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Communication breakdown--mobile phone masts and planning.

ONE OF THE paradoxes of the planning system is that the ability of the regulatory authorities to control some of the most controversial forms of development can be subject to the most acute constraints. In the case of telecommunications mast development this is an inevitable consequence of the fact that operators' options are limited when it comes to identifying sites that will ensure the extent of network coverage that they are obliged to achieve pursuant to their telecommunications licences.

From the public's point of view, and despite the best efforts of the industry, telecommunications masts are often regarded as being visually intrusive, and, notwithstanding exhaustive research that has resulted in compelling evidence to the contrary, public concerns about their health effects remain.

The need to cater for the increased demand for sites is reflected in the development consent regime. Subject to limited exceptions, the Town and Country Planning (General Permitted Development) Order 1995 (the Order) ensures that masts below 15 metres in height are granted planning permission without the need for an express application to the local planning authority. This automatic approval is subject to conditions which mean that local planning authorities will only have an input into what are essentially matters of detail, and only then if they notify developers within a prescribed time limit that they wish to intervene.

The case of R (on the application of Christine Nunn) (Claimant) v First Secretary of State (Defendant) & (1) T-Mobile (2) Leeds City Council (Interested Parties) [2005] EWCA Civ 101 gave the Court of Appeal the opportunity to consider whether this deemed consent system was compatible with the 'procedural' right enshrined in Article 6 of the European Convention on Human Rights (the Convention). Briefly, Article 6 provides that in the determination of civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The case concerned an application by Dr Nunn for judicial review of a planning inspector's decision that T-Mobile had planning permission by virtue of the provisions of the Order for the erection of a telecommunications mast. Leeds City Council had, following consultation in the area, issued a notice of refusal of prior approval for the siting and appearance of the mast. Unfortunately, the Council served its notice a day after the 56-day period provided for by the Order had expired. T-Mobile proceeded to erect the mast and the Council issued T-Mobile with enforcement notices.

Not surprisingly, T-Mobile appealed the notices and the inspector allowed T-Mobile's appeal on the basis that there had been no breach of planning control and accordingly T-Mobile had been free to commence development. This being the position, the inspector did not consider that there was a need to look into the planning merits of the development and did not entertain the issues raised by Dr Nunn and other local residents concerning the possible effects of the mast on health and house prices.

The first strand to Dr Nunn's case was that by serving its notice of refusal late, the Council had prevented its determination from having any effect, which amounted to a breach of her right to a fair trial. Secondly, Dr Nunn submitted that the inspector should have approached the appeal on the basis that T-Mobile did not have planning permission and therefore should have considered the planning merits of the development.

Thirdly, Dr Nunn sought to rely on the provisions of section 3 of the Human Rights Act 1998 (HRA). This provision requires primary and subordinate legislation to be construed, so far as it is possible to do so, in a way which is compatible with Convention rights. The gist of Dr Nunn's submission on this point was that the Town and Country Planning Act 1990 and the Order from which it is derived should be read so as not to deprive her of her right to a fair trial. The Court of Appeal accepted that, by failing to issue its refusal in time, Leeds City Council had deprived Dr Nunn of an effective determination of the issues that she had raised on the merits of the development proposals. However, the Court came to the view that the scheme under the Order and its parent legislation could be operated compatibly with the Convention. In coming to this view the Court was mindful of the fact that to take the approach advocated by Dr Nunn would result in unacceptable injustice to T-Mobile by requiring the company to remove a mast that it had had a right to erect.

The Court was also not prepared to accept that the inspector should have proceeded differently. He was constrained by the fact that the ability to consider the merits of the development had, in effect, been squandered by the Council after it had failed to serve its notice of refusal within the prescribed time limits.

The Court of Appeal clearly saw the Council as the villain of the piece and made it apparent in its judgment that, insofar as Dr Nunn had a complaint of substance arising from these events, it arose from the failure of the Council to make an effective determination that prior approval should be refused. Accordingly, the Court made reference to two possible courses of action open to Dr Nunn against the Council, namely a complaint to the Ombudsman and a claim for damages under section 8 of the Human Rights Act.

What conclusions can be drawn from this case? First of all, it again highlights the limitations of challenges to planning decisions that rely in whole or part on Convention rights. Over the course of the last five years the courts have been required to consider the compatibility of the planning regime with the Convention, and by and large the system has received a clean bill of health. Secondly, it reinforces the message that, following the introduction of the HRA, if authorities fail to discharge their development control responsibilities adequately, the courts will be more open to entertaining civil claims from those who can demonstrate that they have suffered as a consequence.

Bob Pritchard is a Senior Associate specialising in planning law in the Manchester Office of Eversheds.
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Title Annotation:Legal Eye
Author:Pritchard, Bob
Publication:Town and Country Planning
Geographic Code:4EUUK
Date:Jan 1, 2006
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