Town and Country planning – Permitted development – Prior approval – Electronic communications apparatus – Claimant challenging decision by defendant local planning authority that prior approval not required for proposed development for erection of electronic communications equipment – Certificate declaring proposed development complied with health and safety guidelines – Whether defendant erring in failing to consider potential impact on medical implants – Application granted in part
An electronic communications provider (CK) proposed to carry out permitted development, within class A of Part 16 of schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015.
It applied to the defendant local planning authority under paragraph A.3(3) of Part 16 for a determination whether prior approval would be required for the installation of 5G electronic communications apparatus comprising a 15-metre pole with antennas at the top, ground-based apparatus and ancillary development on a grass verge adjacent to Lansdown Road near its junction with Talbot Road, Cheltenham. The site was located within a conservation area.
A document was attached to the application which included a certificate declaring that the proposed development was designed to be in full compliance with the International Commission on Non-Ionizing Radiation Protection (ICNIRP) guidelines, as expressed in EU Council Recommendation 1999/519/EC on the limitation of exposure of the general public to electromagnetic fields.
The defendant decided that prior approval was not required because the certification was sufficient to comply with paragraph 118 of the National Planning Policy Framework (NPPF) which provided that applications had to be determined on planning grounds only and authorities ought not to “set health safeguards different from the International Commission guidelines for public exposure”.
The claimant objected to the proposed development because of risks to the health of people living at a residence located about 50 metres from the proposed site for people over 55 years old, many of whom had medical implants and hearing aids, and needed protection from radio frequency electromagnetic fields (EMFs) in accordance with ICNIRP guidelines.
The claimant applied for judicial review of the local authority’s decision contending, amongst other things, that it was irrational and unreasonable as it posed avoidable risks of harm, injury and nuisance to the public.
Held: The application was granted in part.
(1) The purpose of the ICNIRP guidelines was in part to offer a high level of protection to all people. The local planning authority was obliged to give effect to the NPPF and to proceed on the basis that compliance with the guidelines would offer such a level of protection.
The guidelines referred to evidence that EMFs could indirectly cause harm by unintentionally interfering with active implantable medical devices or altering EMFs due to the presence of conductive implants, and made clear that such issues were beyond the scope of the guidelines: Harris v First Secretary of State [2007] EWCA Civ 1505 distinguished.
(2) The issue of whether prior approval should have been given in the present case was closely related to whether the authority should have considered potential impacts on medical implants. Although some health concerns were noted, and although that particular issue was raised in the objections, on a fair reading of the officer’s report as a whole, it was not given any weight. The officer clearly took the view that the declaration of conformity with the guidelines was sufficient to deal with those concerns and that going any further would be to set health safeguards different to the guidelines.
(3) The guidelines expressly stated that EMF’s could cause harm by interfering with medical implants, and that such issues were beyond the scope of the guidelines. A consideration of such an issue would not involve setting health guidelines different from the ICNIRP guidelines for public exposure so as to fall foul of paragraph 118 of the NPPF. The guidelines did not address the issue of potential harm caused by EMFs in relation to medical implants. It should not be inferred from the absence of reference in the guidelines to potential impact from telecommunications equipment on medical implants, that there was no such impact. The wording of the guidelines, albeit in the context of medical procedures, clearly referred to such a potential impact; in fact, it went further and referred to a potential impact on electrical equipment more generally: Preston New Road Action Group v Secretary of State for Communities and Local Government [2018] EWCA Civ 9; [2018] PLSCS 8 considered.
That specific issue was an important one raised by the objections which the authority should have grappled with. The authority had to have regard to all material considerations, and it was a matter for the court as to what was a material consideration. The failure on the part of the authority to grapple with potential impacts on medical implants was an error: Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 EGLR 147; [1995] 1 WLR 759 considered.
(4) The question then was whether it was highly likely that the outcome for the claimant would not have been substantially different had the specific issue of potential harm on medical implants been considered so that, pursuant to section 31(2A)(a) of the Senior Courts Act 1981 Act, the court should refuse to grant relief.
The issue of medical implants was not raised in respect of the residences closest to the proposed equipment. If it had been so raised, then it might well have been a factor in a decision to re-site the equipment. However, it was raised in respect of a residence which was significantly further away. There was no medical evidence to show what a potential impact on a pacemaker at such a distance might be. The objection was put on the basis that strong EMFs could interfere with medical implants.
The supplementary information submitted with the application showed that exposure levels would amount to a small fraction of the limits and that overall exposure was expected to remain low relative to the guidelines. There was thus no evidence that the proposed equipment would generate strong EMFs. Having regard to the evidence in this particular case relating to the low level of EMFs from the proposed equipment, its local coverage and its distance from the residence, it was highly likely that the outcome would have been the same had this issue been properly addressed. No exceptional pubic interest was shown within the meaning of section 31(2B) of the 1981 Act which would permit the court to disregard the requirements in section 31(2A)(a). Therefore, relief would be refused.
The claimant appeared in person; Ryan Kohli (instructed by One Legal, of Tewkesbury) appeared for the defendant; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Thomas v Cheltenham Borough Council
