Telecommunications mast — Inspector granting permission for erection of mast in residential area — Claimants challenging inspector’s approach to statutory powers conferred upon telecommunications operators — Correct approach to availability of alternative sites — Appeal dismissed
The appellants’ home and school were approximately 300m from the proposed site of a telecommunications mast. They applied, under section 288 of the Town and Country Planning Act 1990, to quash the decision by an inspector granting planning permission to the second interested party, a telecommunications operator, for the erection of the 11.75m monopole and equipment cabin in the predominantly residential area. The claimants’ challenge was confined to the way in which the inspector had dealt with the availability of alternative sites.
The High Court dismissed the application: [2004] EWHC 512 (Admin); [2004] PLSCS 78, but the appellants appealed. The issue was whether the inspector had taken account of, and correctly considered, the effect of the “code power” that had been granted by the telecommunications code set out in Schedule 2 to the Telecommunications Act 1984, since amended. This conferred rights and imposed obligations on operators, such as the second interested party, which were known as Code System Operators: see para 10 of PPG 8. The Schedule also granted the power to seek an order from the court requiring an unwilling landowner to grant an operator the right to place its equipment on the former’s land.
Held: The appeal was dismissed.
Although a planning authority could have regard to the powers conferred by Schedule 2, they were not obliged to ignore, as a material consideration, the stand taken by the occupiers of any alternative sites to that advocated in the application.
In the present case, the inspector had been entitled to give weight to that consideration. He had had before him representations from responsible authorities expressing opposition to the use of their land. Those included references to emergency procedures and to safety. On the basis of those representations, he had been entitled to reach his conclusion in respect of possible alternative sites.
In deciding the best location for a site, a planning authority were entitled to take into account the rights and views of concerned landowners. If it were demonstrated to the planning authority that a court would be unlikely to make an order in respect of an alternative site, that could constitute a powerful consideration in favour of the proposed site. However, an application for permission might succeed, as this one had, without such a situation ever arising. The views of the constabulary and of Network Rail, as interested owners, could properly be taken into account so that the inspector would not be required to make other detailed comparisons between sites or to analyse how the county court would have reacted to applications.
The county court’s powers of refusal were limited in scope by virtue of para 5(3) of Schedule 2. Similarly, the existence of those powers did not require a planning authority to conduct, in every case, an analysis of how a court was likely to react to an application for an order on sites other than the site subject to the planning application.
David Wolfe (instructed by Leigh Day & Co) appeared for the appellants; Timothy Mould (instructed by the Treasury Solicitor) appeared for the respondent; Christopher Katkowski QC and Tim Buley (instructed by Burges Salmon, of Bristol) appeared for the second interested party, Orange Personal Communications Services Ltd; the first interested party, Winchester City Council, did not appear and were not represented.
Eileen O’Grady, barrister
