Steven Thomas v Cheltenham Borough Council

When determining a prior-approval application for electronic communications equipment, a local planning authority must consider all material planning considerations raised by representations. Compliance with ICNIRP public-exposure guidelines generally permits the authority to proceed on the basis that the relevant public-health safeguards are met. It does not, however, answer a distinct issue which those guidelines expressly leave outside their scope, such as possible interference with medical implants. Considering whether equipment should be sited differently because of that issue is not the imposition of a different health safeguard. A failure to grapple with a clearly raised and material concern is an error of law. Nevertheless, relief may be refused under section 31(2A) of the 1981 Act where it is highly likely that the outcome would not have been substantially different.

The claimant challenged the local planning authority’s determination that prior approval was not required for a proposed 15-metre telecommunications mast and associated apparatus in Cheltenham’s Central Conservation Area. The proposal was made under The Town and Country Planning (General Permitted Development) (England) Order 2015.

The challenge alleged that the authority had failed to consider health objections, including concerns that electromagnetic fields might affect medical implants, and had failed to make an evidence-based assessment of objections. The authority accepted that the officer’s report did not address the medical-implant issue, but argued that the error could not have affected the outcome. The central issues were whether that issue was a material consideration and whether relief had to be refused because the outcome would highly likely have been the same.

1. Nature of the prior-approval exercise. The GPDO permits electronic communications development subject to consideration of specified matters, including siting and appearance. The authority must take account of representations made in response to the required notices. The principle of the permitted development is not itself in issue.
2. General health concerns. The authority was entitled to treat compliance with ICNIRP public-exposure guidelines as sufficient for ordinary health objections. The NPPF required applications to be determined on planning grounds and prohibited the authority from setting different health safeguards from the international guidelines.
3. Medical implants. The objections concerning pacemakers and other implants raised a distinct issue. The ICNIRP guidelines recognised that electromagnetic fields could indirectly cause harm by interfering with active implantable medical devices, while stating that such issues were outside their scope. Considering that issue, including whether the equipment should be sited further away, would not impose a different public-exposure safeguard. It was therefore a material consideration which the authority had to address.
4. The officer’s report treated the ICNIRP declaration as disposing of all health concerns and failed to grapple with the medical-implant issue. That was an error of law, and the relevant ground succeeded.
5. Relief. Under section 31(2A)(a) of the 1981 Act, relief had to be refused where it was highly likely that the outcome would not have been substantially different. The evidence showed low expected exposure, no evidence that the equipment would generate strong electromagnetic fields, a significant distance from Lefroy Court, and a need to fill a local coverage gap. The statutory threshold was met. No exceptional public interest under section 31(2B) justified disregarding it. Relief was therefore refused.