QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| JODIE PHILLIPS
|- and -
|(1) FIRST SECRETARY OF STATE
(2) HAVANT BOROUGH COUNCIL
(3) HUTCHISON 3G (UK) LIMITED
Mr Richard Harwood (instructed by Burgess Salmon) for the Third Defendant
Hearing date : 6 October 2003
Crown Copyright ©
Mr Justice Richards:
Regulatory and factual background
"The siting of a telecommunications installation is constrained by both technical requirements and the physical characteristics of the area, which restricts the size of the area in which it can be located. As you can see from the coverage plans, the cell size is only about 1½ to 2km is diameter and so the 'search area' which needs to be central to the cell is only about 1-200m in diameter. To locate outside this search area would result in gaps in the service to be provided, necessitating the need for an additional mast elsewhere, and could also cause significant and unnecessary overlap of neighbouring cells."
"There have been extensive investigations into alternative sites in this area including, in accordance with Government guidance, the possibility of sharing with another operator or using an existing building or structure. However, there are no buildings of a suitable height or design available to accommodate telecommunication equipment in the area, or masts capable of being shared. Among the sites considered were the following:
- LPC-7 Denmead Pylon, Hambledon Road, Waterlooville, PO7 6XE. The possibility of utilising this existing structure was investigated by my client However the required height to achieve coverage to the target area was 20m and on this structure, the equipment could only be located at 11m. Therefore this had to be dismissed as a potential option due to the above technical reasons.
- LPC-8 Denmead Pylon, Hambledon Road, Waterlooville, PO7 6XE. The possibility of my client locating their equipment on this existing structure was looked into. However the landlord was not interested in accommodating the equipment on their property.
- Waterberry Drive, Waterlooville, PO7 7SF. A potential streetworks option was investigated at this location. However the landlord was not willing to allow a telecommunications installation on their property.
- The swapping of an existing lamp column with a telecommunication column is not possible due to objections from the Highway Authority. The Highway Authority will not be able to easily maintain the lamp.
- The verge on the southwestern side of the road is considered to be more visually open and there is less space to site an installation. The closeness of the taller trees would also effect [sic] coverage.
The current site was therefore selected as being the best available in terms of it's [sic] location and the level of coverage that could be achieved from it."
"From PPG8 (mast and site sharing, 21), which says you may 'reasonably expect applicants for new masts to show evidence that they have explored the possibility of erecting antennas on existing structures' (ie nearby pylons). We would expect the operator to provide you with copies of the full contact between themselves and the alternative sites they refer to, and that you will satisfy yourselves that the operators made significant efforts to comply with this guidance."
i) The Secretary of State shall, as soon as practicable after receipt of the notice of appeal, advise the appellant and the local planning authority in writing of "the starting date" and other information (reg 4).
ii) The local planning authority shall give written notice of the appeal within 2 weeks of the starting date to any person who made representations to it about that application, such notice to state inter alia that further representations may be submitted to the Secretary of State within 6 weeks of the starting date (reg 5(1)(b) and (2)(f)).
iii) The notice of appeal and the documents accompanying it shall comprise the appellant's representations in relation to the appeal (reg 7(1)), but if the appellant wishes to make any further representations he is required to submit them within 6 weeks of the starting date (reg 7(4)).
iv) The local planning authority is required to submit to the Secretary of State a completed questionnaire and accompanying documents under regulation 6 and may elect to treat the questionnaire and documents as its representations. If it does not so elect, it shall submit its written representations within 6 weeks of the starting date (reg 7(2)-(3)).
v) The appellant and the local planning authority are to be sent copies of any representations made by the other and shall submit any comments they have on each other's representations within 9 weeks of the starting date (reg 7(6)-(7)).
vi) If an interested person notified under regulation 5(1) wishes to submit representations, he shall do so within 6 weeks of the starting date.
vii) The Secretary of State may in a particular case give directions setting later time limits than those prescribed by the regulations (reg 9).
"It seems bizarre considering the number of suitable pylons and an industrial estate in the vicinity, that the proposed location would be selected as the most appropriate. This is especially apparent when taking into account the close proximity of the 'Little Acorns' nursery, and the extreme impact upon local residents that the proposed siting would have."
"3.5 Also from the plan in appendix 6, it can be seen that the coverage area (the cell) only extends to approximately 2km in diameter. This is because of the high frequencies used by Hutchison 3G, the amount/level of data transmission (ie video/internet etc), and the restrictions of the terrain. Thus the 'search area' where an installation can be placed is subsequently limited to about 400m in diameter. This is a significant factor in limiting where an installation can be placed.
5.3 The siting of the proposed installation is very limited and it can only be sited in a small area. To locate outside this search area would result in gaps in the service to be provided, necessitating the need for an additional mast elsewhere, and would also cause significant overlap of neighbouring cells. In addition, the area to the west in the industrial/commercial zone is on lower land and so any installation would need to be significantly higher and more substantial in construction to serve the cell. In any case, as detailed below, a willing site provider has not been found on the industrial estate.
5.4 There have been extensive investigations into alternative sites in this area, in accordance with Government guidance, including the possibility of sharing an existing mast or using an existing building or structure. Among the site(s) considered were the following (as shown as green dots on the location plan attached in appendix 6):
1. & 2. The area to the north and east of the appeal site is within a predominantly dense residential area. There are no suitable buildings to use in this area and it is considered that any streetworks installation sited along the pavement/highway verge would be more prominent to the outlook of occupiers of residential properties.
3. The swapping of an existing lamp column with a telecommunication column is not possible due to objections from the Highway Authority.
4. The verge on the south-western side of the road is considered to be more visually open and there is less space to site an installation. The closeness of the taller trees would also effect [sic] coverage. It will also be much closer to the nursery school in Waterberry Drive.
5. No site was found in the Brambles Farm Industrial Estate including within the area of the leisure centre because no landowner was willing to accommodate the installation.
6. Off Waterberry Drive, Waterlooville, PO7 7SF. A potential streetworks option was investigated at this location. However the landlord was not willing to allow a telecommunications installation on their property.
7. Electricity Pylon No. LPC-7 to the west of Hambledon Road, Waterlooville. The possibility of utilising this existing structure was investigated by my client. However the required height to achieve coverage to the target area was 20m and on this structure, the equipment could only be located at 11m. Therefore this had to be dismissed as a potential option due to the above technical reasons. Also the landowner was not interested in accommodating the equipment on their property.
8. Electricity Pylon No. LPC-8 to the west of Hambledon Road, Waterlooville. The possibility of my Client locating their equipment on this existing structure was looked into. However the landowner was not interested in accommodating the equipment on their property."
"14. In summary, there is no evidence before me to indicate that the proposal would conflict with the aim of safeguarding residents and those using facilities in the area from any harmful health effects of the appeal development. I have been made aware of local concerns about health expressed in letters of representation and I fully accept that such concerns are a material consideration in the determination of this appeal. However, they do not provide a sufficiently strong basis to outweigh recent technical advice and current national policy, as set out above. I therefore conclude that public concern about the health risks arising from the installation of the proposed equipment does not add further justification for dismissal of this appeal."
"16. Further support for the proposal is provided by the need for this development. Although PPG8 advises that planning authorities should not question the need for the service, I understand that the proposal is intended to provide 3rd generation coverage for the surrounding residential and commercial areas, and for the transport network. The appellant has set out the alternative sites which were considered and the reasons why they were rejected, and I have no reason to doubt this evidence. No detail of other possible alternative sites or methods of achieving the coverage have been put before me."
"After reading all the submitted documentation to Havant Borough Council regarding this siting, we feel that an alternative site within the very close industrial area was overlooked by your representatives. This alternative site (T-junction of Electtra Avenue and Waterberry Drive) also has the added advantage that it complies with the Stewart report recommendation that the field of maximum intensity lies outside of the nearby nursery school and its grounds. In addition both telecommunication and power links are also available on this Council Adopted Highway Land."
"We refer to the fact that the deadline for objections sent to the Planning Inspectorate was January 20th 2003, when the appeal statement made by AWA on behalf of Hutchison 3G did not arrive at the Havant Borough Council Offices until 17th January 2003 – a Friday. You may not be aware that Council Offices are not open on a Saturday. Thus the first opportunity we had of viewing the appeal statement was after the deadline for submission to the Planning Inspectorate.
The appeal statement given by AWA on behalf of Hutchison 3G stated that the mast should be located about 400 metres in diameter of the proposed site. This contradicts the original application where it was stated the diameter should be about 200 metres from the proposed site. We feel aggrieved that the search for alternative sites carried out by AWA were, not only not looked into by the Council or Inspector, but the sites the operator chose to look into seemed to be even further afield than the 400 metre diameter limit.
With the goal posts moving as regard to the diameter that the monopole can be placed we feel that we were prevented from presenting an adequate alternative site. Several suggestions regarding the alternate siting of the mast in the industrial estate opposite were made, however the suggestion of specific locations were not possible without knowing the specific technical requirements, which seemed to have changed.
An alternative site exists which satisfies the requirements of the operator, (and includes on site telecommunications and power) and also satisfies the recommendation of the Stewart report (Stewart Report Summary and Recommendations 2.42), in so far as the fact that the nursery school would not be within the main field intensity of the mast emission profile ….
The alternative site (T junction of Electtra Avenue and Waterberry Drive) is located within the industrial estate with the nursery school outside the main field intensity of the emission profile of the mast. This alternative site is also upon Havant Borough Council adopted highway land."
The main issue: procedural unfairness
Whether alternative sites were a material consideration
"30. If I may say so, with respect, it seems to me that all these materials broadly point to a general proposition, which is that the consideration of alternative sites would only be relevant to a planning application in exceptional circumstances. Generally speaking – and I lay down no fixed rule, any more than did Oliver LJ or Simon Brown J – such circumstances will particularly arise where the proposed development, though desirable in itself, involves on the site proposed such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes, in the mind of a reasonable local authority, a relevant planning consideration upon the application in question."
"19. In order to limit visual intrusion, the Government attaches considerable importance to keeping the numbers of radio and telecommunications masts, and of the sites for such installations, to the minimum consistent with the efficient operation of the network.
20. The sharing of masts and sites is strongly encouraged where that represents the optimum environmental solution in a particular case. Authorities will need to consider the cumulative impact upon the environment of additional antennas sharing a mast or masts sharing a site.
21. Use should be also made of existing buildings and other structures, such as electricity pylons, to site new antennas. Local planning authorities may reasonably expect applicants for new masts to show evidence that they have explored the possibility of erecting antennas on an existing building, mast or other structure."
"66. In order to limit visual intrusion the Government attaches considerable importance to keeping the numbers of radio and telecommunications masts, and of the sites for such installations, to the minimum consistent with the efficient operation of the network. The sharing of masts and sites is strongly encouraged where that represents the optimum environmental solution in a particular case (see paragraph 68). Use should also be made of existing buildings and other structures, such as electricity pylons, to site new antennas. Local planning authorities may reasonably expect applicants for new masts to show evidence that they have explored the possibility of erecting antennas on an existing building, mast or other structure. Conditions in code operators' licences require applicants to explore the possibility of sharing an existing radio site. This evidence should accompany any application made to the local planning authority whether for prior approval or for planning permission.
67. If the evidence regarding the consideration of sharing existing masts and sites is not considered satisfactory, the planning authority, or the Secretary of State on appeal, may be justified in refusing prior approval or planning permission for the development. In such circumstances, the authority should give clear reasons why it considers the evidence before it to be unsatisfactory. It is for the local planning authority in the first instance to satisfy itself as to whether the information which has been provided in this respect is satisfactory. An authority should, however, bear in mind the technical constraints upon network development in reaching any decision on an application before it.
68. In considering alternative sites, an authority should be mindful of the potential impact on the local environment of development on those sites. This will be particularly important where an alternative site would involve the redevelopment of an existing mast for shared use. In certain circumstances the shared use of an existing mast might necessitate an increase in the height or structural capacity, and therefore the visibility, of that mast. Depending upon the characteristics of the location, site sharing as opposed to mast sharing may be more appropriate. A second installation located alongside or behind the principal installation may, for example, provide a more beneficial solution in environmental and planning terms. Authorities will need to consider the cumulative impact upon the environment of a number of masts sharing a site. In other cases, technical and design considerations may point to a new site. Local planning authorities and operators should seek together to find the optimum environmental and network solution on a case-by-case basis."
Whether there was a change in Hutchison's case
"5. Thus both sets of Hutchisons' statements (the initial planning application and then on appeal) include alternatives well outside the search areas of 200m and 400m. However they do not make it clear where they are (or in the case of lamp posts what range they are); nor indeed why they are included at all, given the stated search area. In these circumstances it is extremely hard for objectors like myself to know how best to concentrate our efforts when making representations. One assumed that the real search area was, as stated, 200m.
6. In this case, what we understood as the relevant (200m) search area is so small that we were unable to locate any alternatives. So we made our representations in the way we did, essentially commenting on the alternatives in Hutchisons' application statement. If we had known that the relevant search area really was 400m, or indeed a wider area, we would have concentrated our efforts accordingly by positively suggesting sites within such area(s)."
Whether it was unfair not to invite further representations
Whether the claimant was substantially prejudiced
"I have since discussed this site with Hutchison's Acquisition Surveyor who confirmed that he had investigated this site. I understand that this site was considered unsuitable as the highway verge was too narrow. I also understand that Havant Borough Council Officers have raised concerns about siting at this junction. It should also be noted that any mast at this location, being on lower ground, would need to be a higher mast of more substantial appearance and therefore is not considered to be a suitable alternative site."
Conclusion on procedural unfairness
1. MR JUSTICE RICHARDS: I am handing down judgment in this case. For the reasons given in that judgment the claim succeeds. The inspector's decision will be quashed and the matter will be remitted to the Secretary of State for reconsideration.
2. MR WOLFE: My Lord, I am grateful. I have an application on behalf of the claimant for the claimant's costs to be paid in part by the Secretary of State and in part by Hutchison. It breaks down as between the two from the point that the Secretary of State agreed to consent to judgment. For that earlier period, which is up to 6th August, we ask for the Secretary of State to pay our costs. Those have largely been agreed but not finally. So I would ask simply for an order that those costs be assessed if not agreed.
3. MR JUSTICE RICHARDS: Yes.
4. MR WOLFE: I will explain the problems in relation to that. In relation to the period post 6th August, when Hutchison fought on after the Secretary of State's acceptance of the concession, we ask for Hutchison to pay our costs. My Lord, I had sent through yesterday --
5. MR JUSTICE RICHARDS: I have had various things not all of which came through very satisfactorily on the fax it is fair to say.
6. MR WOLFE: Can I apologise for that. I hope the only document I need to go to is a document which is a letter on my instructing solicitor's note paper of yesterday, 21st October, addressed to my Lord's clerk.
7. MR JUSTICE RICHARDS: Right.
8. MR WOLFE: It had nine pages in total.
9. MR JUSTICE RICHARDS: Yes.
10. MR WOLFE: The second of which is a covering letter attaching a schedule. The second page of which sets out a copy of an e-mail from my instructing solicitor to Hutchinson's solicitor which sets out in the lower part of the page the breakdown of the claim which is then set out in more detail on the following pages. If I could draw my Lord's attention to the series of numbered paragraphs, 12-paragraphs, below the middle of the page. Does my Lord have that?
11. MR JUSTICE RICHARDS: Claim as per summary statement?
12. MR WOLFE: Precisely, my Lord. Solicitor's fees, counsel fees and so on. What I hope my Lord will have picked up is that this case has been conducted from 6th August by the lawyers for the claimant on a conditional fee basis, so their payment includes payment with uplift if win. That explains the various entries there, counsel's fees, solicitor's fees and other disbursements.
13. MR JUSTICE RICHARDS: The total figure, £33,147, that is given there, which looks surprisingly large, is that the total for the entire case?
14. MR WOLFE: That is the post 6th August figure, but that includes -- that looks as high as it does, I suspect, because of the uplift involved. I am not sure there is any quibble about the underlying figure because it is actually very similar to the figure that Burgess Salmon would have claimed had they won. So the higher figure arises largely through the uplift. Sorry, I am reminded, and the insurance premium associated with it, because, of course, the claimant takes out litigation insurance, after the event insurance, the premium for which identified here as £5,670. So it is the base figure uplifted by 100 per cent plus the insurance figure. That is how that figure breaks down that. That is that figure set in that schedule.
15. My Lord, what I can show my Lord, and they're attached -- I can hand up in a second -- is various reports relating to appropriate uplifts and so on, if that is an issue of controversy. My Lord, the figure may look high, but that is one sense a consequence of what happens when cases are funded on conditional fee agreements and the various items come together.
16. MR JUSTICE RICHARDS: And the conditional fee agreement was dated when?
17. MR WOLFE: My Lord, it was dated in a note to the court.
18. MR JUSTICE RICHARDS: 6th September.
19. MR WOLFE: That is right, my Lord.
20. MR JUSTICE RICHARDS: So all the original costs of bringing the claim will fall to be paid by the Secretary of State?
21. MR WOLFE: My Lord, yes, up to 6th August, yes.
22. MR JUSTICE RICHARDS: But then really the costs of the hearing is what we are talking about.
23. MR WOLFE: And the evidence associated with it. My Lord will recall there was substantial evidence leading up to it.
24. MR JUSTICE RICHARDS: There wasn't -- there was some evidence, it is true, from the claimant quite late on, but it was just the one witness statement.
25. MR WOLFE: My Lord, has attached behind the same documents, further behind the breakdown of that schedule, it has been done into two tranches, the first being the Secretary of State period at 6th August and then the second being post -- from 7th August up to 6th October. That is broken down to probably the last three pages of the document I have handed up.
26. MR JUSTICE RICHARDS: So is the figure until 6th August £5,686; is that right?
27. MR WOLFE: I think that is right. That is right, my Lord.
28. MR JUSTICE RICHARDS: So the total costs of this case were -- the claimant's costs were in the region of £40,000.
29. MR WOLFE: My Lord, yes.
30. MR JUSTICE RICHARDS: That is ridiculously high.
31. MR WOLFE: My Lord, it is when looked at without understanding where it has come from. But it is a direct consequence of a case being funded on a conditional fee basis because the claimant is fully entitled to take out and then claim the costs of the insurance premium, and that is nearly £6,000. And her lawyers and myself and my instructing solicitor having taken the case on the basis that if we lost we would not be paid, are entitled to claim the uplift under the conditional fee agreement which is what we claim.
32. MR JUSTICE RICHARDS: Yes.
33. MR WOLFE: And including also, of course, the VAT element which is incorporated within those figures. One then gets to that total, which the multipliers multiply up to get to what I agree, my Lord, is a high total figure, but that, in a sense, is a direct consequence of CFA funded litigation.
34. MR JUSTICE RICHARDS: Since the costs relating to the first period have to be made subject to detailed assessment if not agreed, I am minded to make the entire thing subject to detailed assessment if not agreed.
35. MR WOLFE: I suspect, given the time, I would have difficulty persuading your Lordship to do so otherwise.
36. MR JUSTICE RICHARDS: Because I am unhappy about the total figures, but I think it will require quite a lot of argument if one is going to seek to justify it, more than really is appropriate for a case of this kind before me.
37. MR WOLFE: So be it, my Lord. I suspect that is what Mr Harwood is going to ask you to do in any event.
38. MR JUSTICE RICHARDS: Let me hear from him.
39. MR HARWOOD: My Lord, that is an appropriate course. There is no issue as to the principle of Hutchison paying costs after 6th August because we resisted proceedings. But we agree with my Lord that detailed assessment is appropriate. In addition to the points your Lordship has raised there are difficulties with the notice being given of the CFA arrangement and the insurance. There is some dispute between the solicitors as to whether the notice was given appropriately. So, my Lord, there are those issues in addition to simply the sums involved. A detailed assessment is the appropriate way forward.
40. MR JUSTICE RICHARDS: That does seem to me to be the sensible solution to what is potentially a considerable problem here.
41. I am going to order that the claimant's costs up to and including 6th August be paid by the Secretary of State, subject to detailed assessment in not agreed. The claimant's cost from 6th August to be paid by Hutchison, again subject to detailed assessment if not agreed.
42. MR WOLFE: My Lord, I am grateful.
43. MR JUSTICE RICHARDS: Thank you very much.
44. MR HARWOOD: My Lord, I have an application for permission to appeal.
45. MR JUSTICE RICHARDS: Yes, you put forward a skeleton argument for which I am very grateful. It sets it out very clearly.
46. MR HARWOOD: My Lord, I don't really desire to take much longer on that. Possibly the most important issue for the Court of Appeal we would say is the approach to alternative sites which raises an important point of principle -- my Lord, this is the draft ground 1, first page of the skeleton -- raises an important point of principle as to whether policy, which itself is non-statutory, is capable of making material what would otherwise be an immaterial consideration. My Lord, that is a point on which there would appear to be no direct authority on, although the planning encyclopedia suggests that policy can make material what is otherwise immaterial. So, my Lord, that's an important point of principle.
47. MR JUSTICE RICHARDS: I find that still a very strange argument. Policy guidance is itself a material consideration, so what is in the policy guidance is something that can properly be taken into account and in general will be -- should be taken into account. So how do you say that policy can't make something that is immaterial material, when the fact that it is part and parcel of the policy guidance makes it material?
48. MR HARWOOD: My Lord, the question then is, if it arises, material out of the policy guidance, because the materiality arises as a matter of law to that is capable of being considered a material consideration. That is a matter of law. Based on the statute promulgating policy the Secretary of State can't change what is otherwise material. Clearly the weight to be attached and so forth is frequently shaped by policy and the policy itself relates to matters that are material then that will be material.
49. MR JUSTICE RICHARDS: So you have got both points. The issue which is the first issue raised, and then that which relates more to the approach I have adopted on the particular facts of the case.
50. MR HARWOOD: And my Lord's approach to interpretation of PPG8, as my Lord will recall we were saying it doesn't say that policy -- doesn't say that alternative new sites need to be considered, at least in the absence of planning harm. Then, my Lord, that point follows on to the inspector's approach where we say the inspector found quite clearly there was no material planning harm, both on visual approach, and the inspector's approach to health was that he said there were health concerns, but looked as against guidance (inaudible). So, my Lord that is a finding with respect to of no harm.
51. My Lord, the second ground, and the possibility of a different conclusion really arises out of the same issues relating to the alternative.
52. The final point, my Lord, is the question of fairness. I appreciate that fairness is always a matter to be considered in the circumstances of the case, but the importance of this case is that there are some 15,000 written representations appeals dealt with each year. The likelihood is that an awful lot of those appeals will, in the further representations from the appellant, be saying something which was not said previously. The sort of standard --
53. MR JUSTICE RICHARDS: That emphasises the importance of saying it and getting it right in the original case before the local authority rather than changing position on appeal.
54. MR HARWOOD: My Lord, it emphasises the more important practical consequences of my Lord's decision, which is, at what point, and inevitably that leads to the general consequence of how often, are inspectors going to have to re-consult because of something either different or new which is said to have been raised in the appellant's representations. So, my Lord, whilst fairness matters always depend on the circumstances of the case there is a general importance which arises out of my Lord's approach in this case.
55. These are matters which, I say with respect, would have a real prospect of success. It is an appropriate case for permission to be appeal to be given.
56. MR JUSTICE RICHARDS: Thank you very much and thank you very much for setting it out so clearly in your skeleton argument.
57. I refuse permission to appeal on the basis that, in my view, there is no real prospect of success, nor does the decision raise important issues of principle. It is based on the terms of PPG8 and on the particular facts of the case, including the inspector's decision read in context. Whether the issues relating to PPG8 and its application are themselves sufficiently important to justify an appeal is a matter I will leave to the Court of Appeal to decide.