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Material Considerations“In principle ... any consideration which relates to the use and development of land is capable of being a planning consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances”. (Stringer –v- MHLG [1971])1 All ER, 65 Paragraph 11 The Planning System: General Principles goes on “Material considerations must be genuine planning considerations, i.e. they must be related to the development and use of land in the public interest. The considerations must also fairly and reasonably relate to the application concerned (R v Westminster CC ex-parte Monahan 1989).” Paragraphs 12 to 15 of the same document continues “12. The Courts are the arbiters of what constitutes a material consideration. All the fundamental factors involved in land-use planning are included, such as the number, size, layout, siting, design and external appearance of buildings and the proposed means ofaccess, together with landscaping, impact on the neighbourhood and the availability of infrastructure. 13. The Courts have also held that the Government’s statements of planning policy are material considerations which must be taken into account, where relevant, in decisions on planning applications. These statements cannot make irrelevant any matter which is a material consideration in a particular case. But where such statements indicate the weight that should be given to relevant considerations, decision-makers must have proper regard to them. If they elect not to follow relevant statements of the Government’s planning policy, they must give clear and convincing reasons (E C Grandsen and Co Ltd v SSE and Gillingham BC 1985). 14. Emerging policies, in the form of draft policy statements and guidance, can be regarded as material considerations, depending on the context. Their existence may indicate that a relevant policy is under review; and the circumstances which have led to that review may need to be taken into account. 15. In those cases where the Development Plan is not relevant, for example because there are no relevant policies, or policies in the DPDs pull in opposite directions so that there is no clear guide for a particular proposal, the planning application (or planning appeal) should be determined on its merits in the light of all the material considerations. It is clear that what will be a material consideration in any given circumstance may well vary. Hence, it is not possible to provide a comprehensive list. However, in the determination of many telecommunications applications and appeals the following have been considered material: National Planning Policy National Planning PolicyThis sets the context for the consideration of all telecommunications proposals and is presently contained in Planning Policy Guidance note 8 (PPG 8). Planning Policy Guidance 8 - Communities and Local Government website Emerging draft Local PlansThe “development plan” for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004 includes only statutory plans which are duly adopted and in force. However, plans which are in the course of preparation may be taken into account, as a material consideration in development control decisions, even when objections to the proposed policies therein remain unresolved. The Secretary of State has advised local planning authorities that proposals for the making, alteration, or replacement of development plans may be taken into account as a material consideration for development control purposes while going through the statutory procedures leading to approval or adoption. However, just because a development plan is in the course of preparation that will not in itself justify the refusal of planning permission unless matters relating to the site remain unresolved. Applications should not be refused on the basis of development plan policies which take insufficient account of the growth and characteristics of modern telecommunications. The main issue is likely to relate to the weight to be attributed to this consideration. In making a decision regarding an application the weight to be attached to policies in emerging development plans will depend upon, among other things, the stage of plan preparation or review, with weight increasing as successive stages are reached. For example, where a plan is at an early consultation stage then low weight should be applied. If the plan has been deposited and no objections lodged to the relevant policies then considerable weight can be attached to them because of the strong possibility that they will be adopted and replace those in the existing plan. The converse may apply if there have been objections to relevant policies. Supplementary Planning Guidance and Supplementary Planning DocumentsMany local planning authorities have issued Supplementary Planning Guidance (SPG) relating to telecommunications development. SPGs do not form part of the Local Plan but supplement other specific policies. SPG must itself be consistent with national and regional planning guidance, as well as the policies set out in the adopted development plan. It should be clearly cross-referenced to the relevant plan policy or proposal which it supplements. It should be issued separately from the plan and made publicly available; consultation should be undertaken, and the status of the SPG should be made clear. SPG should be reviewed on a regular basis alongside reviews of the development plan policies or proposals to which it relates. Under the new planning system which has been introduced by the Planning and Compulsory Purchase Act 2004 and PPS 12 local planning authorities are starting to produce Supplementary Planning Documents (SPD) which can expand upon but must be consistent with the Development Plan Document upon which it is intending to provide further detail. NeedNational planning policy recognises that each telecommunications system has different antenna types, siting needs and other characteristics. Planning authorities should have regard to any technical constraints on the location and proposed development. Indeed, paragraph 54 of PPG 8 provides that “Planning authorities should have regard to any technical constraints on the location and proposed development. Material considerations include the significance of the proposed development as part of a national network. In making an application for planning permission or prior approval, operators may be expected to provide evidence regarding the need for the proposed development.” Further, local planning authorities should not seek to prevent competition between different operators and should not question the need for the telecommunications system which the proposed development is to support. It should be noted that the need for the proposed development is that arising in the locality of the proposed development, though it is noted that the telecommunications proposal is part of a national network – See Telecom Securicor –v- National Assembly for Wales [2001] PLCR 375. 2G systems which were introduced in the UK in the early 1990s cater for mobile telephone users. They now cover an area encompassing over 98% of the population of the UK. Even though the operators have met their initial second generation coverage targets (as required by the conditions of their licence) they are still required to provide a high quality service which includes the need to meet reasonable customer demand. This continues to be material consideration. It is recognised that in some cases there may be a tension in policy of seeking to protect areas of high landscape or visual significance and facilitating network development (which is an important aspect of national policy). Paragraph 64 of PPG 8 states Protection from visual intrusion and the implications for subsequent network development will be important considerations in determining applications. The nature of some telecommunications development may in some cases bring it into apparent conflict with established local and national planning policies. Masts and antennas often require a particular operating height, which allows signals to clear trees and urban clutter. Telecommunications development may therefore need particular locations in order to work effectively. But those may be exactly the prominent locations that pose challenges to policies for the protection of high quality landscapes and quality in urban areas. High priority should be given to protecting such areas and the need to safeguard areas of particular environmental importance. In National Parks and Areas of Outstanding Natural Beauty proposals should be sensitively designed and sited and the developer must demonstrate that there are no suitable alternative locations.Advice on development in National Parks and Areas of Outstanding Natural Beauty is given in PPG7 and Nature Conservation in PPG9. However, paragraph 74 of PPG 8 notes: “But many antennas have special siting needs because they have a limited range or require line-of-sight. Authorities should take account of these needs. Arbitrary restrictions in one area, such as limits on mast height, may encourage problems of interference and also create corresponding problems in a neighbouring area, such as the need to install a taller mast, or more than one mast, than would otherwise have been necessary to maintain line-of-sight.” The examination of alternative sitesAs is identified in PPG 8 local planning authorities and operators should work together to find the optimum environmental and network solution on a case-by-case basis. What that solution will be, in any given case, will depend upon the specific site circumstances. This issue was touched upon in the case of Phillips –v- First Secretary of State [2003] EWHC 2415 (Admin). Whilst this case primarily dealt with a procedural failure on the part of the First Secretary of State (in dealing with an appeal by written representations) it reiterated the potential relevance of the seeking to find the optimum environmental and network solution. This is also consistent with the obligations of local planning authorities and operators reflected in the Code of Practice on mobile phone network development issued by the ODPM. This general approach was endorsed in St Leger Davey -v- First Secretary of State both by Sullivan J in the High Court [2004] EWHC 512 (Admin) and the Court of Appeal [2004] EWCA Civ 1612, albeit qualified so as not to exclude the relevance of the views of owners of other potential sites (see judgment paragraph 30). Mobile phone network development: Code of Best Practice - Communities and Local Government site Health EffectsMobile phones and their base stations operate by transmitting and receiving signals using electromagnetic waves (also referred to as electromagnetic fields (EMFs) or radio waves). EMFs are all around us. They occur naturally and also arise from a wide range of man-made sources. Established health effects of exposure to radio waves from mobile phone systems are associated with the heating of tissue. Both the UK National Radiological Protection Board (NRPB) and the International Commission on Non-Ionizing Radiation Protection (ICNIRP) have published guidelines on limiting exposure to radio waves. The public’s increasing awareness of the presence of EMFs in the environment has been accompanied by concern that exposure to EMFs may have possible adverse effects upon health. Notwithstanding the advice of NRPB, there has been some public concern whether exposure to low-level EMFs might cause other, ‘non-established’ health effects, such as headaches, sleep disturbance, depression, stress and also long term health effects such as cancer. In 1999, the Government asked the NRPB to set up the Independent Expert Group on Mobile Phones (IEGMP). This Group, under the chairmanship of Sir William Stewart FRS FRSE, considered concerns about health effects from the use of mobile phones, base stations and transmitters. They conducted a rigorous and comprehensive assessment of existing research and gathered a wide range of views. The Group published its report on 11 May 2000. In respect of base stations, the report concludes that "the balance of evidence indicates that there is no general risk to the health of people living near to base stations on the basis that exposures are expected to be small fractions of the guidelines. However, there can be indirect adverse effects on their well-being in some cases". The report also states that the possibility of harm cannot be ruled out with confidence and that the gaps in knowledge are sufficient to justify a precautionary approach. The Government accepted the precautionary approach advised by the IEGMP though its acceptance is limited to the specific recommendations in the Group’s report and the Government’s response to them. Of particular significance to the consideration of telecommunications proposals is the requirement that the emissions from mobile phones base stations should meet the ICNIRP guidelines for public exposure. All mobile phone base stations meet the ICNIRP guidelines and the audit undertaken by the Radiocommunications Agency since 2001 of existing base stations has found that all base stations surveyed by it also comply. Office of Communications website The Government has launched a substantial joint Government/industry research programme, costing around £7 million (with an independent programme management committee) which is carrying out research into the effects of mobile phone technology on health. The Government has indicated that this area is kept under review and that Government and the public are kept up to date with new research findings. The most recent update report from the Health Protection Agency (the successor to the NRPB) in January 2005, whilst maintaining the same precautionary approach, considered that the main conclusions reached in the Stewart Report in 2000 still apply today. Public perception of concern about harm to healthNotwithstanding the findings of the IEGMP upon the evidence to date, some sections of the public continue to express concern arising from their perception about the potential harm to health arising from mobile phone base stations. The law is reasonably clear. Health matters and public concerns about them can in principle be material considerations in determining applications for planning permission and prior approval. This was established in the case of Newport B.C. v S.S. for Wales and Browning Ferris Environment Services Ltd (1998) 1 PLR 47. However, whether such matters are, in fact, material in a particular case is ultimately a matter for the courts. It will be for the decision-maker (in the first instance the local planning authority) to determine what weight to attach to such considerations in any particular case. The Government has set out its clear view on this issue in paragraph 98 of PPG 8: “ However, it is the Government’s firm view that the planning system is not the place for determining health safeguards. It remains central Government’s responsibility to decide what measures are necessary to protect public health. In the Government’s view, if a proposed mobile phone base station meets the ICNIRP guidelines for public exposure it should not be necessary for a local planning authority, in processing an application for planning permission or prior approval, to consider further the health aspects and concerns about them.” This policy has been tested in numerous appeals (many at public inquiry), in the High Court and in the Court of Appeal. To date no appeals by operators have been dismissed where perceived health effects was the main issue. Since PPG8 was re-issued in August 2001 there have been seven public inquiries where health and safety was considered a main issue. In each case the Inspector allowed the appeal. On five occasions, costs were awarded against the Council. Watford 2001 Appeal Decision
(pdf 590KB) The consideration of health concerns and perception of harm relating to telecommunications by the Courts T Mobile and others –v- First Secretary of State and Harrogate Borough Council [2004] EWCA Civ 1763 In this case the operators applied for planning permission to install and extend certain telecommunications transmission equipment at Harrogate. This was refused by the LPA and the operators appealed to the First Secretary of State. The Inspector who dealt with the matter by written representations dismissed the appeal. This was notwithstanding that the proposal met the ICNIRP standards (in that the emissions from the equipment would be lower than those standards by a factor of thousands). The Inspector concluded that the appeal proposal “in its present form provides insufficient reassurance that there would be no material harm to the living conditions (in terms of health concerns) specifically of the group identified by the Stewart Report as potentially vulnerable: that is, of young children, in this case at both Woodfield Community Primary School and St Roberts Catholic Primary School.” This was the subject of an appeal to the High Court by the operators. Sir Richard Tucker upheld the operators appeal [2004] EWHC 1713 (Admin). The FSS then appealed to the Court of Appeal. The Court of Appeal upheld Sir Richard Tucker’s judgment and dismissed the FSS’s appeal. Laws LJ, giving the first judgment of the Court, analysed the issues and the case and concluded, in paragraph 21 of his judgment "The Inspector appears to have considered that his conclusion that the appeal proposal provided insufficient reassurance on health was consistent with Government policy, notwithstanding the proposal's ample compliance with ICNIRP and an appropriate certificate having been given to that effect. That, in my judgment, was the error made by the Inspector which is central to this case. Such a conclusion in truth represented a departure from the policy. Although the Inspector, as I have said, might be entitled to take such a position, he would have to justify it as an exceptional course. I see no exceptional circumstances here, notwithstanding the fact - if it be one - that the beam of greatest intensity is directed to two of the schools. The planning policy indicated in paragraph 98 must, in my judgment, be ample to cover such a case. In any event the Inspector did not seek to justify his conclusion by reference to anything he thought to be an exceptional circumstance. Thus there is, as I have indicated, nothing in paragraphs 11-14 to show why, on the facts of this particular case, compliance with the ICNIRP guidelines was insufficient to allay perceived fears about health issues." Two earlier High Court cases are also of some assistance in understanding the Court’s approach to this issue. One case was determined in context of PPG 8(1992), the other in context of PPG 8 (2001) R –v- Tandridge DC ex parte Mohamed Al Fayed (1999) and Trevett –v- Secretary of State DTLR and others [2002] EWHC 2696 Admin [2002] Views of Local ResidentsThe views of local residents can be material consideration on most development proposals. Paragraph 27 of “The Planning System: General Principles” sets out the guidelines relating to the consideration of views expressed by local residents: "The members of the local planning authority are elected to represent the interests of the whole community in planning matters. When determining planning applications they must take into account planning considerations only. This can include views expressed on relevant planning matters. However, local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless it is founded upon valid planning reasons." Other Appeal DecisionsIn making any decisions pursuant to the Planning legislation, other relevant appeal decisions can be material considerations. This is made clear in Circular 8/93 (which deals with issues relating to costs).Such decisions are not to be regarded as binding precedents but there is a well recognised interest in seeking to achieve consistency in administrative decision making. The following public inquiry decision letters deal with many issues commonly raised in telecommunications appeals and may be accessed through this website. Watford 2001 Appeal Decision
(pdf 590KB) Telecommunications Code of Best PracticeMobile phone network development: Code of Best Practice - Communities and Local Government site The Use of “Code Powers”St Leger Davey and others -v- FSS [2004] EWCA Civ 1612 This case related to an appeal decision in Winchester granting permission for the erection of an 11.79m high mono-pole. Various grounds for challenge were pursued by the Claimants. However, by the time that the matter reached the Court of Appeal (and, previously, the High Court) only one ground of challenge was raised on behalf of the Claimants. This focused on the Inspector’s approach to the potential use, by the operator, of powers conferred upon them as operators by paragraph 5 of Schedule 2 to the Telecommunications Act 1984. Whilst it had no bearing on the consideration of the case, it may be noted that those powers have now been repealed and replaced by new powers which are contained in the Communications Act 2003. The Claimants contented that the operator should have invoked the powers available pursuant to paragraph 5 of Schedule 2 of the 1984 Act in respect of alternative sites before pursuing the appeal site at Byron Avenue. The Inspector, in his decision letter paragraphs 45 and 46, rejected this argument and noted that there is no mention of site acquisition by this process in PPG 8 or the associated Code of Best Practice, implying that it does not form part of the normal process of site selection. This reinforced his view that in the circumstances of that case there was no reasonable possibility of an alternative site being available. The Inspector established that there was a gap in the operator’s network in this part of Winchester and that all potential options had been explored but that none were available because the respective owners of those alternative sites had been unwilling to permit the use of their land. In the circumstances the proposed site was the “best available”. The Claimants alleged that the Inspector had misdirected himself in failing to correctly consider the availability and application of this power. The Court of Appeal carefully examined the policy in PPG8 and rejected the Claimants' challenge. Pill LJ, in paragraphs 27 and 28 of his judgment found that “27. The principle that resort to the County Court should not readily or routinely be contemplated is in my judgment a sound one. The entitlement, confirmed in Article 1 of the First Protocol to the European Convention on Human Rights, that “every natural or legal person is entitled to the peaceful enjoyment of his possessions” is a factor which a planning authority may take into consideration in an application for planning permission for the erection of a telecommunications mast on the land of another. I would not accept the submission …..that an applicant must either go to the County Court and fail on a meritorious alternative site, of which there may be more than one, or must satisfy the planning authority that he would fail if he did so. In my judgment there is no such duty on an applicant. While a planning authority is entitled to have regard to the existence of the power in Schedule 2, it is not obliged to ignore, as a material consideration, the stand taken by occupiers of sites alternative to that advocated in the application. 28. In this case, the inspector was entitled to give weight to that consideration. He had before him, as a part of the written representations, representations from responsible authorities expressing opposition to the use of their land. These included references to emergency procedures and to safety. On the basis of those representations, he was entitled to reach the conclusion he did as to possible alternative sites.”
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