Harris v First Secretary of State and Ors

A planning inspector is not required to investigate an alleged health risk from interference with medical equipment merely because it is asserted. Under PPG 8, direct health concerns and interference with electrical equipment are distinct. The latter becomes a material planning issue only where evidence shows a real risk of significant and irremediable interference. Exceptional circumstances may justify departing from the policy, but unsupported assertions do not do so. Compliance with ICNIRP guidelines therefore addressed the direct health concern on the evidence. An inspector need not give further reasons on alternative sites where the decision, read fairly with the evidence, shows that their suitability has been considered.

Mrs Pam Jean Harris sought permission to appeal from a judgment of Lloyd Jones J dated 31 July 2007. The underlying challenge concerned a Secretary of State inspector’s decision allowing Hutchison 3G UK Limited’s appeal against Peterborough City Council’s refusal of permission for a 25-metre telecommunications mast. The inspector relied on PPG 8 and confirmed ICNIRP compliance when rejecting concerns about direct health effects and alleged interference with the appellant’s infusion pump. The issues were whether the inspector had failed to investigate indirect health risks, whether Article 2 ECHR required a different approach, and whether alternative sites had been adequately addressed.

The application for permission to appeal was refused. Pill LJ, with whom Pumfrey LJ agreed, upheld the approach of Lloyd Jones J and the inspector.

1. Health concerns and medical equipment. PPG 8 distinguishes direct effects of radio-frequency radiation on human health from indirect effects resulting from interference with electrical equipment. Paragraph 98 permits compliance with ICNIRP guidelines to be treated as sufficient in relation to direct health concerns. Paragraph 102 separately recognises significant and irremediable interference with electrical equipment as a material planning consideration.
2. Duty to inquire. Paragraph 102 is of general application and creates a threshold of relevance. The inspector is required to address the effect on medical equipment only where the material before him provides a reason for supposing that a real risk of indirect interference exists. A bare or unsupported assertion does not impose a duty to conduct the further technical inquiry proposed.
3. Policy and Article 2. The policy is not immutable. Exceptional circumstances may justify departure from it on a case-by-case basis. On the evidence, no real risk of interference with the applicant’s equipment was established, so the inspector’s policy-compliant approach did not violate Article 2 ECHR.
4. Public perception. Newport Borough Council v Secretary of State for Wales [1998] JPL 377 was not comparable. That case involved substantial local interest and intense local sensitivity concerning chemical waste treatment plants. The circumstances could not be equated with an unsupported concern about one medical device.
5. Alternative sites. The inspector was entitled to conclude that the selected site was suitable in light of evidence that alternative sites were unsuitable. On a fair reading, his conclusion that Local Plan Policy U1 was satisfied necessarily involved adequate consideration of alternative sites.

Order: application refused.

• Court of Appeal (Civil Division) — Application for permission to appeal refused: [2007] EWCA Civ 1505.
• High Court of Justice, Queen’s Bench Division — Lloyd Jones J considered the challenge to the inspector’s decision and held that the inspector had acted lawfully in relation to health concerns, Article 2 ECHR and alternative sites.
• Secretary of State inspector — On 12 December 2005, the appeal against Peterborough City Council’s refusal of planning permission for the telecommunications mast was allowed.