House of Commons - Trade and Industry

Select Committee on Trade and Industry Tenth Report

IV THE ISSUES

40. The principle points of the conclusions announced on 16 March 2001 are —

The system of prior approval has been altered (for the third time) with a single limit of 8 weeks to decide, corresponding to the target time already in place for local authorities to determine planning applications; thereafter the permission will be deemed to have been granted;

Public consultation requirements are to be "exactly the same" as those for full planning permission. There should be no more site notices of the type complained of in evidence to us, a piece of paper attached to some lamp-post and soon vandalised or blown away;

Antennae of over 4 metres on roofs are now to be embraced within the prior approval system;

Fees paid by applicants are to be raised to near the equivalent costs of planning permission fees.

In broad terms, base stations are now to be under the same regime in practice if not in name whatever their height, except that those under 15 metres will enjoy the benefit of permission by default within 8 weeks if the local authority does not object.

Unanswered questions

41. A number of the detailed questions posed in the consultation have not yet been answered: for example, on the regimes to be applied to microcells materially altering the external appearance of a building (Question 9 of the Consultation Document), to radio equipment housing (Question 7) or to alteration or replacement of existing structures with or without a change in height (Questions 4 and 6). We assume that the disregard of very small antennae or picocells, and antennae for local use by, for example, minicab firms will be as set out in the July 2000 draft PPG 8.

Assessment

42. The proposed changes —

entrench the special status of telecommunications operators within the planning system;

entrench the unpopular and confusing prior approval regime, which is unlikely to be introduced in Scotland, or to survive in other devolved administrations;

entrench the existing perverse incentive to operators to put up masts below an arbitrarily chosen height limit: and

continue the system by which some but not all base station planning applications force themselves to the front of the planning queue.[38]

It must be asked what purpose is served by retaining the prior approval regime if it is to be the same except in name to planning permission. The default permission after 56 days for masts below 15 metres is the only perceptible material difference. The operators put much store by the default system within the prior approval regime.[39] Logically, it could as well either be applied to all base stations under a unified regime or dropped as representing the last vestige of "special treatment" for the operators.

43. While we cannot give the 16 March 2001 proposals an unqualified welcome, they do represent a neatly crafted compromise between the concerns of the operators that subjecting all base stations to full planning permission would cause undue delay, and the public sense that the prior approval system unduly favoured the operators over public interest, and allowed for insufficient public consultation. Although two systems remain, meaning a degree of complexity for those within the system, from the point of view of the public they are as alike as they can be. This should meet the objection put forward by local authorities that they have to spend much time explaining matters to members of the public.

Extension of 56 days

44. Experience suggests that the default granting of permission after any given number of weeks — whether 4 or 6 weeks now, or 8 weeks in future — could on occasions obstruct the coming to fruition of negotiations with a local community on alteration in the structure or site. An operator will know that after 8 weeks he will have deemed permission and may feel he has the whip hand. An authority may be driven to a refusal instead of finding a mutually acceptable solution. The Local Government Association told DETR -

" There is no mechanism by which conditions can be attached to an approval, and if amendments to the proposal are required there is not sufficient time to allow for consultation/ negotiation on these."[40]

We recommend that the 56 day period should be open to extension by agreement where such discussions likely to produce an outcome agreeable to all parties are in progress; and that the refusal of an operator of a request by the local authority for such an extension could be good grounds for refusal of prior approval. If the operator felt that the refusal of prior approval was unreasonable, then of course the operator would be free then as now to appeal.

Response from local authority

45. There is no excuse for authorities simply putting prior approval notifications to one side, as a means of tacitly accepting the development without complicity. Examples drawn to our attention of authorities complaining subsequently about a development on which they either took no action or took action too late do not raise the public reputation of the planning system. If prior approval is indeed to be planning permission in all but name, local planning authorities must be under an obligation to make some response to the notification submitted by an operator.

Incentives for mast sharing

46. We do not favour extensive incentives in the planning system for mast and site sharing; they should not be necessary.[41] We do however see some virtue in bringing some applications for mast and site sharing, which might otherwise require full planning permission, within the marginally more "operator-favourable" prior approval regime.

Early consultation

47. Operators are already supposed under existing guidance to consult with local authorities in advance of applications being submitted, under whatever procedure.[42] The authorities and the operators agreed that practice was variable.[43] Local authorities do not generally have the specialist staff to be available and to be able to benefit from an indication of an operator's roll-out plans. Only some can employ consultants or specialist officers.[44] They have found that some operators may inform them of their plans, be warned of difficulties and proceed regardless. The operators suggested that offers of consultation were often refused, and that authorities prefer to see and react to a specific proposal or set of proposals. The operators plans are not likely to be drawn up on the basis of local government boundaries. Opportunities for constructive exchanges seem to have been slight. Nor do we have the impression that all the agents of operators have been equally enthusiastic about pre-consultation.

48. The new regime envisaged in the draft PPG 8 and the 16 March Written Answer is very different. The operators are committed to "obligatory pre-rollout and pre-application consultation with local planning authorities" and to assist planers and local authority members with "professional development workshops on technological developments within telecommunications". Local authorities are expected to come to the discussion table armed with plans which allow for telecoms developments; with sites identified for possible further developments, including local authority land;[45] and having encouraged others, such as the privatised utilities and others with appropriate infrastructure, to consider making masts available. There is to be "partnership between the operator, the local planning authority and the local community", underpinned by a Code of Practice.

49. The snapshot picture presented by evidence submitted to us suggests that there is ample room for improvement. The Chair of the LGA Planning Executive told us that —

"the relationship is maturing...There was a degree of suspicion, almost hostility in some cases, between operators and planing authorities. That is a process which is now beginning to change and I welcome that change very much...".[46]

A more constructive appraisal of alternative sites by all concerned would help. The Inspector's report on the Stanmore case refers in passing to residents suggesting a possible alternative site owned by the Council. The Inspector's report on the Essex cases refers to the failure of the operator to explain why alternative sites suggested the other side of a road could not be acceptable. The appellant in that case had simply stated that the suggestion of an alternative siting illustrated how the authority "has totally failed to understand the function of the microcell and the difficulties of the Code System Operator".

Consultation with communities

50. A number of local authorities and operators have in the past come to mutually acceptable arrangements, such as those we were told about in Hertfordshire involving lamp-post masts replacing lamp-posts, which have then angered local residents. But a local authority's consent to a district-wide plan or to a particular site cannot of course bind those in a particular community. It is envisaged that operators will consult with local communities. Orange state that "any effective solution must involve direct consultation between the local community (typically represented by the local authority) before the site has been chosen...".[47] In practice of course this is difficult. Until a firm proposal emerges, most people are uninterested in the issue.[48] One 2 One note that it "has already experienced examples of community concern over base stations secured by full planning applications".[49] Some of the onus will be on local authorities to develop better means of communicating with those they serve. Vodafone called for the Government to "ensure that the resources and expertise required within local planning will be made available to facilitate improved consultation and communication".[50]

51. There is no reason to doubt that operators and local authorities can co-operate better and engage in dialogue rather than confrontation. But it would be foolish to imagine that a more constructive and professional relationship between councils and the operators and their agents will do much to allay local fears and local resistance to masts. It is essential that those closely affected by a possible development hear about it early, directly and accurately. That is the responsibility of operators at least as much as local authorities.

Conclusion

52. Changes in the planning regime fail to address the main problem, which is that objection to base stations comes not from local authorities but from individuals who suffer from loss of amenity or fear of ill-effects for themselves and their families. Those objecting to developments will naturally see these planning adjustments as having been made in response to the Stewart Report's call for a precautionary approach, and so will not unreasonably expect it to be both easier for them to object and likelier that their objections will be upheld by a local authority and if necessary thereafter on appeal. The first—improved consultation—is an intended consequence of the changes; but there is little ground to imagine that the outcome in terms of whether or not a development goes ahead will be that different. Hutchison 3G record that "changes to the planning system...will be interpreted by communities as being made in order to deal with their concerns over health".[51] Orange say that "simply changing a planning process will never get to the root of the problem..".[52] Unless it is clear that the planning system has a robust way of dealing with health fears expressed by people, the results of the changes will be yet more frustration.