Planning control is all about policy, writes Kim Franklin. The government makes the policy, which is applied by the planning authorities and policed by the planning inspectorate. Only if clear policy is misapplied can the courts intervene - at least, this is the theory. There is, however, a human element behind this which can be characterised in various ways but usually involves some powerful financial interests and a group of individuals. If the powerful interests happened to be providers of mobile telecommunications and the individuals are school children, you can see how the application of clear policy might be skewed by human interest. This is what appears to have happened in the recent case of T-Mobile UK v The First Secretary of State and Harrogate Borough Council (Judgment 12.11.04).
The case concerned a telecommunications mast in Harrogate that had been used by T-Mobile since 2001. In 2003, it wanted to build a more substantial mast so that two additional companies, Hutchinson 3G and Orange, could fix a further nine antennae and six dishes on it. Harrogate council refused the application on the traditional grounds that the bulk and massing of the proposed mast would detract unreasonably from the local amenities.
The three companies appealed. The planning inspector dismissed their appeal but on different grounds from the planners. He found against the mobile phone companies on the more topical grounds that the mobile telecommunications equipment was a health risk, particularly if base stations are sited near schools. In this case, three schools were within 500m of the site of the mast.
Because concerns have arisen in recent years about the possible dangers arising from the use of mobile phones, the government established an independent group to examine these effects. This resulted in a report by the Stewart Group in April 2000. Even though it found that 'the balance of evidence indicates that there is no general risk to the health of people living near to base stations', the report recommended a precautionary approach.
Accordingly, the Stewart Inquiry recommended that the International Commission on Non-Ionising Radiation Protection (ICNIRP) guidelines be adopted. They specifically considered the siting of masts near schools and made detailed suggestions as to the areas on which the beam of greatest radio frequency should or should not be allowed to fall. The government broadly accepted the Stewart report and on 22 August 2001 Planning Policy Guideline 8 (PPG8) was issued, which dealt with the planning aspects of telecommunications.
PPG8 contained the following guidance:
l Health considerations can be material in determining applications for planning permission.
l It is the government's firm view that the planning system is not the place for determining health safeguards.
l If a proposed mobile phone base station meets the ICNIRP guidelines for public exposure, it should not be necessary for a local authority to consider health aspects further.
The planning inspector acknowledged the mast would comply with ICNIRP guidelines. However, he went on to rely on the Stewart recommendations, which assumed young children may be more vulnerable to the effects of electromagnetic radiation. He concluded there was insufficient reassurance that there would be no material harm to the living conditions of the young children at two of the three local schools upon which the beam of greatest intensity fell. The Court of Appeal found that the inspector had misunderstood PPG8, the thrust of which was that the planning system was not the place for determining these issues. It was, the court found, 'a classic piece of planning policy'. Thus by considering health issues, the inspector had departed from government policy. While he was entitled to do so, he would have to justify it as an exceptional course. The fact that the beam fell on two schools was not exceptional.
It seems the inspector's findings in respect of the potential threat to local schoolchildren's health did not amount to reasons for departing from clear government policy. His failure to apply that policy entitled the courts to overturn his decision.
Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers. Visit www. crownoffice chambers. com