APPENDICES TO THE MINUTES OF EVIDENCE
APPENDIX 1
Memorandum submitted by the Campaign for
Planning Sanity
CfPS is an advisory group to local communities
on adverse development proposals. An increasing part of inquiries
we receive is on telecommunication base stations, which is now
running at between 15 to 20 new inquiries a week, as opposed to
other forms of development being in the region of four to five
inquiries per week.
CfPs only deal with the planning aspects of
a development, although some areas overlap, in the case of telecommunication
base stations it is the issue of health that has the overlap.
The two main areas of contention that come up in virtually every
local community is that of health, and the feeling of frustration
of not being able to make full representation, and having those
views taken onboard.
CfPS is very keen to be able to make a verbal
presentation to the Committee on the planning aspects of the telecommunication
masts, not simply the permitted development procedure, but also
those applications that come within the full planning regime,
coupled to the concerns expressed by local communities.
PERMITTED DEVELOPMENT
AND TELECOMMUNICATION
BASE STATIONS
Whilst there may very well be an arguable case
for limited permitted development of minor installations, such
as antennae and dishes for home and small business reception,
CfPS are of the firm belief that there is no case for continuing
to allow permitted development of base stations for the reception
and transmission of commercial and industrial signals (including
tetra system, now being put into use by emergency services).
In order for there to be public confidence in
the planning system then the public must have the ability to have
meaningful input into the decision making process, not simply
a cursory right to submit a written objection (or letter of
support). Whilst CfPS is of the view that it is a general
failing of the planning system in the United Kingdom that the
communities affected by developments do not have a right to greater
representation at stages of the decision making process. Permitted
development is an inferior system for such objections being made,
and taken on board.
FULL PLANNING
PROCEDURE AND
TELECOMMUNICATION BASE
STATIONS
The decision making process by being brought
within the full planning process, allows greater consideration
to be given to half a century of planning evolution and good practice.
To allow issues other than the present limited grounds of siting,
design and amenity to be factors to be taken into account. Such
limitations do not allow for local conditions to be taken into
account, tying the hands of local planners, thereby preventing
proper management of local and regional planning strategies.
THE NEED
FOR AN
EFFECTIVE APPEAL
STRUCTURE
An effective appeal structure that will allow
representation by third parties is needed, generally within the
planning process, but specifically for telecommunication base
station applications, because of the public concern over these
structures.
Many local authorities now have area committees
that consider local issues, it would be a simple process to grant
these committees the appellant status required. The structure
for such appellant committees could very well be on a similar
basis to other tribunals that are panelled by local authority
members. It would be cheap, efficient and undertaken without undue
delay.
Decisions of such a tribunal would still be
susceptible to being overseen by the courts, preferably on cost
grounds by the County Court, under a similar regime to that of
a Section 288 planning appeal. Or alternatively by way of judicial
review. The advantage of the tribunal system would allow many
cases that would otherwise be the subject of applications to the
courts. It would also allow local communities to put forward in-depth
representations, whilst not becoming financially crippling for
those participating, and would be heard locally to the proposed
development, thereby allowing more members of the public to attend.
NOTIFICATION OF
PROPOSALS AND
PUBLIC CONSULTATIONS
Whilst it is true that Operators are required
to put up "one notice" the fact is that often these
notices are in obscure places, damaged by the weather and vandals.
CfPS hear over and over again complaints from local communities
that they were not aware of the proposals until after they have
been approved. This is despite the indication that pre-application
discussions should take place with interested organisations, such
as residents groups, parish councils and amenity bodies (see
paragraph 21 DETR Circular 04/99), very few if any such discussions
take place, It would then be appropriate to turn this into a statutory
obligation. To do so would relieve much of the anxiety of local
communities, however providing those consultations were meaningful,
and not simply a PR exercise on the part of the operators.
These pre-discussion meetings could usefully
resolve many problems, by allowing the public to voice concerns
on design, suggest alternative less obtrusive locations, enable
potential sensitive locations to be drawn to the attention of
the operators. These discussions would also enable participation
by the local authority, both of officers and elected members.
In this way every section of the community would be aware of the
proposal, and would have reasonable opportunity to comment before
the application is submitted. However, this should be as an addition
to the right to make formal representation to the planning committee.
Whilst it is fair to say that a number of local
authorities to their credit do send out additional notices in
line with the policy contained in paragraph 8 of Annex "A"
to DETR Cir 04/99. However this is not universal, and quite often
when notices are sent to local residents, the numbers notified
are very small, and infrequently, those most affected are not
sent notices, whilst those that are not quite so affected are
sent letters.
By bringing the requirement into the normal
procedure of putting a notice in the local paper, as well as informing
local residents, and putting up site notices, a far greater number
of local residents would become aware of the proposals. In addition,
these would be a greater chance that the local media would follow
up the official notice with a story, thereby ensuring the maximum
publicity for all applications.
HEALTH RISKS
THE PERCEPTION
OF FEAR
Whilst CfPS accept that there is no conclusive
evidence either for or against whether there is or is not a health
risk from telecommunication base stations. The reality is that
there is a "real" health effect from the "perception"
that telecommunication base stations are harmful to health. The
Court of Appeal in Newport County Borough Council v the Secretary
of State for Wales and Browning Ferris Environmental Services
Ltd (1997) concluded that the perception of a health risk
by the public was a material planning consideration.
Lord Justice Aldous stated in his final paragraph
of the judgement in that case:
"In my view the judge was wrong to come
to that conclusion. The Circular does not have that meaning. The
Circular states that local opposition is not a reasonable ground
for refusal. Mr Howell did not suggest that it was. However, there
is a difference between local opposition and a perceived fear
which by itself could affect the amenity of the area. The Circular
makes it clear that if there are planning reasons, refusal may
be reasonable. 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.
That being so, I conclude that the judge wrongly interpreted the
Circular".
Clearly the public have a perception that there
is a health risk from telecommunication base stations, that perception
is real and tangible. There are many instances where people have
become obsessed with the fear, thereby seriously affecting their
health. An example of this is the middle aged gentleman in Ashton
in Makerfield who recently had a pacemaker fitted, and now refuses
to leave home because to do so would mean that he needs to walk
past a base station. He believes the emissions from the base station
would interfere with his pacemaker, potentially causing it to
malfunction, and thereby threatening his life. The issue is not
whether the mast will, or will not interfere with his pacemaker,
but his perception that it will.
CfPS therefore believes the Government was wrong
to advise planning authorities not to take into account health
risk factors, in determining telecommunication base stations.
Most certainly the Government could point to the need to be certain,
that the planning decision maker should give less weight to the
unproven effects of a development. But equally, it was wrong to
impose a ban without any consideration, of the perceived health
risk. The perception of a health risk is and must remain a valid
material planning consideration. To lessen that consideration
would remove the sole source of protection where health concerns
are an issue, not simply in telecommunication applications, but
in developments such as waste, chemical and nuclear installations.
A FEW ILLUSTRATIONS
Lechlade—Cotswold District Council
The Lechlade mast is in the form of a "flag
pole", sited on a marina in a residential conservation area,
it is also an area of special advertising control. Whilst the
mast, and the advertising flag were considered as a full planning
application, although it was only a 15 metre high mast, and therefore
susceptible to the permitted development procedure. However the
flag that will fly at a height of 18 metres, could be considered
to have been unlawfully approved, as Schedule 3 to the Town and
Country Planning (Control of Advertisements) Regulations 1992
(as amended) sets out that in areas of special control, approval
cannot be granted for a flag that will be displayed at a height
greater than 3.6 metres from the ground in a controlled area.
The justification for the mast was that the
design was acceptable in a conservation area because it would
not be out of place disguised as a flagpole at a marina. But as
we have just shown, approval for a flag cannot be given for a
height greater than 3.6 metres. The justification fails at law,
and the mast is therefore unlawful. However at the present moment
in time, unless the local community can afford the cost of a judicial
review they have no redress to this unlawful decision. Especially
as the flag has only recently been fitted, yet the decision was
given in October 2000, thereby affecting their chances of obtaining
leave to apply for judicial review.
The Environmental Health Officer has concluded
that the noise from the rope of the flag, banging against the
mast, is such that it is a statutory nuisance, and is requiring
the operator to cease the nuisance, or it will issue an abatement
notice under Section 80 of the Environmental Protection Act 1990.
Under present planning procedure the prospect of this could not
be taken into account in the decision to grant or refuse permission.
Except if a case could be made out that the noise (not at that
stage proven) will adversely affect the amenity of the area,
which it clearly does.
The effect for the inhabitants of Lechlade is
that they have a mast, that is causing them perceived fear, that
has been unlawfully approved as a flag advertisement, and is causing
a statutory nuisance.
Gatley—Stockport Metropolitan Borough Council
Much is made of the need to adopt the precautionary
approach to telecommunication base station applications, coupled
to the need for exclusion zones. The Gatley mast demonstrates
the futile protection now afforded should the Government adopt
these measures. That is the erection of a mast on a public highway
(imitation lamp-post, placed on footpath in a residential area).
It would simply be impossible to impose an exclusion zone
around a mast placed on a public highway. Yet more and more of
such applications are being made, as operators find it increasingly
difficult to find sites, where the owners are prepared to allow
the masts to be erected.
The Gatley decision is now the subject of an
application for judicial review, on grounds including those of
failing to take into account the perceived health effects in the
decision. And the need for a fair hearing that is not at present
afforded third party objectors, thereby contrary to Article 6.1
of the European Convention on Human Rights and Fundamental Freedoms.
It is plainly wrong that local communities,
or individuals in those communities must challenge applications
through the courts as the only effective remedy they have to ensure
their case is properly taken into account.
CfPS are calling for a basic change in the system
to include the following:
— Removal of permitted development
rights from all telecommunications developments;
— Such developments to be brought within
the remit of the Town and Country Planning Act, with special emphasis
being placed on the need to advertise the proposed developments,
thereby giving local residents the right to submit comments on
any proposals;
— Government planning policy guidance
to be revised to remove the bias in favour of the telecommunications
industry and to include the provision on the need for an environmental
impact assessment;
— The banning of the siting of any
Telecommunications Development within a given distance (CfPS believes
that 300 metres is the minimum acceptable distance) of any sensitive
existing developments such as schools and hospitals;
— Telecommunications operators should
be obliged to consult the local planning authority on their plans
for the ongoing in-filling of their network by submitting strategic
roll-out information at regular intervals so that it may be organised
to minimise environmental impact, and to allow greater integration
of services between operators;
— All applications for planning permission
should be subject to a sequential test approach, with a clear
obligation on operators to demonstrate the need for any given
site over that of others in the same locality. Within that sequential
approach the first obligation of operators would be to demonstrate
that all existing sites (including those of other operators) have
been taken into account and demonstrated as not viable before
they can move further through the planning process;
— As a planning obligation operators
to be required to erect signs warning of the potential danger
from the masts. To erect a physical barrier (three metre high
fence, of a suitable design). And to take all reasonable precautions
to prevent harm to local inhabitants, wildlife, flora or fauna;
— An obligation on the part of the
operators to move existing masts on sites close to sensitive development
such as schools and hospitals;
— A levy to be placed upon phone users
to pay for Government backed research into health and other adverse
effects of masts and phones;
— To put in place a simple and inexpensive
appeal structure for third parties;
— A legally binding obligation to hold
pre-application discussions with local community and amenity groups.
20 February 2001
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