R v Tandridge District Council and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CARNWATH |
| Judgment Date | 14 January 1999 |
| Judgment citation (vLex) | [1999] EWHC J0114-4 |
| Docket Number | CO 3665/97 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 January 1999 |
[1999] EWHC J0114-4
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Mr Justice Carnwath
CO 3665/97
MR I CROXFORD QC and MR R SINGH (instructed by Halsey Meyer Higgins, London SW1E 6AE) appeared on behalf of the Applicant.
MR N KING (instructed by Tandridge District Council, Surrey RH8 OBT) appeared on behalf of the Respondent.
MR D PANNICK QC and MR A GRIFFITHS (instructed by Freshfields, London EC4Y 1HS) appeared on behalf of Mercury Personal Communications
(As approved)
Thursday, 14th January 1999
This is an application to quash a decision of the Tandridge District Council by which they granted planning permission for the erection of a radio telephone base station tower at a site called the Oxted Quarry in Surrey.
The Applicant is a local resident who fears that he would be affected by the station. The background is this: the application for planning permission was made by Mercury Communications PLC, on 1st May 1997, through their agent Stappard Howes Associates. The council gave notice to people living in the vicinity in order to give them an opportunity to make objections if so minded. Solicitors for Mr Al Fayed submitted objections on 4th June 1997, these raised various matters of concern but included the following:
"Our client's main concern relates to the electro magnetic and radiation fields and waves emitted by such antennae and their associated equipment. In particular our client is very concerned at the possible health hazards for people living in the immediate locality which it is thought may now be associated with these types of equipment and emitted radio energy.
The position is still so unclear that the European Union has set up an Enquiry to look into this very point.
We enclose with this letter a copy of the Recommendations of the European Commission Expert Group who are continuing their research in the current absence of the essential data on both radiotelephones and, more importantly, the associated necessary antennae."
The letter also enclosed certain material from the National Radiological Protection Board.
I will need to come back to the material that was included, but one item was an article in the Radiological Protection Bulletin for March 1997, written by a Dr Alastair McKinlay, who is an acknowledged expert in this field and a member of the Radiological Protection Board. In that article he has summarised the recommendations of the European Commissions Expert Group established by the Commission in 1993 looking at the safety of radiotelephone base station antennae.
There was also included a 1996 statement from a body called the International Commission on Non-ionising Radiation Protection of which Dr McKinlay was the UK representative.
Mr Al Fayed himself wrote to the leader of the council on 4th June raising similar concerns. He said this:
"The visibility problem is not the concern. The concern, as expressed in my Consultant's objections to the present planning application, is based on the possible danger to those living within proximity and the locality to the advent of increased interference from electromagnetic fields and from radiation. It is clear that there is very little database evidence to show whether there is, or is not, a health and environmental problem relating to such structures and their associated equipment. However, there is quite clearly concern viewed by the European Commission and they have set up, perhaps belatedly, an expert group to investigate the side effects and consequences of such new uses of technology."
A reply was sent by the Chairman of the Council on 5th June responding to that letter. The Chairman said this:
"In respect of the Oxted Chalkpit mast, the Council's Director of Planning and Environment has advised me that he has received the objection letter from your solicitors. I attach for your information an extract from the national planning guidance contained in Planning Policy Guidance Note No 8 (PPG8) on telecommunications. Paragraphs 1–6 set out the general position and presumption to facilitate the growth of telecommunications systems. Paragraph 37 indicates that radiation is a matter for the Health and Safety Executive (HSE). Radio interference is acknowledged in paragraph 38 as being a material planning consideration.
Your solicitor's letter has therefore been forwarded to the HSE and the Radiocommunications Agency for their comments. The Director of Planning & Environment has also written to the applicants on these points and has asked for the height and siting to be amended."
Unfortunately it is common ground that, although that letter says that Mr Al Fayed's solicitors' letter had been sent to the HSE, that had not in fact happened.
The letter was, on the other hand, sent to Stappard Howes, the agents for Mercury, and comments from them were received. On this particular issue, in their letter of 23rd June, they said this:
"The objectors main concern relates to health and safety issues. The National Radiological Protection Board is responsible for advising the Government on health and safety issues relating to radio transmission systems and has set guidelines and limits within which all radio systems should operate. These are designed to protect both the general public and workers who might come in close contact with radio transmission equipment. One-2-One has a very strong commitment to health and safety and to this end have adopted limits more stringent than the guidelines recommended by the NRPB. Your attention is drawn to paragraph 37 of PPG 8 in which it states that 'radiation safety is a matter for the Health and Safety Executive..' and on this basis is not a material planning consideration."
(The last comment, that radiation safety is not a material planning consideration, is not supported by Mr Pannick, who appears on behalf of Mercury before me. As we will see, it was omitted when this letter was referred to in the planning officer's report.)
There was at this stage certain discussion about the height of the proposed tower and a revised application was put in reducing it from 30 metres to 22.5 metres and reducing the number of antennae and dishes.
The application was referred to the Health and Safety Executive, but the letter to them did not draw attention to any particular aspects for their consideration, and in particular, did not draw attention to Mr Al Fayed's objections on the basis of radiation.
The HSE responded on 3rd July. The letter contains a heading which refers to regulations dealing with hazardous substances and pipeline safety, and a circular dealing with planning controls and hazardous installations, but does not make any reference to PPG 8 on telecommunications.
The body of the letter says this:
"The application has been passed to the Inspector responsible for the premises for any general comment and reply as appropriate.
HSE has considered the proposals and because of the nature of the development at this location there are no reasons on health and safety grounds why the application should not be permitted."
Mr Al Fayed also submitted further objections by letters dated 18th and 21st July. These repeated the substance of the objections he had already made. The second of those letters referred to a television report on Channel 5 which, according to the letter, related to the erection of a new radio antennae mast and understandable concerns of a household in its immediate vicinity. The letter says:
"…'National Radiological Protection Board' currently now considered that further research was necessary so as to ensure that both with the proliferation of such antennae masts and the enormously increased use of mobile phones, where there are now more that 7 million users, that those residing in the close vicinity of such masts were not having their health adversely affected by the constant exposure to low levels or radio microwaves over continuous and protracted periods. The risk of cancer was particular mentioned.
Our client's experts have pointed out that our client's original letter of objection was apparently referred to the Health and Safety Executive for reply. It would be important to know the views of that Executive in the light of the above apparent need for further research as envisaged by the NRPB which of course only confirms the views of the European Commission which has already set up such an enquiry as we mentioned in our client's original letter of objection concerning this possible health hazard."
As I have said, the understanding that the original letter had been sent to the HSE was mistaken. Nor was this letter itself drawn to the HSE's attention.
The matter came before the relevant committee of the council on 22nd July. They had before them a report of the relevant officers. That described the application proposal. It recorded the results of consultations, including the following:
"Health & Safety Executive—considered the proposals and because of the nature of the development at this location there are no reasons on health and safety grounds why the application should not be permitted."
Under "Planning Issues", the report referred to the National Guidance contained in PPG 8, and, in particular, to the Government's policy on telecommunications, which is to facilitate the growth of new and existing systems, subject to other planning objectives. There was also a reference to "the Surrey Structure Plan 1994", which contains a specific policy on communication...
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