Application for prior approval of siting of telecommunications mast — Part 24 of Schedule 2 to Town and Country Planning (General Permitted Development) Order 1995 — Whether consideration of alternative sites material to process of assessing application for approval of mast — Whether consideration of alternative sites relevant only in exceptional circumstances — Inspector deciding appeal without disclosing part of appellant’s case to objector — Whether procedural unfairness
In September 2002, the third defendant, H Ltd, applied to the council for a determination as to whether prior approval would be required for the siting of a mobile-phone mast on a site in accordance with Part 24 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995. Following objections by the claimant and others to the proposed development, the council refused their approval. H Ltd appealed against that decision by way of written representations, in accordance with the procedure set out in the Town and Country Planning (Appeals)(Written Representations Procedure)(England) Regulations 2000. The notice of appeal stated that H Ltd could not find a suitable alternative site for the mast. In January 2003, the claimant was given notification of the appeal, with a deadline for any representation of 20 January. Accordingly, the claimant submitted further representations to the inspector by a letter dated 14 January. H Ltd subsequently forwarded further documents. These referred to specific alternative sites within an area that appeared to extend to around 400m from the application site (although sites up to 800m were identified), rather than the 200m originally referred to in the application for planning permission. The documents were not sent to the claimant; thereby she was denied an opportunity to comment.
The inspector allowed H Ltd’s appeal. Upon discovering the omission to provide her with an opportunity to comment on the further representations, the claimant complained to the inspector, who rejected her objections. The claimant challenged his decision, contending that H Ltd’s search area had changed in an important respect as between the original application and the representations made on appeal and that she had been denied the opportunity to address that change by putting forward possible alternative sites. H Ltd contended that, since the consideration of alternative sites was irrelevant, the failure to allow the claimant to comment on the alternative sites would have made no difference to the inspector’s decision. |page:76|
Held The appeal was allowed.
The consideration of alternative sites is relevant to a planning application only in exceptional circumstances, and alternatives will, in general, be immaterial or of negligible weight: see R (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346; [2003] NPC 117 and R (on the application of Jones) v North Warwickshire Borough Council [2001] EWCA Civ 315; [2001] PLCR 31: see [37]. The exceptions to the general proposition are not limited to the circumstances identified in Jones. As a matter of principle, consideration of alternative sites can also be relevant where the development plan or policy guidance makes them relevant: see [38]. PPG 8 makes consideration of alternative sites an integral part of the process of assessing applications for approval in the siting of telecommunications structures. The broad tenor of the guidance is for the acceptance of the principle of telecommunications structures where they are required for coverage, but with an acknowledgement as to the sensitivity of the location of such structures and an emphasis on the importance of searching for the optimal location in each case. The question is not just ”is this an acceptable location?” but ”is this the best location?” For the purposes of answering that question, alternative possibilities must be considered: see [39].
The inspector regarded the question of alternative sites as a material consideration, but he accepted H Ltd’s evidence as to the reasons for rejecting alternative sites and he noted that no details of these had been put before him. The conclusions expressed earlier in the decision were therefore reached on the basis that, although alternatives were relevant, no alternative site was available: see [43]. The claim of procedural unfairness cannot be circumvented by the proposition that any additional representations about alternative sites could not lawfully have altered the inspector’s decision: see [44]. The opportunity to make additional representations can and should be given if a new point is raised that the inspector ought to take into consideration, and which cannot fairly be taken into consideration without providing such an opportunity: see [55]. Fairness required that the claimant be given such an opportunity in relation to the increase in the stated search area: see [56].
R (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346; [2003] NPC 117
R (on the application of Jones) v North Warwickshire Borough Council [2001] EWCA Civ 315; [2001] 2 PLR 59; [2001] PLCR 31
This was an application by the claimant, Jodie Phillips, under section 288 of the Town and Country Planning Act 1990, against a decision of the first defendant, the First Secretary of State, giving approval to the third defendant, Hutchison 3G (UK) Ltd for the siting and appearance of a mobile-phone mast. |page:77|
RICHARDS J:
[1] The claimant, Ms Jodie Phillips, lives with her husband and mother-in-law in Waterlooville, Hampshire. She brings a challenge, under section 288 of the Town and Country Planning Act 1990, against a decision of an inspector appointed by the First Secretary of State, giving approval to Hutchison 3G (UK) Ltd for the siting and appearance of a mobile-phone mast on a site close to her home. Her objections to the mast include concerns about visual impact and health risks, but the challenge before this court is largely of a procedural nature. Its essence is that Hutchison’s representations to the inspector involved a change of case on the issue of alternative sites and that the claimant was unfairly denied an opportunity to make representations on the changed basis.
[2] The defendants to the claim are the First Secretary of State, Havant Borough Council and Hutchison. The Secretary of State, however, has expressed a willingness to concede the claim and has put forward a draft consent order by which the inspector’s decision would be quashed and remitted for reconsideration. The council have also indicated that they do not intend to defend the proceedings. In consequence, neither of those defendants has played any part in the hearing before me. Hutchison, on the other hand, has declined to adopt the same approach. It has robustly defended the inspector’s decision, as it is entitled to do. Equally robustly, it has proceeded to erect the mast in accordance with the inspector’s grant of approval, notwithstanding the challenge to the lawfulness of the decision.
Regulatory and factual background
[3] Planning permission for the installation of telecommunications apparatus, including the mast in issue in this case, is granted by Part 24 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, subject to the conditions set out in para A.3. One of those conditions is that, before beginning the development, the developer should apply to the local planning authority for a determination as to whether the prior approval of the authority would be required for ”the siting and appearance” of the development: A.3(3). Such application should be accompanied by a written description of the proposed development together with a plan indicating its proposed location: A.3(4)(a). The local planning authority are subject to certain obligations as to consultation and the giving of notices: A.3(5)-(6). The development should not be begun before the authority have notified the applicant that prior approval is not required or that such approval is given, or unless |page:78| 56 days elapse without the authority giving a notification.
[4] On 19 September 2002, Hutchison, through an agent, submitted to the council an application for prior approval determination under the above provisions. The proposed structure was described as an ultra-slimline monopole with an overall height of 12.5m, together with an equipment cabinet, and was to be sited on the grass verge of Hambledon Road adjacent to the claimant’s home. The letter enclosed a map of the proposed site and also a set of plans showing the predicted levels of coverage in the area and the relationship of the proposal to planned neighbouring cells. It went on:
The siting of a telecommunications installation is constrained by both technical requirements and the physical characteristics of the area, which restricts the size of the area in which it can be located. As you can see from the coverage plans, the cell size is only about 1.5 to 2km in diameter and so the ”search area” which needs to be central to the cell is only about 100-200m in diameter. To locate outside this search area would result in gaps in the service to be provided, necessitating the need for an additional mast elsewhere, and could also cause significant and unnecessary overlap of neighbouring cells.
[5] Later in the letter was a section on ”alternative site search”, which read as follows:
There have been extensive investigations into alternative sites in this area including, in accordance with Government guidance, the possibility of sharing with another operator or using an existing building or structure. However, there are no buildings of a suitable height or design available to accommodate telecommunications equipment in the area, or masts capable of being shared. Among the sites considered were the following:
● LPC-7 Denmead Pylon, Hambledon Road, Waterlooville, PO7 6XE. The possibility of utilising this existing structure was investigated by my client. However the required height to achieve coverage to the target area was 20m and on this structure, the equipment could only be located at 11m. Therefore this had to be dismissed as a potential option due to the above technical reasons.
● LPC-8 Denmead Pylon, Hambledon Road, Waterlooville, PO7 6XE. The possibility of my client locating their equipment on this existing structure was looked into. However the landlord was not interested in accommodating the equipment on their property.
● Waterberry Drive, Waterlooville, PO7 7SF. A potential streetworks option was investigated at this location. However the landlord was not willing to allow a telecommunications installation on their property.
● The swapping of an existing lamp column with a telecommunications column is not possible due to objections from the Highway Authority. The Highway Authority will not be able to easily maintain the lamp.
● The verge on the southwestern side of the road is considered to be more visually open and there is less space to site an installation. The closeness of the taller trees would also effect [sic] coverage.
● The current site was therefore selected as being the best available in terms of it’s [sic] location and the level of coverage that could be achieved from it. |page:79|
[6] As explained below, the evidence before the court shows that the first two at least of those alternative sites were well outside the 200m search area previously referred to: they were respectively 740m and 880m away from the application site.
[7] By letter dated 1 October 2002, the council notified the claimant and other residents of the application for approval. Numerous letters of objection were sent in. The letter from the claimant, dated 20 October 2002, expressed concerns about ”the obvious lack of care which the company has shown in researching the siting of their mast in this instance, the visual impact upon the area, and the lack of convincing evidence as to the safety of these masts”. On the lack of adequate research, the letter made a number of points, one of which was:
From PPG 8 (mast and site sharing, 21), which says you may ”reasonably expect applicants for new masts to show evidence that they have explored the possibility of erecting antennas on existing structures” (ie nearby pylons). We would expect the operator to provide you with copies of the full contact between themselves and the alternative sites they refer to, and that you will satisfy yourselves that the operators made significant efforts to comply with this guidance.
[8] On 14 November 2002, the council refused approval for the siting and appearance of the proposed development, for reasons of visual amenity and public perception of a danger to health.
[9] An appeal on behalf of Hutchison was lodged on 6 December 2002. The appeal form asked for the appeal to be determined on the basis of written representations, in accordance with the procedure set out in the Town and Country Planning (Appeals)(Written Representations Procedure)(England) Regulations 2000. It is convenient to mention here a few provisions of the regulations:
(i) The Secretary of State shall, as soon as practicable after receipt of the notice of appeal, advise the appellant and the local planning authority in writing of ”the starting date” and other information: regulation 4.
(ii) The local planning authority shall give written notice of the appeal within two weeks of the starting date to any person who made representations to it about that application, such notice to state, inter alia, that further representations may be submitted to the Secretary of State within six weeks of the starting date: regulations 5(1)(b) and (2)(f).
(iii) The notice of appeal and the documents accompanying it shall comprise the appellant’s representations in relation to the appeal (regulation 7(1)), but if the appellant wishes to make any further representations, he is required to submit them within six weeks of the starting date: regulation 7(4).
(iv) The local planning authority are required to submit to the Secretary of State a completed questionnaire and accompanying documents under regulation 6 and may elect to treat the questionnaire and documents as their representations. If they do not so elect, they shall submit their written representations within six weeks of the starting date: regulation 7(2)-(3). |page:80|
(v) The appellant and the local planning authority are to be sent copies of any representations made by the other and shall submit any comments they have on each other’s representations within nine weeks of the starting date: see regulation 7(6)-(7).
(vi) If an interested person notified under regulation 5(1) wishes to submit representations, he shall do so within six weeks of the starting date.
(vii) The Secretary of State may, in a particular case, give directions setting time limits later than those prescribed by the regulations: regulation 9.
[10] The starting date in this case was notified as being 9 December 2002. Written notification of the appeal was given to the claimant by the council by letter dated 9 January 2003, some two weeks later than required by regulation 5(1)(b). The notification stated correctly that if the claimant wished to make any representations concerning the appeal, they should be received by no later than 20 January 2003.
[11] By letter dated 14 January, and thus within the time laid down by the regulations, the claimant submitted further representations to the Inspectorate, stating that the proposed siting would be an overbearing eyesore to the outlook to the front of her house and that:
It seems bizarre considering the number of suitable pylons and an industrial estate in the vicinity, that the proposed location would be selected as the most appropriate. This is especially apparent when taking into account the close proximity of the ”Little Acorns” nursery, and the extreme impact upon local residents that the proposed siting would have.
[12] I do not think that anything turns on it, but note that the claimant had not seen Hutchison’s notice of appeal when she submitted her representations. It was not sent with the council’s letter of 9 January, and her evidence is that she visited the council’s offices on 13 January to inspect the file, but the only documents on the file were the original application and the letter of refusal from the council.
[13] The notice of appeal asserted that it could be demonstrated that there were no suitable alternative sites. It also stated that by siting the mast outside the industrial estate, it would have less immediate impact upon the nursery school, which was on the opposite side of the main road and sited in the industrial estate. The notice also contemplated the submission of a further statement, referring, inter alia, to the site-selection process and the alternatives that had been investigated. It is the further statement that is important.
[14] Hutchison’s further statement consisted of a document dated 16 January and received by the Inspectorate on 17 January. A plan included as appendix 6 showed the coverage area and the locations of alternative sites that had been considered: the scale on the plan was stated to be 1:12,500, whereas it was, in fact, 1:25,000. In the text of the representations, it was stated:
3.5 Also from the plan in appendix 6, it can be seen that the coverage area (the cell) only extends to approximately 2km in diameter. This is because of |page:81| the high frequencies used by Hutchison 3G, the amount/level of data transmission (ie video/internet etc), and the restrictions of the terrain. Thus the ”search area” where an installation can be placed is subsequently limited to about 400m in diameter. This is a significant factor in limiting where an installation can be placed.
…
5.3 The siting of the proposed installation is very limited and it can only be sited in a small area. To locate outside this search area would result in gaps in the service to be provided, necessitating the need for an additional mast elsewhere, and would also cause significant overlap of neighbouring cells. In addition, the area to the west in the industrial/commercial zone is on lower land and so any installation would need to be significantly higher and more substantial in construction to serve the cell. In any case, as detailed below, a willing site provider has not been found on the industrial estate.
5.4 There have been extensive investigations into alternative sites in this area, in accordance with Government guidance, including the possibility of sharing an existing mast or using an existing building or structure. Among the site(s) considered were the following (as shown as green dots on the location plan attached in appendix 6):
1. & 2. The area to the north and east of the appeal site is within a predominantly dense residential area. There are no suitable buildings to use in this area and it is considered that any streetworks installation sited along the pavement/highway verge would be more prominent to the outlook of occupiers of residential properties.
3. The swapping of an existing lamp column with a telecommunication column is not possible due to objections from the Highway Authority.
4. The verge on the south-western side of the road is considered to be more visually open and there is less space to site an installation. The closeness of the taller trees would also effect [sic] coverage. It will also be much closer to the nursery school in Waterberry Drive.
5. No site was found in the Brambles Farm Industrial Estate including within the area of the leisure centre because no landowner was willing to accommodate the installation.
6. Off Waterberry Drive, Waterlooville, PO7 7SF. A potential streetworks option was investigated at this location. However the landlord was not willing to allow a telecommunications installation on their property.
7. Electricity Pylon No LPC-7 to the west of Hambledon Road, Waterlooville. The possibility of utilising this existing structure was investigated by my client. However the required height to achieve coverage to the target area was 20m and on this structure, the equipment could only be located at 11m. Therefore this had to be dismissed as a potential option due to the above technical reasons. Also the landowner was not interested in accommodating the equipment on their property.
8. Electricity Pylon No LPC-8 to the west of Hambledon Road, Waterlooville. The possibility of my Client locating their equipment on this existing structure was looked into. However the landowner was not interested in accommodating the equipment on their property.
[15] The ”search area” of up to about 400m in diameter, referred to in para 3.5 of those representations, is to be compared with the search area of up to about 200m in diameter, referred to in the letter of 19 September 2002 enclosing the original application for approval. It is that change that is at the heart of the claimant’s case of procedural unfairness. |page:82|
[16] Hutchison’s further statement was sent to the council by the Inspectorate on 21 January 2003 in accordance with the regulations, giving the council an opportunity to comment upon it. It was not, however, sent to, or seen by, the claimant, who had in any event already availed herself of the opportunity to make representations by 20 January 2003, in accordance with the express provisions of the regulations. It was only upon inspecting the file again after the inspector’s decision that the claimant found Hutchison’s further statement (although she says that the map at appendix 6 was not included on the file even then).
[17] The next event in the chronology was the inspector’s decision, dated 27 March 2003. In that decision, the inspector referred, first, to the relevant provisions of the development plan, including structure plan policy TC1 which provided, inter alia, that, where there would be a conflict with environmental objectives, it would need to be demonstrated that there was no possibility of sharing existing facilities, no satisfactory alternative sites and no reasonable possibility of using buildings or other structures.
[18] He then considered the effect of the proposed development upon the street scene, concluding, in para 9, that the proposal would not harm the street scene and would not conflict with the development plan policies related to design and telecommunications.
[19] Moving to other material considerations, he considered, first, the representations about the health implications of the proposal. He referred to the government’s adoption of stringent guidelines following a report on the subject, and to the statement in the 2001 version of PPG 8 (Planning Policy Guidance 8: Telecommunications) that if a proposal meets the guidelines it should not be necessary for a planning authority to consider the health effects further. He went on:
14. In summary, there is no evidence before me to indicate that the proposal would conflict with the aim of safeguarding residents and those using facilities in the area from any harmful health effects of the appeal development. I have been made aware of local concerns about health expressed in letters of representation and I fully accept that such concerns are a material consideration in the determination of this appeal. However, they do not provide a sufficiently strong basis to outweigh recent technical advice and current national policy, as set out above. I therefore conclude that public concern about the health risks arising from the installation of the proposed equipment does not add further justification for dismissal of this appeal.
[20] In para 15, referring again to PPG 8, he stated that the general policy was to facilitate the growth of new and existing telecommunications systems. He continued:
16. Further support for the proposal is provided by the need for this development. Although PPG 8 advises that planning authorities should not question the need for the service, I understand that the proposal is intended to provide 3rd generation coverage for the surrounding residential and commercial areas, and for the transport network. The appellant has set out the alternative sites which were considered and the reasons why they were |page:83| rejected, and I have no reason to doubt this evidence. No detail of other possible alternative sites or methods of achieving the coverage have been put before me.
[21] For those various reasons, he concluded that the appeal should be allowed.
[22] When notified of the inspector’s decision, the claimant wrote, on 11 April 2003, to Hutchison to express concern about the siting of the mast and to indicate that legal advice was being sought. The letter dealt, as follows, with the issue of alternative sites:
After reading all the submitted documentation to Havant Borough Council regarding this siting, we feel that an alternative site within the very close industrial area was overlooked by your representatives. This alternative site (T-junction of Electtra [sic] Avenue and Waterberry Drive) also has the added advantage that it complies with the Stewart report recommendation that the field of maximum intensity lies outside of the nearby nursery school and its grounds. In addition both telecommunication and power links are also available on this Council Adopted Highway Land.
[23] The suggested site at the junction of Elettra Avenue and Waterberry Drive is in the Brambles Farm Industrial Estate, outside the 200m search area referred to in Hutchison’s original application letter, but within the 400m search area referred to in Hutchison’s further representations in support of the appeal.
[24] In a response dated 22 April 2003, Hutchison stated that it had considered sites in Waterberry Drive and Elettra Avenue, among others, but ”the land in this location is privately owned and the owners when approached were not interested in accommodating our equipment”.
[25] Meanwhile, the claimant had written to the Inspectorate to complain about the way in which the appeal process had been conducted. In a letter dated 12 April 2003, she complained, first, about the late notice given to her of the appeal and the limited time therefore left for reasoned comments. Second:
We refer to the fact that the deadline for objections sent to the Planning Inspectorate was January 20th 2003, when the appeal statement made by AWA on behalf of Hutchison 3G did not arrive at the Havant Borough Council Offices until 17th January 2003 a Friday. You may not be aware that Council Offices are not open on a Saturday. Thus the first opportunity we had of viewing the appeal statement was after the deadline for submission to the Planning Inspectorate.
The appeal statement given by AWA on behalf of Hutchison 3G stated that the mast should be located about 400 metres in diameter of the proposed site. This contradicts the original application where it was stated the diameter should be about 200 metres from the proposed site. We feel aggrieved that the search for alternative sites carried out by AWA were, not only not looked into by the Council or Inspector, but the sites the operator chose to look into seemed to be even further afield than the 400 metre diameter limit.
With the goal posts moving as regard to the diameter that the monopole can be placed we feel that we were prevented from presenting an adequate alternative site. Several suggestions regarding the alternate siting of the mast |page:84| in the industrial estate opposite were made, however the suggestion of specific locations were not possible without knowing the specific technical requirements, which seemed to have changed.
An alternative site exists which satisfies the requirements of the operator, (and includes on site telecommunications and power) and also satisfies the recommendation of the Stewart report (Stewart Report Summary and Recommendations 2.42), in so far as the fact that the nursery school would not be within the main field intensity of the mast emission profile…
The alternative site (T junction of Electtra [sic] Avenue and Waterberry Drive) is located within the industrial estate with the nursery school outside the main field intensity of the emission profile of the mast. This alternative site is also upon Havant Borough Council adopted highway land.
[26] Those complaints were rejected by the Inspectorate in a letter dated 28 April 2003, to which the claimant further responded in terms that included some of the points now advanced in the present proceedings. In particular, it was asserted that if the claimant had had the information on the wider location area contained in Hutchison’s main statement on the appeal, she would have been able to include the suggestion for an alternative site in her representations, and this would have been considered by the inspector.
[27] That correspondence was soon followed by the commencement of the present proceedings.
Main issue: Procedural unfairness
[28] As already indicated, the main submission advanced by Mr David Wolfe on behalf of the claimant is that Hutchison’s case as to the relevant search area changed in an important respect between the original application and the representations made on appeal from an area of up to around 200m in diameter to an area of up to around 400m in diameter, representing a fourfold increase in the total size of the area, and that the claimant was denied the opportunity to address that change of case and to put forward possible alternative sites within that larger area.
[29] On the face of it, that line of argument has considerable force, which is no doubt what prompted the Secretary of State to indicate his consent to the inspector’s decision being quashed. In the reasons given in support of the draft consent order put forward by the Treasury Solicitor, it is stated that the defendant’s ”consent to an Order quashing the said decision because the Inspector’s finding at paragraph 16 of the Decision Letter did not take into consideration the change in the detail of the case of the Third Defendant, which in turn deprived the Claimant of an opportunity to address the case of the Third Defendant in relation to alternative sites”.
[30] Hutchison, however, does not accept that conclusion, and takes issue with virtually every step of the claimant’s argument.
Whether alternative sites were a material consideration
[31] I shall deal, first, with what I regard as a threshold point taken on behalf of Hutchison. Mr Richard Harwood submits that, in the circumstances of this case, since the inspector found the proposed scheme |page:85| entirely acceptable in planning terms, the existence of alternative sites was not a material consideration at all, and whatever the claimant might have said on the subject if given the opportunity to make additional representations, it could not lawfully have altered the inspector’s decision.
[32] The submission is founded upon a passage in R (on the application of Jones) v North Warwickshire Borough Council [2001] EWCA Civ 315; [2001] PLCR 31, where Laws LJ, having reviewed a number of earlier authorities, stated:
30. If I may say so, with respect, it seems to me that all these materials broadly point to a general proposition, which is that the consideration of alternative sites would only be relevant to a planning application in exceptional circumstances. Generally speaking and I lay down no fixed rule, any more than did Oliver LJ or Simon Brown J such circumstances will particularly arise where the proposed development, though desirable in itself, involves on the site proposed such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes, in the mind of a reasonable local authority, a relevant planning consideration upon the application in question.
[33] Mr Harwood submits that that reasoning applies to this case, where the inspector found that no planning harm would be caused by the proposal. Further, the development plan (structure plan policy TC1) required consideration of alternatives only where the proposal would conflict with environmental objectives, which the inspector found not to be the case. PPG 8 is concerned only with mast or site sharing, or use of existing structures or buildings, and the guidance does not suggest that an otherwise acceptable scheme should be refused on sharing grounds or because of the availability of an alternative site.
[34] In relation to PPG 8, Mr Harwood points first to paras 19 to 21 of the main text, under the title ”Mast and site sharing”:
19. In order to limit visual intrusion, the Government attaches considerable importance to keeping the numbers of radio and telecommunications masts, and of the sites for such installations, to the minimum consistent with the efficient operation of the network.
20. The sharing of masts and sites is strongly encouraged where that represents the optimum environmental solution in a particular case. Authorities will need to consider the cumulative impact upon the environment of additional antennas sharing a mast or masts sharing a site.
21. Use should be also made of existing buildings and other structures, such as electricity pylons, to site new antennas. Local planning authorities may reasonably expect applicants for new masts to show evidence that they have explored the possibility of erecting antennas on an existing building, mast or other structure.
[35] The appendix to PPG 8 goes into greater detail. Paragraphs 66 to 68 of the appendix, again under the heading ”Mast and site sharing”, state:
66. In order to limit visual intrusion the Government attaches considerable importance to keeping the numbers of radio and telecommunications masts, and of the sites for such installations, to the minimum consistent with |page:86| the efficient operation of the network. The sharing of masts and sites is strongly encouraged where that represents the optimum environmental solution in a particular case (see paragraph 68). Use should also be made of existing buildings and other structures, such as electricity pylons, to site new antennas. Local planning authorities may reasonably expect applicants for new masts to show evidence that they have explored the possibility of erecting antennas on an existing building, mast or other structure. Conditions in code operators’ licences require applicants to explore the possibility of sharing an existing radio site. This evidence should accompany any application made to the local planning authority whether for prior approval or for planning permission.
67. If the evidence regarding the consideration of sharing existing masts and sites is not considered satisfactory, the planning authority, or the Secretary of State on appeal, may be justified in refusing prior approval or planning permission for the development. In such circumstances, the authority should give clear reasons why it considers the evidence before it to be unsatisfactory. It is for the local planning authority in the first instance to satisfy itself as to whether the information which has been provided in this respect is satisfactory. An authority should, however, bear in mind the technical constraints upon network development in reaching any decision on an application before it.
68. In considering alternative sites, an authority should be mindful of the potential impact on the local environment of development on those sites. This will be particularly important where an alternative site would involve the redevelopment of an existing mast for shared use. In certain circumstances the shared use of an existing mast might necessitate an increase in the height or structural capacity, and therefore the visibility, of that mast. Depending upon the characteristics of the location, site sharing as opposed to mast sharing may be more appropriate. A second installation located alongside or behind the principal installation may, for example, provide a more beneficial solution in environmental and planning terms. Authorities will need to consider the cumulative impact upon the environment of a number of masts sharing a site. In other cases, technical and design considerations may point to a new site. Local planning authorities and operators should seek together to find the optimum environmental and network solution on a case-by-case basis.
[36] For the following reasons, I reject Mr Harwood’s submission on this issue.
[37] The general proposition that consideration of alternative sites is relevant to a planning application only in exceptional circumstances has not been in dispute before me. That alternatives will, in general, be immaterial or of negligible weight is supported further by the decision of the Court of Appeal in R (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 13461, in which the approach of Laws LJ in Jones was followed. (Judgment in Mount Cook Land was handed down after the hearing in the present case, but I have not thought it necessary in the circumstances to invite further submissions on it.) |page:87|
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1 Reported at [2003] NPC 117
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[38] The exceptions to the general proposition are not, however, limited to the circumstances identified by Laws LJ in Jones. He was at pains to observe that he was not laying down a fixed rule. It seems to me that a further situation where, as a matter of principle, consideration of alternative sites can also be relevant is where the development plan or policy guidance makes it relevant – a situation that was not before the court on the facts of Jones. Mr Harwood’s own argument, with its references to the structure plan and PPG 8, impliedly conceded the point.
[39] It is PPG 8 that I consider particularly important in this case. It makes consideration of alternatives an integral part of the process of 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.
[40] I note that the last sentence of para 68 of the appendix refers in terms to local planning authorities and operators seeking, together, ”to find the optimum environmental and network solution on a case-by-case basis”. Discussion of alternative sites is also mentioned in general terms in para 75. Nowhere is it said that alternatives, whether in the form of shared sites or new sites, are material only if a particular proposal is found to cause planning harm.
[41] Further, although the guidance states that it should not be necessary to consider the health aspects of a development that complies with specified standards for public exposure, it recognises that public concerns about the health implications of a development can still be a material consideration: see paras 97ff 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. It seems to me to follow, again as a matter of principle, that if there were two alternative sites, each of which was otherwise acceptable in environmental terms, it would be open to a decision maker to refuse approval for one of those sites if the location of a mast on that site would give rise to substantially greater public concern than its location on the alternative site. To take an example close to the facts of the present case: if one of the sites were close to a nursery school and residential properties, whereas the other was in an industrial estate some distance away from the school and residential properties, the greater public concern about the former might tip the balance against the grant of approval for it. I am not saying that that is |page:88| how a particular application would be decided or ought to be decided, but only that it would be lawful for a decision maker to approach the matter in that way.
[42] In the present case, alternative sites both shared sites and alternative new sites – were plainly regarded as a material consideration by all concerned, from the time of the initial application through to the final decision, and there was no suggestion that they might be material only if the particular proposal were found to give rise to planning harm. Moreover, the arguments advanced by Hutchison and the council about the weight to be given to public concerns were advanced on the basis that there were no alternative sites available. They would no doubt have taken a different form if there had been alternatives. For example, Hutchison’s written representations on the appeal acknowledged that ”[w]hilst siting on or close to schools is appreciated can be sensitive, it is not always possible to avoid being close to them” (para 7.12), and that: ”It is considered therefore that this proposal, which is essential to the efficient operations of the Hutchison 3G network, would not, due to its siting and appearance, be detrimental to the visual amenities of the area nor result in a perception of danger to health that should override the expressed need for the installation in this particular locality”: para 7.17. The council’s written representations argued that the proposal would ”result in a significant loss of amenities to occupiers of nearby residential properties and to those using the nursery school and leisure centre facilities due to concern and worry about the potential adverse health effects” (para 6.7) and that the prominence of the installation ”will serve as a constant, daily permanent reminder to those already concerned about health issues”: para 6.8.
[43] The inspector’s decision letter must itself be read as a whole, taking due account of what is said in para 16 about alternative sites. He plainly regarded the question of alternative sites as a material consideration, but he accepted Hutchison’s evidence as to the reasons for rejecting the alternative sites considered, and he noted that no detail of other possible alternative sites had been put before him. The conclusions expressed earlier in the decision were therefore reached on the basis that, although alternatives were relevant, no alternative site was in fact available. In my view, his conclusions are to be read, not as absolute findings of ”no planning harm”, but as findings premised on the absence of any alternative site. They would not necessarily have been expressed in the same way if an available alternative site had been available. In particular, at para 14, the inspector accepted that local concerns about health were a material consideration but did not consider them to be sufficient to outweigh recent technical advice and national policy on health risks so as to add to the justification for dismissing the appeal. He plainly attached some weight to public concerns, and he might have reached a different conclusion as to their significance if there had been an available alternative site giving rise to fewer public concerns.
[44] For those reasons, I reject the submission that, on the inspector’s findings, the issue of alternative sites was an irrelevance. The claim of |page:89| procedural unfairness cannot, in my view, be circumvented by the proposition that any additional representations about alternatives sites could not lawfully have altered the inspector’s decision. It is therefore necessary to turn to examine the arguments on procedural fairness in greater detail.
Whether there was a change in Hutchison’s case
[45] Mr Harwood submits that there was no change of case by Hutchison at all. It was Hutchison’s position from the start that it had considered a wide range of alternatives, and the letter supporting the original application mentioned alternative sites that were well beyond 200m from the application site. The plan submitted with the notice of appeal showed those and other alternatives sites. Third-party objectors, including the claimant, did not consider there to be a 200m distance limit, since they suggested sites up to 950 metres away.
[46] I accept that Hutchison in fact considered alternatives up to 880m away from the application site. The second witness statement of Mr Richard Palmer, the planning consultant who acted for Hutchison in relation to the application, gives detailed distance figures for each of the locations mentioned in the letter supporting the application and on the plan submitted with the appeal representations. The same witness statement explains that the scale on the plan was in error and that the actual distances are twice as great as indicated by the scale. It was not and is not suggested that any of the alternatives considered was ruled out on technical grounds related to the coverage area, save for a height problem on one of the pylons. The application letter therefore appears to have been in error in stating that the requisite search area was only up to around 200m in diameter and that to locate outside that search area would result in gaps in the service to be provided. Similarly, the appeal representations appear to have been in error in stating that the search area was limited to around 400m in diameter. The correct search area would appear to have been around 800m or even larger. Hutchison itself took that wider search area into account and was not constrained by the 200m or 400m figure.
[47] In my judgment, however, third parties in the position of the claimant could not reasonably be expected to realise that the correct search area was much wider than stated in the letter supporting the application. They were entitled to rely upon the clear statement in the letter that the search area was only about 100-200m in diameter. Although some of the alternatives mentioned as having been considered by Hutchison were outside that search area, it was not clear which were and which were not, and, in any event, this was not sufficient to negative the significance of the 200m figure. So far as third parties were concerned, therefore, a search area of up to around 200m was the case expressly advanced by Hutchison; that case did change in the appeal representations, where a search area of up to around 400m was advanced in its place.
[48] On the evidence, I find that the claimant understood Hutchison’s case in the way I have indicated, as adopting a search area of up to around 200m in the application letter, so that the reference to an area of up to |page:90| around 400m in the appeal representations involved a change in the case as understood by her. In her witness statement, the claimant makes this clear:
5. Thus both sets of Hutchison’s statements (the initial planning application and then on appeal) include alternatives well outside the search areas of 200m and 400m. However they do not make it clear where they are (or in the case of lamp posts what range they are); nor indeed why they are included at all, given the stated search area. In these circumstances it is extremely hard for objectors like myself to know how best to concentrate our efforts when making representations. One assumed that the real search area was, as stated, 200m.
6. In this case, what we understood as the relevant (200m) search area is so small that we were unable to locate any alternatives. So we made our representations in the way we did, essentially commenting on the alternatives in Hutchison’s application statement. If we had known that the relevant search area really was 400m, or indeed a wider area, we would have concentrated our efforts accordingly by positively suggesting sites within such area(s).
[49] It is true that a focus on the stated search area does not emerge with any clarity in the claimant’s representations at the time. But the witness statement is clear, has not been the subject of cross-examination and is not contradicted by the terms of the claimant’s representations at the time. Accordingly, I accept what the claimant says. Further, her understanding of the position was, in my view, reasonable in the circumstances.
Whether it was unfair not to invite further representations
[50] The matters already considered also bear upon the next of Mr Harwood’s submissions, which is that the claimant did make representations suggesting alternative sites beyond a 200m search area and cannot therefore claim to have been denied an opportunity to do so.
[51] It is true that the claimant’s original submissions made general reference to the alternative sites considered by Hutchison, which therefore included alternatives outside the 200m area. She stressed the need for Hutchison to provide details of their contacts in order to satisfy the council that the guidance in PPG 8 had been followed. It is also true that other objectors referred in general terms to sites in a wider area, for example by submitting that one of the two nearby industrial estates would be a preferred option. Further, the claimant’s own representations on the appeal made the general point that ”[i]t seems bizarre considering the number of suitable pylons and an industrial estate in the vicinity, that the proposed location would be selected as the most appropriate”, a point that again encompassed sites outside the 200m area.
[52] None of that, however, undermines the point in the claimant’s evidence that she was unable to locate any specific alternatives within the 200m search area and therefore limited her representations to commenting on the alternatives mentioned by Hutchison; but that, if she had known that the relevant search area was wider, she would have concentrated her efforts on suggesting specific sites within that wider area. Because the |page:91| change to a wider area was not notified to her until after the inspector’s decision, she was indeed denied an opportunity to concentrate her efforts and suggest alternatives in that way.
[53] Mr Harwood submits next that even if there had been a change in Hutchison’s case it was not unfair to determine the appeal without inviting further representations from the claimant. In so far as the submission is premised on the proposition that the claimant was able to comment and did in fact comment on alternatives in the wider area, I reject it for reasons already covered. But the submission has a wider aspect to it, with which I must also deal. Mr Harwood points to the opportunities given to third parties to make representations both at the stage of initial application and at the stage of an appeal. He submits that the planning issues should be apparent and that any person should be capable of addressing them. The written representation procedure makes clear provision as to the timing of representations and as to who is to have the last word. Although there may be situations where a new matter arises where third-party reconsultation is required, such situations should be exceptional. The reference to a 400m search area did not fall within that category. It was not so important that fairness required reconsultation of all third parties. The procedure as a whole gave third parties a fair crack of the whip.
[54] I note that it is no part of Mr Harwood’s submissions that the inspector was precluded by the regulations from inviting further representations from the claimant and other third parties. He was clearly right not to go that far. The regulations do not make express provision for the situation (save perhaps in so far as the Secretary of State is empowered to set later time limits in a particular case). In the absence of any clear provision to the contrary, however, they are to be construed and operated as giving effect to basic rules of procedural fairness, and, in my view, it clearly lies within the discretion of an inspector to invite further representations if he considers it necessary to afford such an opportunity in the interests of fairness.
[55] The need to invite further representations in the interests of fairness is likely to arise very infrequently. The sequence of representations provided for in the regulations will normally be sufficient to achieve fairness. But the opportunity to make additional representations can and should be given if a new point is raised that the inspector ought to take into consideration, and which cannot fairly be taken into consideration without giving such an opportunity. Whether fairness requires it depends entirely upon the particular facts of the case.
[56] On the facts of the present case, I take the view that fairness did require that the claimant be given an opportunity to make representations in relation to the increase in the stated search area. I quite understand why the potential significance of the point was not appreciated by the inspector, but the failure to give such an opportunity can be seen, on the evidence, to have resulted in unfairness to the claimant.
[57] To have given the opportunity for further representations would have delayed the decision. But Hutchison cannot be heard to complain |page:92| about that in circumstances where the need to give that opportunity arose from Hutchison’s own change of case, as reasonably understood by the claimant, from a 200m search area to a 400m search area.
Whether the claimant was substantially prejudiced
[58] It is common ground that the claimant must show that she was substantially prejudiced by the failure to give her an opportunity to comment on the basis of Hutchison’s changed case. The need to show substantial prejudice arises both because a breach of natural justice requires substantial unfairness rather than a mere technical error, and because the breach alleged is a failure to comply with a ”relevant requirement” under section 288(5)(b) of the 1990 Act and the court must be satisfied that the claimant’s interests have been substantially prejudiced by such a failure.
[59] Mr Harwood submits that the claimant has not suffered substantial prejudice from any potential breach of procedural fairness. The first element in the submission is that any further representations would merely have identified a specific site within the industrial estate to which the claimant and other third parties had already referred, and Hutchison had already provided a decisive answer.
[60] In my view, however, what was said about alternative sites in Hutchison’s representations did not cover with sufficient specificity the site now put forward by the claimant. Those representations do not show that the specific site had been investigated by Hutchison or that there were good reasons for rejecting it. The information before the court about the site post-dates the inspector’s decision and was provided in response to the claimant raising the point in post-decision correspondence. In its immediate response, by its letter of 22 April 2003, Hutchison said that the land was privately owned and the owners were not interested in accommodating the equipment. Subsequently, in Mr Palmer’s first witness statement it was stated:
I have since discussed this site with Hutchison’s Acquisition Surveyor who confirmed that he had investigated this site. I understand that this site was considered unsuitable as the highway verge was too narrow. I also understand that Havant Borough Council Officers have raised concerns about siting at this junction. It should also be noted that any mast at this location, being on lower ground, would need to be a higher mast of more substantial appearance and therefore is not considered to be a suitable alternative site.
[61] On the face of it, the explanation given in the letter (private land, owners not interested) sits uncomfortably with the explanation given in the witness statement (highway verge too narrow), but it may be that, as Mr Harwood submits, there is no actual inconsistency between the two. It may also be that the matters advanced by Hutchison in the letter and/or in the witness statement would have persuaded the inspector that the specific site suggested by the claimant was not a suitable alternative. But on the basis of the material I have been shown (including photographs |page:93| comparing the width of the verge at the suggested site with the width of the verge at the actual location of the mast), I cannot be certain that that would have been the outcome, and it is not for me to seek to form a planning judgment of my own on the basis of such material. Because no details were put forward, the inspector simply did not engage in the exercise for the purposes of his actual decision. I need go no further than to find, as I do, that the inspector might possibly have found the suggested alternative site to be acceptable and that that might possibly have led him to a different conclusion overall. This links in, of course, with my rejection of the submission that, in the circumstances of this case, the inspector could not lawfully have withheld approval by reference to an alternative site.
Conclusion on procedural unfairness
[62] Accordingly, I find in the claimant’s favour on the issue of procedural unfairness. The underlying dispute concerning the precise location of a slimline mobile-phone mast may seem a rather narrow one, but such questions are sensitive and fair decision making is important. The Secretary of State was right to concede the challenge on this issue and to offer to have the matter remitted for reconsideration.
Other issues
[63] The claimant also complains about the fact that notice of Hutchison’s appeal was sent to her by the council some two weeks later than required by the regulations: see [10]. In my judgment, that does not help the claimant, since the failure to comply with the relevant requirement did not give rise to substantial prejudice. She was still able to submit her representations on the appeal within the time laid down. The lack of opportunity to comment on Hutchison’s change of case with regard to the search area was not connected with the late notice from the council.
[64] A separate ground of challenge is that the inspector erred in law in accepting without more that the alternatives described by Hutchison were not available. PPG 8 requires the local planning authority to satisfy themselves that the information provided on alternatives is satisfactory. The claimant drew attention to this in her original representations. The inspector is under the same obligation on an appeal, yet he failed to scrutinise what was said about alternative sites in sufficient detail. That, in short, is the argument. In my judgment, it is unsustainable. As matters stood at that time, the inspector was clearly entitled to accept Hutchison’s evidence of the reasons why alternative sites had been rejected. There was no detailed challenge to that evidence. It is plain that the inspector took it into consideration, and it was reasonable to reach the conclusion he did on it. He was not required to do more.
Overall conclusion
[65] For the reasons given, the claim succeeds on the main ground; the inspector’s decision will be quashed and the matter will be remitted for reconsideration. |page:94|
[66] The claimant will then have an opportunity to put forward, for consideration by the inspector, specific alternative sites within the appropriate search area, which, on Hutchison’s evidence to this court, would appear to extend to around 800m from the application site, rather than the 200m originally referred to. The outcome of the appeal on reconsideration may or may not be the same, and upon the outcome of the appeal will depend the fate of the mast already constructed. Those matters are not the concern of this court.
Appeal allowed.
