St Leger-Davey and Another v First Secretary of State
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Mummery,Lord Justice Laws |
| Judgment Date | 01 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1612 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2004/0576 |
| Date | 01 December 2004 |
[2004] EWCA Civ 1612
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION,ADMINISTRATIVE COURT
THE HON MR JUSTICE SULLIVAN
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Pill
Lord Justice Mummery
Lord Justice Laws
Case No: C3/2004/0576
C049582003
MR D WOLFE (instructed by Messrs Leigh Day) for the Appellants
MR T MOULD (instructed by Treasury Solicitors) for the Respondent
MR C KATKOWSKI QC & MR T BULEY (instructed by Orange PCS Ltd) for the Second Interested Party
This is an appeal by Phoebe St Leger-Davey and James Harrison ("the appellants") against the judgment of Sullivan J dated 1 March 2004 refusing an application to quash a decision of an inspector appointed by the First Secretary of State ("the Secretary of State") on 19 August 2003, following a public inquiry. The inspector allowed an appeal by Orange PCS Limited ("Orange") against the refusal of Winchester City Council ("the Council"), on 12 March 2002, to grant prior approval for the siting and design of an 11.79 metre high telecommunications mast and an equipment cabin at Byron Avenue, Winchester. Orange are telecommunications operators.
The appellants live and attend school 250 to 300 metres from the mast. Other issues were before the inspector including the impact of the mast on the character and appearance of the locality. The only issue before the judge and this court arises out of the availability, on the evidence before the inspector, of possible alternative sites for the development.
The inspector referred to the relevant development plan policy, policy TC1 in the Structure Plan, which provides:
"… telecommunication development will be permitted provided all possible steps have been taken to minimise its environmental effects. Where there is a conflict with environmental objectives, the policy requires there to be no reasonable possibility of sharing existing facilities, no satisfactory alternative sites, and no reasonable possibility of using an existing building or other structure."
Put generally, the issue is whether the Inspector took account of and correctly considered the effect of the "code power" granted by the statutory "telecommunications code" contained in Schedule 2 to the Telecommunications Act 1984 ("the 1984 Act"), since amended. Rights are conferred and obligations imposed on operators, such as Orange, who are known as Code System Operators (paragraph 10 of PPG8). There is a power to seek an order from the court requiring an unwilling landowner to grant the operator the right to place his equipment on the landowner's land.
Planning guidance issued by the Secretary of State in PPG8, effective from 22 August 2001, provides, at paragraph 15:
"Local planning authorities and operators should work together to find the optimum environmental and network solution on a case-by-case basis."
Emphasis is placed, at paragraphs 19 to 21, and paragraphs 66 to 68 of the "Appendix Supporting Guidance", on keeping the number of masts to a minimum, on the sharing of masts and sites where that represents the optimum environmental solution and on exploring the possibility of erecting antennae on an existing building, mast or other structure.
Schedule 2 provides, at paragraph 2, for agreements between operators and occupiers of land amongst other things to confer a right, for the statutory purposes, to "execute any works on that land for, or in connection with the installation, maintenance, adjustment, repair or alteration of telecommunication apparatus". Paragraph 3 provides protection to occupiers of nearby land whose access may be obstructed by the works and paragraph 4 provides a defined right to compensation.
Paragraph 5 of the Schedule 2 provides:
"(1) Where the operator requires any person to agree for the purposes of paragraph 2 or 3 [i.e. obtaining the right to install equipment] above that any right should be conferred on the operator, or that any right should bind that person or any interest in land, the operator may give a notice to that person of the right and of the agreement that he requires.
(2) Where the period of 28 days beginning with the giving of a notice under sub-paragraph (1) has expired without the giving of the required agreement, the operator may apply to the court for an order conferring the proposed right, or providing for it to bind any person or any interest in land, and (in either case) dispensing with the need for the agreement of the person to whom the notice was given.
(3) The court shall make an order under this paragraph if, but only if, it is satisfied that any prejudice caused by the order –
(a) is capable of being adequately compensated for by money; or
(b) is outweighed by the benefit accruing from the order to the persons whose access to a telecommunication system will be secured by the order;
and in determining the extent of the prejudice, and the weight of that benefit, the court shall have regard to all the circumstances and to the principle that no person should unreasonably be denied access to a telecommunication system …"
Paragraph 7 empowers the Court to fix financial terms where agreement has been dispensed with.
These provisions have been amended and are now given effect by the Communications Act 2003 but it is common ground that the differences between the two are not material for present purposes. The expression "telecommunications system" has been replaced by a more up-to-date one.
On behalf of the appellants, it is accepted that the availability of alternative sites is only exceptionally a material consideration in relation to applications for planning permission. Planning control is normally intended to restrict an owner's right to use his land as he chooses only to the extent that the public interest requires restriction on planning grounds. However, it is submitted, the existence of and the relative merits of possible alternative sites is, by virtue of PPG8 and the statutory code, a material planning consideration in this context.
In his decision letter, the inspector identified and described possible sites alternative to that proposed by Orange, and, in particular, a site at the headquarters of the Hampshire Constabulary and a site in the car park of Winchester railway station. He set out the health concerns expressed by the appellants and others.
The inspector found, and Orange conceded, that from a technical standpoint the best site was the roof of a multi-storey building which is part of the police headquarters. It was already used by two other mobile phone operators. The inspector recorded that, having considered a request to investigate the feasibility of installing the apparatus on the roof, the Constabulary had stated that it was necessary to protect the roof space for their "operational and accommodation reasons". Notwithstanding efforts to persuade the Constabulary to change their minds, they have said that their decision is final. The inspector stated: "Whilst this situation is regrettable, I have to conclude that there is no realistic possibility of this site being available."
While he did not quote them, the inspector plainly had in mind two letters from the Constabulary. By letter of 25 March 2003 they stated that the "Force must protect any future requirements for the roof and any additional needs for the Airwave system [a national police communications network]". A letter of 10 April 2003 provided that: "It is necessary for the force to protect its roof space to ensure that our current accommodation review is not affected and that Airway, as a priority for emergency services, operates without interference."
As to the station car park, the inspector considered the operational possibilities but also noted that "it emerged that this site, like the police HQ, would not be available for the foreseeable future." A letter from Network Rail of 13 May 2003 had stated:
"In general, Network Rail is able to lease its land to third party telecommunications operators for the erection of their masts and antennae. However, this is only possible where stringent safety criteria are met. For example, such masts are required to be certain distances from sensitive signalling equipment.
In particular, third party masts are required to be a minimum distance of 167m. from our proposed GSM-R (railway operational) masts. For this reason it is highly unlikely that Network Rail would permit the installation of a third party telecommunications system operator close to Winchester station for the foreseeable future.
I am sorry to be negative to this suggestion, but you will understand that the safe operation of the railway is of paramount importance to Network Rail and this has to take priority over the potential commercial opportunity suggested above."
The inspector's conclusions were:
"43. The important point, in my view, is that technical compatibility is of little consequence if the landowner is unwilling to lease the land. Consequently I conclude that the station site is no different to any of the other potential alternatives where landowner consent has been withheld. It is also pertinent that the station site would not provide the required coverage of a significant proportion of the target triangle. The appellant argues that even if the station site does become available in the future, an additional microcell installation would still be needed to provide coverage to the parts of the triangle that are best served by...
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