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||Neutral Citation Number:  EWHC 2415 (Admin)
||Case No: CO/2229/2003
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||22nd October 2003
B e f o r e :
THE HONOURABLE MR JUSTICE RICHARDS
|| JODIE PHILLIPS
||- and -
||(1) FIRST SECRETARY OF STATE
(2) HAVANT BOROUGH COUNCIL
(3) HUTCHISON 3G (UK) LIMITED
Mr David Wolfe (instructed by Richard Buxton) for the Claimant
Mr Richard Harwood (instructed by Burgess Salmon) for the Third Defendant
Hearing date : 6 October 2003
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Richards:
- The claimant, Ms Phillips, lives with her husband and mother-in-law in Waterlooville, Hampshire. She brings a challenge under s.288 of the Town and Country Planning Act 1990 against a decision of an inspector appointed by the First Secretary of State, giving approval to Hutchison 3G (UK) Limited for the siting and appearance of a mobile phone mast on a site close to her home. Her objections to the mast include concerns about visual impact and health risks, but the challenge before this court is largely of a procedural nature. Its essence is that Hutchison's representations to the inspector involved a change of case on the issue of alternative sites and that the claimant was unfairly denied an opportunity to make representations on the changed basis.
- The defendants to the claim are the First Secretary of State, Havant Borough Council and Hutchison. The Secretary of State, however, has expressed a willingness to concede the claim and has put forward a draft consent order by which the inspector's decision would be quashed and remitted for reconsideration. The council has also indicated that it does not intend to defend the proceedings. In consequence neither of those defendants has played any part in the hearing before me. Hutchison, on the other hand, has declined to adopt the same approach. It has robustly defended the inspector's decision, as it is entitled to do. Equally robustly, it has proceeded to erect the mast in accordance with the inspector's grant of approval notwithstanding the challenge to the lawfulness of the decision.
Regulatory and factual background
- Planning permission for the installation of telecommunications apparatus, including the mast in issue in this case, is granted by Part 24 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, subject to the conditions set out in paragraph A.3. One of those conditions is that 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 for "the siting and appearance" of the development (A.3(3)). Such application shall be accompanied by a written description of the proposed development and a plan indicating its proposed location (A.3(4)(a)). The local planning authority is subject to certain obligations as to consultation and the giving of notices (A.3(5)-(6)). The development shall not be begun before the authority has notified the applicant that prior approval is not required or that such approval is given, or unless 56 days elapse without the authority giving a notification.
- On 19 September 2002 Hutchison, through an agent, submitted to the council an application for prior approval determination under the above provisions. The proposed structure was described as an ultra slimline monopole of an overall height of 12.5 metres, together with an equipment cabinet, and was to be sited on the grass verge of Hambledon Road adjacent to the claimant's home. The letter enclosed a map of the proposed site and also a set of plans showing the predicted levels of coverage in the area and the relationship of the proposal to planned neighbouring cells. It went on:
"The siting of a telecommunications installation is constrained by both technical requirements and the physical characteristics of the area, which restricts the size of the area in which it can be located. As you can see from the coverage plans, the cell size is only about 1½ to 2km is diameter and so the 'search area' which needs to be central to the cell is only about 1-200m in diameter. To locate outside this search area would result in gaps in the service to be provided, necessitating the need for an additional mast elsewhere, and could also cause significant and unnecessary overlap of neighbouring cells."
- Later in the letter was a section on "alternative site search", which read as follows:
"There have been extensive investigations into alternative sites in this area including, in accordance with Government guidance, the possibility of sharing with another operator or using an existing building or structure. However, there are no buildings of a suitable height or design available to accommodate telecommunication equipment in the area, or masts capable of being shared. Among the sites considered were the following:
- LPC-7 Denmead Pylon, Hambledon Road, Waterlooville, PO7 6XE. The possibility of utilising this existing structure was investigated by my client However the required height to achieve coverage to the target area was 20m and on this structure, the equipment could only be located at 11m. Therefore this had to be dismissed as a potential option due to the above technical reasons.
- LPC-8 Denmead Pylon, Hambledon Road, Waterlooville, PO7 6XE. The possibility of my client locating their equipment on this existing structure was looked into. However the landlord was not interested in accommodating the equipment on their property.
- Waterberry Drive, Waterlooville, PO7 7SF. A potential streetworks option was investigated at this location. However the landlord was not willing to allow a telecommunications installation on their property.
- The swapping of an existing lamp column with a telecommunication column is not possible due to objections from the Highway Authority. The Highway Authority will not be able to easily maintain the lamp.
- The verge on the southwestern side of the road is considered to be more visually open and there is less space to site an installation. The closeness of the taller trees would also effect [sic] coverage.
As explained below, the evidence before the court shows that the first two, at least, of those alternative sites were well outside the 200 metre search area previously referred to: they were respectively 740 metres and 880 metres away from the application site.
The current site was therefore selected as being the best available in terms of it's [sic] location and the level of coverage that could be achieved from it."
By letter dated 1 October 2002 the council notified the claimant and other residents of the application for approval. Numerous letters of objection were sent in. The letter from the claimant, dated 20 October 2002, expressed concerns about "the obvious lack of care which the company has shown in researching the siting of their mast in this instance, the visual impact upon the area, and the lack of convincing evidence as to the safety of these masts". On lack of adequate research the letter made a number of points, one of which was:
"From PPG8 (mast and site sharing, 21), which says you may 'reasonably expect applicants for new masts to show evidence that they have explored the possibility of erecting antennas on existing structures' (ie nearby pylons). We would expect the operator to provide you with copies of the full contact between themselves and the alternative sites they refer to, and that you will satisfy yourselves that the operators made significant efforts to comply with this guidance."
On 14 November 2002 the council refused approval for the siting and appearance of the proposed development, for reasons of visual amenity and public perception of danger to health.
An appeal on behalf of Hutchison was lodged on 6 December 2002. The appeal form asked for the appeal to be determined on the basis of written representations, in accordance with the procedure set out in the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000. It is convenient to mention here a few provisions of the regulations:
i) The Secretary of State shall, as soon as practicable after receipt of the notice of appeal, advise the appellant and the local planning authority in writing of "the starting date" and other information (reg 4).
ii) The local planning authority shall give written notice of the appeal within 2 weeks of the starting date to any person who made representations to it about that application, such notice to state inter alia that further representations may be submitted to the Secretary of State within 6 weeks of the starting date (reg 5(1)(b) and (2)(f)).
iii) The notice of appeal and the documents accompanying it shall comprise the appellant's representations in relation to the appeal (reg 7(1)), but if the appellant wishes to make any further representations he is required to submit them within 6 weeks of the starting date (reg 7(4)).
iv) The local planning authority is required to submit to the Secretary of State a completed questionnaire and accompanying documents under regulation 6 and may elect to treat the questionnaire and documents as its representations. If it does not so elect, it shall submit its written representations within 6 weeks of the starting date (reg 7(2)-(3)).
v) The appellant and the local planning authority are to be sent copies of any representations made by the other and shall submit any comments they have on each other's representations within 9 weeks of the starting date (reg 7(6)-(7)).
vi) If an interested person notified under regulation 5(1) wishes to submit representations, he shall do so within 6 weeks of the starting date.
vii) The Secretary of State may in a particular case give directions setting later time limits than those prescribed by the regulations (reg 9).
The starting date in this case was notified as being 9 December 2002. Written notification of the appeal was given to the claimant by the council by letter dated 9 January 2003, some 2 weeks later than required by regulation 5(1)(b). The notification stated correctly that if the claimant wished to make any representations concerning the appeal they should be received by no later than 20 January 2003.
By letter dated 14 January, and thus within the time laid down by the regulations, the claimant submitted further representations to the inspectorate, stating that the proposed siting would be an overbearing eyesore to the outlook to the front of her house and that:
"It seems bizarre considering the number of suitable pylons and an industrial estate in the vicinity, that the proposed location would be selected as the most appropriate. This is especially apparent when taking into account the close proximity of the 'Little Acorns' nursery, and the extreme impact upon local residents that the proposed siting would have."
I do not think that anything turns on it, but note that the claimant had not seen Hutchison's notice of appeal when she submitted her representations. It was not sent with the council's letter of 9 January 2003, and her evidence is that she visited the council's offices on 13 January to inspect the file but the only documents on the file were the original application and the letter of refusal from the council.
The notice of appeal asserted that it could be demonstrated that there were no suitable alternative sites. It also stated that by siting the mast outside the industrial estate it would have less immediate impact on the nursery school which was on the opposite side of the main road and sited in the industrial estate. The notice also contemplated the submission of a further statement referring inter alia to the site selection process and the alternatives that had been investigated. It is the further statement which is important.
Hutchison's further statement consisted of a document dated 16 January and received by the inspectorate on 17 January. A plan included as appendix 6 showed the coverage area and the locations of alternative sites that had been considered: the scale on the plan was stated to be 1:12,500 whereas it was in fact 1:25,000. In the text of the representations it was stated:
"3.5 Also from the plan in appendix 6, it can be seen that the coverage area (the cell) only extends to approximately 2km in diameter. This is because of the high frequencies used by Hutchison 3G, the amount/level of data transmission (ie video/internet etc), and the restrictions of the terrain. Thus the 'search area' where an installation can be placed is subsequently limited to about 400m in diameter. This is a significant factor in limiting where an installation can be placed.
5.3 The siting of the proposed installation is very limited and it can only be sited in a small area. To locate outside this search area would result in gaps in the service to be provided, necessitating the need for an additional mast elsewhere, and would also cause significant overlap of neighbouring cells. In addition, the area to the west in the industrial/commercial zone is on lower land and so any installation would need to be significantly higher and more substantial in construction to serve the cell. In any case, as detailed below, a willing site provider has not been found on the industrial estate.
5.4 There have been extensive investigations into alternative sites in this area, in accordance with Government guidance, including the possibility of sharing an existing mast or using an existing building or structure. Among the site(s) considered were the following (as shown as green dots on the location plan attached in appendix 6):
1. & 2. The area to the north and east of the appeal site is within a predominantly dense residential area. There are no suitable buildings to use in this area and it is considered that any streetworks installation sited along the pavement/highway verge would be more prominent to the outlook of occupiers of residential properties.
3. The swapping of an existing lamp column with a telecommunication column is not possible due to objections from the Highway Authority.
4. The verge on the south-western side of the road is considered to be more visually open and there is less space to site an installation. The closeness of the taller trees would also effect [sic] coverage. It will also be much closer to the nursery school in Waterberry Drive.
5. No site was found in the Brambles Farm Industrial Estate including within the area of the leisure centre because no landowner was willing to accommodate the installation.
6. Off Waterberry Drive, Waterlooville, PO7 7SF. A potential streetworks option was investigated at this location. However the landlord was not willing to allow a telecommunications installation on their property.
7. Electricity Pylon No. LPC-7 to the west of Hambledon Road, Waterlooville. The possibility of utilising this existing structure was investigated by my client. However the required height to achieve coverage to the target area was 20m and on this structure, the equipment could only be located at 11m. Therefore this had to be dismissed as a potential option due to the above technical reasons. Also the landowner was not interested in accommodating the equipment on their property.
The "search area" of up to about 400 metres diameter referred to in paragraph 3.5 of those representations is to be compared with the search area of up to about 200 metres diameter referred to in the letter of 19 September 2002 enclosing the original application for approval. It is that change which is at the heart of the claimant's case of procedural unfairness.
8. Electricity Pylon No. LPC-8 to the west of Hambledon Road, Waterlooville. The possibility of my Client locating their equipment on this existing structure was looked into. However the landowner was not interested in accommodating the equipment on their property."
Hutchison's further statement was sent to the council by the inspectorate on 21 January in accordance with the regulations, giving the council an opportunity to comment on it. It was not, however, sent to or seen by the claimant, who had in any event already availed herself of the opportunity to make representations by 20 January in accordance with the express provisions of the regulations. It was only on inspecting the file again after the inspector's decision that the claimant found Hutchison's further statement (though she says that the map at appendix 6 was not included on the file even then).
The next event in the chronology was the inspector's decision, dated 27 March 2003. In that decision the inspector referred first to relevant provisions of the development plan, including structure plan policy TC1 which provided inter alia that where there would be a conflict with environmental objectives it would need to be demonstrated that there was no possibility of sharing existing facilities, no satisfactory alternative sites and no reasonable possibility of using buildings or other structures.
He then considered the effect of the proposed development on the streetscene, concluding in paragraph 9 that the proposal would not harm the streetscene and would not conflict with the development plan policies related to design and telecommunications.
Moving to other material considerations, he considered first the representations about the health implications of the proposal. He referred to the Government's adoption of stringent guidelines following a report on the subject, and to the statement in the 2001 version of PPG8 (Planning Policy Guidance 8: Telecommunications) that if a proposal meets the guidelines it should not be necessary for a planning authority to consider the health effects further. He went on:
"14. In summary, there is no evidence before me to indicate that the proposal would conflict with the aim of safeguarding residents and those using facilities in the area from any harmful health effects of the appeal development. I have been made aware of local concerns about health expressed in letters of representation and I fully accept that such concerns are a material consideration in the determination of this appeal. However, they do not provide a sufficiently strong basis to outweigh recent technical advice and current national policy, as set out above. I therefore conclude that public concern about the health risks arising from the installation of the proposed equipment does not add further justification for dismissal of this appeal."
In paragraph 15, referring again to PPG8, he stated that the general policy was to facilitate the growth of new and existing telecommunications systems. He continued:
"16. Further support for the proposal is provided by the need for this development. Although PPG8 advises that planning authorities should not question the need for the service, I understand that the proposal is intended to provide 3rd generation coverage for the surrounding residential and commercial areas, and for the transport network. The appellant has set out the alternative sites which were considered and the reasons why they were rejected, and I have no reason to doubt this evidence. No detail of other possible alternative sites or methods of achieving the coverage have been put before me."
For those various reasons he concluded that the appeal should be allowed.
When notified of the inspector's decision, the claimant wrote on 11 April to Hutchison to express concern about the siting of the mast and to indicate that legal advice was being sought. The letter dealt as follows with the issue of alternative sites:
"After reading all the submitted documentation to Havant Borough Council regarding this siting, we feel that an alternative site within the very close industrial area was overlooked by your representatives. This alternative site (T-junction of Electtra Avenue and Waterberry Drive) also has the added advantage that it complies with the Stewart report recommendation that the field of maximum intensity lies outside of the nearby nursery school and its grounds. In addition both telecommunication and power links are also available on this Council Adopted Highway Land."
The suggested site at the junction of Elettra Avenue and Waterberry Drive is in the Brambles Farm Industrial Estate, outside the 200 metre search area referred to in Hutchison's original application letter but within the 400 metre search area referred to in Hutchison's further representations in support of the appeal.
In a response dated 22 April Hutchison stated that it had considered sites in Waterberry Drive and Elettra Avenue, amongst others, but "the land in this location is privately owned and the owners when approached were not interested in accommodating our equipment".
Meanwhile the claimant had written to the inspectorate to complain about the way the appeal process had been conducted. In a letter dated 12 April she complained first about the late notice given to her of the appeal and the limited time therefore left for reasoned comments. Secondly:
"We refer to the fact that the deadline for objections sent to the Planning Inspectorate was January 20th 2003, when the appeal statement made by AWA on behalf of Hutchison 3G did not arrive at the Havant Borough Council Offices until 17th January 2003 – a Friday. You may not be aware that Council Offices are not open on a Saturday. Thus the first opportunity we had of viewing the appeal statement was after the deadline for submission to the Planning Inspectorate.
The appeal statement given by AWA on behalf of Hutchison 3G stated that the mast should be located about 400 metres in diameter of the proposed site. This contradicts the original application where it was stated the diameter should be about 200 metres from the proposed site. We feel aggrieved that the search for alternative sites carried out by AWA were, not only not looked into by the Council or Inspector, but the sites the operator chose to look into seemed to be even further afield than the 400 metre diameter limit.
With the goal posts moving as regard to the diameter that the monopole can be placed we feel that we were prevented from presenting an adequate alternative site. Several suggestions regarding the alternate siting of the mast in the industrial estate opposite were made, however the suggestion of specific locations were not possible without knowing the specific technical requirements, which seemed to have changed.
An alternative site exists which satisfies the requirements of the operator, (and includes on site telecommunications and power) and also satisfies the recommendation of the Stewart report (Stewart Report Summary and Recommendations 2.42), in so far as the fact that the nursery school would not be within the main field intensity of the mast emission profile ….
The alternative site (T junction of Electtra Avenue and Waterberry Drive) is located within the industrial estate with the nursery school outside the main field intensity of the emission profile of the mast. This alternative site is also upon Havant Borough Council adopted highway land."
Those complaints were rejected by the inspectorate in a letter dated 28 April, to which the claimant further responded in terms that included some of the points now advanced in the present proceedings. In particular it was asserted that if the claimant had had the information on the wider location area contained in Hutchison's main statement on the appeal, she would have been able to include the suggestion for an alternative site in her representations and this would have been considered by the inspector.
That correspondence was soon followed by the commencement of the present proceedings.
The main issue: procedural unfairness
As already indicated, the main submission advanced by Mr Wolfe on behalf of the claimant is that Hutchison's case as to the relevant search area changed in an important respect between the original application and the representations made on appeal – from an area of up to about 200 metres diameter to an area of up to about 400 metres diameter, representing a fourfold increase in the total size of the area – and that the claimant was denied the opportunity to address that change of case and to put forward possible alternative sites within that larger area.
On the face of it that line of argument has considerable force to it, which is no doubt what prompted the Secretary of State to indicate his consent to the inspector's decision being quashed. In the reasons given in support of the draft consent order put forward by The Treasury Solicitor, it is stated that the defendants "consent to an Order quashing the said decision because the Inspector's finding at paragraph 16 of the Decision Letter did not take into consideration the change in the detail of the case of the Third Defendant, which in turn deprived the Claimant of an opportunity to address the case of the Third Defendant in relation to alternative sites".
Hutchison, however, does not accept that conclusion and takes issue with virtually every step of the claimant's argument.
Whether alternative sites were a material consideration
I shall deal first with what I regard as a threshold point taken on behalf of Hutchison. Mr Harwood submits that in the circumstances of this case, since the inspector found the proposed scheme entirely acceptable in planning terms, the existence of alternative sites was not a material consideration at all, and whatever the claimant might have said on the subject if given the opportunity to make additional representations, it could not lawfully have altered the inspector's decision.
The submission is founded on a passage in R (Scott Jones) v. North Warwickshire Borough Council  EWCA Civ 315,  PLCR 31 where Laws LJ, having reviewed a number of earlier authorities, stated:
"30. If I may say so, with respect, it seems to me that all these materials broadly point to a general proposition, which is that the consideration of alternative sites would only be relevant to a planning application in exceptional circumstances. Generally speaking – and I lay down no fixed rule, any more than did Oliver LJ or Simon Brown J – such circumstances will particularly arise where the proposed development, though desirable in itself, involves on the site proposed such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes, in the mind of a reasonable local authority, a relevant planning consideration upon the application in question."
Mr Harwood submits that that reasoning applies to this case, where the inspector found that no planning harm would be caused by the proposal. Further, the development plan (structure plan policy TC1) required consideration of alternatives only where the proposal would conflict with environmental objectives, which the inspector found not to be the case. PPG8 is concerned only with mast or site sharing, or use of existing structures or buildings, and the guidance does not suggest that an otherwise acceptable scheme should be refused on sharing grounds or because of the availability of an alternative site.
In relation to PPG8, Mr Harwood points first to paragraphs 19-21 of the main text, under the title "Mast and site sharing":
"19. In order to limit visual intrusion, the Government attaches considerable importance to keeping the numbers of radio and telecommunications masts, and of the sites for such installations, to the minimum consistent with the efficient operation of the network.
20. The sharing of masts and sites is strongly encouraged where that represents the optimum environmental solution in a particular case. Authorities will need to consider the cumulative impact upon the environment of additional antennas sharing a mast or masts sharing a site.
21. Use should be also made of existing buildings and other structures, such as electricity pylons, to site new antennas. Local planning authorities may reasonably expect applicants for new masts to show evidence that they have explored the possibility of erecting antennas on an existing building, mast or other structure."
The Appendix to PPG8 goes into greater detail. Paragraphs 66-68 of the Appendix, again under the heading "Mast and site sharing", state:
"66. In order to limit visual intrusion the Government attaches considerable importance to keeping the numbers of radio and telecommunications masts, and of the sites for such installations, to the minimum consistent with the efficient operation of the network. The sharing of masts and sites is strongly encouraged where that represents the optimum environmental solution in a particular case (see paragraph 68). Use should also be made of existing buildings and other structures, such as electricity pylons, to site new antennas. Local planning authorities may reasonably expect applicants for new masts to show evidence that they have explored the possibility of erecting antennas on an existing building, mast or other structure. Conditions in code operators' licences require applicants to explore the possibility of sharing an existing radio site. This evidence should accompany any application made to the local planning authority whether for prior approval or for planning permission.
67. If the evidence regarding the consideration of sharing existing masts and sites is not considered satisfactory, the planning authority, or the Secretary of State on appeal, may be justified in refusing prior approval or planning permission for the development. In such circumstances, the authority should give clear reasons why it considers the evidence before it to be unsatisfactory. It is for the local planning authority in the first instance to satisfy itself as to whether the information which has been provided in this respect is satisfactory. An authority should, however, bear in mind the technical constraints upon network development in reaching any decision on an application before it.
68. In considering alternative sites, an authority should be mindful of the potential impact on the local environment of development on those sites. This will be particularly important where an alternative site would involve the redevelopment of an existing mast for shared use. In certain circumstances the shared use of an existing mast might necessitate an increase in the height or structural capacity, and therefore the visibility, of that mast. Depending upon the characteristics of the location, site sharing as opposed to mast sharing may be more appropriate. A second installation located alongside or behind the principal installation may, for example, provide a more beneficial solution in environmental and planning terms. Authorities will need to consider the cumulative impact upon the environment of a number of masts sharing a site. In other cases, technical and design considerations may point to a new site. Local planning authorities and operators should seek together to find the optimum environmental and network solution on a case-by-case basis."
For the following reasons I reject Mr Harwood's submission on this issue.
The general proposition that consideration of alternative sites is relevant to a planning application only in exceptional circumstances has not been in dispute before me. That alternatives will in general be immaterial or of negligible weight is supported further by the decision of the Court of Appeal in R (Mount Cook Land Ltd) v. Westminster City Council  EWCA Civ 1346, in which the approach of Laws LJ in R (Scott Jones) v. North Warwickshire BC was followed. (Judgment in the Mount Cook Land case was handed down after the hearing in the present case, but I have not thought it necessary in the circumstances to invite further submissions on it.)
The exceptions to the general proposition are not, however, limited to the circumstances identified by Laws LJ in Scott Jones. He was at pains to observe that he was not laying down a fixed rule. It seems to me that a further situation where, as a matter of principle, consideration of alternative sites can also be relevant is where the development plan or policy guidance makes it relevant – a situation that was not before the court on the facts of Scott Jones. Mr Harwood's own argument, with its references to the structure plan and PPG8, impliedly conceded the point.
It is PPG8 that I consider particularly important in this case. It makes consideration of alternatives an integral part of the process of assessment of an application for approval of the siting of telecommunications structures. It is true that the main thrust of the guidance with regard to alternatives concerns the sharing of masts and sites: applicants for new masts are expected to show that they have explored the possibility of sharing existing structures as an alternative to a new site. But in my view alternative new sites also fall within the scope of the guidance. The broad tenor of the guidance is to accept the principle of telecommunications structures where they are needed for coverage, but to acknowledge the sensitivity of the location of such structures and to emphasise the importance of searching in each case for the optimal location. The question, as it seems to me, is not just "is this an acceptable location?", but "is this the best location?", and for the purpose of answering that question one can and should look at whatever alternative possibilities there may be.
I note that the last sentence of paragraph 68 of the Annex refers in terms to local planning authorities and operators seeking together "to find the optimum environmental and network solution on a case-by-case basis". Discussion of alternative sites is also mentioned in general terms in paragraph 75. Nowhere is it said that alternatives, whether in the form of shared sites or new sites, are material only if a particular proposal is found to cause planning harm.
Further, although the guidance states that it should not be necessary to consider the health aspects of a development that complies with specified standards for public exposure, it recognises that public concerns about the health implications of a development can still be a material consideration (see paragraphs 97ff of the Appendix). No doubt the existence of such concerns is one of the reasons why the location of telecommunications structures is such a sensitive issue. It seems to me to follow, again as a matter of principle, that if there were two alternative sites each of which was otherwise acceptable in environmental terms, it would be open to a decision-maker to refuse approval for one of those sites if the location of a mast on that site would give rise to substantially greater public concerns than its location on the alternative site. To take an example close to the facts of the present case: if one of the sites were close to a nursery school and residential properties, whereas the other was in an industrial estate some distance away from the school and residential properties, the greater public concern about the former might tip the balance against the grant of approval for it. I am not saying that that is how a particular application would be decided or ought to be decided, but only that it would be lawful for a decision-maker to approach the matter in that way.
In the present case, alternative sites – both shared sites and alternative new sites - were plainly regarded as a material consideration by all concerned, from the time of the initial application through to the final decision, and there was no suggestion that they might be material only if the particular proposal were found to give rise to planning harm. Moreover the arguments advanced by Hutchison and the council about the weight to be given to public concerns were advanced on the basis that there were no alternative sites available. They would no doubt have taken a different form if there had been alternatives. For example, Hutchison's written representations on the appeal acknowledged that "[w]hilst siting on or close to schools is appreciated can be sensitive, it is not always possible to avoid being close to them" (paragraph 7.12), and that: "It is considered therefore that this proposal, which is essential to the efficient operations of the Hutchison3g network, would not, due to its siting and appearance, be detrimental to the visual amenities of the area nor result in a perception of danger to health that should override the expressed need for the installation in this particular locality" (paragraph 7.17). The council's written representations argued that the proposal would "result in a significant loss of amenities to occupiers of nearby residential properties and to those using the nursery school and leisure centre facilities due to concern and worry about the potential adverse health effects" (paragraph 6.7) and that the prominence of the installation "will serve as a constant, daily permanent reminder to those already concerned about health issues" (paragraph 6.8).
The inspector's decision letter must itself be read as a whole, taking due account of what is said in paragraph 16 about alternative sites. He plainly regarded the question of alternative sites as a material consideration, but he accepted Hutchison's evidence as to the reasons for rejecting the alternative sites considered and he noted that no detail of other possible alternative sites had been put before him. The conclusions expressed earlier in the decision were therefore reached on the basis that, although alternatives were relevant, no alternative site was in fact available. In my view his conclusions are to be read not as absolute findings of "no planning harm", but as findings premised on the absence of any alternative site. They would not necessarily have been expressed in the same way if an available alternative site had been available. In particular, at paragraph 14 the inspector accepted that local concerns about health were a material consideration but did not consider them to be sufficient to outweigh recent technical advice and national policy on health risks so as to add to the justification for dismissing the appeal. He plainly attached some weight to public concerns and he might have reached a different conclusion as to their significance if there had been an available alternative site giving rise to fewer public concerns.
For those reasons I reject the submission that on the inspector's findings the issue of alternative sites was an irrelevance. The claim of procedural unfairness cannot in my view be circumvented by the proposition that any additional representations about alternatives sites could not lawfully have altered the inspector's decision. It is therefore necessary to turn to examine the arguments on procedural fairness in greater detail.
Whether there was a change in Hutchison's case
Mr Harwood submits that there was no change of case by Hutchison at all. It was Hutchison's position from the start that it had considered a wide range of alternatives, and the letter supporting the original application mentioned alternative sites which were well beyond 200 metres from the application site. The plan submitted with the notice of appeal showed those and other alternatives sites. Third party objectors, including the claimant, did not consider there to be a 200 metre distance limit, since they suggested sites up to 950 metres away.
I accept that Hutchison in fact considered alternatives up to 880 metres away from the application site. The second witness statement of Mr Palmer, the planning consultant who acted for Hutchison in relation to the application, gives detailed distance figures for each of the locations mentioned in the letter supporting the application and on the plan submitted with the appeal representations. The same witness statement explains that the scale on the plan was in error and that the actual distances are twice as great as indicated by the scale. It was not and is not suggested that any of the alternatives considered was ruled out on technical grounds related to the coverage area, save for a height problem on one of the pylons. The application letter therefore appears to have been in error in stating that the requisite search area was only up to about 200 metres diameter and that to locate outside that search area would result in gaps in the service to be provided. Similarly the appeal representations appear to have been in error in stating that the search area was limited to about 400 metres in diameter. The correct search area would appear to have been about 800 metres or even larger. Hutchison itself took that wider search area into account and was not constrained by the 200 metre or 400 metre figure.
In my judgment, however, third parties in the position of the claimant could not reasonably be expected to realise that the correct search area was much wider than stated in the letter supporting the application. They were entitled to rely on the clear statement in the letter that the search area was only about 1- 200 metres in diameter. Although some of the alternatives mentioned as having been considered by Hutchison were outside that search area, it was not clear which were and which were not, and in any event this was not sufficient to negative the significance of the 200 metre figure. So far as third parties were concerned, therefore, a search area of up to about 200 metres was the case expressly advanced by Hutchison; and that case did change in the appeal representations, where a search area of up to about 400 metres was advanced in its place.
On the evidence, I find that the claimant understood Hutchison's case in the way I have indicated, as adopting a search area of up to about 200 metres in the application letter, so that the reference to an area of up to about 400 metres in the appeal representations involved a change in the case as understood by her. In her witness statement the claimant makes this clear:
"5. Thus both sets of Hutchisons' statements (the initial planning application and then on appeal) include alternatives well outside the search areas of 200m and 400m. However they do not make it clear where they are (or in the case of lamp posts what range they are); nor indeed why they are included at all, given the stated search area. In these circumstances it is extremely hard for objectors like myself to know how best to concentrate our efforts when making representations. One assumed that the real search area was, as stated, 200m.
6. In this case, what we understood as the relevant (200m) search area is so small that we were unable to locate any alternatives. So we made our representations in the way we did, essentially commenting on the alternatives in Hutchisons' application statement. If we had known that the relevant search area really was 400m, or indeed a wider area, we would have concentrated our efforts accordingly by positively suggesting sites within such area(s)."
It is true that a focus on the stated search area does not emerge with any clarity in the claimant's representations at the time. But the witness statement is clear, has not been the subject of cross-examination and is not contradicted by the terms of the claimant's representations at the time. Accordingly I accept what the claimant says. Further, her understanding of the position was in my view reasonable in the circumstances.
Whether it was unfair not to invite further representations
The matters already considered also bear upon the next of Mr Harwood's submissions, which is that the claimant did make representations suggesting alternative sites beyond a 200 metre search area and cannot therefore claim to have been denied an opportunity to do so.
It is true that the claimant's original submissions made general reference to the alternative sites considered by Hutchison, which therefore included alternatives outside the 200 metre area: she stressed the need for Hutchison to provide details of their contacts in order to satisfy the council that the guidance in PPG8 had been followed. It is also true that other objectors referred in general terms to sites in a wider area, for example by submitting that one of the two nearby industrial estates would be a preferred option. Further, the claimant's own representations on the appeal made the general point that "[i]t seems bizarre considering the number of suitable pylons and an industrial estate in the vicinity, that the proposed location would be selected as the most appropriate", a point which again encompassed sites outside the 200 metre area.
None of that, however, undermines the point in the claimant's evidence that she was unable to locate any specific alternatives within the 200 metre search area and therefore limited her representations to commenting on the alternatives mentioned by Hutchison; but that if she had known that the relevant search area was wider, she would have concentrated her efforts on suggesting specific sites within that wider area. Because the change to a wider area was not notified her until after the inspector's decision, she was indeed denied an opportunity to concentrate her efforts and suggest alternatives in that way.
Mr Harwood submits next that even if there was a change in Hutchison's case it was not unfair to determine the appeal without inviting further representations from the claimant. In so far as the submission is premised on the proposition that the claimant was able to comment and did in fact comment on alternatives in the wider area, I reject it for reasons already covered. But the submission has a wider aspect to it, with which I must also deal. Mr Harwood points to the opportunities given to third parties to make representations both at the stage of initial application and at the stage of an appeal. He submits that the planning issues should be apparent and that any person should be capable of addressing them. The written representation procedure makes clear provision as to the timing of representations and as to who is to have the last word. Although there may be situations where a new matter arises where third party re-consultation is required, such situations should be exceptional. The reference to a 400 metre search area did not fall within that category. It was not so important that fairness required re-consultation of all third parties. The procedure as a whole gave third parties a fair crack of the whip.
I note that it is no part of Mr Harwood's submissions that the inspector was precluded by the regulations from inviting further representations from the claimant and other third parties. He was clearly right not to go that far. The regulations do not make express provision for the situation (save perhaps in so far as the Secretary of State is empowered to set later time limits in a particular case). In the absence of any clear provision to the contrary, however, they are to be construed and operated as giving effect to basic rules of procedural fairness; and in my view it clearly lies within the discretion of an inspector to invite further representations if he considers it necessary to afford such an opportunity in the interests of fairness.
The need to invite further representations in the interests of fairness is likely to arise very infrequently. The sequence of representations provided for in the regulations will normally be sufficient to achieve fairness. But the opportunity to make additional representations can and should be given if a new point is raised which the inspector ought to take into consideration and which cannot fairly be taken into consideration without giving such an opportunity. Whether fairness requires it depends entirely on the particular facts of the case.
On the facts of the present case I take the view that fairness did require that the claimant be given an opportunity to make representations in relation to the increase in the stated search area. I quite understand why the potential significance of the point was not appreciated by the inspector, but the failure to give such an opportunity can be seen on the evidence to have resulted in unfairness to the claimant.
To have given the opportunity for further representations would have delayed the decision. But Hutchison cannot be heard to complain about that in circumstances where the need to give that opportunity arose from Hutchison's own change of case, as reasonably understood by the claimant, from a 200 metre search area to a 400 metre search area.
Whether the claimant was substantially prejudiced
It is common ground that the claimant must show that she was substantially prejudiced by the failure to give her an opportunity to comment on the basis of Hutchison's changed case. The need to show substantial prejudice arises both because a breach of natural justice requires substantial unfairness rather than a mere technical error and because the breach alleged is a failure to comply with a "relevant requirement" under s.288(5)(b) of the 1990 Act and the court must be satisfied that the claimant's interests have been substantially prejudiced by such a failure.
Mr Harwood submits that the claimant has not suffered substantial prejudice from any potential breach of procedural fairness. The first element in the submission is that any further representations would merely have identified a specific site within the industrial estate to which the claimant and other third parties had already referred, and Hutchison had already provided a decisive answer.
In my view, however, what was said about alternative sites in Hutchison's representations did not cover with sufficient specificity the site now put forward by the claimant. Those representations do not show that the specific site had been investigated by Hutchison or that there were good reasons for rejecting it. The information before the court about the site all post-dates the inspector's decision and was provided in response to the claimant raising the point in post-decision correspondence. In its immediate response, by its letter of 22 April 2003, Hutchison said that the land was privately owned and the owners were not interested in accommodating the equipment. Subsequently, in Mr Palmer's first witness statement it was stated:
"I have since discussed this site with Hutchison's Acquisition Surveyor who confirmed that he had investigated this site. I understand that this site was considered unsuitable as the highway verge was too narrow. I also understand that Havant Borough Council Officers have raised concerns about siting at this junction. It should also be noted that any mast at this location, being on lower ground, would need to be a higher mast of more substantial appearance and therefore is not considered to be a suitable alternative site."
On the face of it the explanation given in the letter (private land, owners not interested) sits uncomfortably with the explanation given in the witness statement (highway verge, too narrow), but it may be that, as Mr Harwood submits, there is no actual inconsistency between the two. It may also be that the matters advanced by Hutchison in the letter and/or in the witness statement would have persuaded the inspector that the specific site suggested by the claimant was not a suitable alternative. But on the basis of the material I have been shown (including photographs comparing the width of the verge at the suggested site with the width of the verge at the actual location of the mast) I cannot be certain that that would have been the outcome; and it is not for me to seek to form a planning judgment of my own on the basis of such material. Because no details were put forward, the inspector simply did not engage in the exercise for the purposes of his actual decision. I need go no further than to find, as I do, that the inspector might possibly have found the suggested alternative site to be acceptable and that that might possibly have led him to a different conclusion overall. This links in, of course, with my rejection of the submission that in the circumstances of this case the inspector could not lawfully have withheld approval by reference to an alternative site.
Conclusion on procedural unfairness
Accordingly I find in the claimant's favour on the issue of procedural unfairness. The underlying dispute concerning the precise location of a slimline mobile phone mast may seem a rather narrow one, but such questions are sensitive and fair decision-making is important. The Secretary of State was right to concede the challenge on this issue and to offer to have the matter remitted for reconsideration.
The claimant also complains about the fact that notice of Hutchison's appeal was sent to her by the council some 2 weeks later than required by the regulations (see para 10 above). In my judgment that does not help the claimant, since the failure to comply with the relevant requirement did not give rise to substantial prejudice. She was still able to submit her representations on the appeal within the time laid down. The lack of opportunity to comment on Hutchison's change of case with regard to the search area was not connected with the late notice from the council.
A separate ground of challenge is that the inspector erred in law in accepting without more that the alternatives described by Hutchison were not available. PPG8 requires the local planning authority to satisfy itself that the information provided on alternatives is satisfactory. The claimant drew attention to this in her original representations. The inspector is under the same obligation on an appeal, yet he failed to scrutinise what was said about alternative sites in sufficient detail. That, in short, is the argument. In my judgment it is unsustainable. As matters stood at that time, the inspector was clearly entitled to accept Hutchison's evidence of the reasons why alternative sites had been rejected. There was no detailed challenge to that evidence. It is plain that the inspector took it into consideration, and it was reasonable to reach the conclusion he did on it. He was not required to do more.
For the reasons given the claim succeeds on the main ground, the inspector's decision will be quashed and the matter will be remitted for reconsideration.
The claimant will then have an opportunity to put forward, for consideration by the inspector, specific alternative sites within the appropriate search area (which, on Hutchison's evidence to this court, would appear to extend to about 800 metres from the application site rather than the 200 metres originally referred to). The outcome of the appeal on reconsideration may or may not be the same; and upon the outcome of the appeal will depend the fate of the mast already constructed. Those matters are not the concern of this court.
27th October 2003
1. MR JUSTICE RICHARDS: I am handing down judgment in this case. For the reasons given in that judgment the claim succeeds. The inspector's decision will be quashed and the matter will be remitted to the Secretary of State for reconsideration.
2. MR WOLFE: My Lord, I am grateful. I have an application on behalf of the claimant for the claimant's costs to be paid in part by the Secretary of State and in part by Hutchison. It breaks down as between the two from the point that the Secretary of State agreed to consent to judgment. For that earlier period, which is up to 6th August, we ask for the Secretary of State to pay our costs. Those have largely been agreed but not finally. So I would ask simply for an order that those costs be assessed if not agreed.
3. MR JUSTICE RICHARDS: Yes.
4. MR WOLFE: I will explain the problems in relation to that. In relation to the period post 6th August, when Hutchison fought on after the Secretary of State's acceptance of the concession, we ask for Hutchison to pay our costs. My Lord, I had sent through yesterday --
5. MR JUSTICE RICHARDS: I have had various things not all of which came through very satisfactorily on the fax it is fair to say.
6. MR WOLFE: Can I apologise for that. I hope the only document I need to go to is a document which is a letter on my instructing solicitor's note paper of yesterday, 21st October, addressed to my Lord's clerk.
7. MR JUSTICE RICHARDS: Right.
8. MR WOLFE: It had nine pages in total.
9. MR JUSTICE RICHARDS: Yes.
10. MR WOLFE: The second of which is a covering letter attaching a schedule. The second page of which sets out a copy of an e-mail from my instructing solicitor to Hutchinson's solicitor which sets out in the lower part of the page the breakdown of the claim which is then set out in more detail on the following pages. If I could draw my Lord's attention to the series of numbered paragraphs, 12-paragraphs, below the middle of the page. Does my Lord have that?
11. MR JUSTICE RICHARDS: Claim as per summary statement?
12. MR WOLFE: Precisely, my Lord. Solicitor's fees, counsel fees and so on. What I hope my Lord will have picked up is that this case has been conducted from 6th August by the lawyers for the claimant on a conditional fee basis, so their payment includes payment with uplift if win. That explains the various entries there, counsel's fees, solicitor's fees and other disbursements.
13. MR JUSTICE RICHARDS: The total figure, £33,147, that is given there, which looks surprisingly large, is that the total for the entire case?
14. MR WOLFE: That is the post 6th August figure, but that includes -- that looks as high as it does, I suspect, because of the uplift involved. I am not sure there is any quibble about the underlying figure because it is actually very similar to the figure that Burgess Salmon would have claimed had they won. So the higher figure arises largely through the uplift. Sorry, I am reminded, and the insurance premium associated with it, because, of course, the claimant takes out litigation insurance, after the event insurance, the premium for which identified here as £5,670. So it is the base figure uplifted by 100 per cent plus the insurance figure. That is how that figure breaks down that. That is that figure set in that schedule.
15. My Lord, what I can show my Lord, and they're attached -- I can hand up in a second -- is various reports relating to appropriate uplifts and so on, if that is an issue of controversy. My Lord, the figure may look high, but that is one sense a consequence of what happens when cases are funded on conditional fee agreements and the various items come together.
16. MR JUSTICE RICHARDS: And the conditional fee agreement was dated when?
17. MR WOLFE: My Lord, it was dated in a note to the court.
18. MR JUSTICE RICHARDS: 6th September.
19. MR WOLFE: That is right, my Lord.
20. MR JUSTICE RICHARDS: So all the original costs of bringing the claim will fall to be paid by the Secretary of State?
21. MR WOLFE: My Lord, yes, up to 6th August, yes.
22. MR JUSTICE RICHARDS: But then really the costs of the hearing is what we are talking about.
23. MR WOLFE: And the evidence associated with it. My Lord will recall there was substantial evidence leading up to it.
24. MR JUSTICE RICHARDS: There wasn't -- there was some evidence, it is true, from the claimant quite late on, but it was just the one witness statement.
25. MR WOLFE: My Lord, has attached behind the same documents, further behind the breakdown of that schedule, it has been done into two tranches, the first being the Secretary of State period at 6th August and then the second being post -- from 7th August up to 6th October. That is broken down to probably the last three pages of the document I have handed up.
26. MR JUSTICE RICHARDS: So is the figure until 6th August £5,686; is that right?
27. MR WOLFE: I think that is right. That is right, my Lord.
28. MR JUSTICE RICHARDS: So the total costs of this case were -- the claimant's costs were in the region of £40,000.
29. MR WOLFE: My Lord, yes.
30. MR JUSTICE RICHARDS: That is ridiculously high.
31. MR WOLFE: My Lord, it is when looked at without understanding where it has come from. But it is a direct consequence of a case being funded on a conditional fee basis because the claimant is fully entitled to take out and then claim the costs of the insurance premium, and that is nearly £6,000. And her lawyers and myself and my instructing solicitor having taken the case on the basis that if we lost we would not be paid, are entitled to claim the uplift under the conditional fee agreement which is what we claim.
32. MR JUSTICE RICHARDS: Yes.
33. MR WOLFE: And including also, of course, the VAT element which is incorporated within those figures. One then gets to that total, which the multipliers multiply up to get to what I agree, my Lord, is a high total figure, but that, in a sense, is a direct consequence of CFA funded litigation.
34. MR JUSTICE RICHARDS: Since the costs relating to the first period have to be made subject to detailed assessment if not agreed, I am minded to make the entire thing subject to detailed assessment if not agreed.
35. MR WOLFE: I suspect, given the time, I would have difficulty persuading your Lordship to do so otherwise.
36. MR JUSTICE RICHARDS: Because I am unhappy about the total figures, but I think it will require quite a lot of argument if one is going to seek to justify it, more than really is appropriate for a case of this kind before me.
37. MR WOLFE: So be it, my Lord. I suspect that is what Mr Harwood is going to ask you to do in any event.
38. MR JUSTICE RICHARDS: Let me hear from him.
39. MR HARWOOD: My Lord, that is an appropriate course. There is no issue as to the principle of Hutchison paying costs after 6th August because we resisted proceedings. But we agree with my Lord that detailed assessment is appropriate. In addition to the points your Lordship has raised there are difficulties with the notice being given of the CFA arrangement and the insurance. There is some dispute between the solicitors as to whether the notice was given appropriately. So, my Lord, there are those issues in addition to simply the sums involved. A detailed assessment is the appropriate way forward.
40. MR JUSTICE RICHARDS: That does seem to me to be the sensible solution to what is potentially a considerable problem here.
41. I am going to order that the claimant's costs up to and including 6th August be paid by the Secretary of State, subject to detailed assessment in not agreed. The claimant's cost from 6th August to be paid by Hutchison, again subject to detailed assessment if not agreed.
42. MR WOLFE: My Lord, I am grateful.
43. MR JUSTICE RICHARDS: Thank you very much.
44. MR HARWOOD: My Lord, I have an application for permission to appeal.
45. MR JUSTICE RICHARDS: Yes, you put forward a skeleton argument for which I am very grateful. It sets it out very clearly.
46. MR HARWOOD: My Lord, I don't really desire to take much longer on that. Possibly the most important issue for the Court of Appeal we would say is the approach to alternative sites which raises an important point of principle -- my Lord, this is the draft ground 1, first page of the skeleton -- raises an important point of principle as to whether policy, which itself is non-statutory, is capable of making material what would otherwise be an immaterial consideration. My Lord, that is a point on which there would appear to be no direct authority on, although the planning encyclopedia suggests that policy can make material what is otherwise immaterial. So, my Lord, that's an important point of principle.
47. MR JUSTICE RICHARDS: I find that still a very strange argument. Policy guidance is itself a material consideration, so what is in the policy guidance is something that can properly be taken into account and in general will be -- should be taken into account. So how do you say that policy can't make something that is immaterial material, when the fact that it is part and parcel of the policy guidance makes it material?
48. MR HARWOOD: My Lord, the question then is, if it arises, material out of the policy guidance, because the materiality arises as a matter of law to that is capable of being considered a material consideration. That is a matter of law. Based on the statute promulgating policy the Secretary of State can't change what is otherwise material. Clearly the weight to be attached and so forth is frequently shaped by policy and the policy itself relates to matters that are material then that will be material.
49. MR JUSTICE RICHARDS: So you have got both points. The issue which is the first issue raised, and then that which relates more to the approach I have adopted on the particular facts of the case.
50. MR HARWOOD: And my Lord's approach to interpretation of PPG8, as my Lord will recall we were saying it doesn't say that policy -- doesn't say that alternative new sites need to be considered, at least in the absence of planning harm. Then, my Lord, that point follows on to the inspector's approach where we say the inspector found quite clearly there was no material planning harm, both on visual approach, and the inspector's approach to health was that he said there were health concerns, but looked as against guidance (inaudible). So, my Lord that is a finding with respect to of no harm.
51. My Lord, the second ground, and the possibility of a different conclusion really arises out of the same issues relating to the alternative.
52. The final point, my Lord, is the question of fairness. I appreciate that fairness is always a matter to be considered in the circumstances of the case, but the importance of this case is that there are some 15,000 written representations appeals dealt with each year. The likelihood is that an awful lot of those appeals will, in the further representations from the appellant, be saying something which was not said previously. The sort of standard --
53. MR JUSTICE RICHARDS: That emphasises the importance of saying it and getting it right in the original case before the local authority rather than changing position on appeal.
54. MR HARWOOD: My Lord, it emphasises the more important practical consequences of my Lord's decision, which is, at what point, and inevitably that leads to the general consequence of how often, are inspectors going to have to re-consult because of something either different or new which is said to have been raised in the appellant's representations. So, my Lord, whilst fairness matters always depend on the circumstances of the case there is a general importance which arises out of my Lord's approach in this case.
55. These are matters which, I say with respect, would have a real prospect of success. It is an appropriate case for permission to be appeal to be given.
56. MR JUSTICE RICHARDS: Thank you very much and thank you very much for setting it out so clearly in your skeleton argument.
57. I refuse permission to appeal on the basis that, in my view, there is no real prospect of success, nor does the decision raise important issues of principle. It is based on the terms of PPG8 and on the particular facts of the case, including the inspector's decision read in context. Whether the issues relating to PPG8 and its application are themselves sufficiently important to justify an appeal is a matter I will leave to the Court of Appeal to decide.
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