England and Wales High Court (Administrative Court) Decisions

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

		CO/6152/2003 Royal Courts of Justice Strand London WC2
		18th June 2004

1. HIS HONOUR JUDGE RICH: A company called 02 (UK) Limited has erected a telecommunication mast on the highway outside the applicant's home in Hedgely Lane, Gerrards Cross.
2. Planning permission for the erection of such masts within the height limits of this particular mast is granted under the Town and Country Planning General Permitted Development Order of 1995. Permission for development may, under the Town and Country Planning Act be given either by a development order itself under section 59, or, in accordance with a development order, by the more commonly used procedures of application to the planning authority.
3. In respect of telecommunication masts Part 24 of the Permitted Development Order gives permission in respect of such a mast as proposed, subject to conditions. Amongst those conditions are those contained in A.3 of the relevant part. Paragraph 3 provides:

"Before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting and appearance of the development."

Upon such application being made the Local Planning Authority is under an obligation to give publicity to it. Then, by paragraph 6, it is required to take into account any representations made to them, as a result of consultations or notices given under this Part of Part 24, when determining the application made under paragraph 3. That is to say in determining the application for a determination as to whether the prior approval of the authority will or will not be required.

4. Paragraph 7 of 8.3, however, provides that:

"The development shall not be begun before the occurrence of one of the following-

(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;

(b) where the local planning authority gives the applicant written notice that such prior approval is required, giving of that approval to the applicant, in writing, within a period of 56 days beginning the date on which they received his application;

(c) where the local planning authority gives the applicant written notice that such prior approval is required, the expiry of a period of 56 days beginning with the date on which the planning authority received his application without the local planning authority notifying the applicant, in writing, that such approval is given or refused; or.

(d) the expiry of a period of 56 days beginning with the date on which the local planning authority received the application, without the local planning authority notifying the applicant, in writing, of their determination as to whether such prior approval is required."

In this particular case the application for the determination was made by the developer on 17th June 2003 and received by the council on 19th June. The local planning authority duly gave notice amongst others to the applicant in these proceedings on 2nd July.

5. The 56 days referred to in paragraph 7, which I have just read, expired on 14th August, without any reply having been given to the developer. It followed that paragraph 7 had the effect that the developer should not begin the development for which permission had already been given by the Permitted Development Order before 14th August; but since no notice of requirement of approval had been given, there was no further inhibition upon the developer implementing the permission, which had already been given before these proceedings were embarked upon. Accordingly the developer, as I have already said, erected the mast outside the applicant's home.
6. Four days later, on 18th August, the local planning authority did send to the developer a notice of a decision which I think it is probably quite convenient for the purposes of this judgment to refer to as the "non decision", saying that they had determined that prior approval is not required. That "non decision" was apparently based upon something which has been called a report but is undated. It is a recommendation that prior approval is not required and it sets out at least some consideration of the relevant matters which the council would need to take into account in making such a decision.
7. The applicant now seeks judicial review. The application purported to be seeking the remedy of "quashing of a decision" which so far as those who have been required to deal with the application have been able to understand, appears to have been directed to the quashing of what I have called the "non decision".
8. Certainly, it is not suggested by Mr Upton, who appears for the applicant, that it is an application to quash the planning permission that was given, as I have already said, by the Permitted Development Order.
9. Alternatively, there is an application for a declaratory order that the mobile telephone mast does not benefit from planning permission; thirdly, alternatively, a mandatory order that the council should consider using it powers to require the discontinuance of the said use of the land, by which I think it is intended to require the removal of the mast which would of course have been operational development.
10. Mr Upton has appeared in a similar application to the present one on a previous occasion but when the form of the permitted development order was in somewhat different form. That was a case of R v Staffordshire Moorlands District Council ex parte Bartlam 77 PNCR 210 in I think 1998. On that occasion, permission was not given to bring judicial review. The refusal of permission was appealed and the Court of Appeal upheld that refusal on the ground that the terms of the Permitted Development Order had the effect that permission was given if the procedure for requiring approval was not invoked, at that time, within 28 days.
11. The council, in that case, had set a policy that it would consult neighbours before deciding whether or not to exercise the power to require approval. The council failed so to do. The Court of Appeal, in confirming the refusal of leave added, at page 214 in the judgment of Nourse LJ:

"I wish to add, however, that I can well understand the feelings of the applicant and other residents who share her view. But I think, on analysis, that the real target of their criticism should be the failure of the legislation to make provision for consultation before the deemed permission takes effect. That is not a matter for the court. I simply wish to say that I can well understand that they feel aggrieved with the present procedures for this type of case."

The legislation, that is to say the Permitted Development Order has, I understand it, been amended since the terms of the Order which was there being considered. But, as I have indicated, although it provides specifically for notice and for the consideration of representations and therefore, in my judgment, impliedly for the consideration of representations within the 56 day period, so that they can in fact be properly taken into account in deciding whether or not to require an application of approval, they do not, as was recommended by the Court of Appeal, make the development dependent upon the completion of such consultation process before the permission granted by the Permitted Development Order takes effect.

12. There is, in my judgment, having regard to the particular terms of paragraph 7, no way in which the earlier requirements of the paragraph can be construed as making the development permitted under the order conditional upon the performance by a third party, namely, the local planning authority, of its duties imposed upon it under the terms of the Permitted Development Order.
13. Mr Upton has drawn my attention to the change that there might be effected in the law as the result of the incorporation of the Human Rights Convention into English law. I have no difficulty at all, without reference to any such incorporation, in saying that the specific provision within the order of a duty upon the local planning authority to inform neighbours and a duty on the local planning authority to take into account any representations which are made as a result of such notice necessarily gives to those who take advantage of such notice to make representation, a right to have their representations properly considered.
14. It does not follow from that, however, either that the Order must be construed to have a meaning which it in clear words will not allow, or that the right which is accorded to the neighbours who are given notice should be acceded to in a way which will impinge upon the property right that is given to the developer by the grant of planning permission by the Order.
15. That is why, in the event of a breach of the local planning authority's obligations in respect of consultation and consideration of representations, it is necessary to look, as indeed the application for judicial review does, to some other course than either the quashing or, as it would appear to me, the misinterpretation of the planning permission which results from the operation of the Order and the passing of the time without a notice requiring approval.
16. I turn therefore to such other possibilities of relief for the applicant, who certainly has a justifiable complaint that the determination of the question whether or not approval should be required, was delayed beyond the 56 day period.
17. It would seem to me that the applicant can be entitled to remedy in respect of that, however only if the failure to determine that question within that limited period of time has in fact caused her a prejudice, for which she is entitled to relief. I add "for which she is entitled to relief" because from her point of view there is no doubt that she has suffered the prejudice that the mast is placed outside her house and she feels understandably aggrieved thereby.
18. But that is the result of the permission given by the Permitted Development Order unless the local planning authority could properly determine that there was a requirement for approval, and there was then a refusal of approval of the siting or possibly the design of the mast.
19. If it was possible that a decision which had been taken within the 56 day period would have required such approval then, it seems to me, there is a grievance in respect of which the applicant should have a remedy. Had the facts been different and the determination of the council had been that there should be an application for approval, but that determination had been made too late, one could well see why their failure to do it timeously might give rise to some remedy for the applicant.
20. But as what happened was a decision which allows the permitted development to proceed without further impediment, it is unlikely in the extreme, that it would have been any different had it been taken four days earlier. If there was the shred of evidence that the planning authority, realising their mistake, had covered their backs by making a decision different from that which they would have made four days earlier, the court would be acute to try to ensure that the applicant had an appropriate remedy.
21. But there is no suggestion of that kind and I cannot therefore grant any remedy on the basis that, had this time requirement been properly observed, the decision would have been any different and any more advantageous from the applicant's point of view.
22. It is for this reason that, in my judgment, the applicant must be forced back to saying that the non-decision, as I have called it, was itself wrong, so that a proper decision, taken within the proper period of 56 days, must have been different.
23. The distinction here is, in my judgment, a real distinction. In respect of whether it might have been different, if taken at the right time, by the local authority itself, it is a matter only of possibility or probability that the court should take into account. But if I am to say that the "non decision" was wrong, it seems to me that I have got to go so far as to say that it is a decision which no reasonable authority, taking into account those matters which must be taken into account and not taking into account any others could properly have arrived at, that is to say that the decision was wrong in the sense of being Wednesbury unreasonable.
24. Mr Upton has taken great pains in the face, as it seems to me, of considerable difficulty to make out a case along those lines. The difficulty arises from the fact that, at least as it appears to me, the fact that this was a necessary way of putting his case had not been addressed heretofore. There is not therefore, in support of this application, any evidence specifically directed to the allegation which Mr Upton has sought to make good, that the "non decision" was itself Wednesbury unreasonable.
25. The grounds of the application do, it is fair to say, seek to identify areas in which the council failed to give proper consideration to the matter. But those grounds set out in support of a proposition the council erred in law in deciding that prior approval was not required, have not been supported by any identification of the considerations that have not been taken into account other than in the broadest possible terms.
26. The matters upon which Mr Upton relied in the course of argument can, I think, fairly be identified as being three. Firstly, it is said that the council failed to have proper regard to the relevant provision of the development plan, which is apparently a policy EP18. But that is so, I glean both from the report, if that is what it should properly be called, leading to the decision to which I have referred and from some submissions, made in support of the application by the developer for the determination which the council made. Neither of those documents sets out the policy in full and the applicant has not, herself, thought fit to put it before the court either. But the essence, as I understand it, of what is being said, is that the policy required a consideration of the effect of the proposed development on the character and amenities of any nearby properties or the locality in general. Whilst without doubt the reference to the policy in the report indicates that it was not overlooked by the council, it is suggested that they did not concentrate on the character and the amenities of the properties as opposed to their proximity or the character and amenities of the locality in general.
27. I think it is necessary to bear in mind the nature of the decision-making process upon which the council was engaged. The council was not deciding a planning application; it was considering an application to determine whether or not the prior approval of the authority should be required to the siting and appearance of the development. That seems to me to be a more summary procedure than a full consideration of whether or not, on balance, having regard to all material considerations, the siting and appearance should in fact be approved.
28. Accordingly, it seems to me that the report which happens to be before the court should not be treated as if it were a full account of all that was considered or needed to be considered in determining that short question as to whether or not the matter needed a fuller procedure than the mere acceptance of the effect of the permission granted by the Permitted Development Order.
29. The report ended by saying:

"It is stated under policy EP18 that in assessing proposals for masts the council will consider the size, colour, appearance topography of the area, the proximity of dwellings and the presence of trees in the vicinity in the site. In my view, "the author, whoever it was says 'whilst the mast would be very visible in the street scene it would not, by virtue of its design and appearance, appear so obtrusive as to warrant a refusal of this application.'"

That recommendation is contradictory of an earlier preliminary view, taken by one of his colleagues in the planning department upon consultation. But it does not, in my judgment, allow me to say that the council had (a) failed to have regard to the development plan so far as material and (b) therefore and thereby arrived at a decision which no properly instructed planning authority could have arrived at on the question of whether or not approval should be required to siting and appearance.

30. There could I think be a stronger case in respect of the need to consider alternative sites. I have no doubt, and I accept from the decision of Richards J in Phillips v First Secretary of State & Ors [2003] EWCA 2415, that the availability or otherwise of alternative sites would be a material consideration upon the determination of an approval of the siting and appearance of the proposed mast.
31. The council, however, was being asked to determine only whether or not an application for such approval should be required. They had before them some information as to the inappropriateness of alternative sites set out in a report prepared on behalf of the developer when the application was submitted. They had some representations from some of those to whom notices have been served, other than the present applicant, of possible alternative sites, although without any specific information about their suitability or superiority.
32. If it is to be said that the council failed to have regard to a material consideration in that they had only cursory regard to the possibility of other alternative sites, in making the decision which they did, because it was suggested in the report to which I have referred that it was not part of their remit to suggest sites themselves, I would have, I think, needed some evidence as to what was indeed available to the council for consideration, that they failed properly to take into account. Because of the way in which the applicant has in fact brought these proceedings before this Court, there is no such material and I find it quite impossible to say that the council has failed to have regard to a relevant consideration. Still further, do I find it impossible to say that if they had had regard to other possible sites which might have been suggested to them, it would have nonetheless not been possible for any reasonably instructed counsel to come to the conclusion, on the basis of their assessment of the potential damage to street scene of this particular mast, that there was not a need for further approval.
33. I think I can take the third point that is made even more shortly because Mr Upton does not, I think, press it beyond the point that it will bear. It is said that the council were wrong in advising the applicant about the scope of her representations, that they would not be concerned with matters of health.
34. What was said in the report, to which I have referred, is that "health concerns have been recognised by central government. The government has already taken forward a range of precautionary actions in response to the Stewart report. These include ensuring that all mobile telephone and mast station meet the guidelines of ICNRP for limiting exposure to electro magnetic fields. In this case the applicant's agents have confirmed that the RF omissions from their client's equipment comply with the guidelines."
35. Although I accept from Mr Upton, on the authority decision of Richards J, to which I have just referred, that in balancing alternative sites, the impact of one site as compared with another, upon public perceptions of possible risk to health, may be a tipping factor in making a choice, it is quite impossible to say that the degree of regard that the council has had to the relevance of health issues in deciding whether or not the seeking of approval, as to siting and appearance should be required, shows a failure to have regard to a material consideration.
36. In those circumstances, and for these reasons, I have come to the conclusion, that this application for judicially review must be dismissed.
37. Perhaps I should add something about a decision to which Mr Upton did refer me and which I have failed to mention. It is a decision in the R v London Borough Lambeth ex parte Sharp [1986] 50 PNCR 232 which is a decision as to the effect of failing to comply with the consultation requirements before the council exercised its power under section 270 of the Town and Country Planning Act of 1971 and the Town and Country Planning Regulations of 1976 to grant itself planning permission.
38. In that case, as I understand the report and the reference to the regulations, the completion of a proper consultation procedure was a necessary preliminary to the passing of the resolution which had the effect of deeming a planning permission granted by the Secretary of State.
39. It is a quite different circumstance, in my judgment, from that which arise here, where planning permission is in fact granted by the Permitted Development Order and the question of consultation arises only at the stage of consideration of whether or not a requirement should be made for approval of siting and design.
40. In the circumstances of this case, the failure of procedures cannot possibly go to the validity or otherwise of the planning permission but goes, as I have said, to the rights of the person disappointed in the consultation procedure against the council. If the applicant in those circumstances can show that she has been thereby prejudiced in the sense that a different decision has been made than that which would otherwise have been made, then appropriate relief should be found. Since I have been unable to find any prejudice, it follows that the application should be dismissed.
Costs assessed at £10,000