Further supplementary memorandum submitted
by BSkyB
Sky is pleased to submit further comments to
the Select Committee about planning and satellite dishes.
In Sky's first submission, and during oral evidence
given to the Committee on 20 December 2005, Sky argued that the
treatment of satellite dishes under planning law is discriminatory
compared to that affecting terrestrial aerials and that such discrimination
is unjustified. Sky illustrated this by displaying a satellite
dish and a digital terrestrial aerial. Further photographic evidence
to support Sky's argument can be made available if the Committee
wishes.
The Minister for Housing and Planning, in her
written statement of 27 October 2005, accompanying the (long-delayed)
new planning regulations for satellite dishes and other antennae,
claimed that these regulations are "consistent with the requirements
of technological neutrality in the Electronic[7]
Communications Act 2003". Sky considers that this claim is
ill-founded.
The revised planning regulations made modest
changes to the number of dishes which could be installed and where
these could be sited without requiring planning permission. In
summary, the new regulations will permit the installation of two
dishes (previously one) without planning permission on a dwelling
house and buildings less than 15 metres in height and four dishes
(previously two) on buildings more than 15 metres high. In addition,
new siting rules will allow dishes to be above the roofline where
there is a chimney on the property, provided the dish does not
protrude above the chimney stack. If the property is in a designated
area, the dish should not be capable of being seen from a road
(or a waterway in the Broads).
Such detailed and prescriptive regulations have
never applied to terrestrial aerials which can be installed anywhere
and in any number on a property. This continued discriminatory
approach has particular implications for residents of blocks of
flats greater than 15 metres in height who (once four dishes have
been installed) will have to go through the costly, bureaucratic
and often slow process of obtaining planning permission—or
rely upon the agreement of freeholders, leaseholders and other
tenants (as appropriate) to install an integrated reception system.
Moreover, the perpetuation of the view that
dishes are to be treated as development, whereas aerials are not,
works against the Government's desire to promote switchover and
achieve it in the desired timescales. Satellite has near universal
coverage in the UK, thereby making digital TV accessible to 98%
of the population—provided they are able to install a dish.
LEGAL BACKGROUND
Section 4 of the Communications Act 2003 ("the
Act") sets out Ofcom's duties for the purpose of fulfilling
Community obligations. These duties include, inter alia:
". . . a requirement to take account of
the desirability of Ofcom's carrying out their functions in a
manner which, so far as practicable, does not favour:
(a) one form of electronic communications
network, electronic communications service or associated facility;
or
(b) one means of providing or making
available such a network, service or facility over another."
In other words, the Act requires Ofcom not to
discriminate between technologies in carrying out its functions.
The source of Section 4 of the Act is Directive
2002/21/EC ("the Framework Directive") of the European
Parliament and Council on a common regulatory framework for electronic
communications networks and services. That regulatory framework,
implemented through Part II of the Act, is intended to create
conditions for effective competition in the converged sectors
of telecommunications, media and information technology. Recital
18 of the Framework Directive requires Member States to:
"ensure that national regulatory authorities
take the utmost [emphasis added] account of the desirability
of making regulation technologically neutral, that is to say it
neither imposes nor discriminates in favour of the use of a particular
type of technology . . ."
In Sky's view, the revised planning rules contradict
the requirement for technological neutrality and non-discrimination,
by discriminating against satellite technology as a means of delivering
services. They also, therefore, run counter to the aim of the
Framework Directive of fostering competition between platforms.
EUROPEAN COMMISSION
COMMUNICATION
Further evidence to support Sky's view that
the new planning rules are not consistent with EU policy (or,
indeed, UK stated policy) on technological neutrality can be found
in the European Commission's Communication concerning the use
of satellites dishes[8].
Sky acknowledges that a Communication has no binding legal force;
nonetheless, it is a clear statement of the policy which the Commission
considers Member States should adopt.
According to the Commission:
"any obstacles to freedom of choice, discrimination
between the alternatives means of receiving services, or indirect
restrictions on the right to use a satellite dish are unacceptable.
The defence of the fundamental principle of the free movement
of services within the Single market requires national authorities
to be neutral with regard to the various technological means available
to users and their use.
This implies that authorities have an obligation
not to adopt or maintain in force any regulations which are an
obstacle to the use of satellite dishes, or which give preference
to other types of reception. It would therefore be unacceptable
to make it easier only for a specific type of user to install
a satellite dish, or to restrict this option to situation where
certain channels or services are not already available by cable."[9]
The Commission recognises that it is legitimate
for a planning system to attempt:
"to reconcile aesthetic considerations with
the fundamental right of any interested individual to have access
to information and services by installing a satellite dish"
but stresses that:
"such restrictions must indeed be duly substantiated,
and the aesthetic considerations must be real and not merely a
pretext. In addition, given the principle of proportionality,
these restrictions cannot be applied in general."[10]
The Commission considers that it might be acceptable,
for example, to give preference to placing dishes so as not to
be visible from the street or to require a shared dish for a reasonable
number of users, although it states that the option of setting
up a private dish should remain if a dispute arises. However,
the Commission also makes it clear that any conditions must still
technically permit the individual to receive the broadcasts he
wishes to receive under reasonable conditions and at a reasonable
cost.[11]
The Commission explains what it means by reasonable
conditions and at reasonable cost. It states that it would be
contrary to Community law to establish authorisation procedures
which were not easily accessible, quick and of affordable cost
to the economic operator or the individual (particularly when
compared with the cost of installing a satellite dish).[12]
Thus, insofar as a Member State is able to justify the application
of a planning regime to satellite dishes that differs from that
applying to terrestrial aerials, the process and cost of obtaining
planning permissions must be simple and affordable.
CONCLUSION
Having regard to the Communication, Sky considers
that:
(i) given that the cost of a standard installation
of a Sky satellite dish by Sky ranges from zero to £120 (depending
on whether the customer chooses also to take a subscription for
television services from Sky), a planning application fee of £120
is disproportionate and thus operates as a barrier to people taking
up satellite; and
(ii) requiring householders to obtain planning
permission (and, in particular, prior permission) for satellite
dishes not falling within the scope of permitted development rights
goes further than is strictly necessary to achieve the Government's
stated aim to protect the environment from unnecessarily large,
unsympathetic or poorly sited dishes; furthermore the procedure
is neither quick nor straightforward, thus discouraging the use
of satellite dishes.
Accordingly, Sky considers that in revising
the planning rules and continuing to regard satellite dishes as
development, whilst accepting that terrestrial aerials do not
fall within the definition of development or are to be treated
as de minimis, the Minister has failed, despite her statement
to the contrary, to adopt the principle of technological neutrality
or abide by EU policy in the area of the use of satellite dishes.
Instead, the Government is carrying forward the current bias against
satellite to the digital era.
2 February 2006
7 The Minister presumably intended to refer to the
Communications Act 2003, Part II of which implements the package
of EU Directives covering electronic communications networks and
services. The principle of technological neutrality is fundamental
to that package of Directives. Back
8
Communication from the Commission on the application of the general
principles of free movement of goods and services-Articles 28
and 49 EC-concerning the use of satellite dishes (COM (2001)351). Back
9
Commission Communication, page 18. Back
10
Ibid, page 15. Back
11
See ibid, page 15. Back
12
See ibid, page 10. Back
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