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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Nunn, R (on the application of) v First Secretary of State & Ors [2005] EWCA Civ 101 (08 February 2005)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/101.html
Cite as: [2005] 2 All ER 987, [2005] 7 EG 143 (CS), [2005] 2 PLR 61, [2006] BLGR 224, [2005] EWCA Civ 101, [2005] NPC 16, [2005] Env LR 32

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Neutral Citation Number: [2005] EWCA Civ 101
Case No: C3/2004/1116

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL
8 February 2005

B e f o r e :

LORD JUSTICE WALLER
LORD JUSTICE LAWS
and
LORD JUSTICE WALL

____________________

Between:
The Queen on the Application of Christine Nunn
Claimant
- and -

First Secretary of State
and
T-Mobile (UK) Ltd
Leeds City Council
Defendant

Interested parties

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Waller :

  1. This claim raises a point of some anxiety. Over the past few years Parliament has been seeking to strike a balance between the importance of enabling mobile phone companies to spread their networks by the construction of masts without the delay of going through full planning permissions, and the interests and anxieties which some members of the public have about both the perceived but unproven health implications of the existence of those masts and the unsightliness of such masts, but in both respects the consequent perceived effect on the value of properties.
  2. Planning permission is required for any development on land under Section 57 of the Town and Country Planning Act 1990 (the TCPA), but planning permission may be granted by a development order made by the Secretary of State under Section 59. The Town and Country Planning (General Permitted Development) Order 1995 (the GPDO) is such an order. Article 3(1) of the GPDO provides that subject to certain provisions, planning permission is granted for the classes of development described as permitted development in Schedule 2. Class A of Part 24 of Schedule 2 provides certain permitted development rights to telecommunications code system operators such as the second interested party (T-Mobile) and other mobile phone operators. The combined effect of A(1) (a) and A2(4) of part 24 is that the construction of a mast under 15 metres tall is permitted development subject to the conditions set out in A3.
  3. The important conditions of A3 so far as this case is concerned are:-
  4. "(3) Before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting and appearance of the development."

    (4) [. . . ]

    (5) The local planning authority shall:-
    (a) for development which, in their opinion, falls within a category set out in the table of article 10 of the Procedure Order, consult the authority or person mentioned in relation to that category, except where:-
    (i) the local planning authority are the authority so mentioned; or
    (ii) the authority or person so mentioned has advised the local planning authority that they do not wish to be consulted.
    and shall give the consultees at least 14 days within which to comment.
    (b) in the case of development which does not accord with the provisions of the development plan in force in the area in which the land to which the application relates is situated or which would affect a right of way to which Part III of the Wildlife and Countryside Act 1981 (public rights of way) applies, shall give notice of the proposed development, in the appropriate form set out in Schedule 3 of the Procedure Order:-
    (i) (aa) by site display in at least one place on or near the land to which the application relates for not less than 21 days; and
    (ii) (bb) by local advertisement.
    (6) The local planning authority shall take into account any representations made to them as a result of consultations or notices given under A.3, when determining the application made under paragraph (3).
    (7) The development shall not be begun before the occurrence of one of the following:-
    (a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
    (b) where the local planning authority gives the applicant written notice that such prior approval is required, the giving of that approval to the applicant, in writing, within a period of 56 days beginning with the date on which they received his application;
    (c) where the local planning authority gives the applicant written notice that such prior approval is required, the expiry of a period of 56 days beginning with the date on which the local planning authority received his application without the local planning authority notifying the applicant, in writing, that such approval is given or refused; or
    (d) the expiry of a period of 56 days beginning with the date on which the local planning authority received the application without the local planning authority notifying the applicant, in writing, of their determination as to whether such prior approval is required."
  5. In broad terms therefore permission is granted for masts under 15 metres tall by the GPDO, but the developer must make an application to the Local Authority for a determination as to whether prior approval will be required to the siting and appearance. If (as in this case) the development was not in accordance with the development plan, the Local Authority must give notice of the proposed development by local advertisement. Representations will then be taken into account by the Local Authority before determining whether prior approval to siting and appearance is needed. The developer then cannot commence the development until either:-
  6. (a) receipt of notice that prior approval is not required; or
    (b) where the decision is that prior approval is required, the giving of that approval within 56 days; or

    (c) where the decision is that prior approval is required the expiry of 56 days from the date of receipt of the application, without notice either that approval is given or that approval is refused; or

    (d) the expiry of 56 days from the date of receipt of the application without the local authority notifying the developer in writing of their determination whether such prior approval is required.
  7. The scheme so far as the facts of the present case were concerned thus granted planning permission for the mast, which was of less than 15 metres. The developer T-Mobile served their notice requesting a determination whether prior approval to the siting and appearance was required. The Local Authority received that notice either on 21st March or, on one argument of the Local Authority, 28th March 2002. The advertisement was placed in the Local Newspapers on about 11th April 2002. Representations were sent in by Dr Nunn by letter dated 22nd April 2002. By letter dated 10th May 2002, the LPA notified T-Mobile that prior approval to siting and appearance would be needed. On 21st May the LPA at a meeting resolved to refuse prior approval, but only notified T-Mobile of that decision by notice dated 23rd May 2002. That was, as the Inspector was ultimately to hold and as to which there is no challenge, 8 days beyond the 56 days if 21st March is taken as the date of receipt by the LPA of T-Mobile's application, and 1 day late if the later date of 28th March is taken.
  8. If the LPA had served their notice of refusal within the 56 days, T-Mobile would either have had to reconsider the siting and appearance or they could have appealed under the TCPA Section 78. If they had appealed under Section 78 it is overwhelmingly likely that an Inspector would have been appointed to hold a local inquiry, and Dr Nunn would have been able to expand on the points she had made to the LPA and which had produced the refusal of approval.
  9. As it was, T-Mobile took the view that the 56 days having expired they were free to go ahead with the erection of the mast, which they duly did.
  10. The LPA contested that the 56 days had expired and served enforcement notices on T-Mobile, the reason for two such notices it is unnecessary to explore. T-Mobile appealed against the enforcement notices under TCPA Section 174 and the Secretary of State appointed an Inspector to hear that appeal and to hold a public inquiry.
  11. The appeal against the enforcement notice was made on two grounds, under Section 174(2)(a) and 174(2)(c). Those subsections provide as follows:-
  12. "174(2)(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;
    174(2)(c) that those matters (if they occurred) do not constitute a breach of planning control."

  13. Because of T-Mobile's reliance on Section 174(2)(a), Dr Nunn on her own behalf and on behalf of other local residents, was able to voice her and their concerns in precisely the way she would have been able to do if T-Mobile had been appealing against a refusal to approve delivered within 56 days under Section 78. However, as the Inspector had made clear he would, he dealt with the Section 174(2)(c) point first.
  14. On this point T-Mobile simply argued that, since the notice of refusal had been served on them outside the 56-day time limit, the result was that they had planning permission under the GPDO, were free to begin the development by virtue of A3(7), and were not in breach of any planning control. This argument was accepted by the Inspector, and he accordingly did not rule on the merits of the points raised by Dr Nunn and others.
  15. Dr Nunn, unsurprisingly, feels extremely aggrieved that, having made representations to the LPA apparently with success, she should be precluded (as she would see it) from a determination by the Inspector as to the merits of those representations by virtue of an error by the LPA. She is furthermore not attracted by the answer given by both the Secretary of State and T-Mobile that she may have some claim before the Ombudsman for maladministration or a claim for damages under Section 8 of the HRA, against the LPA, but (they assert) there is nothing that can now be done to withdraw the planning permission for the erection of the mast on the site chosen.
  16. It is furthermore right to note that Dr Nunn and the local residents of her village do not appear to be alone in finding that, through a failure by the LPA to serve its determination in time, determinations seeking to refuse approval have been ineffective, and members of the public have been precluded from making representations to an Inspector as to the merits of the siting and appearance of mobile phone masts. We were shown some decisions of the Ombudsman and we have been told of other proceedings where Local Planning Authorities have missed the 56-day deadline.
  17. Before considering any possible remedy that Dr Nunn may have, it is relevant to provide one matter of background. Originally the period allowed to Local Planning Authorities under the GPDO was 28 days, but following a Consultation Paper published by the Department of the Environment, Transport and the Regions, by an amendment in July 1999 the period was extended to 42 days. Further public consultation took place following the publication of what is known as The Stewart Report on 11 May 2000. That Report indicated that it should become the law that full planning permission should be required for the erection of mobile phone masts, but following the period of consultation the Government, weighing the competing interests, decided that permitted planning permission rights should continue to apply to masts, but extended the period to 56 days.
  18. It has not been in issue before us that the Government did carry out a balancing exercise, and it has not been in issue that 56 days provides a reasonable period for the Local Planning Authorities to obtain representations from the public, consider them and determine whether prior approval is necessary and, if necessary, should be granted or refused. Dr Nunn does not say that the scheme, if operated properly by an LPA, does not provide a proper opportunity of having representations by persons affected considered and determined. What she does say is that the LPA, by serving the notice of their determination late in this case (a determination in her favour as at that stage), seem to have prevented that determination having any effect and, in particular, have prevented it having the effect of enabling her to expand on the points and convince an Inspector that approval should remain refused.
  19. She submits that the Inspector who heard the appeal from the enforcement notice should, in relation to Section 174(2) (c), have held that T-Mobile did not in fact have planning permission, and should actually have determined the merits under the Section 174(2)(a). She says that it was a denial of her rights to have her points considered for him not to have done so.
  20. Putting it in more legalistic terms, Mr Wolfe has argued on her behalf that Dr Nunn and those affected by the erection of the mast have been given the right to make representations and to obtain a ruling relating to the effects on health and the value of their homes - T-Mobile contesting whether the effects on health or the value on the homes was as represented. He submits those representations and ruling would relate to Dr Nunn's and others' civil rights. By Article 6 it is provided as follows:-
  21. "In the determination of his civil rights . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly . . ."

  22. The Article assumes a right to have a "contestation" as to civil rights heard by an independent and impartial tribunal, and a determination of those rights by that Tribunal. He submits and accepts that an effective determination by the LPA that prior approval was refused which was then appealed and the subject of a public inquiry before an Inspector would be Article 6 compliant in the light of the fact that the supervision of the court by virtue of Judicial Review would be available (see R (Alconbury) v Environment Secretary [2003] 2 AC 295).
  23. He also accepts that an effective determination that prior approval was unnecessary would also be Article 6 compliant because of the independence of the LPA and in this instance the availability of Judicial Review of the LPA's decision. That effective decision could either be taken by the LPA giving notice under A3(7)(a) or providing a determination under A3(7)(b) or by the LPA not giving any notice that prior approval would be needed under A3(7)(d).
  24. What has however happened in this instance is that the LPA has sought to determine Dr Nunn's civil rights in her favour by resolving to refuse approval, but has failed to make that decision effective by serving it on the 57th day. Although, if effective, T-Mobile would have had a right of appeal, the failure to act in time has prevented there being an appeal process, under which there would have been a public inquiry before the Inspector to consider the merits of the points made by Dr Nunn. Those rights would have been determined by the Inspector and subject to Judicial Review.
  25. By the end of the hearing before us there was no real issue that the failure of the LPA had had the effect of depriving Dr Nunn of Article 6 rights. Mr Wolfe referred us to Zander v Sweden [1993] 18 EHRR 175, Ortenberg v Austria [1994] 19 EHRR 524, Friends Provident Life & Pensions Limited v The Secretary of State [2001] EWHC Admin 820, British Telecommunications Plc (2) Bloomsbury Land Investments v Gloucester CC [2001] EWHC Admin 1001 and of course Alconbury (supra). The concession made by Mr Mould for the Secretary of State in his skeleton was that Dr Nunn's rights under Article 8 and Article 1 of the First Protocol were engaged but, because the attack by Mr Wolfe was concentrated on the decision of the Inspector on appeal from the enforcement notice, there was no clear concession that Dr Nunn's Article 6 rights had been infringed. But in his oral argument he began by making that concession but submitted that any remedy lay against the LPA. Mr Katkowski also was prepared to assume for the purposes of this claim that Dr Nunn had been deprived of her Article 6 rights, and submitted that any remedy lay against the LPA.
  26. It seems to me clear that Dr Nunn's Article 6 rights were here infringed. She and others affected had the right to make representations to the LPA on the effects on health and on the appearance of the mast as it affected them and the value of their homes. T-Mobile of course contested that their health could be affected and contested that the appearance affected the value of their homes. Both T-Mobile and Dr Nunn had, under Article 6, the right to expect that those points would be determined by the LPA, by an effective decision which might be the subject of an appeal to an Inspector, controlled by the court by Judicial Review or even such as to be under the direct control by the court by Judicial Review. In this instance she was deprived of her right under Article 6 to such a determination.
  27. The key issue became, and is, what should be the consequence? The consequence suggested by both Mr Mould and Mr Katkowski was that Dr Nunn's remedy lay against the LPA alone, either in damages under Section 8 of the HRA or in a claim before the Ombudsman for maladministration. Mr Wolfe submitted that Dr Nunn's Article 6 rights had been infringed in relation to the issue whether the mast should be sited where it was proposed. He submitted that the remedy she should have, should restore to her her entitlement to attempt to uphold the LPA's original view that the mast should not be sited where it is. Damages were not a sufficient remedy. He submitted that the Inspector hearing the appeal from the enforcement notices should have noted the deprivation of Article 6 rights and that, by one route or another including writing words into the statutory scheme or the statute itself under Section 3 of the HRA, the Inspector was obliged to hold that T-Mobile did not have lawful planning permission, and then go on to consider the merits under Section 174(2)(a).
  28. Mr Wolfe has three ways in which he would suggest that by virtue of Section 3 of the HRA the words of the GPDO or the TCPA could be read so as not to deprive Dr Nunn of Article 6 rights. Section 3 provides:-
  29. "(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. "

  30. Mr Wolfe's skeleton puts his three different suggestions in the following terms
  31. "Firstly:
    (1) An appeal against an enforcement notice can be brought (here by T-Mobile) on the grounds set out in section 174(2) of the Town and Country Planning Act 1990.
    (2) The Secretary of State has a wide discretion under section 176 in determining such an appeal.
    (3) The statute certainly does not say (as some do) that if one or other of the statutory grounds of appeal is made out, then the appeal must be allowed.
    (4) Thus, even where (as here) the Inspector considered that Ground C was made out (and assuming that to be correct for these purposes), he was not obliged to allow the appeal.
    (5) Construing section 176 to allow the Inspector thus to consider the Ground A appeal even though the Ground C appeal was made out (and then require him, pursuant to his obligations under section 6(1) of the 1998 Act, to consider the merits of Dr Nunn's objection and, if persuaded by it, refuse approval), is perfectly possible within the statutory language without (for example) during violence to the existing language.
    Even if that were wrong, then secondly,
    (1) The Ground C appeal asks whether the matters complained of (here the erection of the mast) "constitute a breach of planning control" 174(2)(c)
    (2) Section 171A explains that carrying out development without the required planning permission or failing to comply with a condition or limitation on a planning permission "constitutes a breach of planning control".
    (3) But section 171A does not preclude "breach of planning control" arising in other ways including as here development in breach of Article 6(1) rights.
    (4) There is certainly nothing in the statutory language which prevents it being read and applied that way; and so it must be read and applied that way.
    (5) Nor is that result prevented by the section 173(1) obligation that an enforcement notice shall state the matters which appear to constitute a breach of planning control and the paragraph of section 171A(1) within which the breach fails.
    (6) Construing those provisions to allow the Inspector to reject the Ground C appeal because of the Article 6(1) incompatibility (and then require him, pursuant to his obligations under section 6(1) of the 1998 Act), to consider the merits of Dr Nunn's objections and, if persuaded, reject the appeal and refuse planning permission, is perfectly possible within the statutory language without (for example) doing violence to the existing language.
    Even if that were wrong, then thirdly:-
    (1) Carrying out development without necessary planning permission is undoubtedly a "breach of planning control".
    (2) The planning permission in the present case arose from the operation of the "56-day rule" within the GPDO (as to which see para A.3(7) of Part 24 of the GPDO at page 163 of the permission bundle).
    (3) A.3(7)(c) imposes a condition on the deemed planning condition to the effect that "development cannot be begun until . . . where the local planning authority gives the applicant written notice that such prior approval is required, the expiry of 56 days beginning with the date on which the local planning authority received his application without the local planning authority having notified the applicant, in writing, that such approval is given or refused.
    (4) In order to secure compatibility with Convention rights, pursuant to section 3(1) of the 1998 Act, that provision needed to be read, and could be read, subject to the additional requirement that development could only be commenced at the end of the 56 days if (as well as silence from the LPA) the deeming of consent and the commencement of development would not be in violation of (here) Dr Nunn's Article 6(1) rights."

  32. I find it difficult to think that Section 3 can ever be used in the kind of situation with which we are concerned. The Scheme and the legislation can be operated compatibly with the Convention. It is the LPA which has infringed Dr Nunn's Convention rights, but at the same time established the right of innocent third parties and T-Mobile to commence the erection of a mast for which the GPDO grants planning permission. To contemplate writing in words which will have the effect of undoing the rights of a third party and indeed forcing the third party to remove that which it has had a right to erect, simply because the statute has been operated by the LPA in a way that infringes a Convention right seems to me to be going beyond what Section 3 had in contemplation.
  33. In these proceedings the attack is on the decision of the Inspector on the appeal from the enforcement notices. On analysis in my view that can simply be seen to be misconceived. Mr Wolfe does not attack the GPDO scheme as such, and the effect of the scheme so far as T-Mobile is concerned is that by virtue of the GPDO they had planning consent and could commence the erection of the mast, if no notice of refusal of prior approval was received within 56 days. The LPA might have accepted that they had failed to give notice of their decision within 56 days and if that had been so, there would have been no enforcement notice and no appeal. It is pure chance that in this case there was an appeal before an Inspector.
  34. The first issue on that Appeal was whether T-Mobile actually had planning permission. In relation to that aspect there could be no issue between Dr Nunn and T-Mobile, and her points on the merits of siting and appearance had no relevance. On that issue in other words her Article 6 rights were simply not engaged. That decision of the Inspector is untouched by any argument that Dr Nunn's Article 6 rights may have been infringed.
  35. If Dr Nunn has a complaint it has got to be a complaint that has substance whether or not an enforcement notice was served, and whether or not there was an appeal from that enforcement notice. She has such a complaint which when properly analysed, as I see it, is two-fold (1) the determination that prior approval should be refused was not made effective by virtue of the late service of the decision on T- Mobile; and (2) even though T-Mobile might have appealed that decision, she was deprived of the right of making her points on the merits in an appeal from that decision.
  36. In relation to those complaints, only the LPA has any responsibility at all. T-Mobile have done nothing to affect or interfere with her Article 6 Rights. The Inspector hearing the appeal against enforcement has no jurisdiction to consider what should flow from the decision of the LPA not being effective. It is furthermore not the scheme as set out in the GPDO which has prevented the determination of Dr Nunn's rights being effective, it is the failure of the LPA to serve their determination on time. That failure provided T-Mobile with rights to begin the development for which the GPDO had given them permission, and T- Mobile had exercised those rights. The Inspector on the appeal against the enforcement notice had no jurisdiction to take away that right. Section 3 simply does not provide the court with jurisdiction to write in words in the Scheme or in the TCPA which would have that effect.
  37. The remedy for Dr Nunn appears to lie or to have lain against the LPA who failed to make their determination in her favour effective. The LPA were not represented before us and I will say nothing more other than if Dr Nunn has or had a remedy against them it may not be limited to a claim before the Ombudsman, but may include a claim for damages under Section 8 of the HRA.
  38. This, I accept, may seem very unsatisfactory to Dr Nunn, who is more interested in the mast being resited than in monetary compensation, but monetary compensation is very often the only remedy that courts can give, particularly where any other remedy would affect the rights of innocent third parties. Remedies under the HRA are no different. This claim must be dismissed.
  39. Lord Justice Laws:

  40. I gratefully adopt the account of the facts of this case and the material statutory provisions set out in the judgment of my Lord Waller LJ, which I have had the advantage of reading in draft. I agree with him that the claim should be dismissed for the reasons he gives. I have only a few observations of my own.
  41. At paragraph 22 my Lord concludes that Dr Nunn was deprived of her right under ECHR Article 6 to a determination of her claims relating to health, the appearance of T-Mobile's mast and its effect on the value of her home and the homes of others. If I may say so I think that is entirely right. My Lord proceeds to ask (paragraph 23), what should be the consequence? In this context it is in my view important to recognise that Mr Wolfe's case for Dr Nunn crucially rests on the proposition that some provision or provisions in the relevant statutory scheme is or are liable to give rise to systematic violations of Convention Rights unless accorded a special reading pursuant to s. 3 of the Human Rights Act 1998. Unless the statute or the GPDO has that effect, the use of s. 3 does not arise: the statutory materials will be compatible with the Convention rights upon their ordinary meaning.
  42. In my judgment there is nothing in the relevant provisions of the GPDO or the TCPA, on the ordinary construction of each, which could be said to generate violations of the Convention rights. I agree with the observation of my Lord Waller LJ (paragraph 26) that the scheme and the legislation can be operated compatibly with the Convention. As I ventured to suggest in the course of argument, Mr Wolfe's case rests on a false premise. It consists in the proposition that the fact that a legislative measure can be operated so as to violate an individual's Convention Rights (as the GPDO was operated by the local planning authority here) means that the legislation is repugnant to the Convention. But that is a non sequitur.
  43. I would like to express my specific agreement with my Lord's reasoning at paragraph 29 and 30 of his judgment. It is to be noted that had the LPA indicated its decision to withhold prior approval within time, and T-Mobile had appealed the consequent refusal of planning permission, the appeal would have involved a hearing before an inspector unless neither T-Mobile nor the LPA desired it: see TCPA s. 175(3) and Schedule 6 paragraph 2(2), (3) and (4).
  44. Lord Justice Wall:

  45. I have had the advantage of reading the judgments of Waller and Laws LJJ in draft. I agree both with their reasoning and with their conclusion that this claim must be dismissed, and that Dr Nunn's application for judicial review of the decision of the planning inspector dated 8 October 2003 quashing enforcement notices issued by the Leeds City Council against T-Mobile in accordance with section 174(2)(c) of the Town and Country Planning Act 1990 must be refused. I add a short judgment of my own because I am conscious that Dr Nunn will feel an understandable sense of disappointment at the outcome.
  46. In a wholly public spirited fashion, Dr Nunn has sought to represent the interests of her local community whilst, at the same time, striving to protect the well-being of her family. In the result, her efforts, through no fault of her own, come to nothing. The planning permission remains in place, as does T-Mobile's mast. Dr Nunn has been deprived of her ECHR Article 6 rights; she has lost the opportunity to have her objections to the grant of planning permission heard and adjudicated upon by an Article 6 compliant body; and she is left with a monetary remedy which, if she is to pursue it, either through the Local Government Ombudsman or by means of an action pursuant to section 8 of the Human Rights Act, 1998 will require further time, effort and expense. She may well feel that this is a poor reward for her altruism.
  47. When I first read the papers in preparation for this claim, my preliminary reaction was that Dr Nunn would probably have little difficulty in persuading me that her ECHR Article 6 rights had been infringed. So it proved. Waller LJ has aptly identified those rights in paragraph 22 of his judgment. However, four questions arise from the fact of the breach. They are: (1) by whom have Dr Nunn's Article 6 rights been breached? (2) What are the consequences of the breach? (3) Against whom (if anybody) does she have a remedy? and (4) What is that remedy?
  48. In paragraph 15 of his skeleton argument, Mr David Wolfe, for Dr Nunn, made it clear that Dr Nunn's challenge was not to the whole of the Part 24 GPDO scheme. His argument was that he did not need to go that far. He accepted that Part 24 was entirely capable of securing Article 6(1) compliance (and generally did so) because it provided for the independent local planning authority (LPA) to consider, and to take, what he described as "an operative decision" in relation to the merits objections of neighbours such as Dr Nunn. Mr Wolfe also accepted that if the LPA, having properly taken Dr Nunn's views into account, had decided to give prior approval in the instant case, her Article 6(1) rights would have been secured, even though she would have disagreed with the result.
  49. As to the ECHR compatibility of Part 24, it is clear from the evidence filed on behalf of the First Secretary of State that, in enacting the scheme in its present form, Parliament has sought to strike a balance between, on the one hand, the need to facilitate the continuing development of a competitive and up to date telecommunications network; and, on the other, the need both to protect the environment and to give LPAs sufficient time to consult local communities. It was, I think, significant that the time for LPAs to notify developers of their decision that prior approval was required had been increased, over time, from 28 days to 42 days and, under the current scheme, to 56 days.
  50. In my judgment, Mr Wolfe's proper acknowledgement that Part 24 of the GPDO scheme is Article 6 compliant or, as he would say, capable of securing Article 6 compliance is fatal to his argument that the LPA's failure to notify T-Mobile within the 56 days period that prior approval was refused (the action which breached Dr Nunn's Article 6(1) rights) rendered the planning permission which T-Mobile thereby acquired unlawful. T-Mobile, in my judgment, has lawfully obtained planning permission under the scheme. The fact that it has done so as a result of a failure by the LPA to give the requisite notice does not affect the validity of the Part 24 GPDO scheme. The scheme specifically provides for planning permission to be granted if notice is not given.
  51. The answers to the first two questions which I pose in paragraph 39 of this judgment can only be answered in one way. It is the LPA which has breached Dr Nunn's rights, and the consequence of that breach is that she had been deprived of the right to a determination by the LPA (and on any appeal by a planning inspector) of her claims "relating to her health, the appearance of T-Mobile's mast and its effect on the value of her home and the homes of others", as Laws LJ expresses it in paragraph 34 of his judgment.
  52. Against whom does Dr Nunn have a remedy? I acknowledge that the LPA was not represented before us, and I appreciate that we did not hear their explanation for its failure to serve the notice within the 56 day period allowed by the GPDO. For the purposes of this judgment, however, I propose to assume, in Dr Nunn's favour, that the LPA's failure to serve the notice in time was due to its incompetence, and that it was negligent. It follows, in my judgment, that if Dr Nunn has a remedy, it is against the LPA. It cannot be against T-Mobile, which has not acted in any way unlawfully or in breach of Dr Nunn's ECHR rights. Nor, in my judgment, have Dr Nunn's ECHR rights been breached by the planning inspector. As I have already stated, the scheme gives T-Mobile planning permission if no notice is served within 56 days. T-Mobile acquired those rights. The inspector could only take those rights away if there had been a breach of planning control. There had been no such breach. The inspector, as he was bound to do, was simply giving effect to the scheme.
  53. It follows, in my judgment, and again the logic is inexorable, that Dr Nunn's remedy can only sound against the LPA in damages. Where, as here, the LPA has simply been incompetent, neither the scheme nor any public law remedy provides a mechanism for the revocation of the grant of planning permission. It might be different were it possible to say that the scheme had been improperly implemented in some way, or that T-Mobile has behaved unlawfully: but there is no suggestion of that. Through the LPA's incompetence, T-Mobile have obtained the right to erect their mast. That is the long and the short of it. If Dr Nunn and her fellow residents are to be compensated, the compensation either under HRA 1998 or under the scheme operated by the Local Government Ombudsman has to be financial. The law does not, as it seems to me, offer any other remedy.
  54. Mr Wolfe's answer was, in effect, to say that the scheme had to be implemented in accordance with HRA 1998 section 3. It had not been because of the LPA's incompetence which had breached Dr Nunn's Article 6 rights; and that accordingly the Inspector was in a position to, and should have, set aside the planning permission because it had been obtained in breach of those rights. For the reasons I have already given, I cannot agree with that reasoning. Once the lawfulness of the scheme is acknowledged, as Mr Wolfe accepts it must be, the fact that it was operated incompetently in this instance does not affect its lawfulness. To read into the scheme words which would have the effect of setting aside an otherwise lawfully acquired planning permission, in circumstance where a failure to give notice that prior approval was refused had given rise to an Article 6 breach by the LPA would, in my judgment, be impermissibly to re-write the scheme.
  55. I respectfully agree with Waller LJ that the presence of the inspector in this case is fortuitous. The result would have been exactly the same if the LPA had not issued the enforcement notices. Dr Nunn's Article 6 rights would have been breached, but there would have been no mechanism for setting aside the planning permission. Dr Nunn's remedy would have been against the LPA, and would have sounded in damages.
  56. For these reasons, which are in essence the same as those given by My Lords, I too would refuse Dr Nunn's application for judicial review, and dismiss this claim.
  57. ORDER: Application dismissed. Order for costs as per the order drawn up by the parties. Permission to appeal to the House of Lords refused.

    (Order does not form part of approved judgment)


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