ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(MR JUSTICE LLOYD JONES)
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE PILL
and
LORD JUSTICE PUMFREY
Between:
HARRIS | Appellant
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FIRST SECRETARY OF STATE AND ORS | Respondents
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(DAR Transcript of
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Mr D Kolinsky (instructed by Messrs Richard Buxton) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WERE NOT REPRESENTED.
Judgment
LORD JUSTICE PILL:
This is an application for permission to appeal against a judgment of Lloyd Jones J delivered on 31 July 2007.
The applicant, Mrs Pam Jean Harris, seeks to quash a decision of the Secretary of State made by a duly appointed inspector in a decision of 12 December 2005. The inspector allowed the appeal of operators Hutchison 3G UK Limited against a decision of the Peterborough City Council whereby they had refused permission for the installation of a radio base station comprising a 25-metre-high telecommunications tower with ancillary equipment. Planning permission was granted subject to conditions.
The matter was referred to the inspector by way of written representations. The primary submission made on behalf of the applicant is that the inspector erred in law in his approach to the health concerns raised by, and on behalf of, the applicant.
Health concerns have of course been raised in relation to masts such as this, and the Secretary of State has issued policy guidance, PPG 8, which relates to health concerns as well as other matters. Unhappily the applicant has a medical condition by reason of which she relies for electrical equipment to maintain her health. Mr Kolinsky, who appears for the applicant, has referred the court to the manner in which those concerns were expressed. There was a letter from her Member of Parliament before the inspector which included the statement:
“…Mrs Harris suffers from a very rare condition and the machine through which she is intravenously fed is very sensitive and Mrs Harris is concerned about the effect that this proposed mast will have on it, and therefore the risk to her health.”
The applicant herself in a long statement referred mainly to her medical condition and the serious problems which it causes her, and also referred to the machine:
“My machine used in the feeding process is very sensitive and reacts to the slightest interference.”
A letter from Dr Norman, 8 August 2005, referred to the disorder and in relation to the equipment stated:
“This requires an Ivak type infusion pump which notoriously can be interfered with by other electronic machinery.”
The inspector dealt with this matter at paragraph 13 of his decision:
“I have taken account of the concern expressed by local residents about the health implications of the proposed installation. One resident in particular is concerned about the effect that it may have on her disability [I interpose that the applicant was that person]. Paragraph 98 of PPG 8 says that “the planning system is not the place for determining health safeguards”. It adds that if a proposed installation meets the guidelines for public exposure set by the International Committee on Non-Ionising Radiation (ICNIRP) it should not be necessary to consider the health aspects and concerns about them any further. The Appellants [that is, Hutchinson] have confirmed that the installation would comply with ICNIRP guidelines. Accordingly I consider that the residents’ concerns about what they perceive to be the health risks associated with the appeal proposals do not justify withholding planning permission.”
The inspector dealt with environmental concerns expressed by the local authority and decided that the appeal should be allowed and the permission granted.
PPG 8 provides, at paragraph 98, the paragraph cited by the inspector:
“However, it is the Government’s firm view that the planning system is not the place for determining health safeguards. It remains central Government’s responsibility to decide what measures are necessary to protect public health. In the Government’s view, if a proposed mobile phone base station meets the ICNIRP guidelines for public exposure it should not be necessary for a local planning authority, in processing an application for planning permission or prior approval to consider further the health aspects and concerns about them.”
Mr Kolinsky submits that the attention given by the inspector to this issue was insufficient and was erroneous in law:
“The inspector has failed to distinguish between the direct effects of health which have been the subject of considerable debate and resulted in the PPG 8 and the indirect effect feared in this case which is the effect on medical equipment vital to the sustenance of the applicant.”
He submits that for that purpose the ICNIRP guidelines are nothing to the point. They do not deal with this situation.
Reference has been made to other paragraphs in PPG 8. The responsibilities of operators under the Health and Safety at Work Act 1974 are considered at paragraph 93 and it is emphasised that the operators have a responsibility under the Act:
“..to assess any risk to health and safety which may arise, including any risk of established health effects from exposure to EMFs, and to take any corresponding measures…”
Paragraph 96 provides:
“Specific advice on interference with medical devices can be obtained from the Medical Devices Agency”.
Paragraph 102 provides:
“In any development, significant and irremediable interference with other electrical equipment of any kind can be a material planning consideration.”
Types of interference are then considered. Mr Kolinsky says that they are concerned with the effect on equipment and not the indirect effect which it might have on persons in the position of the applicant.
He emphasises the grave effect which any interference with this medical equipment would have upon the applicant:
“The inspector has simply failed to deal with the point and that amounted to an error of law.”
He relies on the case of Newport Borough Council v Secretary of State for Wales [1998] JPL 377, where it was held in this court that public perception, even if not objectively justified, is a material consideration to be taken into account. In that case, the issue was costs, though the principle may have a more general application. Such weight is to be given to it as might be appropriate in the particular circumstances of the case.
That was a case where, as appears from page 381 of the report, there was substantial local interest in the proposal. That was understandable, bearing in mind the publicity about other nearby plants of a similar kind, chemical waste treatment plants. There was an intense and justifiable local sensitivity to the issue of such plants. The evidence offered by many of the objectors related to the Welsh disposal industry in its widest terms. There had been a fire in one case, which added to local concerns.
The issue turns upon the duties of an inspector in circumstances such as this. In my judgment, and I agree with the judge, there was no duty upon this inspector, on the basis of the information before him, to conduct the type of inquiry which Mr Kolinsky submits he should have conducted. An assertion is made about the potential effect of the development on a particular piece of medical apparatus. That does not in my judgment create a duty in the inspector to conduct the type of inquiry suggested. The evidence before him was merely by way of assertion and was not supported by anything which required him to conduct such an enquiry. I have referred to paragraph 96 of the PPG 8:
“Specific guidance on interference with medical apparatus can be obtained from the Medical Devices Agency.”
There is no suggestion by way of evidence, or indirect evidence, or press concern or anything else that there is any concern about this particular piece of apparatus. No evidence was called as to grounds for that concern. In those circumstances it appears to me that the inspector was entitled to take the course he did. He was entitled to have regard to the several paragraphs which I have cited and to hold on the basis of them that no planning objection had been made out. The objection in Newport was of the nature to which I have referred. In my judgment the position in the present case cannot be equated with it. It did not create a duty to conduct a further inquiry nor did it require more specific explanation from the inspector than that he gave in his admittedly brief letter.
The judge, in a long judgment, dealt with all the issues raised in considerable detail. On this issue it is put in more than one way and there can be no complaint about that.
“28 It becomes necessary to consider whether the particular features of Mrs Harris’s case were exceptional so as to require the inspector to depart from the policy in PPG 8 and to address in his decision the likely effect of the proposed development on public health and public concern on health grounds…
29 I consider that the inspector was entitled to conclude that the policy stated in paragraph 98 of PPG 8 was not displaced on the facts of the case and that compliance with the ICNRIP guidelines was sufficient to deal with the position of the claimant. It was not necessary for him to undertake any further assessment of possible risks to health or perceived risks to health.”
At paragraph 42, having referred to authority, the judge stated:
“I consider that paragraph 102 is of general application and creates a threshold of relevance. It is only if that threshold is crossed that the inspector applying the policy would be required to address the issue of the impact of the emissions on Mrs Harris’s medical equipment.”
Paragraph 49 is also relevant and paragraph 58:
“So far as the possible indirect effect on electromagnetic radiation on health through interference with electrical equipment is concerned, the policy stated in paragraph 102 of PPG8 is not an immutable rule. Exceptions can be made on a case by case basis where exceptional circumstances require a departure from the policy. This is sufficient to ensure that the policy laid down in PPG8 complies with Article 2, ECHR. In the present case, the Claimant did not produce any evidence before the inspector to show that there was a real risk of such indirect interference with health occurring. In these circumstances, I consider that the inspector’s approach in conformity with the policy guidance did not give rise to any violation of Article 2, ECHR.”
I agree with each of those statements by the learned judge. In my judgment there is no real prospect that this court would reverse the decision of the judge or quash the decision of the inspector on that ground.
A further submission is made that there is an error of law in the inspector’s approach to possible alternative sites. These were canvassed, including a site canvassed by the parish council, though not pursued in written submissions; though, as Mr Kolinsky says, not actually withdrawn. The principles in relation to alternative sites are well known and need not be set out. The judge considered them. There was evidence from Hutchison that alternative sites were not suitable for them. The judge concluded:
“I accept the submission of the Defendant that on a fair reading of the decision the inspector’s conclusion that Local Plan Policy U1 has been complied with must involve the conclusion that the issue of alternative sites has been satisfactorily addressed.”
The inspector undoubtedly came to the conclusion that this site was a suitable one and I agree with the judge that in the circumstances of this case no further attention to the possibility of alternative sites was required.
For the reasons I have given I would refuse this application.
Lord Justice Pumrey:
I agree. In paragraph 48 of his judgment, the judge carefully distinguishes between the apprehension of direct effect on the human organism of radio frequency radiation on the one hand, and the effect upon electrical equipment on the other. He correctly identifies the different parts of PPG 8 which are concerned with those two issues. I agree with his statement in paragraph 49 of the judgment that there is no duty on the inspector to take into account effects which can only arise from a relevant effect of radio frequency radiation on a machine unless there is some reason for doing so. As the judge puts it, there must be some reason for supposing that the “objective threshold” must first be crossed, and there was no material before the inspector which enabled him to consider that that threshold had indeed been crossed. For the reasons fully set out by Pill LJ, therefore, I agree that permission to appeal in this case must be refused.
Order: Application refused