England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Ouseley)

		Royal Courts of Justice Strand London WC2 Wednesday 17th October, 2001

1. LORD JUSTICE SCHIEMANN: Before the court is an application for permission to appeal from a decision of Ouseley J in a planning matter. He refused to give permission to apply for judicial review of a decision of the planning department of the London Borough of Tower Hamlets to grant planning permission.

2. There appears in front of me (as she did before Ouseley J) Mrs Tilly, who is concerned with the emission of radiation from various installations on the roof of a building in the London Borough of Tower Hamlets. Her concern is for public health in general and her own health in particular, no doubt.
3. The installations in question have evidently been put there over a period of many years without any express planning permission having been granted by the London Borough of Tower Hamlets during the period of, she tells me, five years or so.
4. MRS TILLY: 1996, my Lord.
5. LORD JUSTICE SCHIEMANN: And she took the view that this was wrong and, if I can put it this way, made a fuss I think. In due course, perhaps as a result of that fuss, various applications for planning permission were made by the owner of the building. There appears to have been a whole series of different applications for different things at different times. Meanwhile, some installations were removed and perhaps others were added. But we are only concerned with the very last application.
6. The position is made slightly more difficult by the fact that we do not have a copy of the permission which it is sought to challenge. On the face of it any citizen can look at the planning register and should be able to see that decision. But perhaps because she asked for more than she was entitled to, the acting solicitor for the council, in July evidently, said that if she wanted to see all the documents that she wanted she would have to approach the court for any order for discovery. I do not imagine there was any objection by the council to her seeing the planning permission. In any event, that is not strictly speaking what this application in front of me is concerned with.
7. I will assume for present purposes that planning permission was granted for a number of things that are described as satellite dishes. The difficulty with this branch of the law and this branch of facts is that one is dealing with a number of overlapping disciplines. There are public health matters, such as those which concern Mrs Tilly; there are visual impact matters; there are employment matters; and there are interference with other radio waves matters. Some of these are dealt with under the Telecommunications Act, which it is not the London Borough of Tower Hamlets' job, I think, to enforce. In any event we are not concerned with that.
8. So far as public health is concerned, the position set out in the planning policy guideline No 8 at paragraph 37 is that radiation safety is a matter for the Health and Safety Executive. Mrs Tilly says, and I have no reason to disbelieve her, that she knows a good deal about radiation safety. She could not know less than I know. She says that we have here a dangerous situation which needs to be investigated by the High Court. It is in my judgment clear that this is not really a matter primarily for the High Court, but primarily for the Health and Safety Executive to look after those concerns.
9. She says that in some respects the planning authority had put before them information which was wrong. That may well be so. It happens. Sometimes when wrong information is put before it somebody points this out in the course of discussions, when a decision is taken as to whether or no to grant planning permission. Sometimes people write in.
10. At the end of the day, planning permission was granted. She says she has not seen the reasons for the grant of planning permission. In my experience there will be no reasons. Statute obliges planning authorities to give reasons for refusal of permission but they are not obliged, in this country, to give reasons for the grant of planning permission. Many people think that is unfair, but that is the law.
11. Mrs Tilly has a number of complaints, some, but not all of which I think, Ouseley J dealt with. Her grounds of appeal to this court, for showing that Ouseley J was wrong, read:

"The Honourable Mr Justice Ouseley had seen all the documentary evidence proving that the Respondent had made serious misstatements. There are laws governing the actions of Local Authority including maladministration, abuse of public process, contravention of statutory duties to protect the public which evidence proves have been contravened by the Respondent. There are no laws permitting the respondent to make serious misstatements about a major installation which emits microwaves. Following consideration of the evidence, the correct procedure should by legal right, have resulted in the granting of permission for Judicial Review to enable all the facts and matters to be discussed at a full Court Hearing."

12. I have looked with care at her affidavit (which runs to several pages) complaining of various things which have gone wrong. Part of it refers to planning reports in relation to an earlier application; part to the respondent's refusal to disclose the documents; part to an alleged misapprehension by the planning authority of the nature of the waves which would be passing over the roof of the building in question; part to advertisements which were not properly made, according to her, of site notices. There are references to things which were said in Parliament. There are references to permitted development rights. There are references to what she describes as the planning agenda, but which I think is the officer's report to the planning committee. She says the respondent had a duty of care to issue an enforcement notice immediately the illegal installation was made known to them, but has taken no steps to comply with UK legislation, EC directives and the Human Rights Act of 1998. I am only starting on the first three pages of seven pages of similar complaints.
13. The difficulty that the court faces in these circumstances is this. Our whole litigation process depends upon having identified in a clear form precisely what is being alleged against whom. The documents produced by Mrs Tilly are quite incapable of being answered in an intelligible fashion by the defendants. In those circumstances they do not comply with the rules which we have made in order to enable litigation to be dealt with swiftly and clearly.
14. Mrs Tilly has a number of complaints. My impression - and I speak as someone with a considerable experience in planning matters, as has Ouseley J, who has spent many years doing these cases - is that really what is complained of here is essentially, as Mrs Tilly I think accepts, outside the knowledge and experience of a planning officer. It is not really his field. The grant of planning permission is essentially not concerned as a primary matter with public health, but with the visual impact and the impact on employment and so on. There is not on the material before me any reason to suppose that judicial review would be successful of the decision to grant planning permission.
15. If, as Mrs Tilly says, there have been breaches of the Telecommunications Act, that can be enforced by the appropriate authorities - it will not be the planning authority. If there are dangers to the public health, then the Health and Safety Executive, who I think also have touch with the Nuclear Radiation Protection Board, have procedures for dealing with risks to the health of the public. I accept that there are, from my experience of other cases, differences of view amongst scientists in this country about what level of radiation from what installation creates an unacceptable risk to the public. These are, however, matters which do not go to the validity of the planning permission. They are matters which must be pursued elsewhere. I do not find in the decision of Ouseley J anything which leads me to suppose that he was approaching the matter in the wrong way. Nor, from what I have been able to gather, is there a breach of the planning laws involved in the grant of planning permission. It is possible that I have missed something, but it has not been clearly identified. I have not seen it, and the potential respondents to this case would not see it either. That is why it would not be fair to allow this application to proceed.
16. I therefore refuse permission to appeal.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment) ____________________