England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		2 November 2000

MR JUSTICE RICHARDS

1. I heard this case on 23 October 2000 at a sitting of the Administrative Court in Wales, at Cardiff. Because no shorthand writer was present, I announced my decision and dealt with consequential matters, but indicated that the reasons for my decision would follow in writing. I now give those reasons.
2. The case concerns a challenge under s.288 of the Town and Country Planning Act 1990 to a decision dated 11 January 2000 of an inspector appointed by the National Assembly for Wales. The decision was made under s.78 of the 1990 Act against a refusal by the Brecon Beacons National Park Authority to grant planning permission. The appellant - the claimant in this court - was Telecom Securicor Cellular Radio Limited, also known aS BT Cellnet. It had sought planning permission for the erection of a telecommunications mast and ancillary development near the village of Bwlch, which is situated on the A40 (T) between Brecon and Abergavenny. The facility was said to be needed in order to fill a gap in BT Cellnet's mobile telephone network. The site of the proposed development is situated in the Brecon Beacons National Park. It is close to an existing telecommunications tower used by other operators.

Policy Framework

3. The development plan consists of the adopted Powys Structure Plan and the adopted Brecon Beacons National Park Local Plan. The relevant policy in the Structure Plan is CS9:

"Development proposals which would improve and/or provide new facilities or infrastructure, enabling the expansion of telecommunications, telematics, information technology and information services throughout Powys will be permitted, providing they do not create unacceptable planning, access, service, environment or amenity problems."

4. There are two relevant policies in the Local Plan. First, Policy G3 states, so far as material:

"Development will only be approved when the following relevant criteria are satisfied:

i) its use, scale, siting and appearance will be appropriate to its surroundings and will respect the quality and character of the Park's landscape and built environment; ...."

5. The Local Plan also contains a policy dealing specifically with telecommunications masts. It is policy PU10, which reads:

"Telecommunication masts and installations required by statutory undertakers, telecommunications providers and the emergency services will be permitted where they conform to other policies in this Local Plan and where:

i) they are demonstrated to be essential for their operation;

ii) there is no satisfactory alternative means of providing for the facility nor the opportunity for sharing an existing facility."

6. National policy concerning the control of development in national parks is contained in Planning Guidance (Wales): Planning Policy, April 1999 Revision. Paragraph 5.3.6 of that document states that the Government regards national park designation as conferring the highest status of protection as far as landscape and scenic beauty are concerned. The statutory purposes of national parks are to conserve and enhance their natural beauty, wild life and cultural heritage, and to promote opportunities for public understanding and enjoyment of their special qualities. Where it appears that there is a conflict between those purposes, greater weight shall be given to the first. Planning policies and development control decisions in national parks should give great weight to conserving and enhancing the natural beauty, wildlife and cultural heritage of these important areas.
7. Section 8.8 of the same document contains provisions relating to telecommunications. It states that the Government's telecommunications policy seeks to ensure that people have a greater choice of provider and range of telecommunications services. The policy aims to facilitate the growth of new and existing telecommunications systems and the provision of sites for such installations, whilst taking full account of the effect upon the environmental amenity of neighbouring areas. Paragraph 8.8.2 states that authorities should not question the need for the service which the proposd development is to provide, nor seek to prevent competition between different operators.
8. That general guidance is supplemented by more specific advice in Technical Advice Note (Wales) 19, dated August 1998. Paragraphs 19 and 20 of that document point out that the nature of some telecommunications development may in some cases bring it into apparent conflict with established local and national planning policies designed to protect high quality landscapes, and local planning authorities need to keep in mind the special needs and technical problems of telecommunications development. The significance of the proposed development as part of a national network is a material planning consideration. In some cases existing development plan policies are framed in terms of convention building and land use, and may not be adequate to deal with telecommunications apparatus or other operational needs. Paragraphs 21 ff of the Note provide detailed advice on mast and site sharing, siting and design.

The Decision

9. The National Park Authority refused planning permission on the ground that the proposal was considered to be contrary to Policy CS9 of the Structure Plan and Policies G3 and PU10 of the Local Plan, in that if permitted it would result in the erection of a second telecommunications mast adding to the detrimental effect of existing equipment nearby. The erection of a second mast would be visually detrimental and harmful to the character and appearance of this part of the National Park both in terms of short and long range views of the site.
10. On appeal before the inspector, the claimant contended that the proposal complied with the relevant policies and with national planning guidance. The contentions, in essence, were that there was a need for a facility in the area, there was no alternative way of providing it, and the location and nature of the proposed mast minimised its visual impact. The National Park Authority, on the other hand, argued that the visual impact would be detrimental, that the potential for mast or site sharing had not been fully explored, and that the proliferation of such facilities eroded the character of the area still further. The development plan policies and government advice made it clear that such facilities should not be at the expense of causing demonstrable harm to such important landscapes. It is, however, to be noted that the Authority made clear that it was not seeking to question the need for the proposed facility.
11. Against that background the inspector identified the main issue in the case as being "the effect of the proposals on the character and appearance of this part of the national park". The parties agree that that was indeed the main issue.
12. Having referred to the development plan and other planning policy, the inspector continued with the following section by way of "reasons and conclusions":

"10. The proposed mast would be sited in an isolated and prominent location in the local landscape, with little or no tree or other screening. Further, whilst on its own the slim profile of the mast would be a mitigating feature, nevertheless, since it would be close to the existing lattice tower, this design would appear particularly incongruous in my view. Since the two structures would each be on their own small site, and contrary to the Appellants' contention, I do not consider that there would be any site sharing as such. It is also a drawback of the proposals that they do not seem to provide for any other operator to share the proposed mast.

11. I have considered that, for technical rather than ownership reasons, the Appellants evidently cannot share the existing tower. I have also taken into account that there is a gap in the Appellants' transmission and reception coverage in the Bwlch locality, including along some 6 km of the A40. Nevertheless, bearing in mind that they already provide service for 98% of the population of the country - whatever that area might be - compared with their licence requirement to provide service to 90% of the population, there would appear to be no overriding need for the proposed mast.

12. I conclude, therefore, on the main issue in this case that the proposals would have a seriously harmful effect on the character and appearance of this part of the National Park, and that there is no overriding need for them in the public interest. As such, it would not be in accordance with Policy CS9 of the structure plan in that they would cause unacceptable planning, environmental and amenity problems for the conservation of this specially designated landscape. At the same time, they would not be in accordance with Policy PU10 of the local plan since they are not essential for the operation of the relevant licensed service, even though no satisfactory alternative means of providing for the facility has been suggested nor is there the opportunity for sharing the existing lattice tower.

13. In addition, the proposals would be contrary to national guidance but where there appears to be a conflict with other interests in the National Park, greater weight should be given to the preservation and enhancement of the natural beauty of the area than to those other interests."

13. The Inspector then referred to another appeal decision upon which reliance had been placed by the claimant. In that case the appeal had been allowed largely because, as the inspector observed, it had been concluded that the minor visual impact of the development would be outweighed by the need to provide service along some 7 km of the relevant trunk road. In the present appeal the inspector concluded that, combined with that of the existing mast, the visual impact of the proposed mast would be seriously harmful to the national park and that the provision of a better service along some 6 km of the A40 in the vicinity of Bwlch did not override that environmental amenity objection. There was thus a material difference in circumstances between the two appeals.

The Issues before this Court

14. The submission made by Mr Boyle on behalf of the claimant is that the inspector erred in his approach towards Policy PU10. Having accepted that there was a gap in the claimant's transmission and reception coverage in the Bwlch locality, the inspector nonetheless went on to find that the proposed development was not essential for the operation of the relevant licensed service and would not therefore be in accordance with the policy. The only reason for that finding must be what is contained in the latter part of paragraph 11 of the decision letter, namely that the claimant already provided service for 98% of the population of the country compared with a licence requirement to provide service to 90% of the population, so that there appeared to be no overriding need for the proposed mast. That, it is submitted, is an erroneous approach towards the policy. The requirement that the development be demonstrated "to be essential for their operation" in sub-paragraph i) of the policy is a reference to need in the relevant locality, not to need for the business as a whole. By relying erroneously on the fact that the claimant would not be in breach of its licence obligation as to coverage if the proposed development were not to proceed, the inspector came to the erroneous conclusion that the development would not be in accordance with Policy PU10. Had he not made that error, he might have concluded that the proposed development would be in compliance with Policy PU10: he appeared to accept that sub-paragraph ii) would be satisfied. In that event the policy would have operated in favour of the development rather than against it. In the overall balancing exercise he might have reached a different conclusion from that which he in fact reached.
15. Mr Boyle submitted that the inspector erred in law in considering Policy PU10, and in finding a conflict with that policy where he should have found the policy to support the development he can be said either to have taken account of an immaterial consideration (namely the level of service provided outside the area in question, or the position under the licence rather than operational requirements) or to have come to an irrational decision (in that, having regard to his other findings, the only rational conclusion was that the development satisfied Policy PU10).
16. Mr Walters, for the first defendant, submits that there was no error of approach by the inspector and that even if there was, it was in relation to a subsidiary issue and did not have an effect on the outcome of the decision, so that the court should refrain from granting the relief sought (see Simplex G.E.(Holdings) v Secretary of State for the Environment (1988) 57 P&CR 306).
17. As to the general approach of the decision letter, Mr Walters submits that the inspector, having correctly identified the main issue, proceeded in paragraphs 10-12 to address that issue. In paragraph 10 he examined the effect of the proposed development on the character and appearance of the relevant part of the national park, referring to its isolated and prominent location and to the incongruous design. The point is picked up in paragraph 15, where he refers to the visual impact of the proposed mast as being seriously harmful to the national park, a point of distinction between the present case and the other appeal to which his attention had been drawn. In paragraph 11 he went on to consider operational requirements, taking into account the gap in coverage. But he went on to explain, by reference to the licence obligation as to coverage, why he did not consider there to be an overriding need for the proposed mast. That, it is submitted, is not necessarily the same issue as arises under Policy PU10. Whether there is an overriding need for the development (Mr Walters could not identify a specific source of the terminology of "overriding need") is a material consideration properly taken into account. Reference to the licence obligations is both understandable and legitimate, since the representations made by the claimant on the appeal before the inspector relied heavily on the licence. The suggestion made in those representations, though not properly particularised, was that infill of cell coverage, such as would be achieved by the proposed development, was necessary in order to comply with licence obligations.
18. This leads, says Mr Walters, to the primary conclusion at the beginning of paragraph 12 that the proposals would have a seriously harmful effect on the character and appearance of this part of the national park, without any overriding need for them in the public interest. That moves on to the conclusion that they would cause unacceptable problems in terms of policy CS9 of the Structure Plan. And then, as a subsidiary or ancillary point ("At the same time…"), the conclusion is reached that the proposals would not be in accordance with Policy PU10 since they are not essential for the operation of the relevant licensed service. Even if that particular conclusion is vitiated by legal error or absence of reasoning, it does not undermine the force of the earlier part of the inspector's reasoning. It should not therefore lead to the decision being quashed.
19. Mr Walters also submitted in his skeleton argument that, although no specific reference is made to it in the decision letter, the inspector must also have held the development to be contrary to policy G3. I think, however, that one must be extremely wary about reading into a decision reasons, in particular by reference to individual policies, that are not articulated in the decision. I shall say no more about this in my conclusions, to which I now turn.

Conclusions

20. The inspector plainly found that the proposed development would not be in accordance with PU10 by reason of its failure to satisfy sub-paragraph i). That is apparent from the language of paragraph 12 of the decision letter ("they would not be in accordance with Policy PU10 of the local plan since they are not essential…", emphasis added). There is moreover nothing to suggest that, in the view of the inspector, there was a failure to satisfy sub-paragraph ii). He accepted that the claimant could not share the existing tower and he gave no hint of the existence of any satisfactory alternative means of providing for the facility.
21. On what basis did the inspector find that the proposed development was not essential for the operation of the licence service? I cannot accept Mr Walter's submission that the finding is unexplained. That would be very surprising and in the context wholly inadequate, especially given that the National Park Authority was not challenging the existence of an operational need. On a fair reading of the decision letter, I think it plain that the reason is to be found in paragraph 11, albeit that the inspector there used the unexplained language of "overriding need" rather than the actual terminology of Policy PU10.
22. The difficulty is that the reasoning in paragraph 11 runs counter to any reasonable construction of the policy. When the policy talks of a development being essential for operation, it must be referring to what is essential for the operation of the service within the relevant locality, rather than to what is essential for securing compliance by the operator with its licence obligations or what is otherwise essential for the success of the business as a whole. The logical consequence of the inspector's approach would be that no mast could satisfy Policy PU10, since no individual mast is essential for compliance with the licence or for the wider success of the business. Such an approach would be absurd and cannot be what was intended by the policy. By contrast the policy has a perfectly sensible purpose, against the general policy background that I have described, if it seeks to ensure that telecommunications masts are not constructed within an area of the national park simply for reasons of convenience or marginal improvement, but only to the extent that they are shown to be essential to the provision of coverage within that area.
23. I therefore conclude that the inspector fell into legal error in his approach to Policy PU10. It matters not whether the error is categorised as a misdirection or expressed in terms of his taking into account an immaterial consideration. The error has the consequence of vitiating the inspector's finding that the development does not accord with the policy. But for that error, it is difficult to see how, in the light of his finding that there was a gap in coverage together with his findings on sub-paragraph ii), he could have failed to be satisfied that the development accorded with the policy. It suffices, however, to hold that he might have found the development to accord with the policy. Had he found that, it would have had a significant effect on the balancing exercise and could have effected the outcome of the decision. Once the local plan tells in favour of the development, rather than against it, it is an obviously important shift of emphasis.
24. Moreover it is not impossible that this might also have affected the inspector's conclusion as to the unacceptability of the proposal in terms of Policy CS9 of the Structure Plan, though again I need go no further. It suffices that the error cannot be termed insignificant or insubstantial and I cannot say that the decision would have been the same if the inspector had not made the error.
25. Accordingly I see no option but to quash the decision. It is common ground that the matter will then have to be considered afresh by a new inspector, who will be able to carry out the relevant balancing exercise. Subject to the avoidance of any legal error, the matter is classically one for the exercise of planning judgment. I stress that nothing in what I have said is intended in any way to determine the outcome of the new decision.
26. For the reasons given I will make a quashing order in respect of the decision under challenge. Having heard argument on costs at the time of announcing my decision, I ruled that the first defendant is to pay the claimant's costs, summarily assessed in the sum of £10,000, within 28 days. In making that summary assessment, I reduced the claimant's costs by over a third as compared with the amount claimed. It seemed to me that the amount claimed was disproportionate both in terms of time spent and in terms of use of a grade 1 London practitioner. Even the figure allowed may be unduly high for a straightforward case of this kind. As an exercise of discretion, it should certainly not be regarded as setting any precedent in the claimant's favour.
27. An order will be drawn up accordingly, bearing the effective date of 23 October 2000.