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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Thomas v Cheltenham Borough Council [2025] EWCA Civ 259 (13 March 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/259.html Cite as: [2025] EWCA Civ 259, [2025] WLR(D) 147 |
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CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
His Honour Judge Jarman KC (sitting as a Judge of the High Court)
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ASPLIN
and
LADY JUSTICE ANDREWS
____________________
STEVEN THOMAS |
Claimant/ Respondent |
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- and - |
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CHELTENHAM BOROUGH COUNCIL |
Defendant/Appellant |
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- and - |
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CIGNAL INFRASTRUCTURE LIMITED |
Interested Party |
____________________
The Respondent acted in person
The Interested Party took no part in the proceedings
Hearing date: 19 February 2025
____________________
Crown Copyright ©
Lady Justice Andrews:
INTRODUCTION
"Strong EMF can interfere with the function of metal implants such as this and could seriously put my health at risk, making me very anxious. I strongly urge you not to consider this anywhere near my flat."
"AND UPON the Court finding that the Claimant's grounds of challenge succeed insofar as they allege that the Defendant erred in failing to consider the potential impacts of EMFs on those with medical implants"
That recital formed part of the Order and sufficed to engage the Court's appellate jurisdiction (applying the reasoning in Cie Noga, above).
THE LEGAL FRAMEWORK IN OUTLINE
"Before beginning the development described in paragraph A.2(3), the developer must apply to the local planning authority for a determination as to whether the prior approval of the authority will be required as to the siting and appearance of the development."
This leaves open the possibility of a local planning authority deciding to require prior approval if it wishes to consider whether to impose conditions upon the siting (i.e. location) of a mobile telecommunications mast, or to refuse the application.
"ICNIRP is a not for profit, independent scientific commission based in Germany established to provide guidance and recommendations on protection from non-ionising radiation exposure…. ICNIRP issues guidelines for the protection of humans exposed to [EMFs] which are used to enable communications equipment such as is proposed in the present case. The guidelines are highly detailed and technical."
The ICNIRP Guidelines are updated from time to time to reflect emerging scientific research. The UK Health Security Agency, which is the body responsible for public health protection in this jurisdiction, has produced guidance on mobile phone base stations and masts which advises that the ICNIRP Guidelines should be adopted for limiting exposures to EMFs from such structures.
"Medical procedures may utilize EMFs, and metallic implants may alter or perturb EMFs in the body, which in turn can affect the body both directly (via direct interaction between field and tissue) and indirectly (via an intermediate conducting object)… radiofrequency EMFs can indirectly cause harm by unintentionally interfering with active implantable medical devices (see ISO 2012) or altering EMFs due to the presence of conductive implants. ICNIRP considers such exposure managed by qualified medical practitioners … as beyond the scope of these guidelines." [Emphasis added].
"Applications for electronic communications development (including applications for prior approval under [the GDPO] ) should be supported by the necessary evidence to justify the proposed development."
This should include:
"… for a new mast or base station, evidence that the applicant has explored the possibility of erecting antennas on an existing building, mast or other structure and a statement that self-certifies that, when operational, [ICNIRP] guidelines will be met."
"Local planning authorities must determine applications on planning grounds only. They should not … set health safeguards different from the International Commission guidelines for public exposure."
It follows that, were it to consider imposing conditions on a planning application, (e.g. if prior approval were required for the siting of a telecommunications mast) then, save in exceptional circumstances where a departure from national policy would be justified, a planning authority should not set lower (or higher) health standards than those in the ICNIRP guidelines in respect of matters covered by those guidelines. However, the possibility of interference by EMFs with medical equipment or medical implants is a different consideration from the effect of EMFs on the health of the population at large (or even from their effect on the health of those who, like the elderly, may be particularly vulnerable).
MATERIAL CONSIDERATIONS
THE PLANNING OFFICER'S REPORT
"A number of concerns raised by the objectors relate to potential health implications, impact on the environment and also suggest that there is not a need for this form of equipment in this location. Whilst these concerns have been duly noted, paragraph 118 of the NPPF highlights that applications must be determined on planning grounds only; and that local planning authorities should not "set health safeguards different from the International Commission guidelines for public exposure". The applicant has submitted a pack of supporting information which includes a declaration of conformity with ICNIRP public exposure guidelines. This is sufficient to fulfil the requirement of para 118 of the NPPF in relation to self-certification. The supporting information also identifies that there is a need for coverage in this location."
THE JUDGE'S DECISION
"A consideration of such an issue, for example by considering whether the proposed development in the present case should be sited further away from Lefroy Court, would not in my judgment involve setting health guidelines different from ICNIRP guidelines for public exposure so as to fall foul of [118] of NPPF. The reason for that is that the guidelines do not address the issue of potential harm caused by EMFs in relation to medical implants."
He then, for cogent reasons, rightly rejected a submission by Mr Kohli (which he did not seek to resurrect before us) that the guidelines implicitly did address that issue.
CONCLUSION
Lady Justice Asplin:
Lord Justice Peter Jackson:
Note 1 A third representation from a person living closer to the proposed site of the mast and articulating similar concerns was not received until after the decision was made. [Back] Note 2 The amendments made to the GDPO in 2022 permit much higher masts to be erected on certain types of land, but such structures always require prior approval.
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