Cox v Secretary of State for Communities and Local Government & Ors [2010] EWHC 104 (Admin)

Neutral Citation Number: [2010]EWHC 104 (Admin)Case No C0/2493/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 nd February 2010
Before
Robin Purchas QC(sitting as a Deputy High Court Judge)
Between
ALAN COXClaimantTHE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTFirst DefendantNORTH HERTFORDSHIRE DISTRICT COUNCILSecond DefendantT-MOBILE (UK) LIMITEDThird Defendant
Paul Stookes (instructed by Richard Buxton Environmental & Public Law) for ClaimantJames Strachan (instructed by the Treasury Solicitor) for First DefendantChristopher Boyle (instructed by Freshfields Bruckhaus Deringer) for Third DefendantHearing Hearing date: 15 th January 2010
Judgment

Robin Purchas QC:

[1]In this application the Claimant applies under Section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash the decision of an Inspector on behalf of the First Defendant allowing the Third Defendant’s appeal from the refusal of planning permission by the Second Defendant for the erection of a telecommunications mast and base station at Hitchin Road, Letchworth. As argued in this court by Mr Paul Stookes, who appears for the Claimant, the main issue is whether the Inspector’s decision was flawed as she did not have information which was material to her decision. He did not pursue Ground 2, which related to the development plan policy concerning alternative sites.

Preliminary

[2]At the commencement of the hearing, the Claimant applied for a protective costs order. I refused the application for the reasons that I then gave. After a short adjournment, the Claimant elected to continue with his claim.[3]The Claimant also applied to amend his claim by adding a further ground that there had been material non-disclosure or inaccurate presentation of the facts by the Third Defendant which was unfair to third parties, including the Claimant. The application had been made at a very late stage, having been first raised in a letter to the Court dated the 23 December 2009 and formally filed on the 12 January 2010, some 3 days before the hearing. The short grounds for the application were that it was substantially based on the same facts as the existing ground and that the new ground was arguable in law. There was no explanation or justification why the application had been made at that late stage. While the facts appeared to be broadly similar, the legal arguments were potentially different. I took the view that the merits of the additional ground could be material to the exercise of my discretion but that pragmatically it would be better to hear the argument before making a decision on the application to amend. In the circumstances, with the agreement of the parties, I deferred a decision on the application to amend until after I had heard the full submissions on the material before the Court.

Background

[4]The Claimant and his family live at 28 Hitchin Road, some 24 metres from the site of the proposed mast. His daughter suffers from neurological problems following brain injury and is in the house most of the time with the Claimant’s wife as her full time carer. The Claimant was and remains concerned about the neurological effects of microwave radiation from the proposed mast on his daughter and generally.[5]The Third Defendant’s application for planning permission for the telecommunications mast was supported by a statement from its consultants. The statement included a declaration of conformity with the ICNIRP (“International Commission on Non-Ionising Radiation Protection”) guidelines. It explained:
"Whilst having due regard to issues of public concern, however, it is important to note that emissions from the installation proposed will be well within the ICNIRP guidelines, referred to in the Stewart Report and in the revised Planning Policy Guidance “Telecommunications” (PPG8), and in this respect we would draw your attention to the site specific summary of RF EME (radio frequency electromagnetic energy levels) around the base station attached at Appendix C, and the Declaration of Conformity with ICNIRP attached at Appendix B.."
[6]Appendix C set out a “Summary of estimated RF EME levels” around the proposed base station (“the Site Specific Summary”). That comprised estimated levels for various distances from the base station with a comparison to the ICNIRP reference level. The shortest distance was 50 metres, which gave a level some 20 times less than the ICNIRP reference level. At greater distances the margin below the reference level increased. It was explained that the levels of exposure increase or decline on an inverse-square relationship to the change in distance from the source, so that, for example, at half the distance, that is 25 metres from the mast, the exposure level would be approximately one-fifth of the ICNIRP reference level. The notes in Appendix C explained that the estimates were calculated at 1.5 metres above ground level and “assume a worst-case scenario” for reasons set out.[7]It is convenient at this point to refer to PPG8, which the First Defendant published in 2001 setting out the Government’s policy for telecommunications, in part in response to the report by Sir William Stewart “Mobile Phones and Health”. Under the heading “Health Considerations”, it stated:
"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 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 the 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 or moratorium on new telecommunications development or insisting on minimum distances between new telecommunications development and existing development."
[8]The PPG provides more detailed supporting guidance in an appendix. At paragraph 99 it advises that applications should include “a statement that self-certifies to the effect that the mobile phone base station when operational will meet the (ICNIRP) guidelines.”[9]Returning to the Third Defendant’s application for planning permission, the Claimant made an objection to the Second Defendant, which included the exposure of his family to emissions from the proposed mast. In his objection the Claimant pointed out in respect of Appendix C that:
“The estimated radiation figures provided are given for points 1.5 metres above the ground whereas our bedroom windows are about 6 metres above the ground so that even on their figures the intensity would be significantly higher and possibly close to the maximum permitted.”
[10]That led to a Specific Point Estimate from the Third Defendant of levels at the Claimant’s home, which was communicated to the Claimant in an email from the Second Defendant’s planning officer dated 4 August 2006 which stated:
"Further to our conversations earlier, I have just received the following additional information from the applicant .... Please find attached the calculation of the Power Flux Density (PDF) levels at 1st Floor Level (at a height of 4.5 metres) for 28 Hitchin Road. As can be seen, the predicted PDF levels will be 170 times less than the ICNIRP levels."
The email attached a Specific Point Estimate for the location of the Claimant’s property, which set out the estimated level which, as the officer had indicated, would be 170 times less than the ICNIRP reference level. It confirmed that it was calculated at 4.5 metres above ground level and stated that it was “based on worst case assumptions and local terrain”.[11]The application was reported to the Second Defendant’s Planning Committee on the 16 August 2006 with a recommendation for approval. The officer’s report recorded objections from third parties, including concerns over health risks. It referred to the advice in PPG8 and concluded:
"As the ICNIRP certificate has been submitted with the application there is no further need in my opinion to consider the health aspects of the proposal."
[12]The Claimant attended the committee hearing and addressed the committee in respect of his concerns. He did not raise concerns over the estimated emission levels provided by the Third Defendant in respect of the ICNIRP guidelines.[13]The application was refused on grounds of its effect on the conservation area and the absence of sufficient technical justification or site search results to justify the selection of the site as against alternatives. There was no ground relating to health concerns.[14]The Third Defendant appealed. The appeal was dealt with by written representations. The Third Defendant provided an appeal statement, which included at paragraph 4.4 the statement:
"The government is of the view that the planning system is not the place to set health and safety safeguards and advises that where a site meets the ICNIRP standards on public exposure to emissions, no further consideration of the health risks ought to be necessary. A statement confirming that the proposal would be ICNIRP compliant was submitted with the planning application, a copy of which has been included in the Appeal Pack."
[15]The Appeal Pack included the certificate of compliance and also the supporting statement to which I have referred above, including the statement that levels would be well within ICNIRP guidelines and referring to the Site Specific Summary of RF EME levels in Appendix C. Appendix C was not, however, included as part of the Appeal Pack. It is accepted that Appendix C was not supplied to the Inspector as part of the appeal information.[16]The Claimant made an objection to the Inspector, including concerns in respect “of the health risk due to fear of my daughter’s condition.” The objection did not include any challenge to the Third Defendant’s estimated exposure levels or in respect of compliance with the ICNIRP guidelines. Indeed, in this Court it has not been disputed that the proposal would comply with the ICNIRP guidelines. The Claimant’s challenge has focussed on the statement on behalf of the Third Defendant that the levels would be “well within” those guidelines.[17]Following a site visit on the 5 February 2007, the Inspector gave her decision in a letter dated 13 February 2007. At paragraph 1 she set out her two main issues as the effect on the character and appearance of the conservation area and whether there were any available alternative sites which would have less environmental impact. She dealt with policy in paragraph 2. In paragraphs 3 to 7 she set out her reasons for rejecting the objection in respect of the conservation area. In paragraphs 8 to 11 she dealt with the issue of alternative sites. That included at paragraph 8 reference to PPG8. At paragraph 10 she stated with reference to alternative sites:
"… two others were replacement street lighting columns. I note that these have been discounted because they are very close to residential properties. I understand that the appeal proposal is a similar distance to residential properties. It is not for me to decide whether any of these alternatives would be acceptable, since to do so would be to usurp the statutory decision making process for any application on one of those sites. I have confined my assessment of these alternatives to consideration whether there is likely to be an alternative, which is materially less harmful than the proposal put before me. For the reasons given above, I have found that the appeal proposal would be readily assimilated into the street scene without causing harm to the character and appearance of the area."
[18]Under the heading “Other Considerations”, she continued at paragraph 12:
"Considerable local concern has been expressed about the health implications of telecommunication masts. Reference has also been made to the findings of the Stewart Report. PPG8 explains that the Stewart Report suggested a number of precautionary actions, which were accepted by the government. It was considered that there was no basis to extend any of the precautionary actions. PPG8 advises that if a proposed mobile phone base station meets the ... (ICNIRP) guidelines for public exposure to radio waves it should not be necessary for a planning authority to consider further the health aspects of the proposal. In the case of this appeal, the appellants have confirmed that the power levels of the proposed installation would be within ICNIRP guidelines. Nevertheless, several local residents have raised objections on health grounds and I accept that their fears are relevant to my decision. On balance, however, and bearing in mind that there was little objective evidence to support local fears and the emissions from the mast will be well within the ICNIRP guidelines, I do not consider that local residents’ health concerns are sufficient to justify refusing approval."
[19]At paragraph 13 she considered concerns about the amenity of those living in the area. At paragraph 14 she continued:
"I have considered the concerns about the health of the community in general, notably those living nearby at No. 28 Hitchin Road. As the maximum exposure level of the equipment would still fall within ICNIRP guidelines within the immediate vicinity of the proposed mast, I am of the opinion that there are no clear and convincing reasons to outweigh the thrust of government advice in this case and thus I find no reason to justify withholding approval. The council has not disputed the need for the proposed mast and I am of the view that the fear of health concerns does not outweigh the need for the facility. In conclusion on this matter, I consider that the proposal would not have an adverse effect on the living conditions of occupiers of nearby dwellings with particular reference to perceived health risks."
[20]She went on to consider other matters and reached her overall conclusion at paragraph 17 that the appeal should be allowed.[21]Following the application by the Claimant under Section 288 of the 1990 Act to quash that decision, correspondence and discussions took place between the Claimant and the Third Defendant, reflected in the witness statements and other material now placed before this court. I do not propose to review that evidence at this point. However, so far as material, I will refer to it in the course of dealing with the submissions and my consideration of the issues that arise.

Findings of Fact

[22]So far as necessary on the material before me, I find the following facts on the evidence before the Court:(i) that, as certified by the Third Defendant and not challenged in this Court, the estimated emissions from the proposed base station would comply with the ICNIRP guidelines;(ii) that the estimates in the Third Defendant’s Appendix C as the Site Specific Summary of RF EME levels was carried out in accordance with the assumptions and on the basis set out; the comparison with the ICNIRP guidelines properly reflected the estimated levels;(iii) that the Specific Point Estimate provided to the Claimant was carried out as described in the estimate (which was not the same as for the Site Specific Summary in Appendix C) and the comparison with the guidelines was again properly assessed;(iv) that, given the different basis for the two assessments, there was no inconsistency between the Site Specific Summary and the Specific Point Estimate; and(v) that specific point estimates by the Claimant at 6 metres above ground level (while not accepted on behalf of the Third Defendant) showed at the highest a level some 60 times below the ICNIRP guidelines.[23]I would add, with respect to the parties, that the material in the three bundles before the Court in my judgement goes well beyond what was necessary or proportionate for determination of the points of law in this case. I have in mind particularly the comments of Mr Justice Sullivan, as he then was, in R (on the application of Newsmith Stainless Limited) v. Secretary of State for Environment, Transport and the Regions 2001 EWHC Admin 74 at paragraph 10 and generally.

The Law

[24]A substantive (as opposed to procedural) challenge under Section 288 is limited to a point of law. It does not admit review of the merits.[25]By Section 70(1) of the 1990 Act, the decision maker is required to have regard to material considerations. That would include the obligation not to take into account considerations which are immaterial.[26]The role of error of fact in administrative law was considered by the Court of Appeal in E v. Secretary of State for the Home Department 2004 EWCA Civ 49, where

Lord Justice Carnwath said at paragraph 66:

"In our view the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in the statutory context where the parties share an interest in cooperating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been “established” in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal’s reasoning."
[27]The question of disclosure has been helpfully considered by Wynn Williams J in Elizabeth Ely v. Secretary of State for Communities and Local Government 2009 EWHC 660 (Admin). At paragraph 40 Wynn Williams J rejected the contention that there was a general obligation of disclosure in the planning context. At paragraph 46 he continued:
"While I have reached the conclusion that fairness does not demand that a general duty to disclose adverse facts is imposed upon every appellant in a planning appeal, that does not mean that a duty to disclose material facts which are adverse to the appellant’s proposals can never arise. It is impossible for me to lay down (or rather more accurately attempt to lay down) general principles about when a duty to disclose adverse factual material might arise. Each case must be considered on its own particular facts since fairness, as between the competing parties to a planning appeal, can only be judged upon the facts which are relevant to the particular case. However, it does seem to me to be possible to identify one class of case when a duty to disclose adverse factual material will, in all probability, arise. I refer to the situation where the appellant has chosen to give voluntary disclosure of a document containing factual material or voluntary disclosure of information in non-documentary form and his failure to disclose other documents or information would have the effect of misleading or even potentially misleading an inspector about the true nature of the disclosed material. In my judgment, the appellant cannot “pick and choose” what he discloses if the effect will be that the inspector will be misled about the effect of what has been disclosed."
[28]Finally, I should refer to the Court of Appeal decision in T-Mobile UK Limited & Others v. First Secretary of State and Harrogate Borough Council 2004 EWCA Civ 1763, where Lord Justice Laws, with whom the other members of the Court agreed, said in respect of the application of PPG8:
"21. The Inspector appears to have considered that his conclusion that the appeal proposal provided insufficient reassurance on health was consistent with Government policy, notwithstanding the proposal’s ample compliance with ICNIRP and an appropriate certificate having been given to that effect. That, in my judgment, was the error made by the Inspector which is central to this case. Such a conclusion in truth represented a departure from the policy. Although the Inspector, as I have said, might be entitled to take such a position, he would have to justify it as an exceptional course."
[29]In submissions before this Court it was accepted that the passages to which I have referred set out the principles to be applied to the facts of the present case.

Submissions

[30]On behalf of the Claimant Mr Paul Stookes submits that the Inspector did not have the Site Specific Summary contained in Appendix C, notwithstanding that it formed part of the original application; that was, he suggests, clearly material to her conclusions. As a result of it being withheld or omitted her conclusion that the emissions from the mast would be “well within” the ICNIRP guidelines was without adequate evidence, as was her conclusion that there was little objective evidence to support local fears.[31]In the circumstances, if she had had the relevant information set out in Appendix C, she would then have seen that the levels were considerably in excess of those generally experienced from telecommunications masts such that she might have concluded that an exception should be made to the guidance in PPG8; that would have been consistent with her approach in paragraph 14 of the decision letter. It would also have potentially affected her conclusions in paragraph 12 that there was little objective evidence to support local fears on health grounds and that the emissions would be “well within” the guidelines. That might in turn have altered the balance she struck in concluding that those concerns were not sufficient to justify refusing approval.[32]In support of these submissions, he draws attention to the fact that by extrapolation the Site Specific Summary would show a level in excess of 20% of the ICNIRP guidelines at the relevant distance from the mast to the Claimant’s home, which would be very considerably above those generally arising from such installations, as reflected in the Stewart Report.[33]He submits that in the circumstances there was a duty of disclosure as to the Site Specific Summary estimates in Appendix C. That non-disclosure was potentially material to the Inspector’s decision as set out above, which in the circumstances led to unfairness to the Claimant. For all those reasons, the decision on behalf of the First Defendant was unlawful.[34]Mr James Strachan, who appears for the First Defendant, submits that the Inspector can be seen to have dealt fully with the issues put before her, notwithstanding that health issues were not a main issue. Non-compliance with the ICNIRP guidelines was not raised as an issue on the appeal or indeed contended as part of the present challenge, so that the relevant PPG 8 guidance was met. There was no submission made to the Inspector that an exception to that policy should be made because of the relationship between the estimated levels of emissions and the ICNIRP guidelines.[35]There was no error of fact. The assessments made on behalf of the Third Defendant had not been shown to be in error but properly reflected the assumptions clearly set out in the estimates themselves. There was ample support for the statement by the Third Defendant that the levels were “well within” the ICNIRP guidelines.[36]In the circumstances there was no non-disclosure in this respect in that the statement that the levels were well within the guidelines could not reasonably be described as misleading. At the time of the appeal the grounds of the Second Defendant had not included health factors and thereafter there was no challenge by any other party, including the Claimant, to the certificate or the statement that the levels were “well within” the guidelines. In those circumstances there was no obligation objectively or otherwise, for the Third Defendant or any other party to have produced Appendix C nor did its non-disclosure render the statement that the levels were well within the guidelines misleading or potentially misleading or otherwise unfair.[37]On that evidence, the Inspector was fully entitled to accept the statement, which was unchallenged, that the levels were well within the guidelines and not to seek any further evidence in that respect. In any event the relevant estimates and their basis had been provided to the Claimant, but he did not make any point in that respect as part of his representations to the appeal. Although he may not in fact have been aware that Appendix C had not been submitted to the Inspector, that did not in the circumstances result in any unfairness, so far as the Claimant was concerned. There is no basis for saying that either the failure to take into account Appendix C directly or its non-availability was material. It is fanciful to suppose that, if the Inspector had seen Appendix C, she would not still have reached the same conclusions as to the balance taking into account that the emissions would be well within the ICNIRP guidelines and in respect of PPG 8. In effect what the Claimant was seeking to do through this challenge was to reopen the case on the merits, which was not open to him on a statutory challenge on a point of law.[38]Mr Christopher Boyle, who appears for the Third Defendant, made submissions in line with those made on behalf of the First Defendant. The Second Defendant did not appear and was not represented.

Consideration

[39]The starting point for consideration is in my judgment the decision letter. Although it was not one of her main issues, it is clear that the Inspector specifically considered concerns raised by third parties about the health implications of the proposed telecommunications mast (see paragraph 12 of the decision letter). She accurately summarised the relevant advice in PPG8. She accepted that the proposed levels would be within the ICNIRP guidelines and therefore would meet the PPG8 policy requirement in that respect. She went on to consider local residents’ fears on health grounds but “on balance” concluded that local residents’ concerns were not sufficient to justify a refusal. For that she relied on(1) that there was little objective evidence to support local fears; and(2) that the emissions would be “well within” the ICNIRP guidelines. The former was a proper reflection of the evidence before her. The latter was supported by the unchallenged evidence comprised in the statement from the Third Defendant.[40]When she returned to this issue at paragraph 14, she considered the specific concerns about health of the community in general and specifically in respect of those living at the Claimant’s home. She noted that the maximum exposure would still be within ICNIRP guidelines in the immediate vicinity of the house. It is not suggested on the material before the Court that that conclusion was not open to her or inaccurate in that at the highest the Claimant’s evidence suggests a specific point estimate some 60 times below the guidelines, while the Site Specific Summary estimates indicated by extrapolation a level about five times below the guidelines.[41]It was on that basis that she concluded that there were “no clear and convincing reasons to outweigh the thrust of Government advice in this case”. Thus she can be seen to have expressly considered the further question whether an exception to policy would be justified on the particular facts of the case and concluded that there was no basis for exception on the evidence that the levels would be within the ICNIRP guidelines at the relevant location.[42]In those circumstances, Mr Stookes frankly recognises that to succeed he has to establish that with the additional information in Appendix C the Inspector’s conclusion as to whether an exception should be made or otherwise in respect of the balance she struck in this respect might have been different. In my judgment, there is no factual basis to support that conclusion. The evidence before her would then have included Appendix C setting out levels which were, as described, well below the relevant guidelines. The Appendix also makes clear that the estimates were made on a robust basis.[43]No evidence had been put before her to suggest that, because the levels in Appendix C exceeded the prevailing levels recorded in the Stewart report or elsewhere, that would justify rejection of the conclusion in the statement from the Third Defendant that they were well within the ICNIRP guidelines or otherwise give rise to a cause for concern. There is in my judgement no warranty on the facts of this case to suppose that the Inspector might have, let alone should have, embarked on an investigation of her own to come to a conclusion along those lines. The evidence in Appendix C was entirely consistent with the statement from the Third Defendant which was before her and in turn supported the conclusions which she set out in paragraphs 12 and 14 of her decision letter. I am, in the circumstances, wholly unpersuaded that there is any basis for concluding that her decision might have been different in that respect.[44]There was, in my judgment, no error of fact in this case. There was nothing on the evidence before this Court to suggest that the assessment set out in Appendix C was erroneous or that it was in any way inconsistent with the statement made by the Third Defendant and before the Inspector that the levels were well within the guidelines, either as a matter of straightforward English or as to their substantive implications. In that respect, applying the tests in E:a. there was not here any relevant mistake as to “an existing fact”;b. there was no contrary fact or evidence not before the Inspector that would be “established” in the sense that it was uncontentious and objectively verifiable;c. I accept that the Claimant was not responsible for the omission of Appendix C; in that respect the third requirement would be met; andd. the omission of Appendix C played no material, let alone decisive, part in the Inspector’s reasoning or conclusions.[45]As to non-disclosure, for the reasons set out above, in my judgment the omission of Appendix C did not have the effect of making the statement by the Third Defendant that the emissions would be “well within” the ICNIRP guidelines misleading or potentially misleading. There was no reason why the Third Defendant should have provided Appendix C or any objective basis why its non-disclosure resulted in unfairness, so far as the Claimant was concerned or otherwise.[46]In these circumstances, in my judgement, the claim fails, whether considered under Ground 1 as to the failure to have regard to a material consideration or the additional ground as to error of fact or non-disclosure. Accordingly the application to add the additional ground should be refused as being plainly too late without any proper justification or counterbalancing merit. In any event, I have made it clear that, even if the amendment had been allowed, I would have found against it.[47]For all these reasons the application will be refused and the claim dismissed.