IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
(SIR RICHARD TUCKER)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE LAWS
|T-MOBILE UK LTD|
|HUTCHINSON 3G UK LTD|
|ORANGE PERSONAL COMMUNICATIONS SERVICES LTD||Claimants/Respondents|
|THE FIRST SECRETARY OF STATE|
|HARROGATE BOROUGH COUNCIL||Defendant/Appellants|
Smith Bernal Wordwave Limited
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MR PHILIP COPPEL (instructed by Treasury Solicitors, London SW1H 9JS) appeared on behalf of the Appellant
MR CHRISTOPHER KATKOWSKI QC AND MS GALINA WARD (instructed by Freshfields Bruckhaus Deringer, London EC4Y 1HS) appeared on behalf of the Respondents
Crown Copyright ©
Friday, 12 November 2004
"The proposed mast and headframes due to their bulk and massing notwithstanding the existing installation would unreasonably detract from the residential amenity of nearby dwelling houses and the amenity of the local facilities such as to conflict with Policies of the Harrogate District Local Plan."
"10. Concerns have arisen in recent years about the possible dangers to health arising from the use of mobile phones and the emission of radio frequency from them and from the transmission stations of the kind to which this application refers. Particular concern was expressed about the siting of base stations on or near school premises. Therefore, the Government decided to establish an independent expert group to examine possible effects of mobile phones, base stations and transmissions on health. The group's Chairman was Sir William Stewart. It made a comprehensive enquiry into the problem and published a detailed report in April 2000.
11. The Report recommended that a precautionary approach to the use of mobile phone technologies should be adopted until much more detailed scientifically robust information on any health risks becomes available. They recommended that the ICNIRP [International Commission on Non-Ionising Radiation Protection] (International) guidelines for public exposure be adopted for use in the United Kingdom, rather than the national guidelines.
12. The group specifically considered the question of the siting of base stations near schools, and made a number of detailed suggestions, relating to the siting of such stations and to the areas within which the beam of greatest radiofrequency intensity should or should not be allowed to fall.
13. There was a prompt response from the Government, published in May 2000. In broad terms the recommendations made by the Stewart Group were accepted. It was agreed that the emissions from mobile phones and base stations should meet the international guidelines.
14. Dealing with base stations near schools, the Government agreed 'schools and parents should be reassured that the base stations near schools ... operate within the guidelines'. The Government did not expressly accept the Group's recommendations concerning the area of the beam of greatest intensity, but stated that it would be working with the Group on the further issues relating to this.
15. There then followed, on 22nd August 2001, Planning Policy Guideline 8 (PPG8) dealing with planning aspects of telecommunications."
"97. Health considerations and public concern can in principle be material considerations in determining applications for planning permission and prior approval. Whether such matters are material in a particular case is ultimately a matter for the courts. It is for the decision-maker (usually the local planning authority) to determine what weight to attach to such considerations in any particular case.
98. However, it is the Government's firm view that the planning system is not the place for determining health safeguards. It remains Central Government's responsibility to decide what measures are necessary to protect public health. In the Government's view, if a proposed mobile phone base station meets the ICNIRP guidelines for public exposure it should not be necessary for a local planning authority, in processing an application for planning permission or prior approval, to consider further the health aspects and concerns about them."
Those are the critical paragraphs, but I should also read paragraph 99 of the appendix (replicating paragraph 31 of the policy):
"All new mobile phone base stations are expected to meet the ICNIRP guidelines. However, all applicants should include with their applications, a statement that self-certifies to the effect that the mobile phone base station when operational will meet the guidelines. In line with the Group's recommendations the mobile phone network operator should also provide to the local authority a statement for each site indicating its location, the height of the antenna, the frequency and modulation characteristics, and details of power output. Where a mobile phone base station is added to an existing mast or site, the operator should confirm that the cumulative exposure will not exceed the ICNIRP guidelines."
"There is local concern about the proximity of 3 schools to the proposed mast, and the effect of the increased output from the proposal compared to the existing mast."
In paragraph 10 he acknowledged that the proposed installation would comply with ICNIRP guidelines, and that indeed is common ground. He then proceeded thus:
"11. However, evidence (including material considered by Stewart) suggests that young children may be more vulnerable to the effects of electromagnetic radiation through increased thermosensitivity compared with that of the population at large. Stewart acknowledges that there is no evidence that, even under the 'beam of greatest intensity', exposure to levels of electromagnetic radiation within the ICNIRP guidelines would have any harmful effect upon health. However Stewart recommends as a precautionary measure that the 'beam of greatest intensity' from an installation should not fall upon schools. PPG8 states that the Government's acceptance of the precautionary approach recommended by the Stewart Group's report 'Mobile Phones and Health' is limited to the specific recommendations in the Group's report and the Government's response to them.
12. Mobile Phones and Health - the Government's Response states that 'the Stewart Group recommended (1.42), in relation to macrocell base stations sited within school grounds, that the beam of greatest intensity should not fall on any part of the school grounds or buildings without agreement from the school and parents. Similar considerations should apply to macrocell base stations sited near to school grounds'. The proposed installation would be sited some 200m from Woodfield Community Primary School building, and some 250m from St Roberts Catholic Primary School building; Harrogate Granby High School would be about 450m distant. Both Primary Schools would appear to have buildings and/or grounds that would be within the beam of greatest intensity. The Government Response further states: Government agrees that schools and parents should be reassured that base stations near schools ... operate within guidelines. We will be working with the Stewart Group on the further issues regarding measurements of emissions from base stations on or near schools and how to take forward the recommendation on the 'beam of greatest intensity'.
13. The Stewart Report, the Government Response, and PPG8 together appear to suggest that even under the 'beam of greatest intensity' there would be no risk to young children from emissions within ICNIRP guideline levels. However, on the question of the recommendation on the beam of greatest intensity, the Government response is open-ended rather than conclusive. This matter is of particular relevance to the current case.
14. I conclude that the appeal proposal in its present form provides insufficient reassurance that there would be no material harm to the living conditions (in terms of health concerns) specifically of the group identified by the Stewart Report as potentially vulnerable: that is, of young children, in this case at both Woodfield Community Primary School and St Roberts Catholic Primary School."
"27. I prefer Mr Katkowski's submission. In my view the guidance contained in PPG8 is perfectly clear, and there was nothing open-ended about Government policy. I have no doubt that the present proposals meet the ICNIRP guidelines for public exposure, and that it was made clear to all concerned that there would be no material harm to the living conditions (in terms of health concerns) to young children. It is also clear that the applicants gave sufficient reassurances about this.
28. Regrettably the Inspector appears to have misunderstood Government Planning Policy on this topic as set out in PPG8 and failed to give adequate reasons for his decision."
"... it is the Government's firm view that the planning system is not the place for determining health safeguards."
"[The] Government agrees that schools and parents should be reassured that the base stations near schools... operate within guidelines. We will be working with the Stewart Group on the further issues regarding measurements of emissions from base stations on or near schools and how to take forward the recommendation on the "beam of greatest intensity'."
(Appeal dismissed; Appellant do pay Respondents' costs, such costs to be the subject of detailed assessment).