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

In telecommunications planning cases, the availability of alternative sites is a material consideration, but applicants are not required to invoke statutory land-acquisition powers as a matter of course. A planning inspector may assess, on the evidence available, whether such powers would realistically secure an alternative site. Where operational objections by public-service landowners are substantial, it may be reasonable to conclude that a court would refuse an order. Public concern about health may also be material, even where it lacks objective justification. The inspector may assess its weight by reference to compliance with applicable exposure standards, distance from dwellings, location and comparison with other approved installations.

Two claimants brought applications under section 288 of the Town and Country Planning Act 1990 to quash inspectors’ decisions allowing telecommunications appeals and granting permission for a monopole at Byron Avenue, Winchester, and a disguised telecommunications mast at Piscombe Lane, Otterton.

The first challenge concerned the inspector’s treatment of alternative sites and the possible use of paragraph 5 of Schedule 2 to the Telecommunications Act 1984 to overcome landowner objections. The second challenged the inspector’s treatment of alternative sites and public concern about health. The central issue was whether either inspector had materially erred in law or failed to give adequate reasons.

1. Byron Avenue application. The application was dismissed. The inspector had adequately investigated alternative sites and was entitled to consider whether paragraph 5 of Schedule 2 to the Telecommunications Act 1984 would realistically make the two principal alternatives available.

2. Paragraph 5 permits an operator to acquire rights over land compulsorily by order of the court where agreement cannot be obtained. The inspector was not required to conduct a detailed determination of a hypothetical application. He had to assess, on the balance of probability, whether invoking the power was likely to produce an available alternative site.

3. In the circumstances, the inspector was entitled to treat the power as a last-resort measure. The objections of the police and Network Rail were based on operational grounds and were unlikely to be adequately compensated by money. The balancing exercise under paragraph 5(3)(b) would therefore substantially resemble the assessment required for compulsory acquisition. The inspector’s reference to paragraph 5 as a form of compulsory purchase was not a material legal error.

4. The statutory power did not have to be used merely because it existed. Neither PPG 8 nor the associated Code of Best Practice required operators to invoke it as a matter of course. The inspector was entitled to conclude that its possible use did not alter the absence of a realistic alternative site.

5. Piscombe Lane application. The application was also dismissed. The inspector was entitled to deal briefly with alternative sites because the written representations identified only the North Star site as a possible contender, and the council had not advanced it as a better alternative or as a reason for refusal.

6. Public concern about health could be a material planning consideration. The inspector was entitled to give that concern reduced weight by considering compliance with ICNIRP standards, the countryside location, the distance from the nearest dwelling and the distance of other approved installations. He was required to address the principal issues, not every point raised in correspondence.

7. Both applications were dismissed. Costs orders were made against the claimants, subject to the stated legal-aid and enforcement arrangements. Permission to appeal was refused.

The judgment concerned two first-instance applications under section 288 of the Town and Country Planning Act 1990. In the first matter, an earlier planning permission had been quashed by consent in judicial review proceedings before reconsideration by the local planning authority. The inspectors’ subsequent decisions allowing the planning appeals were challenged in the Administrative Court. Both challenges were dismissed.