Petursson & Anor v Hutchison 3g UK Ltd.

Under paragraph 17 of the Electronic Telecommunications Code, an objection to telecommunications apparatus requires more than the claimant’s subjective belief that the apparatus has caused harm. Material prejudice to enjoyment of land is assessed objectively. The claimant must demonstrate, on the balance of probabilities, that the apparatus caused the complained-of effects or otherwise objectively prejudiced enjoyment of the land.

A claimant must have the relevant ownership or occupation when giving the notice of objection, but subsequent disposal of the land does not invalidate proceedings already properly commenced. It may nevertheless deprive the claimant of any continuing interest in seeking removal or alteration where the statutory test is expressed in the present tense. Scientific uncertainty and the possibility of harm do not, without objective supporting evidence, establish the appearance of material prejudice.

The claimants owned and occupied property near the defendant’s 3G mobile telecommunications apparatus. They served a valid objection under paragraph 17 of the Electronic Telecommunications Code and sought an order requiring the apparatus to be removed or repositioned, alleging that emissions caused physical symptoms and impaired their enjoyment of the property.

The claimants moved away and sold the property before trial. The court therefore considered both whether they retained standing to pursue removal or alteration and whether, in any event, the apparatus appeared materially to prejudice their enjoyment of the land. The claim was based principally on the claimants’ evidence, expert evidence concerning electromagnetic emissions, and the continuing scientific debate about possible non-thermal effects.

1. Standing. The claimants satisfied the procedural precondition in paragraph 17(2) because they owned and occupied the property when they gave their notice of objection. Paragraph 17 did not expressly require continuing ownership or occupation when proceedings were commenced or heard. Their later disposal of the property therefore did not retrospectively invalidate the proceedings.
2. Nevertheless, paragraph 17(6) required the apparatus to appear materially to prejudice the applicant’s present enjoyment of, or interest in, the land. After selling the property, the claimants had no continuing interest in seeking removal or alteration. Their claim therefore failed for lack of standing to maintain the remedy.
3. Merits. The expression “appears materially to prejudice” imposed an objective test. The claimants’ subjective perception that the apparatus had caused illness was insufficient. They had to establish on the balance of probabilities that the apparatus caused the complained-of effects or otherwise objectively prejudiced their enjoyment of the property.
4. The evidence did not establish a causal correlation between operation of the apparatus and the symptoms. The court rejected the claimants’ interpretation of events when transmissions were interrupted and rejected the principal expert theory. The apparatus complied with the relevant exposure guidelines, and the measured exposure levels were exceptionally low. Scientific debate and the possibility of unidentified effects did not amount to objective evidence of material prejudice.
5. The court declined to decide whether the defendant had established one or more of the matters in paragraph 17(6)(a)–(c), because the claim failed independently on standing and merits. The claim was dismissed.