T Mobile (UK) Ltd & Ors v First Secretary of State & Anor [2004] EWHC 1713 (Admin)

Case No CO/666/2004[2004] EWHC 1713 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 23 June 2004
Strand
London WC2
B E F O R E:
SIR RICHARD TUCKER
Between
T MOBILE (UK) LTDClaimantHUTCHINSON 3G UK LTDClaimantORANGE PERSONAL COMMUNICATIONS SERVICES LTDClaimant-v-
Between
THE FIRST SECRETARY OF STATEDefendantHARROGATE BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR CHRISTOPHER KATKOWSKI QC AND MS GALINA WARD (instructed by Freshfields Bruckhaus Deringer) appeared for CLAIMANTSMR PHILIP COPPEL (instructed by Treasury Solicitors) appeared for FIRST DEFENDANT
J U D G M E N T

SIR RICHARD TUCKER: I have before me an application under Section 288 Town and Country Planning Act 1990 made on behalf of developers who wish to install and extend certain telecommunications transmission equipment at Harrogate.

[2]The Claimants' application for planning permission was refused by Harrogate Borough Council, the Local Planning Authority, on 3rd June 2003. The reasons for that decision were as follows:
"The proposed mast and headframes due to their bulk and massing notwithstanding the existing installation would unreasonably detract from the residential amenity of nearby dwelling houses and the amenity of the local facilities such as to conflict with Policies of the Harrogate District Local Plan."
[3]The Claimants appealed that decision to a Planning Inspector, and chose to have the appeal dealt with by written representations.[4]By a decision letter dated 30th December 2003, the Inspector appointed by the First Secretary of State dismissed the appeal. It is that decision which is now under challenge. The application is opposed by the First Defendant, the First Secretary of State. The Second Defendants, Harrogate Borough Council, have not appeared, and have taken no part in the proceedings.[5]The grounds of the application are twofold: First. That the Inspector misdirected himself as to the relevant Government policy (misconstruction of policy). Second. That he failed to give adequate reasons for his conclusion that insufficient reassurances about the health risks arising from the proposed mobile phone mast had been provided (failure to give reasons).[6]Mr Katkowski QC relies upon passages in the Judgment of Woolf J (as he then was) in EC Gransden & Co Ltd v First Secretary of State [1986] JPL page 519 at page 521 as follows:
"... the fact that a body had to have regard to the policy did not mean that it needed necessarily to follow policy. However, if it was going to depart from the policy, it had to give clear reasons for not doing so in order that the recipient of its decision would know why the decision was being made as an exception to the policy and the grounds upon which the decision was taken. "
Fourthly, in order to give effect to that approach it was essential that the policy was properly understood by the determining body. If the body making the decision failed properly to understand the policy, then the decision would be as defective as it would be if no regard had been paid to the policy."[7]As I have stated, the original refusal was based on amenity grounds. The Inspector did not uphold these grounds. He considered that the adverse impact of the proposal would be slight and the probable advantages of mast-sharing would outweigh any harm that might be caused visually by the replacement masts.[8]The grounds relied upon by the Inspector for dismissing the appeal related to the perception of health risks. He concluded that the proposal provided insufficient reassurance that there could be no material harm to the living conditions (in terms of health concerns) of children at nearby schools.[9]It is the Claimants' case that on a proper interpretation of the relevant Government policy, which the Inspector purported to apply, sufficient reassurance is provided by confirmation that the guidelines set by the International Commission on Non-Ionising Radiation Protection (ICNIRP) have been complied with, and that the Inspector gave no adequate reason for his conclusion that insufficient reassurances had been provided in this case.[10]Concerns have arisen in recent years about the possible dangers to health arising from the use of mobile phones and the emission of radio frequency from them and from the transmission stations of the kind to which this application refers. Particular concern was expressed about the siting of base stations on or near school premises. Therefore, the Government decided to establish an independent expert group to examine possible effects of mobile phones, base stations and transmissions on health. The group's Chairman was Sir William Stewart. It made a comprehensive enquiry into the problem and published a detailed report in April 2000.[11]The Report recommended that a precautionary approach to the use of mobile phone technologies should be adopted until much more detailed and scientifically robust information on any health risks becomes available. They recommended that the ICNIRP (International) guidelines for public exposure be adopted for use in the United Kingdom, rather than the national guidelines.[12]The group specifically considered the question of the siting of base stations near schools, and made a number of detailed suggestions, relating to the siting of such stations and to the areas within which the beam of greatest radiofrequency intensity should or should not be allowed to fall.[13]There was a prompt response from the Government, published in May 2000. In broad terms the recommendations made by the Stewart Group were accepted. It was agreed that the emissions from mobile phones and base stations should meet the international guidelines.[14]Dealing with base stations near schools, the Government agreed "schools and parents should be reassured that the base stations near schools ... operate within the guidelines". The Government did not expressly accept the Group's recommendations concerning the area of the beam of greatest intensity, but stated that it would be working with the Group on the further issues relating to this.[15]There then followed, on 22nd August 2001, Planning Policy Guideline 8 (PPG8) dealing with planning aspects of telecommunications.[16]At paragraph 13 it was said that where a mast is to be installed on or near a school the local planning authority should consult the school and take into account any relevant views expressed.[17]Under the Rubric Health Considerations, PPG8 is in these terms:
"(29) Health considerations and public concern can in principle be material considerations in determining applications for planning permission and prior approval. Whether such matters are material in a particular case is ultimately a matter for the courts. It is for the decision maker (usually the local planning authority) to determine what weight to attach to such considerations in any particular case. "(30) 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. "(31) The Government's acceptance of the precautionary approach recommended by the Stewart Group's report 'mobile phones and health' is limited to specific recommendations in the Group's report and the Government's response to them. The report does not provide any basis for precautionary actions beyond those already proposed. In the Government's view, local planning authorities should not implement their own precautionary policies e.g. by way of imposing a ban of moratorium on new telecommunications development or insisting on minimum distances between new telecommunications development and existing development."
[18]Basing himself on this, Mr Katkowski submits that if International Guidelines are met, that is the end of the matter. He says that Government Planning Policy is emphatic and crystal clear. He claims the Applicants complied with that policy. He points to the fact that the applications for planning consent were accompanied by certificates from each of the developers of compliance with International standards. These show that the emissions would be many thousands of times less than those standards, in one case 26,000 times less.[19]Moreover on 29th January 2003 the surveyor for the developers wrote to each of the nearby schools informing them of the proposals, and, it is submitted, giving them reassurance. They confirmed that the proposed installation would comply with International guidelines as required by the Government in response to the Stewart Report. They went on to state that: "In fact, because of the very low power utilised by telecommunications sites the emissions will be many times lower than the ICNIRP threshold".[20]The Head teacher of one of the schools had already written a letter to the Borough Council expressing anxiety about health risks, which was later copies to the developers. They replied on 20th February seeking to give further reassurance. Mr Coppel for the First Defendants criticises that letter on the grounds that the distances between the schools and the mast are wrong, and that nothing is said about the cumulative effect of the development. As to the first point, Mr Katkowski submits that the Inspector made no mention of distances, and as to the second, the cumulative effect had been clearly referred to in earlier correspondence.[21]When the applicants/developers submitted their Appeal Statement in their written representations to the Inspector, they concentrated, naturally enough, on the amenities aspects since that had been the ground on which their original application had been refused. However, they dealt briefly with Health and Safety and drew attention to PPG8 and to Government guidelines, and to the certificates submitted with the original application.[22]The Statement by the Local Planning Authority also drew attention to these matters. There was comment that "contrary to the guidance offered in PPG8 the applicant did not consult with local schools until after the planning application had been submitted", and that concerns were expressed on health grounds. However, the Council's conclusion was that the "proposal unreasonably detracts from the residential amenity of local dwelling houses and the amenity of the local facilities including three schools and their grounds".[23]Therefore it came as a surprise to the applicants when the Inspector dealt with their appeal as he did. Their criticism of his decision letter focuses on the second sentence of Paragraph 13, and on Paragraph 14, which were in these terms: "(13) The Stewart Report, the Government Response, and PPG8 together appear to suggest that even under the 'beam of greatest intensity' there would be no risk to young children from emissions within ICNIRP guideline levels. However, on the question of the recommendation on the beam of greatest intensity, the Government response is open-ended rather than conclusive. This matter is of particular relevance to the current case. "(14) I conclude 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.[24]Mr Katkowski submits that save possibly in relation to future discussions on issues regarding measurements of emissions, or auditing, the Government Response is not open-ended, and that it, and certainly the Guidance contained in PPG8, is conclusively emphatic. He submits, with some justification, that it is difficult to understand what is meant by the latter part of Paragraph 13.[25]As to Paragraph 14, Mr Katkowski submits that it is also difficult to understand what further reassurances the Inspector had in mind. It is submitted that the applicants had given sufficient assurances by the letters and certificates of compliance to which reference has already been made. The applicants do not understand what the reference to the "proposal in its present form" means, or in what respects their reassurances are insufficient.[26]In reply Mr Coppel concedes that the Inspector did not say that this was an application giving rise to actual danger, or that adequate reassurances could not be given. However, he submits that the appeal was all about what operators must do to provide reassurance, and that for them to say "We have a certificate" is inadequate. He submits that the Inspector was entitled to say that this fell short of the reassurances which were required. Mr Coppel seeks to draw and to rely on the distinction between considerations of actual health risks on the one hand, and of the perception of risks on the other. Mr Katkowski submits that the ICNIRP guidelines are concerned with actual, rather than perceived risk.[27]I prefer Mr Katkowski's submission. In my view the guidance contained in PPG8 is perfectly clear, and there was nothing open-ended about Government policy. I have no doubt that the present proposals meet the ICNIRP guidelines for public exposure, and that it was made clear to all concerned that there would be no material harm to the living conditions (in terms of health concerns) to young children. It is also clear that the applicants gave sufficient reassurances about this.[28]Regrettably the Inspector appears to have misunderstood Government Planning Policy on this topic as set out in PPG8 and failed to give adequate reasons for his decision.[29]Accordingly the application succeeds. I quash the Inspector's decision and I remit the appeal for reconsideration by the First Defendant.[30]Do you have any application, Ms Ward?[31]MS WARD: In those circumstances the claimants obviously seek their costs. I should say that there has been a document submitted by Mr Coppel, a written response to the claimants' cost schedule. It is conceded by the defendant that if the application is allowed the first defendant should be ordered to pay our costs and that the costs should be summarily assessed, but there are some detailed grounds of dispute that Mr Coppel is seeking to raise on our schedule. I suspect the most straightforward way would be for him to address you on those.[32]What I would say for my part is that unfortunately, and this is certainly no fault of the first defendant, I have only seen this document first thing this morning and I had similar problems to your Lordship. London has been very difficult this morning. I have seen this document this morning, but I have not had a chance to take detailed instructions on the various items.[33]So if your Lordship is minded to reduce the amount payable by anything approaching the £60,000 that the first defendant is arguing about then, for my part, the final assessment of the costs cannot be agreed.

SIR RICHARD TUCKER: Mr Coppel, do you agree in principle that your clients must pay the costs?

[35]MR COPPEL: Certainly. There is no difficulty about that, and we have no difficulty also that this is an appropriate matter for a summary assessment, as the matter lasted rather than less than a day. Your Lordship should have the --

SIR RICHARD TUCKER: They are in my room. Is there anyone in attendance on me? Is there an usher? An associate? I remember seeing the assessments of costs.

[37]MR COPPEL: Your Lordship will have seen --

SIR RICHARD TUCKER: Do I need to look at it in detail? What I had in mind was this. If you are objecting to specific items in the schedule, and if, as you suggest, Ms Ward has not had an opportunity of taking instructions on any possible objections, would it be sensible to put the question back until 2 o'clock today?

[39]MR COPPEL: I am certainly comfortable with that and what I would give your Lordship is our written response to the schedule. Very briefly, my Lord, the authorities tells us that in a summary assessment your Lordship is invited to look at the bottom-line figure. If that looks reasonable, then it goes through. If it does not look reasonable, then we go through the individual items.[40]I have identified, my Lord, those matters that are in issue with the claimant. My Lord, although it looks complicated, in fact they can be reduced to a small number and they just repeat themselves as you go through.[41]So, my Lord, I do not think it is a particularly complicated matter. I am certainly happy for it to go back to 2.00 pm, to meet my learned friend's understandable concerns that she has an opportunity to take instructions.[42]My Lord, might I hand up, so that your Lordship can look over the break, our response to the claimant's costs schedule.

SIR RICHARD TUCKER: Yes.

[44]MR COPPEL: Can I also deal now with two matters arising from your Lordship's judgment. First of all, I ask for permission to appeal. My Lord, under CPR 52.3 there are two bases, as your Lordship well knows, and we say we fall under both of them. We say there is a real prospect of success.[45]Your Lordship has expressly accepted the submission of Mr Katkowski that PPG8 is concerned with actual health risk and not perceived health risk. My Lord, PBG8 is concerned with both. It describes both, and that is a matter of very considerable importance to the Secretary of State if this is going to be relied upon by the mobile phone operators.[46]I can tell your Lordship that there are presently in this country some 25,000 masts. When the roll-out of the current series, the 3Gs, is complete, there will be 47,000. There are therefore some 12,000 further masts to be erected. Your Lordship indicated during the hearing last week that your Lordship was aware of the interest in the press in --

SIR RICHARD TUCKER: Well, I mentioned it in my judgment. Everyone is aware of it.

[48]MR COPPEL: Everyone is aware of it, and of course, the Stewart Report was in large part a response to that. This is a matter of very considerable public concern, my Lord, and health concerns are at the core of that. This is a matter which is worthy of the attention of the Court of Appeal and that in itself is a compelling reason. As we have said your Lordship accepted Mr Katkowski's submission that all we are concerned with is actual risk, and not perceived health risk. That is a matter, we say, which cannot stand on a proper scrutiny of PPG8.[49]As far as the reasons are concerned, your Lordship accepts that that challenge is well-founded. The short point we would make there is that, insofar as that ground is concerned, it is simply stated as a proposition. The point here is that whereas the case cited to your Lordship by my learned friend concerned a calling by the Secretary of State, this was a decision on paper by the Inspectorate, and my Lord, different considerations, we say, in terms of exhaustiveness, apply. It is perfectly appropriate where we have the written representation procedure for letters along the lines that the Inspector here has given, and many inspectors up and down the country have given. There are two important reasons, we say, why permission ought to be granted.[50]My Lord, the second application concerns time for appeal. Does your Lordship wish to hear Ms Ward in relation to permission first?

SIR RICHARD TUCKER: I think I had better hear from Ms Ward first. What do you say to the application for leave to appeal?

[52]MS WARD: It is being put to you in this way, that your judgment respecting PPG8 is concerned with actual but not perceived health risks. In fact our position and my understanding of your judgment is that PPG8 deals with perceived health risks. It gives very clear guidance on how they are to be dealt with, and your Lordship has been taken through that guidance, and has agreed with his very clear and simple submissions on how that guidance is to be interpreted. So, my Lord, there is no real prospect of success in persuading the Court of Appeal that that application of the guidance is wrong.[53]Insofar as the reasons challenge goes, it simply remains the case that on the reasons now put forward as justifying the position put forward by my learned friend in his submissions to you last week as justifying the Inspector's decision, there is no prospect of success on that basis. On this side we would resist the application.

SIR RICHARD TUCKER: Mr Coppel, if I refuse you leave, you will apply to a single Lord Justice, will you not?

[55]MS WARD: That is correct.

SIR RICHARD TUCKER: I do not mind having my judgments criticised and I do not object to a suggestion that I could be wrong. I do not regard myself as infallible, of course not. At the same time, I do not think you have a real prospect of success.

[57]MR COPPEL: My Lord, can I just very quickly deal with the point raised by my learned friend? In your written judgment, it is the final sentence of paragraph 25 and the first sentence of paragraph 26, and, my Lord, there is the point. That is on the public record. That is going to be seen by inspectors up and down the country. That is going to be seen by the planning authorities up and down the country in determining the 12,000 applications that need to go forward in order to see completion of the 3G network. Whether your Lordship thinks, so far as the first basis of appealing, I am right or wrong -- I fully understand why your Lordship might think I would be wrong --

SIR RICHARD TUCKER: On the whole, when I write a judgment I hope I get it right, so I start out from that viewpoint.

[59]MR COPPEL: That is always the hurdle I face, my Lord, in relying upon the first ground for permission to appeal, and that is really concerned with the Court of Appeal rather than the judgment from whom one seeks permission. But the second basis is a real one. This is a matter, as I say -- this is a judgment which is going to be looked at by local planning authorities. It is going to be relied on by planning inspectors in those thousands upon thousands of applications which are going to be heard, are going to be made, in order to roll out the 3G network. That is on the one hand, and we have, on the other hand, a real public concern.

SIR RICHARD TUCKER: Shall we look at the rules, Mr Coppel? what do you have to show?

[61]MS WARD: My Lord, it is 52.3 subrule 6, which in the current edition is page 1430 to 1431. At the foot of 1430 --

SIR RICHARD TUCKER: Yes. "Permission to appeal will only be given where -- (a) the court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard."

[63]MR COPPEL: The compelling reason is this. This is a matter, and I do not think this is in any way disputed. Your Lordship has alluded to it in your judgment and indeed in the course of argument. This is a matter of public health concerns from telecommunications, of very considerable public concern. So too is what is needed to meet that public concern, to allay that public concern.[64]Your Lordship's judgment, is, so far as I am aware, the only High Court judgment which has directly touched upon the distinction between the two and what is required in a planning Inspector's decision letter in order to deal with that particular issue.[65]I have taken your Lordship to the two paragraphs, 25 and 26, where the two were, if I may say so, conflated by Mr Katkowski. That, my Lord, is a matter of public concern. That is in itself, given the public interest, the real public interest, a compelling reason why this matter needs a definitive ruling from the Court of Appeal. It may be, my Lord, that your Lordship is right and I am wrong, but it does need to be dealt with, we say, and if it be the case that PBG8 needs amendment it is usually the decision of the Court of Appeal that provides the catalyst for that.[66]But, my Lord, we say from this side, from the Secretary of State's prospective, that this is a matter of concern to him. It is a matter of concern, he is aware, to the public and that provides the compelling reason why this matter should go forth to the Court of Appeal, quite apart from the other issues that I mentioned.

SIR RICHARD TUCKER: Very well, you have just persuaded me Mr Coppel, not that you have a real prospect of session but that this is clearly a matter of considerable public concern, and that that can amount to a compelling reason. That is the way you have put it, I think.

[68]MR COPPEL: Yes, my Lord. In fact that disposes of the fact that we have a draft judgment of my other application. That simply leaves the issue of costs for 2.00 pm. Might I hand up to your Lordship our response to the claimants' cost schedule, of which my learned friend has a copy. (Handed).

SIR RICHARD TUCKER: Yes. Response to claimants' costs. Yes. You have seen this document?

[70]MS WARD: I have.

SIR RICHARD TUCKER: Are you able to deal with it or not?

[72]MS WARD: My Lord, I would ask the matter be put back to 2.00 to deal with, simply because, as I have already indicated, there are various points made about the amount of work done by my instructing solicitors; for example, where it is criticised that there was more than one attendee on counsel.

SIR RICHARD TUCKER: I am always interested to see the matters that are raised at the top of page 5 under disposals. I have not been at the bar now for about 20 years. Those matters are of interest to me and, I must say, cause me surprise sometimes.

[74]I think that the best course is to put this matter back to 2.00 pm, to give you an opportunity of taking instructions on this, provided that does not inconvenience you, Mr Coppel?[75]MR COPPEL: No, not at all. One other matter, my Lord, I have mentioned a few authorities. I have all of them if your Lordship would like. In fact I could cite the passages to save leafing through lots of pages. I also have, incidentally, the guide to summary assessment of costs which has been produced by the Supreme Court Costs Office. I have a copy of that if your Lordship would like to see that.

SIR RICHARD TUCKER: These are rather detailed objections. It is not just one or two items, but a fairly wholesale and, if I may say so, detailed objection. But you take instructions on it, Ms Ward, and see if you can reach any agreement. If you cannot, then I must make a ruling on it or I must say that the costs must be assessed in the normal way.

[77]MS WARD: I am grateful. (The short adjournment)

SIR RICHARD TUCKER: Have you come to an agreement?

[79]MS WARD: No, my Lord.

SIR RICHARD TUCKER: It will have to go to taxation in the old-fashioned way, if you cannot agree.

[81]MS WARD: In those circumstances I am reminded by those behind me that the claimants would ask that you take into account their costs being accepted by the first defendant as reasonable and proportionate in his response document. Obviously there is likely to be some delay in the procedure and indeed permission to appeal to the Court of Appeal has been sought in circumstances where a certain amount of costs have been accepted as proportionate. I would seek payment in that amount.

SIR RICHARD TUCKER: There is no reason why you should not pay the costs for the time being, up to the amount of your proposed assessment.

[83]MR COPPEL: The principle of there being a payment on account, and the account being opposed because that is what the rules provide for. The amount set out in the submission, the 18-odd thousand pounds, represented an upper cap. The position is that it may come down on taxation from that figure and, generally speaking, in ordering a payment on account one is only entitled to a proportion, and what we would submit is the appropriate figure is about two-thirds of that which is shown on the first defendant's submissions on the claimants' summary assessment of costs, so two-thirds of £18,000 I make to be about £12,000.

SIR RICHARD TUCKER: £12,000 to be paid on account within fourteen days?

[85]MS WARD: Fourteen days would be the usual period. If I could address you briefly on that. My learned friend said that is an upper cap that he was looking at in those submissions on behalf of the defendant. Obviously the claimants' position remains that they seek the amount that is in the statement of costs. Obviously it is likely there will be some reduction of that, but not as much as has been proposed by my learned friend.

SIR RICHARD TUCKER: I do not think the planning bar will starve if I do not order immediate payment of these fees.

[87]MS WARD: I do not think anyone will starve in this case. I certainly do not seek on my own behalf.

SIR RICHARD TUCKER: Do not tax me further. £12,000.

[89]MS WARD: Thank you, my Lord.