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BDBC LOCAL INQUIRY 10th OCTOBER 2002 PRESENTATION BY CHRIS MAILE - CfPS Chair
A Branch of Campaign for Planning Sanity
20 OUTWOOD ROAD RADCLIFFE GTR MANCHESTER M26 1AQ
TEL: 0161-959 0999 : FAX: 0161-959 1001
EMAIL: email@example.com : WEB: http://www.onlincam.freeserve.co.uk
Material Planning Consideration
Number of Masts Required
Siting of Masts
Size of Masts
Additional Matters Relating to Health, Actual and Perceived
Mast Sanity until recently was the dedicated branch of the Campaign for Planning Sanity, having now grown of age to become a separate organisation in its own right. Set up to deal with the increasing number of mast inquiries received by CfPS, and in order to give better support and advice to local communities and others concerned about telecommunication installations. The work of Mast Sanity and CfPS gives a clear insight into the problems that local community's face from mast installations and adverse development proposals throughout the UK.
In this presentation, I first deal with the planning process, and how as a local planning authority you can be working towards ensuring that the public's confidence in the system is restored. And how inappropriately sited masts can be lawfully rejected. I then go on to deal with the four topic headings, as viewed from a planning perspective, whilst drawing on the concerns expressed by some of the 600 plus local communities that have contact CfPS and Mast Sanity this year.
There are 4 main avenues where decisions on telecommunications installations can be decided. The first is the full planning process, the next, which deals with the vast majority of applications, is that of the General Permitted Development Order (GPDO) procedure. The next two are far more controversial. Installations on the majority of church properties are undertaken through the churches own planning process, with decisions taken by Diocesan Advisory Committees (DAC). The final avenue is that of applications for installations that are installed as 'Licence Notification' installations, and I shall deal with these in more detail, but are arguably the most controversial.
In March 2001 the then Planning Minister Nick Raynsford stated in a letter to Planning Directors, that all applications for planning permission, including applications for permitted development (GPDO) should be treated as full planning applications in all but name. The only difference therefore between the first two categories is that GPDO applications have a brick wall of 56 days in which to decide the application, rather than full planning process which should be decided within that time span. But unlike GPDO applications, they do not become permitted by default, if the LPA fails to determine the application. Yet despite the Ministers comments members of the public are told that as it is an application for permitted development only limited issues can be taken into account, such as the siting and design of the installation. Again, with the health issue, members of the public are told that health, or the fear of an adverse health effect cannot be taken into account, which of course besides being misconceived, is contrary to law.
A look at the decisions of local planning authorities and inspectors on appeal reveals that majority of applications that are refused, are refused on grounds such as visual amenity, and the lack of information supplied by the applicant to enable a decision to be made. However, the vexed question of health is the issue that concerns most local communities. Now a growing number of local authorities are altering their local plans, or introducing supplementary planning guidance that enables them to deal more fully with the question than they believe that they should. Such supplementary policy is welcomed, as it gives clarity not only to the decision-makers, but also to the local communities and phone operators on how that authority will view individual applications. The authority should still ensure that it takes a consistent approach to national guidance, as well as what is set out within legislation, and the views expressed by the courts.
Health a Material Planning Consideration
Planning decision makers cannot ignore the question of health, or more precisely the fear, or perception that a local community holds in relation to adverse health effects of any development proposal, whether that is an incinerator or phone mast. The courts have consistently ruled that this is a consideration that must be taken into account, indeed Lord Justice Aldous in Newport County Borough Council v The Secretary of State for Wales and Browning Ferris Environmental Services Ltd (1997) put it that:
" he (the Inspector) should have accepted that the perceived fears, even though not soundly based upon scientific or logical fact, were a relevant planning consideration and then gone on to decide whether, upon the facts of the particular case, they were of so little weight as to result in the conclusion that refusal by the council was unreasonable".
Lord Justice Hutchison LJ (Newport case) found that
"approaching the question whether the council had behaved unreasonably on the basis that the genuine fears on the part of the public, unless objectively justified, could never amount to a valid ground for refusal was a material error of law "
In other words, once a decision-maker find's that there is a health issue, either because it has a provable health risk, or that the local community perception is such that they are concerned at the health effects of the proposal, then he must go on to decide what weight to attach to that concern, and whether the weight that he attaches outweighs, any other relevant consideration. The decision in Newport forced the Government when amending Planning Policy Guidance Note 8 (PPG8) to include at paragraph 29 the admittance that health issues and public concern can in principle be a material consideration. And that it is for the decision-maker to determine, what if any weight is to be attached to that concern. Although at paragraph 30 they then attempt to set out to negate that obligation, by limiting it to a consideration of whether the ICNIRP guidelines are exceeded. CfPS argue that strict reference to the ICNIRP guidelines fetters the discretion that paragraph 29, and the courts, have said belongs to the decision-maker. .
The latest court cases on masts continue to take the stance that health should be taken into account, but perhaps even hinting at an extension to the criteria in Newport. In the words of Mr Justice Hooper in The Queen on the application of Julia Herman and Others and Winchester City Council
"It seems to me that arguably local residents are entitled to a decision which explains why it is appropriate for a mast to be built so close to a school, given, in particular as, what they say they were told by the officers.
It may be that the defendant will decide not to oppose a full hearing, but instead to make a reasoned decision one way or the other, taking into account the obvious concerns of the parents based on the Stewart report".
Therefore, it can be seen that not only should health be taken into account, but that if the decision is to approve the application, then a reasoned decision must be given as to why health concerns are being rejected by the decision-maker.
Okay, simply because health concerns are raised does not mean that every application must be refused, that would equally fetter the discretion of the decision-maker. No what is required is a proper consideration in each individual case of the health implications. Greater consideration would therefore be given in cases where the installation would be close to schools, hospitals and residential areas, than say to those sited in isolated locations.
The question of 'licence notification' and those described as 'small antenna'' must be addressed by local planning authorities. Which are attracting an increasing number of complaints from local communities? Some applications are clearly intended to be approved in this manner, such as satellite dishes on private homes, and I make no comment on these. Our area of concern relates to a wholesale use of an apparent loophole that is allowing major installations to be erected without any permission whatsoever. Mast Sanity argues strongly that this loophole is unlawful for a number of reasons, it is also bringing the whole decision making process into disrepute.
The Operators, primarily Hutchinson 3G, through their agents Crown Castle (who have stated they will erect 4000 masts using this loophole) point to the wording of clause A.2(4)(b) of the GPDO which relates to conditions to be attached to permissions. On face value this section appears to state that installations on buildings which are less than 4 metres above its height requires no permission. But this is clearly not the case, or if it was intended to be the case, then in our view, as it denies the local community the right to comment, then it id not in compliance with the HRA.
But to take that view of very clearly worded section that states that permission is granted subject to the conditions set out in Condition A.3:
'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 o the siting and appearance of the development'.
Despite this, and other sections that require the taking into account of representations of local residents local authorities are accepting the arguments of the operators, and are failing to take enforcement action on installations where no application for permission is applied for. However, one local authority (Islington LBC) has finally woken up and instigated enforcement action. It will be interesting to see what the operator does, and if it goes to court how the courts will interpret the true meaning of A.2(4)(b).
Finally, on the question of the decision making processs we have the DAC. Which is a rather archaic practice, in that the Government granted 6 denominations special dispensation to decide most planning matters by their own planning procedures. This means that the normal planning process is by-passed, giving no statutory right to make representations by local residents, albeit that appeal lies to the High Court. I would therefore urge local councillors to watch for these applications, and to approach the DAC on behalf of local residents in order that at least some expressions of concern are voiced.
With all these various processes causing potential conflicts between local communities and planning authorities, we urge that consideration is given to putting in place supplementary planning guidance in order that clarity is given to all concerned about applications within your authorities area. A suitable supplementary planning policy might be along the following lines. Of course with appropriate explanation.
1. Telecommunication and other communication installations, including masts, antenna and equipment housing will be permitted provided that:
(I) The installation is in accordance with a licence granted for a public communication system; or for the emergency services.
(II) It can be demonstrated that a sequential test has been applied
¨ Shared installation on an existing ground based mast;
¨ Shared installation on an existing mast/site located on a non residential premises, or structure;
¨ Installation at more than one location is impractical;
¨ Installation on a non residential premises, or structure;
¨ Installation on a new site;
In consideration of this policy account will be taken of the environmentally sensitivity of the proposed installation in relation to the site, its environs, and its effect upon other developments. That it is demonstrated hat it is technically impractical to for the installation to be carried out on a site within an earlier stage on the sequential list;
All development should be sited and designed so as to minimise its effect upon the environment, and that its visual intrusion is kept to a minimum, and should where ever practical include a landscaping or other scheme to minimise that impact;
Before moving off of planning issues I would remind everyone that the new emergency services system TETRA is as much apart of the system as any other installation, ad that the concerns expressed by the local community should not be seen to be any less real, or should have less consideration than other systems. Potentially these installations are a greater threat than other systems. For instance, the effect on sensitive electronic equipment could affect pace makers, hearing aids, safety equipment, burglar alarms, and car locking systems, just to mention a few.
Number of Masts Required
If on one hand we have many masts, in order to reduce the levels of emissions, then we spread the problems and many more people are effected. Whereas on the other hand the greater number of calls through any given installation could be adding to present numbers of ill health clusters. But to my mind, the numbers have to be kept to the minimum needed to serve the networks needs.
Far too many masts are installed to cater for mobile phones in cars. It is now widely accepted that the distraction of drivers using mobile phones whilst on the move is dangerous. Therefore, it seems illogical to cater for this use. Far better to ensure that Microcells are installed in places such as lay-bys, thus encouraging motorists to stop at designated locations. Other illustrations of the reduction in the number of masts is the cutting down on their use in certain locations, where nuisance due to their over use might occur.
Siting of Masts
The visual intrusiveness of masts is of real concern to local communities. And whilst it is important to put in place mitigation measures, such as planting schemes. Other issues must also be taken into account such as access, the effect on local businesses, whether the installation is close to children's play areas (this has become of major concern in recent months as more cases of children using the structures as climbing frames come to light).
Concern must be expressed in relation not only to masts, but also to equipment cabins that are placed far to close to residential premises. answering the CfPS helpline gives an insight into how this can become a nightmare for those effected, which is retold on a daily basis. One of the worst is that at Hill Tops where the cabin is sited within feet of a young families home. The installation has two large cabins each with an extraction fan, that is directing emissions towards the door of their home. This is causing not only stress from the health implications, but also causes sleepless nights from the noise emitted from the fans. Which is becoming an increasing problem, with the introduction of the 3G systems. With at least one local authority taking action due to the statutory nuisance it was alleged the noise from the fans caused.
To illustrate some of the visual problems I attach a few photos of installations, which are typical of installations that can be found in most local authority areas.
Size of Masts
Mast size can be very important in the effect that they have on local communities, the greater the height the more overbearing. Especially when they are then used for more than one system and a mast becomes a mass of antenna and dishes. However size is not so important as closeness to residential properties, although it becomes of greater concern within conservation and rural areas.
What is missing from the list of considerations is that of those placed on buildings. Whilst some buildings may be suitable, clearly residential property is not. It is on buildings that size can become as important as ground based masts, especially as quite often more than one system is installed. Sunley Tower in Manchester had at the last count, a grand mixed total of 208 antenna and dishes. Although the building, is many storeys high. Nevertheless the visual effect is very dramatic within the centre of Manchester.
Additional Matters Relating to Health, Actual and Perceived
There are others here today who are far better qualified to comment on the actual threat posed by irradiation being emitted from base stations. Therefore I will restrict my comments to that of the concerns expressed by members of the public, through our helpline, and that which has a planning context.
As I have already set out, health is a material planning consideration. If that is accepted then we next need to look at what context that is so. There are 3 possible contexts, the first is the obvious, a provable link to an adverse health effect, at the present time there is no such provable link. We therefore need to concentrate our minds on the fear, or perception of an adverse health effect. The first of the fear elements is that of emissions from the installation directly or indirectly affecting local resident's health. The other context is that of the physical nature of the installation, whether that is the visual, or simply the unknown. The First of these is to some degree controlled by the international guidelines ICNIRP, the other is not, and has no bearing on emission levels.
Biological effects are not taken into account within the ICNIRP or NRPB guidelines. Yet already research is leading towards suggesting an effect, therefore this must be taken into account, when deciding how far to discount the concerns of residents due to the emission levels being stated as being below the ICNIRP guidelines. Initial investigations being undertaken by Mast Activists is starting to see a pattern of long established installations having unusually high levels of ill health surrounding them. This research indicates that these ill health clusters fall within 300 metres of an installation.
Whilst it would be totally inappropriate for a local planning authority to put in place its own exclusion zones, as every case must be decided on its merits, if challenges to refusals are not to be successful. Nevertheless it is possible to ensure that those installations that are within, say 300 metres of sensitive locations such as Schools, Hospitals and Residential Areas, are given greater scrutiny, or more stringent criteria is applied, than those not close to such sensitive locations. This would enable developments to proceed that could not be accommodated elsewhere, whilst restricting those that have the greatest impact to locations that would cause the least harm.
It must also be kept firmly to the fore that it is the state of mind of the local community rather than the provable health risk. There is an obligation as a consequence of Article 130R of the Maastrict Treaty to take a precautionary approach where there is potential an adverse effect upon the environment. Indeed the Government accept this, and so did Sir William Stewart. We therefore need to look at my last point, which is that of the term 'General Population'. This term is constantly referred to when debate is had on phone masts, it seems that operators, government, and academics that support the unfettered roll-out of the system that only the General Population is not at risk.
So what does it mean, I have usefully had this set out for me recently by reference to a debate upon the question in a publication by another of today's speakers, Alasdair Philips. It seems that the term refers to that part of the society that is less than 5% that might be affected. Thus, until it is categorically set out what percentage is at risk, we must assume that it could be 5% of the population. If we then take that a little further and consider who is at greatest risk, we discover that it is children under the age of 11. It is therefore a reasonable assumption that a greater number of children will be in this 5% than other categories. But whatever the group most at risk, what is clear is that some members of society are at risk. Can we then stand by and close our eyes to the risk that 5% of the local community could be subjected to these risks, without those in control taking reasonable precautions to prevent that risk.
The final issue on health is that of the mere presence of the installation and the stress this causes. This effect is not connected to the emissions, but is caused by the overshadowing that is caused by very large structures close to residential properties. This equally causes anxiety, and therefore should be taken into account within the decision making process. The concerns are not connected to emissions, and therefore the ICNIRP guidelines do not come into the equation.
For all these reasons I hope that Basingstoke & Dean Borough Council feel able to take the bull by the horns and put in place procedures that will prevent those installations that could be sited in the most sensitive locations from being approved.
Chair - Campaign for Planning Sanity