Phillips v First Secretary of State & Ors

Alternative sites are generally immaterial in planning decisions, but they become relevant where development-plan policy or guidance makes them relevant. Under Planning Policy Guidance 8: Telecommunications, the search for an optimal location is an integral part of assessing a telecommunications installation, including consideration of alternative new sites.

In a written-representations appeal, further representations should be invited where a new point is raised which the inspector ought to consider and which cannot fairly be considered without giving the affected party an opportunity to respond. A procedural breach warrants relief where it may have substantially prejudiced the claimant’s interests. The inspector’s decision was quashed because a change in the stated search area deprived the claimant of a fair opportunity to identify specific alternative sites.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision granting prior approval for a mobile phone mast near her home. The developer’s original application stated that the relevant search area was about 200 metres in diameter. Its appeal representations referred instead to a search area of about 400 metres in diameter and considered alternative sites in a wider area.

The claimant did not receive those representations before the deadline for her own submissions. She argued that the change of case denied her a fair opportunity to identify specific alternative sites. The Secretary of State conceded the claim, but the developer contested it. The issues were whether alternative sites were material, whether there had been a relevant change of case, and whether the claimant had suffered substantial prejudice.

1. Alternative sites. The general approach in R (Scott Jones) v North Warwickshire Borough Council [2001] EWCA Civ 315 was not a fixed rule that alternative sites could be relevant only where the proposed development caused conspicuous planning harm. The development plan or policy guidance could make alternatives material.

2. Effect of PPG8. PPG8 made alternative sites an integral part of assessing telecommunications structures. Although its principal emphasis was on sharing existing masts, sites or structures, alternative new sites also fell within its scope. The relevant question was not merely whether the proposed location was acceptable, but whether it was the best location. The decision-maker could also take account of substantially greater public concern arising from one otherwise acceptable site compared with another.

3. Procedural fairness. The written-representations procedure would normally provide a fair sequence of submissions. However, the regulations permitted an inspector to invite further representations where a new point was raised which the inspector ought to consider and which could not fairly be considered without giving an opportunity to respond. This depended on the facts of the particular case.

4. Hutchison’s change from a stated search area of about 200 metres to one of about 400 metres was a change of case as reasonably understood by the claimant. The claimant had been unable to identify specific sites within the original area, but might have done so within the wider area. The suggested site had not been adequately addressed before the inspector, and the inspector might have found it acceptable and reached a different overall conclusion. The claimant therefore suffered substantial prejudice.

5. The late notification of the appeal did not itself cause substantial prejudice because the claimant still submitted representations within the prescribed period. Nor was the inspector required to scrutinise Hutchison’s evidence about rejected alternatives further, since there had been no detailed challenge and it was reasonable to accept that evidence.

6. The claim succeeded. The inspector’s decision was quashed and the matter remitted to the Secretary of State for reconsideration. Costs up to 6 August 2003 were payable by the Secretary of State and later costs by Hutchison, in each case subject to detailed assessment if not agreed.

The judgment describes a challenge to an inspector’s decision under section 288 of the Town and Country Planning Act 1990. No prior judicial appellate decision in the same proceedings is stated.