T-Mobile UK Ltd & Ors v The First Secretary of State & Anor

Under PPG8, compliance by a proposed mobile phone base station with the ICNIRP public-exposure guidelines ordinarily removes the need for a planning authority to consider further actual health risks or public concern about health. This is a policy, not merely an administrative preference, because the planning system is not the place for determining health safeguards. A decision-maker may depart from it, but only exceptionally and with specific justification. An inspector who relies on concerns about vulnerable schoolchildren and the beam of greatest intensity without explaining why guideline compliance is inadequate departs from the policy and reaches an unlawful decision.

Three telecommunications operators sought permission to add shared equipment to an existing mast near three schools in Harrogate. Harrogate Borough Council refused permission on visual and amenity grounds. The Secretary of State’s inspector dismissed the operators’ planning appeal on health-concern grounds, although the proposal complied with ICNIRP guidelines and was supported by the required certification.

On a section 288 appeal under the Town and Country Planning Act 1990, Sir Richard Tucker, sitting as a deputy judge in the Administrative Court on 23 June 2004, allowed the operators’ appeal. The Secretary of State appealed to the Court of Appeal, challenging the construction of PPG8 and the finding that the inspector gave inadequate reasons. The central issue was whether guideline compliance ended the health inquiry or permitted further consideration of perceived health risk.

1. Appeal dismissed. Laws LJ held that the Administrative Court was right to quash the inspector’s decision. Mummery and Pill LJJ agreed. The appellant was ordered to pay the respondents’ costs.
2. PPG8 paragraphs 97 and 98 constitute planning policy. Read together, they provide that where ICNIRP public-exposure guidelines are met, the planning authority should not consider further actual health risks or public concerns about health. The policy reflects the Government’s firm view that the planning system is not the place for determining health safeguards.
3. A decision-maker may exceptionally look further into health risks or health concerns despite guideline compliance. Such a departure requires specific justification and sound reasons. The requirement for specific justification was supported by Gransden v Secretary of State for the Environment [1986] JPL 519.
4. The inspector misunderstood the policy. His conclusion that the proposal provided insufficient reassurance because the beam of greatest intensity fell on or near schools was a departure from PPG8. He identified no exceptional circumstances and did not explain why compliance with ICNIRP was insufficient to allay perceived health concerns.
5. The required reassurance that base stations near schools operate within the guidelines was provided by the compliance certificate and detailed technical correspondence with the schools and the local planning authority. The Government’s response to the Stewart Report was open-ended only as to further work on measuring emissions and taking forward the beam recommendation. It did not make the reassurance requirement itself open-ended. The inspector’s inadequate reasoning independently reinforced the conclusion that his decision was legally flawed.

1. Court of Appeal (Civil Division) — [2004] EWCA Civ 1763, 12 November 2004: appeal dismissed and the respondents awarded their costs.
2. Administrative Court, Queen’s Bench Division — 23 June 2004, Sir Richard Tucker sitting as a Deputy Judge: the operators’ section 288 appeal was allowed and the inspector’s decision was quashed.
3. Secretary of State’s inspector — 30 December 2003: the first operator’s planning appeal was dismissed on health-concern grounds.
4. Harrogate Borough Council — 3 June 2003: planning permission for the telecommunications development was refused.