England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HON. MR. JUSTICE CARNWATH

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 December 1999

LORD JUSTICE SCHIEMANN:

Mr Al Fayed appeals a judgment delivered on 14 January 1999 by Carnwath J.. The judge had before him an application for judicial review of a decision by the Council to grant to Mercury Personal Communications Limited^[1] planning permission for the erection of a radio telephone base station tower on a site some 1.4 Km from the appellant's property. The judge held that there had been a flaw in the decision making process of the council but, as a matter of his discretion, refused to grant the applicant the relief he sought, namely, the quashing of the grant of permission. The appellant accepts that the judge had a discretion whether or no to grant the relief sought but submits that the judge was plainly wrong in the way in which he exercised it. The appellant further submits that there were more flaws in the decision making process than the judge was prepared to find. The Council submits that the judge erred in concluding that there had been any flaws but that he was right in the way he exercised his discretion.

Prior to the grant of planning permission the appellant had submitted to the council an objection to the proposal. So far as presently relevant this was based on the possible dangers from electromagnetic fields emanating from the tower. Those dangers he submitted were posed to those in the vicinity which included himself. Included in his letter of objection were copies of the recommendations of the European Commission Expert Group and some additional papers on RF Radiation sent to him by the National Radiological Protection Board.

The present state of scientific knowledge is not in dispute between the parties. It can be summarised as follows. While in certain circumstances persons can be exposed to danger from the thermal effects of radiation there is no reason whatever to suppose that those circumstances are of any present relevance because all the local residents, including the appellant are well outside the range within which thermal effects can pose a danger. The objection is based on allegedly possible other effects of radiation in particular that the radiation causes cancer . No scientific evidence exists which demonstrates that there are any such other effects. However, the scientific community is continuing to research whether any such other effects can be demonstrated and if so in what circumstances.

The Radiological Protection Act 1970 established a National Radiological Protection Board (" the NRPB") whose function it is to conduct or sponsor research into radiation hazards and to give advice to persons with responsibilities in the UK in relation to the protection of the community from radiation hazards. Before the Judge was unchallenged material from a Dr McKinlay who is head of the NRPB's Non-ionising Radiation Department and also chairman of the European Commission Expert Group – and thus a person familiar with the material which the appellant had enclosed with his letter of objection.

He deposed as follows. Everyone is exposed to electric and magnetic fields arising from a wide variety of sources which use electrical energy both at home and at work. Everywhere that TV or radio signals are received there must be a radiofrequency field and low level exposure is therefore ubiquitous in modern society. It is accepted by national and international scientific bodies with responsibilities for providing advice and protecting people from possible adverse health effects from exposure to electromagnetic fields, that effective protection can be provided by adherence to recommended exposure restrictions. Such restrictions are incorporated in published national and international guidelines. The current position of the NRPB is that compliance with its recommended basic restrictions will prevent any adverse effects on human health due to exposure to electromagnetic fields. The position of the NRPB, the EC Expert Group and the International Commission on Non-ionizing Radiation Protection was that there was no convincing scientific evidence that exposure to radiofrequency fields at the levels normally encountered by people causes any adverse effects on health.

Also before the judge was the unchallenged evidence of Professor Ramsdale. He explained that the NRPB sets investigation levels for exposure to electromagnetic radiation. These investigation levels are used to demonstrate compliance with the NRPB's basic exposure restriction. If an investigation level were to be exceeded this would trigger further investigation although it would not automatically mean that a basic restriction had been exceeded. The predicted power density level at the nearest house was 20,000 times lower than the NRPB's investigation level. The level at the appellant's house was nearly 3 million times lower than the investigation level.

Naturally, local councillors and their officers are not expected to have any deep knowledge of radiation. The Secretary of State has issued a Planning Policy Guidance Note 8 which tells councils that "Radiation safety is a matter for the Health and Safety Executive (HSE). As part of the wireless telegraphy licensing procedures applicants are made aware of the safety requirements, and details of radio sites are passed on to the HSE."

Undoubtedly something went wrong in the way this planning application was processed although no-one alleges deliberate wrongdoing. The appellant was told that his letter had been sent to the HSE when it had not. The material which the appellant had sent to the planning officer with his letter of objection was not forwarded to the HSE. The application was sent to the HSE for comments : the HSE made comments. However, their letter is headed "The pipelines safety regulations 1996" and contains the sentence "The proposed development lies outwith the consultation distance of a notifiable installation or notifiable pipeline, as detailed in circular 11/92". It ended "HSE has considered the proposals and because of the nature of the development at this location there are no reasons on health and safety grounds why the application should not be permitted." In my judgment it should have been plain to anyone who looked at that letter that, to put it no higher, the relevant person at the HSE might have misunderstood the nature of the application. However, when the officers reported on the application to the relevant committee which in due course granted it, the italicised words were reported without further comment.

I accept that there was no statutory obligation on the Council to consult the HSE or to forward the letter of objection or its substance to them but I do not dissent from the judge's view that these facts entitled him to quash the decision to grant planning permission as having been improperly reached. I would in consequence not uphold the respondents' notice.

I turn therefore to the main question to be addressed in this appeal, namely, the exercise of the discretion to refuse relief. It is common ground that the judge does have such a discretion when dealing with an application for judicial review. It is common ground that the existence of objectively unjustified fears in the locality can, in some circumstances, be a legitimate factor for a Local Planning Authority to take into account when deciding a planning application. How much weight they give to them is in principle a matter for the Authority.

However, on the facts of the present case it has not been shown that the Authority has not taken such local fears as were brought to its attention into account. We were told that three persons including the appellant objected on radiation grounds. It is clear that the existence of the objection on this ground was drawn to the attention of the Authority in the officers' report to committee. Equally the objectors' letters were made available to any councillor who wished to examine them.

The main ground of legitimate concern to the appellant is that the Authority, having had cited to it the words from the HSE which I have italicised, might have been led to suppose that the HSE had indeed evaluated the health risks of the proposal when, perhaps at any rate, the HSE had not done so. However the material before the judge established beyond argument that if the HSE had applied its mind to the proposal it would either of its own accord or on the advice of the NRPB have come to the conclusion which is encapsulated in the italicised words. That being so the assumed failure by the HSE properly to examine the proposal is of no consequence. By a happy chance let it be assumed, the right advice was indeed given to the Authority. Alternatively, looking at the matter like the Judge no harm has been suffered by the appellant and no useful purpose would be served by quashing the decision.

There was some argument as to the position of this court on appeal. Mr Straker Q.C. in his elegant submissions suggested that, when reviewing the exercise of the judge's discretion to refuse to quash, this court was free to exercise its discretion afresh whether or no it could be demonstrated that the judge had erred in the exercise of his discretion. This was not accepted by the other parties. Since even on the assumption that the exercise of discretion is unfettered in this court by what the judge below may have done I would exercise any discretion in the same way as the judge, it is not necessary for me to express an opinion on the question whether or no our discretion is unfettered and I do not do so.

Mr Straker briefly submitted that, given that some further research was generally thought to be justified, it was irrational of the Council to grant planning permission prior to the conclusion of that research. Like the judge I regard that proposition as unarguable. Mr Straker's problem, in this as in other aspects of the case, is that he is obliged to make his submissions at a high level of abstraction. The moment one looks at the specific facts of this case the submissions assume an air of total unreality. While one can conceive of circumstances in which it might be irrational to proceed without further research, the facts of the present case as briefly set out in the beginning of this judgment come nowhere near such circumstances.

Mr Straker also briefly submitted that the Council had illegally abdicated its discretion to the HSE. Like the judge I regard this as simply not being made out on the facts of this case.

Mr Straker submitted that by refusing to quash a decision arrived at in circumstances of procedural impropriety the judge in effect arrogated to himself the power to grant planning permission rather than leaving that to the Authority who had been entrusted by Parliament to undertake that task. I am not persuaded that, on the facts of this case, this is the correct analysis of the situation. As I have already indicated, had the HSE expressly considered the material made available by the appellant they would undoubtedly have advised the Authority in the terms in which they did advise that Authority This is not a case in which the possible failure by the HSE to consider the appellant's submissions could have resulted in a conclusion which differed from that which in fact was conveyed to the Authority. As things turned out the Authority had the scientific advice for which it had properly asked and was apprised of the existence of the objections of the appellant. Therefore the body entrusted by Parliament to make the decision did in fact make the decision in the light of all the material which it wished to have in order to help it make a decision.

Once it is apprised of a procedural impropriety the court will always be slow to say, in effect, "no harm has been done." That usually would involve arrogating to itself a value judgment which Parliament has left to others. But the facts of the present case are exceptional and in my judgment the judge was right to refuse relief.

I would dismiss the appeal.

LORD JUSTICE THORPE:

I agree that the appeal should be dismissed for the reasons given by my lord.

LADY JUSTICE HALE:

I agree.

Order: Appeal dismissed. Order below to stand. Appellant to pay full costs of First Respondent (District Council) plus half costs of Second Respondent (One 2 One Personal Communications Limited). Leave to appeal to the House of Lords refused. Order does not form part of approved judgment.

Note 1   Now One 2 One Personal Communications Limited    [Back]