Select Committee on Trade and Industry Appendices to the Minutes of Evidence



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.


  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.


  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.


  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.


  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.


  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.


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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