QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Pam Jean Harris
|- and -
|The First Secretary of State
|Peterborough City Council
|Hutchison 3G UK Limited
Mr. James Maurici (instructed by Treasury Solicitors) for the 1st Defendant
2nd and 3rd Defendants were not represented
Hearing dates: 12th July 2007
Crown Copyright ©
MR. JUSTICE LLOYD JONES:
"You will see from this that Mrs. Harris suffers from a very rare condition and the machine through which she is intravenously fed is very sensitive and Mrs. Harris is concerned about the effect that this proposed mast will have on it, and therefore the risk to her health."
The supporting statement by Mrs. Harris explained her medical condition in more detail and described her dependence on medical equipment to feed her intravenously. She explained that she contracted toxoplasmosis in 1983 and that despite repeated surgery her condition had worsened and was incurable. The onset of her illness had caused her to develop coeliac disease and to develop allergies to many foods and chemicals including drugs and everyday items such as fumes from fuel and cleaning products. She stated:
"It was impossible for me to obtain sufficient nutrition from my limited diet, so after developing osteoporosis and my weight plummeting to 6 stone I was put on trans-parentral nutrition.
I have Hickman lines into the main vein of my heart. I have to sterilise my lines and carry out an aseptic procedure to connect other catheter lines then a machine which connects to electric power points. Intravenous food solution is connected to this to give me nutrition to live and bypasses my digestive system. Each feed takes 17 hours to run through, 3-4 times per week.
I cannot have food that is near a microwave or tinned food as I suffer severe reactions to any item that I am allergic to, even clinical preparation has induced shock, to the point that I have to go into a teaching hospital to have antihistamine / adrenaline / steroid cortisone intravenously before even simple straightforward treatments. I am denied some treatments and scans because of the risk and my surgeon has refused to operate again unless it is to save my life due to the many risks involved. I do not have to have contact with some items as I am seriously affected by airborne allergens. My machine used in the feeding process is very sensitive and reacts to the slightest interference.
The proposed radio telecommunication buildings etc. are in a direct line from every window and the garden at the back of my home. A field is the only area between us and it is a completely flat area.
If this goes ahead, I am unsure of what problems I may encounter with my machine, but very fearful of what it would do to my health. I am affected by mobile phones and digital phones."
The papers placed before the inspector on behalf of Mrs. Harris included a letter from Dr. A. W. Norman, her general practitioner, which stated:
"I confirm that I have treated Mrs. Harris for a number of years and she has a significant number of serious medical problems. Primarily amongst these is an abdominal disorder which prevents normal nutrition and she is therefore permanently obliged to receive her nutrition through complex intravenous feeding. This requires an Ivak type infusion pump which notoriously can be interfered with by other electronic machinery. She also has significant allergies to food, chemical, drugs and the effect of extraneous exposure to chemicals and to electromagnetic radiation may have unpredictable serious consequences."
"I have taken account of the concern expressed by local residents about the health implications of the proposed installation. One resident in particular is concerned about the effect that it may have on her disability. Paragraph 98 of PPG 8 says that the planning system is not the place for determining the health safeguards. It adds that, if a proposed installation meets the guidelines for public exposure set by the International Committee on Non-Ionising Radiation (ICNIRP) it should not be necessary to consider the health aspects and concerns about them any further. The Appellants have confirmed that the installation would comply with ICNIRP guidelines. Accordingly I consider that the residents' concerns about what they perceive to be the health risks associated with the appeal proposals do not justify withholding planning permission."
It is common ground between the parties before me that the second sentence of paragraph 13 refers to Mrs. Harris.
(1) The inspector erred in equating the Claimant's particular vulnerability with the situation at which the advice in paragraph 98 of the Appendix to PPG 8 is directed.
(2) The inspector erred in his approach to the possibility of interference with the Claimant's essential medical requirements.
(3) The inspector's approach produces a potential conflict with the obligations of the United Kingdom under Article 2, European Convention on Human Rights.
(4) The inspector erred in law in his approach to the question of alternative sites.
Legal and Policy Framework.
"If regard is to be had to the development plan for the purpose of any determination made under the planning Acts the determination must be made in accordance with the plan unless the material considerations indicate otherwise".
"35. It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit.
36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
"89. In respect of base stations, the report concludes that "the balance of evidence indicates that there is no general risk to the health of people living near to base stations on the basis that exposures are expected to be small fractions of the guidelines. However, there can be indirect adverse effects on their well-being in some cases". They also say that the possibility of harm cannot be ruled out of confidence and that the gaps in knowledge are sufficient to justify a precautionary approach.
90. The Independent Expert Group recommended a precautionary approach, comprising a series of specific measures, to the use of mobile phone technologies until we have more detailed and scientifically robust information on any health effects."
PPG 8 then records that in its response to the report the Government indicated that it accepted the precautionary approach. In particular, it accepted the recommendation that emissions from mobile phone base stations should meet the ICNIRP guidelines for public exposure (at paragraphs 90, 91). At paragraph 95 PPG 8 states, with regard to compliance with health and safety legislation, that the Health and Safety Executive refers to the guidelines for restriction produced by the NRPB. It continues:
"However,… the Government has accepted the Stewart Group's recommendation that mobile phone base stations should, as a precautionary measure, meet the ICNIRP guidelines for limiting exposure. The ICNIRP guidelines for public exposure are 5 times more restrictive than those of the NRPB. It follows that, in complying with the ICNIRP guidelines, operators will also be complying with those of the NRPB."
Paragraph 96 of PPG 8 states:
"96 Specific advice on interference with medical devices can be obtained from the Medical Devices Agency."
Paragraphs 97 and 98 provide:
"Taking Account of Health and Public Concern about Mobile Phone Base Stations.
97 Health considerations and public concern can in principle be material considerations in determining applications for planning permission and prior approval. [A footnote here refers to Newport B.C. v Secretary of State for Wales  Env. LR 174;  JPL 377.] 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 nor prior approval, to consider further health aspects and concerns about them."
"…[A]lthough the guidance states that it should not be necessary to consider the health aspects of a development that complies with specified standards of public exposure, it recognises that public concerns about the health implications of a development can still be a material consideration: see paras. 97 ff. of the appendix. No doubt the existence of such concerns is one of the reasons why the location of telecommunications structures is such a sensitive issue."
"18. I address, first, the substantive point of construction. I do not consider that a substantial distinction can be drawn between the expression of policy in paragraph 97 and the expression of a view or opinion in paragraph 98. Paragraph 97 in truth essentially states matters of background, the legal setting of the Secretary of State's policy and in paragraph 98 the policy is expressed that if in any given case the ICNIRP guidelines are met the planning authority should not have to look further in relation either to an actual health risk or perceived health risks. The rationale of the policy is the first sentence, which, to my mind, is important for an understanding of the whole. There, the Secretary of State says this:
"…it is the Government's firm view that the planning system is not the place for determining health safeguards."
19. What follows is drawn in the light of that first statement. It seems to me plain that that is as much policy as anything else in the document. Certainly the text leaves open the possibility (and this is no more than a conventional aspect of administrative law) that there might be a case in which the planning authority would be justified in looking further and, to that extent, departing from the policy. But that would be an exceptional course which would have to be specifically justified, as the judgment of Woolf J. (as he then was) in Gransden v. Secretary of State for the Environment  J.P.L. 519, cited to the judge by Mr. Katkowski, amply demonstrates.
20. Accordingly, as it seems to me, the judge was right to hold that the Inspector misunderstood PPG8. With deference to Mr. Coppel, I was not assisted by his references to other paragraphs in the appendix. It seems to me that the suggestion that the approach advocated by the Secretary of State is more in accordance with the general nature of planning policy guidance and makes what Mr. Coppel called "policy sense" is without any force. Once one recognises the thrust given to paragraph 98 by its first sentence, this is simply a classic piece of planning policy.
21. The Inspector appears to have considered that his conclusion that the appeal proposal provided insufficient reassurance on health was consistent with Government policy, notwithstanding the proposal's ample compliance with ICNIRP and an appropriate certificate having been given to that effect. That, in my judgment, was the error made by the Inspector which is central to this case. Such a conclusion in truth represented a departure from the policy. Although the Inspector, as I have said, might be entitled to take such a position, he would have to justify it as an exceptional course. I see no exceptional circumstances here, notwithstanding the fact – if it be one – that the beam of greatest intensity is directed to two of the schools. The planning policy indicated in paragraph 98 must, in my judgment, be ample to cover such a case. In any event the Inspector did not seek to justify his conclusion by reference to anything he thought to be an exceptional circumstance. Thus there is, as I have indicated, nothing in paragraphs 11-14 to show why, on the facts of this particular case, compliance with the ICNIRP guidelines was insufficient to allay perceived fears about health issues."
"Potentially higher thermal sensitivity in certain population groups such as those who are frail or elderly, infants, young children, and people with diseases or taking medications that compromise thermal tolerance."
"102 In any development, significant and irremediable interference with other electrical equipment of any kind can be a material planning consideration. There are essentially two types of interference. The first type is electromagnetic interference, caused by a radio transmitter or by unwanted signals emitted by other electrical equipment. The Radiocommunications Agency has statutory powers for dealing with this type of interference under the Wireless Telegraphy Act 1949. Only if there is clear evidence that significant electromagnetic interference will arise, or will probably arise, and that no practicable remedy is available, will there generally be any justification for taking it into account in determining a planning application."
Paragraphs 103 and 104 then deal respectively with interference to telecommunications or broadcast signals and the second identified type of interference which is physical interference caused by structures.
"Those policy requirements are not applying a burden of proof, or defining a standard of proof to be attained, or the type of evidence to be adduced, as a matter of law. They are applying a policy that those tests should be met, and as a policy, exceptions can be made if reasons are given, whereas in the case of a legally derived burden or standard of proof no such possibility exists on a case by case basis. But while there is a different provenance (policy rather than law) for the requirement to adduce evidence or of the imposition of a duty to persuade on one party or another, there can be no doubt that the effect in forensic terms at an inquiry is very similar to that in litigation of a legally derived burden or standard of proof. The decision maker will still be looking for the party identified by the policy to adduce evidence of the kind prescribed by the policy to the standard set by the policy."
In the present case, the question is whether, applying the policy, enough has been done to constitute a particular issue a relevant issue which must be addressed by the inspector.
"This obligation indisputably applies in the particular context of dangerous activities, where, in addition, special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of potential risk to human lives. They must cover the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practicable measures to ensure the effective protection of citizens whose lives may be in danger by the inherent risks.
In any event, the relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels." (at paragraph 90.)
"It follows that the Turkish authorities at several levels knew or ought to have known that there was a real and immediate risk to a number of persons living near the Umraniye municipal rubbish tip. They consequently had a positive obligation under Article 2 of the Convention to take such preventive operational measures as were necessary and sufficient to protect those individuals …, especially as they themselves had set up the site and authorised its operation which gave rise to the risk in question."
"It is PPG 8 that I consider particularly important in this case. It makes consideration of alternatives an integral part of the 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." (at paragraph 39).
"The Appellants have considered several other potential sites but discounted them for a variety of technical and other reasons. The Council does not dispute these reasons but nevertheless considers that the contentious nature of this site and the effect that the mast would have on the visual amenity of local residents and the appearance of the flat and open landscape of the area justify its refusal of planning permission."
"Whilst it is recognised there is a demonstrable need for modern telecommunications systems and awareness of the technical constraints according to the location of various sites, there is also a need to keep the environmental impact of such equipment to a minimum. Whilst the Appellant has considered other locations, none of these alternatives have been considered suitable for reasons of viability, coverage and acquisition. Nevertheless given the contentious nature of this site, its proximity to residual properties and its potential distortion of views within the open countryside the height of the proposed mast will have an unacceptable effect on both visual amenity of the occupiers of nearby properties and the flat landscaped appearance of the open countryside."
The local planning authority is here not disputing that there are no satisfactory alternative sites. Rather it is maintaining its objection to the proposal on grounds of visual amenity.