England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION,ADMINISTRATIVE COURT
THE HON MR JUSTICE SULLIVAN
C049582003

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 December 2004

Lord Justice Pill:

1. This is an appeal by Phoebe St Leger-Davey and James Harrison ("the appellants") against the judgment of Sullivan J dated 1 March 2004 refusing an application to quash a decision of an inspector appointed by the First Secretary of State ("the Secretary of State") on 19 August 2003, following a public inquiry. The inspector allowed an appeal by Orange PCS Limited ("Orange") against the refusal of Winchester City Council ("the Council"), on 12 March 2002, to grant prior approval for the siting and design of an 11.79 metre high telecommunications mast and an equipment cabin at Byron Avenue, Winchester. Orange are telecommunications operators.
2. The appellants live and attend school 250 to 300 metres from the mast. Other issues were before the inspector including the impact of the mast on the character and appearance of the locality. The only issue before the judge and this court arises out of the availability, on the evidence before the inspector, of possible alternative sites for the development.
3. The inspector referred to the relevant development plan policy, policy TC1 in the Structure Plan, which provides:

"… telecommunication development will be permitted provided all possible steps have been taken to minimise its environmental effects. Where there is a conflict with environmental objectives, the policy requires there to be no reasonable possibility of sharing existing facilities, no satisfactory alternative sites, and no reasonable possibility of using an existing building or other structure."

4. Put generally, the issue is whether the Inspector took account of and correctly considered the effect of the "code power" granted by the statutory "telecommunications code" contained in Schedule 2 to the Telecommunications Act 1984 ("the 1984 Act"), since amended. Rights are conferred and obligations imposed on operators, such as Orange, who are known as Code System Operators (paragraph 10 of PPG8). There is a power to seek an order from the court requiring an unwilling landowner to grant the operator the right to place his equipment on the landowner's land.
5. Planning guidance issued by the Secretary of State in PPG8, effective from 22 August 2001, provides, at paragraph 15:

"Local planning authorities and operators should work together to find the optimum environmental and network solution on a case-by-case basis."

Emphasis is placed, at paragraphs 19 to 21, and paragraphs 66 to 68 of the "Appendix Supporting Guidance", on keeping the number of masts to a minimum, on the sharing of masts and sites where that represents the optimum environmental solution and on exploring the possibility of erecting antennae on an existing building, mast or other structure.

6. Schedule 2 provides, at paragraph 2, for agreements between operators and occupiers of land amongst other things to confer a right, for the statutory purposes, to "execute any works on that land for, or in connection with the installation, maintenance, adjustment, repair or alteration of telecommunication apparatus". Paragraph 3 provides protection to occupiers of nearby land whose access may be obstructed by the works and paragraph 4 provides a defined right to compensation.
7. Paragraph 5 of the Schedule 2 provides:

"(1) Where the operator requires any person to agree for the purposes of paragraph 2 or 3 [i.e. obtaining the right to install equipment] above that any right should be conferred on the operator, or that any right should bind that person or any interest in land, the operator may give a notice to that person of the right and of the agreement that he requires.

(2) Where the period of 28 days beginning with the giving of a notice under sub-paragraph (1) has expired without the giving of the required agreement, the operator may apply to the court for an order conferring the proposed right, or providing for it to bind any person or any interest in land, and (in either case) dispensing with the need for the agreement of the person to whom the notice was given.

(3) The court shall make an order under this paragraph if, but only if, it is satisfied that any prejudice caused by the order –

(a) is capable of being adequately compensated for by money; or

(b) is outweighed by the benefit accruing from the order to the persons whose access to a telecommunication system will be secured by the order;

and in determining the extent of the prejudice, and the weight of that benefit, the court shall have regard to all the circumstances and to the principle that no person should unreasonably be denied access to a telecommunication system …"

Paragraph 7 empowers the Court to fix financial terms where agreement has been dispensed with.

8. These provisions have been amended and are now given effect by the Communications Act 2003 but it is common ground that the differences between the two are not material for present purposes. The expression "telecommunications system" has been replaced by a more up-to-date one.
9. On behalf of the appellants, it is accepted that the availability of alternative sites is only exceptionally a material consideration in relation to applications for planning permission. Planning control is normally intended to restrict an owner's right to use his land as he chooses only to the extent that the public interest requires restriction on planning grounds. However, it is submitted, the existence of and the relative merits of possible alternative sites is, by virtue of PPG8 and the statutory code, a material planning consideration in this context.
10. In his decision letter, the inspector identified and described possible sites alternative to that proposed by Orange, and, in particular, a site at the headquarters of the Hampshire Constabulary and a site in the car park of Winchester railway station. He set out the health concerns expressed by the appellants and others.
11. The inspector found, and Orange conceded, that from a technical standpoint the best site was the roof of a multi-storey building which is part of the police headquarters. It was already used by two other mobile phone operators. The inspector recorded that, having considered a request to investigate the feasibility of installing the apparatus on the roof, the Constabulary had stated that it was necessary to protect the roof space for their "operational and accommodation reasons". Notwithstanding efforts to persuade the Constabulary to change their minds, they have said that their decision is final. The inspector stated: "Whilst this situation is regrettable, I have to conclude that there is no realistic possibility of this site being available."
12. While he did not quote them, the inspector plainly had in mind two letters from the Constabulary. By letter of 25 March 2003 they stated that the "Force must protect any future requirements for the roof and any additional needs for the Airwave system [a national police communications network]". A letter of 10 April 2003 provided that: "It is necessary for the force to protect its roof space to ensure that our current accommodation review is not affected and that Airway, as a priority for emergency services, operates without interference."
13. As to the station car park, the inspector considered the operational possibilities but also noted that "it emerged that this site, like the police HQ, would not be available for the foreseeable future." A letter from Network Rail of 13 May 2003 had stated:

"In general, Network Rail is able to lease its land to third party telecommunications operators for the erection of their masts and antennae. However, this is only possible where stringent safety criteria are met. For example, such masts are required to be certain distances from sensitive signalling equipment.

In particular, third party masts are required to be a minimum distance of 167m. from our proposed GSM-R (railway operational) masts. For this reason it is highly unlikely that Network Rail would permit the installation of a third party telecommunications system operator close to Winchester station for the foreseeable future.

I am sorry to be negative to this suggestion, but you will understand that the safe operation of the railway is of paramount importance to Network Rail and this has to take priority over the potential commercial opportunity suggested above."

14. The inspector's conclusions were:

"43. The important point, in my view, is that technical compatibility is of little consequence if the landowner is unwilling to lease the land. Consequently I conclude that the station site is no different to any of the other potential alternatives where landowner consent has been withheld. It is also pertinent that the station site would not provide the required coverage of a significant proportion of the target triangle. The appellant argues that even if the station site does become available in the future, an additional microcell installation would still be needed to provide coverage to the parts of the triangle that are best served by the appeal proposal. On the evidence of the drive-trials, there is considerable force to this argument.

44. While I have some reservations about the thoroughness of the search for alternative sites at the time the application was submitted to the Council, I am satisfied that the investigations subsequently conducted for this appeal have been extensive and detailed. Various other streetworks options were considered by the appellant, but these would be less well camouflaged by trees and would simply transfer the perception of harm from one group of residents to another. No other realistic alternative within or close to the target area has been suggested by any party, and I saw no obvious opportunity on my visits to the area. Consequently, on the basis of the information before me, I am satisfied that there is no achievable alternative site available.

45. In reaching this conclusion I have considered the use of the power available to code system operators under Schedule 2 paragraph 5 of the Telecommunications Act 1984. This allows an operator to compulsorily acquire land for a base station in circumstances where consent is withheld by the landowner. The appellant believes that this power has never been used by a code system operator, and states that it would not be used in this instance, particularly against an authority such as the police or railway that provides a public service.

46. As with any form of compulsory purchase, it seems to me that this power should generally be used only as a last resort in circumstances where there is an overriding public interest and where there is no other possible course of action. I share the appellant's view that even if the use of this power was pursued, it would most likely be rejected by the Courts because of the existence of Byron Avenue as a feasible alternative. Furthermore, there is no mention of site acquisition by this process in PPG8 or the associated Code of Best Practice, implying that it does not form part of the normal process of site selection. In these circumstances the provisions of Schedule 2 paragraph 5 do not alter my view that there is no reasonable possibility of an alternative site being available."

15. Having reached that conclusion, the inspector considered in detail, by reference to the appeal site alone, what he described as the 'balance of considerations'. These included consideration of a direct risk to health, which he described as 'extremely small', and health concerns and anxiety about the development. His conclusion was:

"62. I have found that the proposal complies with the up-to-date policy advice in PPG8, which seeks a balance between need and environmental impact, and with the development plan policy which is most consistent with this advice. These are matters of substantial weight, and in my judgment they significantly outweigh the very limited harm to the character and appearance of the locality and the detriment to the well-being of those living, learning and working nearby. In these circumstances, and taking into account all the other matters I have considered, I conclude that the proposal is acceptable."

Prior approval was granted, subject to conditions.

16. For the appellants, Mr Wolfe introduced his submissions on paragraph 5 of Schedule 2 to the 1984 Act by outlining the development of compulsory purchase powers granted to public authorities since the mid-nineteenth century. In the context of statutes dealing with telecommunications, there has been a trend, since the Telegraph Act 1863, to relax the circumstances in which compulsory powers may be exercised. This has culminated in the code under the 1984 Act which provides what Mr Wolfe describes as a unique and potent power. A County Court is under a defined and qualified duty to make an order conferring a right to install equipment.
17. The effect of this provision is different from that in section 34 of the 1984 Act under which the Secretary of State may authorise a public telecommunications operator to purchase land compulsorily. Such purchases are governed by the procedure in the Acquisition of Land Act 1981 ("the 1981 Act") with a discretion in the Secretary of State, as confirming authority, as to whether or not to confirm a compulsory purchase order. That procedure of course applies to compulsory purchase powers conferred on many public and private authorities. The Schedule 2 power is quite different, it is submitted, in that it takes the form of a qualified duty and not merely a discretion and the duty is upon a court and not a minister. The duty is not limited by reference to the identity of the occupier of the land.
18. Mr Wolfe submits that where Parliament has intended to protect specific landowners against the exercise of compulsory purchase powers, it has done so expressly, as for example in the Electricity Act 1989, Schedule 3, with respect to other licence holders (paragraph 2) and land covered by a dwelling house (Schedule 4, paragraph 6(4)). The Civil Aviation Act 1982, section 42A(3) is another example in protecting other licence holders. Moreover, where, unusually, the compulsory power is to be a power of last resort, that is expressly stated in the statute (Coastal Protection Act 1949, section 6(1)).
19. As a statement of the circumstances in which conventional compulsory purchase powers are exercised, reliance is placed on the decision of this court in R v Secretary of State for Transport & Ors ex parte de Rothschild [1989] 1 All ER 933 where powers under the Highways Act 1980 and the 1981 Act were exercised. Slade LJ, with whom Croom-Johnson LJ and Ralph Gibson LJ agreed, stated at p938:

"In answer to counsel's submissions as to 'special rules', I summarise my conclusions thus. First, I do not accept that any special rules beyond the ordinary Wednesbury/Ashbridge rules fall to be applied when the court is considering a challenge to the Secretary of State's confirmation of the compulsory purchase order. Second, however, the Secretary of State, as counsel on his behalf accepted and submitted, must be satisfied that the compulsory purchase order is justified on its merits before he can properly confirm it. He must not exercise his powers capriciously. Given the obvious importance and value to land owners of their property rights, the abrogation of those rights in the exercise of his discretionary power to confirm a compulsory purchase order would, in the absence of what he perceived to be a sufficient justification on the merits, be a course which surely no reasonable Secretary of State would take."

20. That is to be contrasted, submits Mr Wolfe, with the approach to alternative sites under PPG8 stated by Richards J in Phillips v First Secretary of State and Others [2003] EWHC 2415 (Admin), at paragraph 39:

"It is PPG8 that I consider particularly important in this case. It makes consideration of alternatives an integral part of the process of assessment of an application for approval of the siting of telecommunications structures. It is true that the main thrust of the guidance with regard to alternatives concerns the sharing of masts and sites: applicants for new masts are expected to show that they have explored the possibility of sharing existing structures as an alternative to a new site. But in my view alternative new sites also fall within the scope of the guidance. The broad tenor of the guidance is to accept the principle of telecommunications structures where they are needed for coverage, but to acknowledge the sensitivity of the location of such structures and to emphasise the importance of searching in each case for the optimal location. The question, as it seems to me, is not just "is this an acceptable location?", but "is this the best location?", and for the purpose of answering that question one can and should look at whatever alternative possibilities there may be."

21. In the present case, Sullivan J expressed agreement with that paragraph. His conclusions were:

"32. I have referred to the provisions of Schedule 2. It is plain that paragraph 5 is to be used only where agreement cannot be obtained. Moreover, in the context of operational sites, such as a police headquarters, or a railway station, the balancing exercise in subparagraph 5(3)(b) will, in substance, be little different from the exercise that would have to be carried out in evaluating the merits of a compulsory purchase order. It seems to be that it makes little difference whether one talks of an "overriding public interest", or of the benefit to the public outweighing the prejudice caused to the land owner by the making of the order under paragraph 5.

33. In these circumstances, the Inspector was entitled to take the view that even if the power was exercised, the likelihood was that the court would refuse to make an order. I repeat, it was not for the Inspector to carry out a detailed exercise under paragraph 5. He simply had to decide what, on the balance of probability, was likely to be the outcome of such an application. This challenge has a very narrow focus upon paragraph 5 of Schedule 2 to the 1984 Act. But the point has to be kept in proportion. This was not a public enquiry into proposal for the police headquarters site or the railway station site, it was a public enquiry into a proposal to site a mast on the Byron Avenue site. As part of that inquiry it was certainly necessary to deal in some detail with the potential of alternative sites. In effect, Dr Wolfe's submissions require the Inspector to have dealt with those sites in as much detail as if they had been the subject of the appeal itself. One has to stand back and recognise the fact that although the issue of alternative sites was an important one, it was by no means the sole issue. The Inspector has dealt with the issue of alternative sites in a comprehensive manner. He specifically considered whether the suggested use of the power conferred by paragraph 5 would alter his view that there was no reasonable possibility of an alternative site being available, and concluded that it would not."

22. Mr Wolfe submits that the question for the inspector, when considering the appellants' proposal, was "Is this the best location?" The inspector asked that question, by considering possible alternative sites, and, for example, noting the technical advantages of use of a site at the police HQ (paragraph 34). He did not, it is submitted, answer the question correctly because he excluded sites at the police HQ and the station car park merely on the basis of the owner's unwillingness to allow their use. He failed to express a conclusion on the sites on their comparative merits though, it is submitted, on a fair reading of his report, the police HQ site does emerge as the best location.
23. Having regard to the qualified duty upon the court in paragraph 5 of Schedule 2 to the 1984 Act, the owner's objection to the use of a site is not a sufficient reason, it is submitted, for excluding that site from consideration. The inspector has failed to analyse, as he should have done, the nature and extent of the prejudice to the owner of the site in question. Because of the promoters' right to go to the County Court, the inspector should have considered, as the court would have done, whether use of the site involved prejudice to the owner, whether any such prejudice was capable of being adequately compensated for by money and whether the prejudice was outweighed by the benefit accruing to users of the system, the factors set out in paragraph 5. The flaw in the inspector's reasoning is demonstrated, it is submitted, by his conclusion, at paragraph 46, that "if the use of this power [to go to the County Court] was pursued it would most likely be rejected by the courts because of the existence of Byron Avenue as a feasible alternative". The court would have no jurisdiction to refuse an order on that ground; its power not to make an order is limited to a consideration of the factors set out in paragraph 5. The court's power is not expressed, and cannot be categorised, as a power of "last resort".
24. I agree with one aspect of Mr Wolfe's submission and that is the limited scope of the power of the County Court not to make an order if application is made to the court. I agree with Mr Wolfe, as did Mr Katkowski QC for Orange, that the limitations on the power are narrowly confined and do not permit the court to make an environmental appraisal as between sites. The "circumstances" to which the court, under the closing part of the paragraph, shall have regard, are the circumstances relevant to determining the extent of the prejudice and the weight of the benefit of the site to users, as specified in the sub-paragraph. It does not permit the court to conduct that overall assessment of the benefits and disbenefits of land use which is appropriate to the decision of a planning authority. The narrowness of the court's power under paragraph 3(b) of Schedule 2 is also illustrated, as Mr Katkowski submits, by the use, on two occasions in the sub-paragraph, of the word "access" to a system which shall not unreasonably be denied, and not to improved access or reception.
25. For Orange, Mr Katkowski submits that paragraph 15 of PPG8 does not impose an obligation on applicants for planning permission to take one of two options: either to go to the court and fail on an alternative site or to satisfy the planning authority that they would not succeed before the court on an alternative site. Neither in PPG8, nor in the Code of Best Practice issued under it (Office of the Deputy Prime Minister 2002), is there a reference to the use of compulsory purchase powers and the inspector was entitled to draw attention, in planning guidance, to its absence.
26. For the Secretary of State, Mr Mould submits that the paradigm case for the use of the power to go to the County Court is where there is a single feasible site and the owner will not consent to its use. The power can properly be categorised as a power of last resort. The respect for property rights implicit in the inspector's finding is a legitimate one and the inspector's consideration of whether alternative sites were 'achievable' was appropriate.
27. The principle that resort to the County Court should not readily or routinely be contemplated is in my judgment a sound one. The entitlement, confirmed in Article 1 of the First Protocol to the European Convention on Human Rights, that "every natural or legal person is entitled to the peaceful enjoyment of his possessions" is a factor which a planning authority may take into consideration in an application for planning permission for the erection of a telecommunications mast on the land of another. I would not accept the submission (made in writing by Mr Wolfe but disavowed orally) that an applicant must either go to the County Court and fail on a meritorious alternative site, of which there may be more than one, or must satisfy the planning authority that he would fail if he did so. In my judgment there is no such duty on an applicant. While a planning authority is entitled to have regard to the existence of the power in Schedule 2, it is not obliged to ignore, as a material consideration, the stand taken by occupiers of sites alternative to that advocated in the application.
28. In this case, the inspector was entitled to give weight to that consideration. He had before him, as a part of the written representations, representations from responsible authorities expressing opposition to the use of their land. These included references to emergency procedures and to safety. On the basis of those representations, he was entitled to reach the conclusion he did as to possible alternative sites.
29. Mr Wolfe correctly submits that the duty imposed on the County Court with respect to the right to install equipment on another's land, together with the contents of PPG8, puts applications for permission such as the present one in a different category from most other planning applications. Moreover, by imposing a duty on the court, the statute confers, in this limited area of "installation, maintenance, adjustment, repairs or alteration" of telecommunications systems, an approach to interference with landowners' rights different from the conventional one. I also see force in Mr Wolfe's submission that the expression "last resort" is not a categorisation which should bind planning authorities in all cases to ignore the merits of sites because of owners' views. It is, however, a long step from that proposition to a conclusion that, on the material before him, the inspector was required to give such weight to the existence of the power in the County Court that the rights and views of landowners were required to be overridden.
30. In deciding what is the best location for a site, a planning authority is entitled to take those rights and views into account. The test stated by Richards J in Phillips ("Is this the best location?") should not be construed so as to ignore that factor. Seeking the best location does not involve ignoring the rights and views of concerned landowners. If it is demonstrated to the planning authority that a court is most unlikely to make an order with respect to an alternative site, that may be a powerful consideration in favour of the site proposed but an application for permission may succeed, as this one has, without such a situation being demonstrated to the planning authority. The views of the Constabulary and of Network Rail, as interested owners, could properly be taken into account as a consideration such that the inspector was not required in this case to make other detailed comparisons between sites or analyse how the County Court would have reacted to applications.
31. The inspector's use of the word "achievable" in his statement that 'there is no achievable alternative site available' was not wholly apt in the absence of such detailed comparison and a reasoned conclusion that an order could not have been achieved on another site. For reasons given earlier, (paragraph 24), the court could not have declined to make a paragraph 5 order for the reason given by the inspector: "Because of the existence of Byron Avenue as a feasible alternative." However, it was not necessary to decide whether a site could have been achieved by way of court order. The inspector was entitled to conclude that there was no location better than Byron Avenue on the information before him because he could take into account the views of the Constabulary and Network Rail. Thus I agree with the conclusion reached by Sullivan J at paragraphs 32 and 33, though not entirely with his approval of the inspector's reasoning.
32. I have expressed the view that the County Court's powers of refusal are, under paragraph 5(3) of Schedule 2, limited in scope. Similarly, the existence in the County Court of those powers does not require a planning authority, in every case, to conduct an analysis of how a court is likely to react to an application for an order on sites other than the site subject of the planning application.
33. I would dismiss this appeal.

Lord Justice Mummery:

34. I agree with the judgment of Lord Justice Pill

Lord Justice Laws:

35. I gratefully adopt the account of the facts and the relevant learning and statutory materials set out in the judgment of Pill LJ. I agree that this appeal should be dismissed for the reasons given by him. Neither statute nor planning policy guidance enjoins an applicant in the position of Orange to apply to the County Court under Para 5 of Schedule 2 of the Telecommunications Act 1984 (or its successor in the Communications Act 2003). Mr Wolfe's argument entails or at least suggests the proposition that if the County Court has not been resorted to, the Inspector on an appeal such as that launched by Orange should second-guess what the County Court might have done. That is a position which would lack both principle and practicability.