Steven Thomas v Cheltenham Borough Council & Anor

The potential impact of radiofrequency electromagnetic fields on medical implants is not automatically a material consideration in every telecommunications application. It may fall within the third category of material information, which the decision-maker may consider or leave out of account in the exercise of judgment and discretion, subject to rationality. Compliance with ICNIRP guidelines does not resolve risks of interference with implants that those guidelines leave outside their scope. An error occurs where a planning officer treats national policy or ICNIRP self-certification as preventing that evaluative choice. Relief may nevertheless be refused where it is highly likely that the outcome would not have been substantially different.

Mr Thomas challenged the Council’s decision that prior approval was not required for a proposed 15-metre mobile phone mast and ancillary equipment in Cheltenham’s Central Conservation Area. The High Court found that the planning officer had erred by failing to consider objections concerning possible interference with medical implants, but refused relief under section 31(2A) of the Senior Courts Act 1981 because the outcome would not have been substantially different. The Council, although successful below, appealed against the finding recorded in the order. The central issue was whether the High Court had established a general rule that implant-related EMF effects were always material, and whether its decision on the officer’s error and relief was correct.

1. Disposition and jurisdiction. The appeal was dismissed unanimously. The Court of Appeal’s jurisdiction under section 16 of the Senior Courts Act 1981 is engaged by an order or judgment, rather than by a finding made only in the course of reasoning. The recital recording the High Court’s finding formed part of the order and was sufficient. Appeals by successful parties are generally academic, but the Court retained jurisdiction to hear this appeal because it raised an important point of principle.
2. Material considerations. Following Friends of the Earth [2021] UKSC 52, information may be: matters which must be considered; matters which must be disregarded; or matters which the decision-maker may consider in the exercise of judgment and discretion. For the third category, the decision-maker may decide whether to take the information into account and what weight, if any, to give it. The decision is reviewable only on rationality grounds.
3. ICNIRP and medical implants. Paragraph 118 of the NPPF prevents planning authorities from setting different health safeguards from the ICNIRP guidelines in respect of matters covered by those guidelines. The guidelines provide general protection against established health effects but expressly leave interference with active medical implants outside their scope. Considering that distinct issue therefore does not impose a different health safeguard.
4. The officer’s error. The officer mistakenly treated paragraph 118 and the applicant’s ICNIRP certification as preventing consideration of the objections concerning pacemakers and other implants. He thereby treated third-category information as information which had to be disregarded. The High Court’s finding was narrower than a general rule that implant-related EMF effects are always material. The officer should have considered whether the specific concern was relevant in the circumstances of this application and, if so, what weight it deserved.
5. Relief. Under section 31(2A) of the Senior Courts Act 1981, relief may be refused where it is highly likely that the outcome would not have been substantially different. A court must not substitute its own planning judgment where a matter is obviously material; ordinarily the decision should then be remitted. On the evidence available here, including the absence of substantive medical or objective evidence, the officer was entitled to leave the concern out of account. It was therefore highly likely that the same outcome would have resulted.

• Court of Appeal (Civil Division) [2025] EWCA Civ 259: dismissed the Council’s appeal and upheld the High Court’s finding that the officer had erred, while confirming that no general rule of automatic materiality had been established.
• High Court of Justice, King’s Bench Division, Planning Court [2024] EWHC 1035 (Admin): found that the challenge succeeded insofar as the Council had failed to consider potential impacts of EMFs on medical implants, but refused relief under section 31(2A) of the Senior Courts Act 1981.