clear, in submitting a planning application an operator
should provide the Local Planning Authority with a statement that
the proposed development will meet ICNIRP guidelines. Providing
this assurance is given, it should not be necessary for a planning
authority, in processing an application, to consider the level
of the radio frequency field to which the public will be exposed.
Again, it does not seem that Stewart's view
is being accepted. It appears to me that there is muddled thinking
in equating lowest effective operational levels with merely operating
within the guidelines, although the two may coincide. It may be
possible to operate at a lower level than the guidelines and Stewart
has suggested that this should be undertaken.
(iii) As to consultation:
12. As regards siting, the Government's
view is that the objectives are met by the planning process. When
considering applications for new development local planning authorities
consult local people and take their views into account in making
decisions. Where an authority refuses an application the developer
can appeal to the Secretary of State. Pre-application discussions
with authorities and with local people also have an important
part to play, providing opportunities to explore alternative approaches
to the siting and appearance of masts.
8. All the above issues are such, that unless
sensibly amended they are unlikely to enable, based upon the Revised
PPG8, Planning Authorities to consider fairly and reasonably objections
so that the Objectors, or in many cases a body of Objectors, receive
the necessary Fair Hearing as required under Article 6 of the
Human Rights Act for a Hearing before a Public Authority—in
this case a Local Planning Committee.
As presently drafted, the revised PPG8 is in
a number of respects deficient in Law.
In particular, in paragraph 78 (page 36) line
two the following proviso should be inserted after the words "effects
further":
"Provided also that the authority takes
into account in its considerations the following statement included
in the Stewart Report (paragraph 1.5) also, some people's well-being
may be adversely affected by the environmental impact of Mobile
Phone Base Stations sited near their homes, schools or other buildings,
as well as by their fear of perceived direct effects.".
9. The answers to Questions 1 to 10 are
attached written in the light of this Paper and of Planning Counsel's
Advice.
ANSWERS TO CONSULTATION QUESTIONS—PART
5
Question 1
The existing arrangements do not work and cause
great concern and disquiet. All Mast Applications regardless of
height should require proper consideration of a Full Planning
Application to the Local Planning Authority.
Question 2
Yes.
Question 3
Yes. All Ground Based Masts and Base Stations
should require Full Planning Applications and Approval.
Question 4
(1) No. It should also require a Full Planning
Application.
(2) In both instances any altered or replaced
Mast should nowadays require a Full Planning Application.
Question 5
Yes. The same Full Planning Application requirement
should apply.
Question 6
Probably No.
Question 7
Yes.
Question 8
The Planning Regulations and Guidance Circulars
need to conform to the existing Laws of England and Wales as now
added to by the provisions of the Human Rights Act 1998.
Question 9
Yes. Stewart Recommended that All Masts or installations
should require Planning Consent.
Question 10
Yes. The Revised PPG8 and its "Guidance"
must conform to, and not contravene the decisions of the Court
of Appeal, and now the requirements of Articles 6 and 8 of the
Human Rights Act 1998.
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