Cox v Secretary of State for Communities and Local Government & Ors

A challenge under Town and Country Planning Act 1990 section 288 is confined to a point of law and cannot reopen the planning merits. A mistake of fact justifies intervention only where there is an existing factual mistake, the fact is established and objectively verifiable, the claimant did not cause the mistake, and the mistake materially influenced the decision. Planning appeals do not generally impose a duty to disclose adverse material. Such a duty may arise where voluntary disclosure of selected information would mislead or potentially mislead the inspector. Where telecommunications equipment complies with ICNIRP guidelines, health concerns may remain material, but an exception to the relevant policy requires a proper evidential basis. The omission of consistent supporting calculations did not make the disclosure misleading, cause unfairness, or materially affect the inspector’s decision.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision allowing T-Mobile’s appeal against North Hertfordshire District Council’s refusal of permission for a telecommunications mast at Hitchin Road, Letchworth.

The challenge concerned the inspector’s consideration of health concerns and alleged failure to have regard to a site-specific summary of estimated radio-frequency exposure levels, which had been included in the original application but omitted from the appeal pack. The claimant also sought to add a late ground based on error of fact and non-disclosure. The central issue was whether the omission was legally material or unfair.

1. Disposition. The application under section 288 of the Town and Country Planning Act 1990 was refused and the claim was dismissed. The proposed amendment was refused as plainly too late and, in any event, lacked merit.
2. Scope of review. The court could determine only a point of law under section 288. It could not review the planning merits. Under section 70(1), the decision-maker had to take account of material considerations and exclude immaterial ones.
3. Error of fact. Applying the approach in E v Secretary of State for the Home Department 2004 EWCA Civ 49, intervention required an existing factual mistake, an established and objectively verifiable fact or evidential matter, no responsibility on the claimant’s part, and material influence on the decision. The third requirement was satisfied, but the other requirements were not. The calculations were not erroneous or inconsistent, and their omission played no material part in the inspector’s reasoning.
4. Disclosure and fairness. The court applied the reasoning in Elizabeth Ely v Secretary of State for Communities and Local Government 2009 EWHC 660 (Admin). There was no general duty to disclose adverse facts in a planning appeal. The site-specific summary did not make the statement that emissions would be well within ICNIRP guidelines misleading or potentially misleading. The evidence was consistent with that statement and provided no objective basis for unfairness.
5. Health considerations. The inspector correctly treated health fears as potentially relevant, while recognising the policy in PPG8 that further health consideration was generally unnecessary where ICNIRP guidelines were met. Consistently with T-Mobile UK Limited & Others v First Secretary of State and Harrogate Borough Council 2004 EWCA Civ 1763, an exceptional departure from that policy required justification. The evidence did not justify such a departure. The inspector was entitled to conclude that the emissions remained within the guidelines and that the health concerns did not outweigh the policy or the need for the facility.

The claim was a first-instance statutory challenge to an inspector’s decision dated 13 February 2007, which had allowed T-Mobile’s planning appeal against North Hertfordshire District Council’s refusal of permission. The High Court refused the challenge and dismissed the claim.