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 — Claims dismissed
By the first application, the claimants applied, under section 288 of the Town and Country Planning Act 1990, to quash a decision by an inspector appointed by the first defendant granting the second interested party, a telecommunications operator, planning permission for the erection of an 11.75m high monopole and equipment cabin in a predominantly residential area. The claimants’ challenge was confined to the manner in which the inspector had dealt with the availability of alternative sites.
The second application sought to quash an inspector’s decision to grant planning permission for the erection of a 15m high mast with three antennae and one transmission dish, together with equipment cabins that would be housed in a fenced compound. The claimant challenged that decision on the ground that the inspector had failed to give proper consideration to the question of alternative sites and had not fairly represented the evidence.
Held: The claims were dismissed.
Under PPG 8, the consideration of alternative sites formed an integral part of the assessment of an application for approval of the siting of telecommunications structures. The guidance broadly accepted the principle of such structures where they were needed for coverage, but acknowledged the sensitivity of their location and emphasised the importance of searching for the optimal location: Phillips v Secretary of State [2003] EWHC 2415 (Admin); [2003] NPC 122 followed.
Under Schedule 2 to the Telecommunications Act 1984, the second interested party had the power (now granted by the Communications Act 2003) to place the proposed mast on an alternative site if agreement could be obtained from the occupier. Paragraph 5 conferred a power upon operators to dispense with the need for agreement if it could not be obtained. However, the mere fact that a statutory power was available did not mean that it had to be used in every case. There was nothing in the policy guidance to suggest that the inspector had erred in his approach to the use of that statutory power. The inspector had been entitled to take the view that even if the power were exercised, the court would probably refuse to make an order: Mercury Communications Ltd v London & India Dock Investments Ltd [1994] 1 EGLR 229 and Cabletel Surrey & Hampshire Ltd v Brookwood Cemetery Ltd [2002] EWCA (Civ)729 considered. One had to stand back and recognise that although the issue of alternative sites was important, it was not the sole issue. The inspector had dealt with the issue of alternative sites in a comprehensive manner, with particular reference to para 5.
As regards the second application, an inspector had to deal with cases as they were presented to him in the written representations, and in this case he had given proper consideration to the question of alternative sites. He could not be criticised for not mentioning para 5 of Schedule 2 because it had not been raised in the written representations.
David Wolfe (instructed by Leigh Day & Co) appeared for the claimants; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first defendant; Peter Goatley (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 was not represented.
Eileen O’Grady, barrister
