Leger-Davey & Anor v First Secretary of State & Ors

In deciding prior approval for a telecommunications mast, a planning decision-maker may consider alternative sites, but need not treat a statutory power to obtain land as eliminating the landowner’s opposition. The County Court’s power to impose rights is narrowly confined to prejudice and the benefit of securing access to a telecommunications system. It does not permit an environmental comparison between sites. A planning authority may consider landowners’ rights and views, including operational and safety objections. An applicant need not apply to the County Court or establish that an application would fail. The “best location” inquiry may therefore be resolved without detailed court-style analysis of every alternative.

The appellants lived and attended school near a proposed telecommunications mast. Winchester City Council refused prior approval for the siting and design of the mast. Following a public inquiry, an inspector allowed Orange PCS Ltd’s appeal and granted approval subject to conditions.

Sullivan J refused the appellants’ application to quash the inspector’s decision. The appeal concerned whether the inspector had lawfully assessed possible alternative sites at police headquarters and Winchester railway station, having regard to the statutory telecommunications code and its County Court enforcement power. The central issue was whether that power required the inspector to analyse the likely outcome of a court application rather than give weight to the alternative landowners’ objections.

The appeal was dismissed unanimously. Pill LJ gave the leading judgment, with Mummery LJ and Laws LJ agreeing.

1. Scope of the County Court power. The power under Schedule 2 paragraph 5(3) of the Telecommunications Act 1984 is narrowly confined. The County Court considers the prejudice caused by conferring the right and the benefit to persons whose access to a telecommunications system will be secured. It cannot conduct the overall environmental and planning comparison appropriate to a planning authority. It could not refuse an order merely because the proposed planning site was a feasible alternative.
2. Planning assessment. The existence of the statutory power does not require a planning authority to ignore the rights and views of alternative landowners. The protection of property rights under Article 1 of the First Protocol to the European Convention on Human Rights may be a material consideration. Neither the statute nor PPG8 required Orange to apply to the County Court or to prove that such an application would fail.
3. Alternative sites. The inquiry whether a proposed site is the “best location”, identified in Phillips v First Secretary of State and Others [2003] EWHC 2415 (Admin), must be construed consistently with those rights and practical considerations. Responsible authorities’ objections based on operational requirements, emergency communications and railway safety could be given substantial weight. A likely refusal by the County Court might be a powerful consideration, but it was not a prerequisite to planning permission. Detailed comparison of alternatives, or an analysis of the likely court response, was not required in every case.
4. Application. The inspector’s statement that a County Court order would most likely be refused because Byron Avenue was a feasible alternative was legally inapt. Nevertheless, the inspector was entitled to conclude that no better location was available on the information before him, because he could take account of the Constabulary’s and Network Rail’s positions. The appeal was dismissed, although the Court of Appeal did not wholly approve the inspector’s reasoning or the lower court’s approval of it.

1. Court of Appeal (Civil Division) — [2004] EWCA Civ 1612: appeal dismissed. The result reached by Sullivan J was upheld, although the Court of Appeal qualified aspects of the reasoning.
2. Administrative Court — Sullivan J, 1 March 2004: application to quash the inspector’s decision refused.
3. Inspector — 19 August 2003: Orange’s appeal against Winchester City Council’s refusal of prior approval was allowed, and approval was granted subject to conditions.