Steven Thomas v Cheltenham Borough Council

Hearing dates: 11 April 2024

Approved Judgment

This judgment was handed down at 10.45 am on 3 May 2024 and sent to the parties and to the National Archives

HHJJarmanKC:

Introduction

This is a challenge, by the claimant Mr Thomas, to a decision by the defendant as local planning authority (the authority) that prior approval is not required for a proposed development of electronic communications equipment, comprising a 15 metre pole with antennas at the top of the pole, ground based apparatus and ancillary development on a grass verge adjacent to Lansdown Road near its junction with Talbot Road, Cheltenham. The site is located within Cheltenham's Central Conservation Area.

The challenge is put on two main grounds, which are interrelated. Permission was granted for each. Ground 1 is that the decision is irrational and unreasonable, as it poses avoidable risks of harm, injury and nuisance to the public. Ground 2 is that the authority was obliged to make an evidence-based decision having taken properly into account objections from the public in accordance with its obligations under planning law. Both of those grounds are disputed by the authority. These grounds are more particularised in the summary grounds, by setting out five alleged failures on the part of the authority as follows: health concerns raised by objectors were not taken into consideration; a full assessment of risks on health was not undertaken; exclusion zone maps were not obtained; the potential harm of the equipment on medical implants was not taken into account; and the cumulative effect of similar development was not considered.

Insofar as Mr Thomas's submissions, written or oral, seek to go beyond the summary grounds and/or the grounds on which permission was given, then I accept the submission by Mr Kohli on behalf of the authority, that such an extension is not permissible.

The application

The application was made by CK Hutchison Networks (UK) Limited (CK), the trading name of which is Three. It is not clear what connection, if any, that company has with the interested party, which has taken no part in these proceedings. The application was validated on 1 April 2023 and determined under The Town and Country Planning (General Permitted Development (England) Order 2015 (the GPDO).

Schedule 2, Part 16, Class A of the GPDO allows for the installation, alteration or replacement of electronic communications apparatus. The development which is permitted thereunder is described as follows:

“A. Development by or on behalf of an electronic communications code operator for the purpose of the operator's electronic communications network in, on, over or under land controlled by that operator or in accordance with the electronic communications code, consisting of—

(a) the installation, alteration or replacement of any electronic communications apparatus,

(b) the use of land in an emergency for a period not exceeding 6 months to station and operate moveable electronic communications apparatus required for the replacement of unserviceable electronic communications apparatus, including the provision of moveable structures on the land for the purposes of that use, or

(c) development ancillary to radio equipment housing.”

Paragraph A1 then sets out certain exceptions, for example where the apparatus, excluding antenna, would exceed a specified height above ground level, or where the ground area of the apparatus exceeds a specified square meterage, or where the land in question is a site of special scientific interest. Such development is not permitted development.

Paragraph A.2 sets out certain conditions to which the permission may be subject and paragraph A.3 sets out procedural requirements. A.3(3) provides that before beginning the development, the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to the siting and appearance of the development. Paragraph A.3(6)(d) requires notice of the proposed development to be served on any adjoining owner or occupier, and paragraph A.3(7) provides that when determining an application as to whether prior approval is required, the local planning authority must take into account any representations made to them as a result of such notices.

The application was accompanied by a supplementary document, running to some 37 pages, which stated that there is a specific requirement for an installation on highways land on Lansdown Road, close to the junction with Talbot Road, to ensure that the latest high quality service provision is provided in that area of Cheltenham. The document included a heading “Health and Safety — including ICNIRP compliance.” Included was a certificate of such compliance which declared that the proposed equipment and installation as detailed in the attached planning/ GPDO application was designed to be in full compliance with the requirements of the radio frequency public exposure guidelines of the International Commission on Non-Ionizing Radiation Protection (ICNIRP) “as expressed in EU Council Recommendation 1999/519/EC of 12 July 1999 on the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz).”

The certificate itself indicated that the declaration was made by Three UK Limited. Mr Thomas sought to take a late point that that company appears to have been dissolved several years ago. Mr Kohli, whilst submitting that the point was taken too late for him to deal with properly, nevertheless submitted that this might have been an administrative error, because of the trading name Three. The declaration was accompanied by and referred to in a letter from Clarke Telecom Ltd, which provides management services to telecommunications providers, expressed to be for and on behalf of CK. In my judgment it appears likely that the reference to Three UK Limited was an error. Although nothing turns upon it in the present case, it does emphasise the importance of local planning authorities checking the validity of such declarations.

The supplementary document also stated:

“International Commission on Non-Ionizing Radiation Protection public compliance is determined by mathematical calculation and implemented by careful location of antennas, access restrictions and/or barriers and signage as necessary. Members of the public cannot unknowingly enter areas close to the antennas where exposure may exceed the relevant guidelines. When determining compliance, the emissions from all mobile phone network operators on or near to the site are taken into account. In order to minimise interference with its own networks and with other radio networks, CK Hutchison Networks (UK) Ltd operates its network in such a way the radio frequency power outputs are kept to the lowest levels commensurate with effective service provision. As part of CK Hutchison Networks (UK) Ltd network, the radio base station that is the subject of this application will be configured to operate in this way. All operators of radio transmitters are under a legal obligation to operate those transmitters in accordance with the conditions of their licence….The conditions of the licence are mandated by OFCOM an agency of national government…”

The document also referred to audits of exposure levels from existing equipment and to guidance issued by Public Health England (PHE), which advises the government in respect of public health issues in England, as follows:

“Notably, Ofcom have now undertaken 5G audits in the major cities and the results indicate that the exposure levels are a small fraction of the limits. This further reinforces the PHE guidance in respect of 5G which states: “It is possible that there may be a small increase in overall exposure to radio waves when 5G is added to an existing network or in a new area. However, the overall exposure is expected to remain low relative to guidelines and, as such, there should be no consequences for public health.”

ICNIRP is a not for profit, independent scientific commission based in Germany established to provide guidance and recommendations on protection from non-ionising radiation exposure. It is recognized by the World Health Organisation (WHO) and the International Labour Organisation (ILO). Its membership is limited to scientific experts who have no commercial or other vested interests. Non-ionising radiation means that which comprises packets of energy which are too small to break chemical bonds, and so cannot damage cells and cause cancer in the same way as ionising radiation. ICNIRP issues guidelines for the protection of humans exposed to radiofrequency electromagnetic fields (EMFs), which are used to enable communications equipment such as is proposed in the present case. The guidelines are highly detailed and technical.

After such notices were given in the present case, the representations subsequently received included 50 objections, one of which came from Mr Thomas. He referred to Lefroy Court at the other end of Talbot Road, which is a residential building for people who are over 55 years old. He included plans showing Lefroy Court. There was no agreed measurement from Lefroy Court to the site of the proposed equipment. Mr Thomas says it is about 50 meters away, whereas the authority says it is more than double that distance. Mr Thomas...