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Paper 8 - 26 November 1999 Meeting

ASSOCIATION OF HAMPSHIRE AND ISLE OF WIGHT LOCAL AUTHORITIES

26 November 1999

TELECOMMUNICATIONS TRANSMISSION DEVICES - PLANNING AND HEALTH

Report by the Policy Manager

RECOMMENDATION

That the officers review the advice and guidance available on this subject, consult the Local Government Association (LGA) and report back.

1. Hart District Council has brought forward to the Association the report attached (annex) with a series of recommendations for implementation by all member authorities.

2. Hart's report expresses a widely held concern about the health and safety aspects of microwave radiation from telecoms masts.

3. Most, or all, Member authorities have considered this issue. It has been raised at a national level with the LGA. It is proposed that the Chief Executives' Group considers the Hart report in the light of comments from the Planning and Environmental Health Officers' Groups.

NICK GOULDER 
Policy Manager

ANNEX

ASSOCIATION OF HAMPSHIRE AND ISLE OF WIGHT LOCAL AUTHORITIES

26 November 1999

TELECOMMUNICATIONS TRANSMISSION DEVICES - PLANNING AND HEALTH

Report by the Chief Executive, Hart District Council

RECOMMENDATIONS

(1) That Member Councils be recommended to adopt a policy that no telecommunications equipment be permitted on their property within 200 metres of residential dwellings, schools and hospitals/health centres.

(2) That all schools within the County and Cities be requested to apply the precautionary principle with regard to the siting of additional telecommunications equipment on their property.

(3) That Health Authorities and health facilities within the County and Cities be requested to apply the precautionary principle with regard to the siting of additional telecommunications equipment on their property.

(4) That Councils be advised to ensure that HSE is consulted on all planning applications for telecommunications equipment and alerted to all prior approval notifications.

(5) That Councils be advised to draw up a local code of practice with the telecommunications industry, whereby:

applications and notifications under prior approval procedures are accompanied by confirmation from HSE that the proposed installation will meet health & safety requirements and pose no hazard to the general public;

Applicants (including those seeking approval for siting and design under prior approval procedures) consult local residents, health and education establishments and other interested parties (including Parish Councils) within a 100 metre radius of their proposals, with a view to demonstrating that the proposed installation will meet health & safety requirements and pose no hazard to the general public;

Should the telecommunications industry not wish to consult neighbours, health and education establishments and other interested parties, Councils would take that responsibility on, but without providing any reassurances to the general public that the proposed installation is safe.

(6) That the Association of Hampshire and Isle of Wight Local Authorities lobby to get the planning system changed with regard to telecommunications, particularly with a view to getting the precautionary principle enshrined in the planning process.

(7) That Councils be advised it would not be feasible to make an Article 4 direction to remove permitted development rights for telecommunications transmission devices within 200 metres of any school, hospital/health centre or residential dwelling because the Secretary of State is unlikely to give his prior approval.

SUMMARY

There is growing public concern over the potential harmful effects to the public of radiation from telecommunications masts and relay stations.

Health and Safety issues are primarily a matter for the Health and Safety Executive (HSE) and the planning system currently has limited scope to address the issue. Health risks and public concern are material considerations in the planning process, but on the basis of current experience it would probably be unreasonable for a Local Planning Authority to refuse planning permission for such development on those grounds alone. Similarly, the Secretary of State would probably not support the introduction of Article IV Directions to limit permitted development rights.

INTRODUCTION

1. There is growing public concern over the potential harmful effects to the public of radiation from telecommunications masts and relay stations particularly to children.

2. The relative cost of mobile communications is continuing to fall rapidly and this is likely to cause significantly greater demand for telecommunications installations in future.

3. This is an issue that the Association could usefully take on board in order to co-ordinate advice to constituent Authorities and undertake lobbying on behalf of those authorities.

PLANNING LEGISLATION AND CASES

4. Telecommunications transmission devices require planning permission unless they are "permitted development" as defined in the General Permitted Development Order (as amended). Permitted development rights may be taken away by an "Article 4" direction.

5. Permitted development regarding telecommunications falls into three broad categories:

Householder TV aerials and small satellite dishes;

De-minimis non-householder development;

Larger development requiring "Prior Approval" of details of siting and appearance (but not the principle of that development).

6. Relevant government guidance is set out in PPG8: "Telecommunications" and in Circular 4/99: "Planning for Telecommunications". The guidance is very supportive of the telecommunications industry and makes it clear that radiation safety is a matter for the Health & Safety Executive.

7. It is a fundamental principle that the planning system should not be used to control matters that are covered by other legislation. It may be ultra vires to do so. See for example paragraphs 20 to 23 of Circular 11/95: "The Use of Conditions in Planning Permissions". Also, for example, in the context of pollution control, PPG23 paragraphs 3.23 and 3.24 advise (inter-alia) that:

Lack of confidence in the effectiveness of controls imposed under pollution control legislation is not a legitimate ground for the refusal of planning permission or for the imposition of conditions on a planning permission that merely duplicate such controls; and

Planning authorities should not seek to control through planning measures matters that are the proper concern of the pollution control authority, except where planning interests can be clearly distinguished.

8. Three relevant appeals, involving the health issue, are reported in the national "Compass" computer record of planning appeals during the period 1990 and July 1999 - but in each case health was but one of a number of issues at stake.

In the first, in 1990 the Inspector dismissed the issue on the grounds that it was a matter for HSE (as indicated in an earlier version of PPG8).

The Inspector in the second case in July 1998 dismissed the issue for the same reason.

The issue was covered more fully in the final decision in July 1999 - largely because it figures more prominently in the case - but the Inspector still dismissed the health argument on the grounds that the health case was unsubstantiated. He was unimpressed by the fact that the council applied the precautionary principle to projects on its own land dismissing that argument as immaterial.

9. In a recent court case (R v Tandridge District Council, ex parte Mohammed Al Fayed) it was held, dismissing the application by Al Fayed that (my underlining):

A. It was clearly right that on a technical issue the Council was entitled to give great weight to the advice of the expert body having particular statutory responsibility for such matters. The operators of national communications networks could reasonably expect planning decisions to be guided by a consistent and scientifically informed national policy approach. The Council did not in the event consider themselves bound by the views of the HSE.

B. There was a flaw in the decision-making process in that Mr Al Fayed's letters raised a serious planning issue which should have reasonably been investigated before the decision was made. However, that was not sufficient to get Mr Al Fayed home as far as getting substantive relief was concerned. The Court would not quash a decision of this kind unless the flaw was one of practical significance, in the sense that the decision might have been different if the matter had been handled correctly. It was here that Mr Al Fayed's case failed. The accepted view was that definitive answers about health hazards related to the use of radiotelephones were unlikely to come about in the short term. It was impossible to see how a reasonable authority could take the view that such a consideration would justify a refusal particularly bearing in mind the positive case for the proposal, which the Council clearly accepted, in order to fill a gap in the existing network in line with approved policies. There was no realistic possibility that if the decision were quashed it would result in any different decision.

HEALTH ISSUES

10. On 23 July 1999, the Minister for Public Health and the Minister for Planning, Regeneration & the Regions issued a joint letter to all Council Leaders setting out the Government's position on mobile phone base stations and EMFs.

11. The Select committee on Science and technology, whose report was published recently concluded that " ...Validated scientific evidence supports the conclusion that neither mobile phones nor their associated base stations, if they comply with maximum exposure guidelines as they appear to do, present a health hazard...."

12. The World Health Organisation goes further and says that adoption of prudent avoidance policies would be a Political and Societal judgement which may fall within the remits of local and national government. But adds "...There is no scientific justification for ...... modifying existing telecommunication systems"

13. The Chartered Institute of Environmental Health Officers says that it believes: "that a precautionary approach of restricting building or access (near mobile telephone base stations) cannot be sustained on health grounds alone and if adopted must be based on access, amenity and public acceptability consideration" the usual planning grounds.

14. It is impossible to prove that telecommunication masts do not pose a health hazard. All scientists can do is to try to discover an effect on health. So far they have failed to discover one.

PLANNING CONSIDERATIONS

15. There is clearly an issue of growing public concern that should not be set aside lightly. The issue for the Association is how best to deal with it and advise Councils on appropriate action to reassure the public.

16. The control of EMFs is a matter for Health & Safety legislation rather than the planning system. Also, the Government's position quite clearly is that there is no risk to the public from mobile phone base stations.

17. Circular 4/99 actively encourages the use and sharing of existing structures, rather than erect new ones. Indeed, local planning authorities are now encouraged to draw up a list of sites in their area that might be suitable for telecommunications development (including existing masts, buildings and other structures upon which antennas might be installed and sites where new masts might be acceptable).

18. It is reasonable to conclude from these two points that it would be contrary to Government policy (and possibly ultra vires) to develop a planning policy (temporary or permanent) that:

"No permanent telecommunications transmission device shall be granted planning approval within 200 metres of any school, hospital/health centre or residential dwelling."

19. If Councils sought to include such a policy in its local plan, it could lead to intervention by the Secretary of State for the Environment. Either way, if such a policy were to be included in the local plan or adopted as supplementary planning guidance, it is probable that the policy would be given no weight by Planning Inspectors because of current Government guidance. Costs could be awarded against the Council at appeal. Nevertheless, one Member Authority (Hart) has already chosen to go down this route and it remains to be seen what the outcomes will be.

20. An Article 4 Direction, to remove permitted development rights for telecommunications transmission devices within 200 metres of any school, hospital/health centre or residential dwelling, will require the prior approval of the Secretary of State. In the light of the Government's positive support in PPG8 for telecommunications and the Government's belief that there is a lack of scientific evidence to support such an approach, it is most unlikely that he would give his approval as things stand at present. There would be administrative overheads as well.

21. The Al Fayed case raised the following considerations:

The issue of health problems arising from radiation is capable of being a material planning consideration.

But specific guidance on telecommunications planning is set out in PPG8 which, as stated in paragraph 37 of that PPG, says radiation is a matter for HSE.

An authority cannot abrogate its responsibility to HSE. It still has to decide what weight to give to health as a material consideration. However the Court felt that it should give the greatest weight to HSE's advice especially since that advice relies, in turn, on the advice of NRPB which is the specialist body charged with a statutory duty to protect the public from radiation.

The court said that if HSE says development should be approved then it would be an unreasonable Council who refused planning permission on health grounds.

22. To sum up so far, the planning system provides little or no comfort for Members in helping them to address public concern on this issue because:

PPG8 positively encourages Councils to grant permission. It is very supportive of the telecommunications industry.

PPG8 and Circular 4/99 do not help on the health issue. PPG8 simply says that it is a matter for the HSE. Operators have a responsibility under Health & Safety legislation to satisfy HSE that there is no health risk to their staff and the public arising from their installations. Circular 4/99 simply says, in effect, wait and see what happens to the draft circular on Planning and electromagnetic fields, which has been out to consultation. The draft circular itself is unhelpful in that it relies on NRPB advice and points responsibility for health towards the HSE as well. More importantly the absence of a final version leaves us all in somewhat of an advice vacuum.

The Secretary of State controls the process through his agreement to local plan policies and Article 4 directions and through his Planning Inspectors (particularly if we went down the path of supplementary planning guidance).

23. Therefore, I have set out below some other suggestions that may help.

WAY FORWARD

24. Members are not helped by the Scientific bodies who all caveat their claims that there is no health risk by acknowledging that more research needs to be done - a view endorsed by the latest Select committee report. The Caborn and Jowell letter is in the same vein. The situation does not inspire confidence and that understandably raises concern among Members.

25. It would be open to Member Authorities to apply the precautionary principle on land in its ownership (by exercising its rights as land-owners rather than through use of planning powers). The Association could also urge other public bodies to do the same (particularly the Health Authorities). Indeed, with parental choice, schools that allow apparatus on their premises could become less popular, if parents are concerned by this issue.

26. Procedures could be tightened up to ensure that HSE is consulted on all applications for the siting of telecommunications equipment and alerted to proposals covered by the prior approval procedures.

27. Indeed, applicants could be asked to sign up to a local code of practice whereby applicants would supply the Council with confirmation from HSE that the installation would meet health & safety requirements relating to company staff and the general public. Also, it would be in the interests of the operators (from a public relations point of view) to consult local residents on their proposals and demonstrate that installations will be safe.

28. It is also open to the Association to lobby with others such as the Local Government Association to get the planning system changed, particularly with a view to getting the precautionary principle enshrined in the planning process.

GRAHAME JELBART 
Chief Executive

Last update: 13/10/2000
Author: Nick Goulder, Policy Manager

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