Leger-Davey & Anor v First Secretary of State & Ors

MR JUSTICE SULLIVAN: There are two applications under section 288 of the Town and Country Planning Act 1990 ("the Act") before the court. In the first application the claimant seeks to quash a decision by an Inspector appointed by the first defendant allowing an appeal by the second defendant, Orange PCS Limited ("Orange"), and granting planning permission for the erection of an 11.79 metre high monopole and an equipment cabin at Byron Avenue, Winchester. Orange's application for planning permission was originally granted by the local planning authority. That planning permission was quashed by consent in judicial review proceedings. On reconsideration the local planning authority refused planning permission and Orange appealed to the first defendant.

The local planning authority's reasons for refusal were three-fold: (1) concern of local residents about the perceived risk to their health; (2) visual intrusion, and (3) Orange had not shown that alternative sites had been fully explored.

The Inspector held an inquiry over nine days, commencing on 29th October 2002. The inquiry did not conclude until 2nd July 2003, by which time the Inspector had visited the site on 14th March 2003. His decision letter is dated 19th August 2003.

The site is in a predominantly residential area, and the claimants live and attend school within 250 to 300 metres of the proposed site for the monopole. The Inspector identified three main issues in the appeal. Firstly, the effect of the proposal on the character and appearance of the surrounding locality; secondly, the effect on the amenity and well-being of those who live, learn and work in the locality arising from the perceived risk to their health; and thirdly, whether any detriment to the amenity and well-being of the local community coupled with any adverse visual impact were sufficient to justify withholding prior approval, having regard to technical considerations, established planning policy and the availability of alternative sites.

No issue was taken with the Inspector's identification of the three main issues. The challenge in these proceedings is confined to the manner in which the Inspector dealt with an aspect of the final matter referred to in the last issue: the availability of alternative sites.

In paragraph 4 of the decision letter, the Inspector referred to the relevant development plan policy, policy TC1 in the Structure Plan, which states:

The Inspector had before him correspondence from the Chief Constable, including a letter dated 10th April 2003, in which it was stated on his behalf:

The Inspector then considered "Other Options" in paragraphs 37 and 38. They included a site adjacent to Winchester prison, where the deputy governor was unwilling to allow the installation to be sited. Another negative response had been received from the owner of the West Downs student village complex. A further site at Hilliers Nursery had been discounted for two reasons: firstly, it was too tightly constrained; and secondly, it would not be acceptable on amenity grounds.

A further site mentioned was Ashburton Court, a tall building forming part of the Hampshire County Council Headquarters complex, but the County Council had a policy of not allowing its property to be used for the siting of base stations unless it was located away from populated areas, and there were special circumstances to justify the facility. Approaches to the County Council had not met with success.

The other front runner amongst the alternative sites was the station car park. That site was favoured by the local planning authority, and Orange had carried out a coverage trial to establish the effectiveness of that location. The Inspector set out the results of that coverage trial, saying:

In paragraph 42 of the his report, the Inspector noted that the Council had submitted that technically Network Rail's system should be:

Pausing there, subject to the sole ground of challenge raised by Dr Wolfe in his submissions on behalf of the claimants, there could be no possible criticism of the Inspector's conclusions thus far in relation to the issue of alternative sites.

The sole ground of challenge focuses upon the Inspector's approach to the potential use by Orange of the powers conferred upon them as "operators" by paragraph 5 of Schedule 2 to the Telecommunications Act 1984 ("the 1984 Act"). Those powers have now been repealed and replaced by new powers, which are contained in the Communications Act 2003, but it is common ground that the relevant powers as at the date of the decision letter were those contained in Schedule 2 to the 1984 Act.

Under paragraph 2, Orange had power to place the proposed mast on an alternative sites if agreement could be obtained from the occupier of that sites. Paragraph 5 conferred a power on operators, such as Orange, to dispense with the need for agreement if it could not be obtained. Paragraph 5 provided, so far as material for present purposes:

The court in question is the County Court, and by subparagraph (5) any order made by the County Court under paragraph 5 shall include such terms and conditions as appear appropriate to the court, and those conditions may include a requirement that compensation shall be paid.

It was argued on behalf of those who were opposed to the proposal to site the mast at Byron Avenue, that Orange should have invoked this power in respect of the alternative sites to overcome the owners' unwillingness to make them available.

The Inspector responded to this argument in paragraphs 45 to 46 of his decision letter:

On behalf of the claimant it was submitted that the Inspector had misdirected himself, in relation to the powers conferred by paragraph 5 of Schedule 2, by improperly treating them as though they could be equated with the exercise of compulsory purchase powers. It was submitted that in so doing the Inspector fell into error because the powers are not compulsory purchase powers. There was no basis for the Inspector's conclusion that a court on an application under paragraph 5 would "most likely" refuse to make an order.

It was also submitted that the Inspector took account of immaterial considerations: the evidence given by Orange of its belief that the power had never been used by a code system operator, and its statement that it would not use the power in this instance, particularly against a public service operator such as the police or Network Rail. Dr Wolfe referred to what he described as "the centrality" of paragraph 5 within Schedule 2. It was a "crucial long stop power" available to operators such as Orange under the Code. It was simply not open to Orange in those circumstances to say that it would not use it. He made the point that PPG 8 refers in terms to the powers conferred upon operators by the 1984 Act.

It is true that PPG 8 does cross-refer to the provisions of the 1984 Act. Under "Environmental Considerations", paragraph 15 states:

In the detailed supporting guidance contained in the appendix to the Circular, paragraph 5 states:

Under the subheading "Development Plans", paragraph 37 advises local planning authorities that development plan policies should take account of, amongst other matters, the requirements of the Telecommunications Act 1984. Despite the fact that there are these cross-references to the 1984 Act, it is also true, as the Inspector said in paragraph 46 of his decision letter, that there is no mention of the use of the procedure set out in paragraph 5 of Schedule 2 for the purposes of site acquisition in PPG 8, or in the associated Code of Best Practice. Much less is there any encouragement from the Secretary of State to operators to use the powers conferred by paragraph 5 as a matter of course. This omission may be contrasted with the manner in which the appendix to PPG 8 deals with masts and site sharing. The advice there is quite explicit, and includes the following:

Dr Wolfe referred to the decision of Richards J in Phillips v Secretary of State [2003] EWHC 2415 (Admin), dated 22nd October 2003. In that case the contention was that the Inspector had failed to consider alternative sites as a material consideration. It was submitted on behalf of Hutchinson 3G (UK) Ltd, one of the defendants, that the question of alternative sites was not relevant. Richards J rejected that submission, saying:

It remains the fact, however, that if the first defendant had wished to give a policy steer to operators, local planning authorities and inspectors, that applicants for planning permission (and/or appellants) were expected to invoke the powers conferred by paragraph 5 as a matter of course, in order to achieve the "optimum environmental and environmental solution", then the policy guidance could and would have said so. One finds the same position under the Code of Practice which was issued by the Department. Under the heading "Suitability of a Site", it says:

Again, if operators were expected under the Code of good Practice to utilise paragraph 5 powers as a matter of course, then there can be little doubt that they would have been advised to do so in the Code which provides detailed practical advice. Dr Wolfe submitted that there was no need to mention the powers in paragraph 5 in these documents; it was sufficient that the 1984 Act was referred to. The powers contained in the Schedule and, in particular, paragraph 5, were, he submitted, "central" and of obvious relevance. They were there to be used.

The mere fact that a statutory power is available does not mean that it has to be used in every case. Policy guidance may well be available as to the circumstances in which a statutory power is generally expected to be used. There is nothing in the policy guidance, in either PPG 8 or the Code of Practice, to suggest that the Inspector's approach to the use of this statutory power was in any way in error. The claimants' criticism of the Inspector's references to compulsory acquisition of land and compulsory purchase are misplaced. The Inspector stated that paragraph 5 allowed an operator to "compulsorily acquire land for a base station." He should have said that paragraph 5 allowed an operator "to compulsorily acquire rights over land to establish a base station." The difference is mere pedantry in the context of this decision letter. The Inspector was determining a planning application, not writing a legal treatise on compulsory purchase. The Inspector referred to the use of paragraph 5 powers as a form of compulsory purchase. It is perfectly true that there are authorities which indicate that when assessing compensation under Schedule 2, the compensation provisions of the Compulsory Purchase Code do not apply: see Mercury Communications Limited v London and India Dock Investments Limited (1993) 69 P&CR 135, mentioned in Cabletel Surrey and Hampshire Ltd v Brookwood Cemetery Ltd [2002] EWCH (Civ) 720, see paragraph 1.6 of the judgment of Mance LJ.

The fact that the provisions of the Compulsory Purchase Code, insofar as they relate to compensation, are not applicable to compensation under Schedule 2, does not detract from the good sense of the Inspector referring to the powers as a form of compulsory purchase. That is precisely what they are: rights over land are compulsorily acquired by an operator by virtue of an order of the court. The Inspector was not considering this question in the abstract, he was considering whether the use of paragraph 5 powers might result in any of the alternative sites in this case becoming available. The two front runners were the Police Headquarters and the station car park. In both cases there were strong objections on operational grounds from operators providing a public service. The Inspector was not himself considering the detail of an application made under paragraph 5 of Schedule 2, he was having to evaluate, on the basis of the material before him, what would be the likely outcome of such an application. Given that the objections of the police and Network Rail were operational ones, they were not likely to be capable of being adequately compensated for by money. On the information available to the Inspector, these cases would probably fall under subparagraph (b) in paragraph 5(3), that is to say the court would have to consider all the circumstances in deciding whether the extent of the prejudice on operational grounds was outweighed by the public benefit accruing from making the order. Such an approach would not be significantly different in practice from the approach which would be adopted in considering whether or not a compulsory purchase order was justified.

Dr Wolfe made the point that in a compulsory purchase case there is a broader discretion, whereas under paragraph 5 the court has no option: it shall make an order if it is satisfied that the circumstances set out in subparagraph 3(a) or 3(b) are made out. I repeat, the Inspector was not considering the ambit of the power conferred by paragraph 5 in the abstract, he was considering whether it might have been of assistance on the facts of this case where the two front runners were the Police Headquarters and the station car park.

This was not a case where an objection had been put forward (perhaps capriciously) by a private landowner or, for example, by a commercial organisation which was plainly seeking to extract a ransom value and could therefore be compensated by money. The material in front of the Inspector indicated that whilst there had been attempts to persuade both the police and Network Rail to change their minds, they were not prepared to do so.

In respect of the other sites, apart from perhaps the prison, where the same observations would apply, it is plain that they were not front runners in terms of being a better alternative site to the Byron Avenue proposal. The Inspector dealt in detail with the Police Headquarters and the station car park precisely because they were the two front runners among the alternative sites.

The Inspector is criticised for referring in paragraph 45 to the attitude that had been adopted by Orange: its belief that the power had not been used previously by a code system operator, and that it would not use the power in this instance, particularly against an authority such as the police or the railway that provided a public service. There is no doubt that the Inspector did accurately set out Orange's position. Having done so, he then set out in the following paragraph his own approach to the use of the power. He did not state that the power could not be used against an authority such as the police or the railway. His approach was that by analogy with compulsory purchase this was a power that should generally be used only as a last resort; in circumstances where there was an overriding public interest and where there was no other possible course of action.

I have referred to the provisions of Schedule 2. It is plain that paragraph 5 is to be used only where agreement cannot be obtained. Moreover, in the context of operational sites, such as a police headquarters, or a railway station, the balancing exercise in subparagraph 5(3)(b) will, in substance, be little different from the exercise that would have to be carried out in evaluating the merits of a compulsory purchase order. It seems to me that it makes little difference whether one talks of an "overriding public interest", or of the benefit to the public outweighing the prejudice caused to the land owner by the making of the order under paragraph 5.

In these circumstances, the Inspector was entitled to take the view that even if the power was exercised, the likelihood was that the court would refuse to make an order. I repeat, it was not for the Inspector to carry out a detailed exercise under paragraph 5. He simply had to decide what, on the balance of probability, was likely to be the outcome of such an application. This challenge has a very narrow focus upon paragraph 5 of Schedule 2 to the 1984 Act. But the point has to be kept in proportion. This was not a public inquiry into a proposal for the police headquarters site or the railway station site, it was a public inquiry into a proposal to site a mast on the Byron Avenue site. As part of that inquiry it was certainly necessary to deal in some detail with the potential of alternative sites. In effect, Dr Wolfe's submissions require the Inspector to have dealt with those sites in as much detail as if they had been the subject of the appeal itself. One has to stand back and recognise the fact that although the issue of alternative sites was an important one, it was by no means the sole issue. The Inspector has dealt with the issue of alternative sites in a comprehensive manner. He specifically considered whether the suggested use of the power conferred by paragraph 5 would alter his view that there was no reasonable possibility of an alternative site being available, and concluded that it would not.

Given the nature of the alternative sites that were the two front runners, it cannot be said that this conclusion was in any way unreasonable or that it was based upon a misapprehension as to how the powers of paragraph 5 would work out in practice (as opposed to theory) if they were sought to be applied against a body such as the Chief Constable or Network Rail.

For these reasons, I am satisfied that the sole ground of challenge to this decision letter is not made out and the application must be dismissed.

In the second application, the claimant seeks to quash a decision by an Inspector to allow an appeal and grant planning permission for the erection of a 15m fake Cyprus tree design, housing three antennae and one transmission dish, along with equipment cabins housed in a fenced compound on land at Piscombe Lane, Otterton in Devon. The Inspector's decision letter is dated 14th August 2003. He determined the appeal on the basis of written representations and after having made a site visit on 18th June 2003.

The claimant lives at a house called "Glebelands", which at about 150m away from the appeal site is the nearest dwelling to it. The Inspector considered that there were two main issues: first, the impact of the proposed development on the character and appearance of the area of outstanding natural beauty (AONB); and secondly, the effect of the proposed installation on the amenities and residents of the area in terms of visual intrusion and their perception of harm to health.

The Inspector described the location of the site in paragraph 7:

The Inspector dealt with the question of alternative sites in paragraphs 12 and 13:

He then summarised the position thus far:

He dealt with health considerations in paragraph 15:

On behalf of the claimant, Dr Wolfe challenged this decision letter on three grounds. Firstly, it was submitted that the Inspector had failed to give proper consideration to the question of alternative sites. Although paragraph 13 of the decision letter stated that all of the sites investigated had been rejected on grounds of adverse effect on visual appearance and amenity, technical reasons, or the owner's unwillingness to make the sites available, it was submitted that that was not a fair representation of the evidence available to the Inspector.

What had happened in respect of the alternative sites was that the Council had appointed consultants, ECS Limited, to report. The consultants' report stated that only a site at North Star Engineering appeared to meet Orange's requirements. The Council's written statement explained to the Inspector that Orange:

The Council summarised its position so far as the North Star site is concerned in paragraph 8 of its written statement:

There had been extensive correspondence between the claimant and the local planning authority. In that correspondence the claimant had suggested a number of alternative sites and asked why the Council's consultants had considered only some of them. However, the position has to be considered upon the basis of the evidence as set out in the written submissions before the Inspector. By that time it was plain that the North Star Engineering site was the only possible contender as an alternative site. Indeed, the claimant in her witness statement in these proceedings makes it clear that she is relying upon the North Star site.

I accept that paragraph 13 deals with the availability of alternative sites in very brief terms. Such an approach might not have been appropriate if there had been a great deal of evidence about that issue in the written representations. But the question is whether the Inspector was justified in adopting the approach set out in paragraphs 12 and 13 of his decision letter given the manner in which this particular issue had been presented to him. He was, in effect, presented with only one possible alternative site: the North Star site. It was plain from the Council's evidence that all the Council was doing was contending that Orange had failed to demonstrate that the North Star site was not a suitable alternative. The Council was expressly not advancing the North Star site as a better alternative, nor was it advancing it as a reason for refusal. In those circumstances, it seems to me that the Inspector was entitled to deal with alternative sites in the manner that he did.

Given the manner in which the North Star site was put forward by the Council, I would not be justified in quashing the decision letter on this ground in any event.

The Inspector was not giving reasons for rejecting a site that had been put forward as a better alternative than the appeal site. The Council's sole criticism was that Orange had not proved the negative: that the North Star Site was not a suitable alternative site. The Council was expressly not advancing the availability of that site as a reason for refusal.

Although Dr Wolfe mentioned the Inspector's failure to refer to the power conferred by paragraph 5 of Schedule 2 to the 1984 Act, by the time the matter was dealt with in the Council's written representations it was not being contended that the problem with this privately-owned site was the owner's unwillingness to make it available. The Council was not putting it forward as a "better site overall." The Inspector cannot be criticised for not mentioning paragraph 5 of Schedule 2 since it was not referred to in the written representations.

The second ground of challenge relates to the manner in which the Inspector dealt with the perception of harm to health. That was the second main issue that he had identified. The criticism is that although the Inspector acknowledged that public concern over health hazards could be a material consideration, when deciding what weight to give to that consideration he considered only matters which went to whether the concern was objectively justified. Dr Wolfe accepted that in deciding what weight to give to a subjective fear, it is permissible to have regard to the extent to which that subjective fear is objectively justified. Plainly such factors are a material consideration. He submits, however, that the Inspector wrongly confined his attention to such factors.

Again, it is important to see how the issue was dealt with in the written representations before the Inspector. In paragraph 15 of his decision letter the Inspector referred to PPG 8. That policy guidance had been referred to by the Council in its written statement. Had the Inspector confined his consideration to those health hazards that could be objectively justified, he need not have referred to anything beyond mere compliance with the ICNIRP guidelines. The additional factors that he mentioned, that is to say that the proposal not merely complied with, but was "well within the ICNIRP standards"; that the proposed development was in the countryside; that it was a substantial distance from the nearest dwellings; and that it was "much farther than many approved telecommunications installations", were all perfectly proper factors for him to take into account.

In answer to the question: what other matters should the Inspector have taken account of when considering what weight to give to the public concerns? Dr Wolfe referred to the fact that in the extensive correspondence from the claimant, both to the local planning authority and to the Inspector, there had been reference to newspaper articles about another site in Crediton. That case concerned a mast which was about 100m (in fact rather less than 100m) from the nearest houses. It was submitted that the Inspector ought to have mentioned the Crediton case when indicating what weight he was prepared to give to the residents' subjective concerns.

I do not accept the submission that the Inspector was bound to refer specifically to the Crediton case. It should be noted that the mast in that case was less than 100 metres from the nearest dwelling. The Inspector was obliged to deal with the principal issues, not with each and every point that had been raised. He plainly considered what weight he should give to public concern over health hazards as a separate and distinct issue. He explained why he concluded that a significant adverse effect on residential amenity resulting from health concerns in relation to the proposed installation was unlikely and why it would not be appropriate to refuse permission on that ground. The reasons he gives are readily intelligible. It plainly was relevant to consider just how far away from the nearest dwelling this proposed mast would be. It was relevant to consider whether it was in or near a built-up area, as opposed to being in the countryside. It was relevant to consider whether it was further away from or nearer to houses than other approved telecommunications installations. All those matters went to the weight that could properly be given to the public concern that had been expressed in this case. Given the manner in which the concerns were expressed to the Inspector, he was perfectly entitled to respond to them as he did.

Lastly, the Inspector is criticised for saying that the proposed mast was a "substantial distance" from the nearest dwelling. The point is made that in reaching that conclusion the Inspector failed to have regard to material considerations, or reached a perverse conclusion because the claimant lives within the distance that is identified in the Stewart Report as the zone of the greatest intensity of the beam. That zone is roughly between 100m and 200m from the mast.

Although this argument is now put forward most attractively by Dr Wolfe, one has to consider whether the point was ever put to the Inspector. If the claimant was concerned that she would be living within the zone of greatest intensity of the beam, even though her dwelling was 150 yards away from the mast, and might therefore be considered to be a "substantial distance" from the proposed installation, then she could have brought that point to the Inspector's attention in her representations. She did not.

It is perfectly true that in correspondence with the local planning authority, which would appear to have been placed before the Inspector by the authority, the claimant had mentioned the Stewart Report, and had asked the authority:

I repeat, the Inspector had to deal with the cases as they were presented to him in the written representations. Although this point is raised now, it was not made to the Inspector. Therefore, he cannot be criticised for failing to deal with it, nor can he be criticised for having regard to the distance between the proposed mast and the nearest dwellings which he rightly described as "substantial".

For these reasons, the three grounds of challenge are not made out, and this application too must be dismissed.

MR MOULD: My Lord, in those circumstances I invite the court to make an order formally dismissing each application. In relation to the question of costs, I understand that the claimants in the first of the applications which your Lordship has dealt with have been legally aided throughout. So in relation to them, I would ask for an order for costs but subject to the usual order postponing any assessment or enforcement.

In relation to the second defendant, Jane Lee, she has been an assisted person for part of the history of these proceedings, but not for the whole of it. In relation to that period, as to which she has been paying privately for litigation, I believe that those instructing me have been able to agree with Miss Lee's solicitors that she should, if your Lordship is minded to order costs against her in respect of that time, pay costs in the sum of £3,360 to the first defendant. My Lord, I would ask then for an order to that effect. In relation to the balance of the costs during which time she was an assisted person, the usual order postponing assessment and enforcement.

I should say finally, because it is a matter of some concern to her, that the Secretary of State would not seek to enforce payment of any order for costs that your Lordship made against her until the period of eight weeks had elapsed from today.

MR JUSTICE SULLIVAN: Yes, thank you.

MR WOLFE: My Lord, I do resist the principle of the cost orders in either case. Can I just deal with St Leger-Davey, that is a LSC funded case. I simply seek an order that my costs be assessed under the Community Legal Services Regulations in the usual way.

MR JUSTICE SULLIVAN: Yes. Shall we just deal with them in turn then. So far as that case is concerned, the application is dismissed. The claimant is to pay the first defendant's costs. Such costs not to be enforced without leave of the court, and you are to get Community Legal Services Funding assessment.

MR WOLFE: My Lord, I am grateful. In relation to the Lee case, as my learned friend has indicated, there are two periods. For the first of those there is an LSC certificate in place, so the same pair of orders.

MR JUSTICE SULLIVAN: Yes.

MR WOLFE: I seek my assessment for that period. In relation to the second period, my learned friend is right, although can I just clarify the way in which----

MR JUSTICE SULLIVAN: Can you just tell me what the period is?

MR WOLFE: Up to 5th January is covered by the certificate, and after 5th January is not.

MR JUSTICE SULLIVAN: Yes.

MR WOLFE: My Lord, in relation to second period, my Lord, as Mr Mould indicates, there is an agreement as to the figure and the period, if I can just clarify it is a figure of £3,360 to be paid within 56 days. I think the confusion maybe he was putting 56 days on both periods, both elements.

My Lord, I then would seek permission from my Lord to appeal in both cases, if I can deal with them separately.

MR JUSTICE SULLIVAN: Before we go on to that, the application in Lee is dismissed. For the period up to 5th January this year the same order as in the first case. For the period after 5th January the claimant is to pay the first defendant's costs summarily assessed in the sum of £3,360, to be paid within 56 days. Yes.

MR WOLFE: My Lord, before I go on, I think Mr Goatley wants to make an application.

MR GOATLEY: My Lord, I appear on behalf of the third defendant in this case. My Lord, I recognise in respect of two costs orders that is not necessarily something which follows the event, notwithstanding there has clearly been success. As to the first claimant's submission, I make it plain I seek no order in respect of costs. In respect of the second, in respect of Jane Lee, where there is a period where there has been since 5th January 2004 an absence of a legal certificate, I would seek an order for costs in respect of that period. The circumstances being here, my Lord, I respectfully suggest, we have been of some assistance to the court in terms of the material we put forward, although, as it turned out, your Lordship has not specifically needed too much assistance either from my learned friend, Mr Mould, or myself. In the circumstances of providing that material to the court and in skeleton arguments, this may be a suitable circumstance in which to make that second order as to costs?

MR JUSTICE SULLIVAN: Thank you. I do not need to trouble you, Dr Wolfe. Mr Goatley, I would not for a moment suggest that you were not helpful, I do not think this is the sort of case that justifies a second order.

MR GOATLEY: My Lord, I understand.

MR JUSTICE SULLIVAN: Yes, thank you.

MR WOLFE: My Lord, as I indicated, I seek permission to appeal against your Lordship's decision in both cases. Shall I just deal with them in turn?

MR JUSTICE SULLIVAN: Yes, of course.

MR WOLFE: In relation to both of them, but if I start with St Leger-Davey. In my submission, as my Lord is well aware, there is a two-limb test for permission to go to the Court of Appeal and I do not recite it, it involves alternatives: either a real prospect of success and/or public importance of the issue. My Lord, St Leger-Davey raises issues of much wider public importance, namely the circumstances of, and the proper application of, the Telecommunications Code, that is plainly of significance potentially in any or all cases, because alternatives are now a material consideration, as Richards J and my Lord have now held in all cases. So that the circumstances of an application of them is plainly of wider public importance, regardless of the merits of any appeal.

In terms of the potential merits of such an appeal, I simply draw my Lord's attention to one or two matters arising from my Lord's judgment, within the usual degree of tentativeness. Firstly, my Lord has, in my submission, erred in too easily allowing operational objections to kick the case from a paragraph A to a paragraph B situation; paragraph A being the one where the financial compensation will do, into one which, as I have accepted, wider considerations, all though not the full range do apply. My Lord has also, in my submission, wrongly accepted the Inspector's approach, namely that the invocation of the powers are matters of last resort. In my submission that is at least arguably wrong. Then my Lord has, in my submission, leapt too quickly from saying that it is not right -- pardon the double negative -- that these powers should be invoked as a matter of course, in effect, to accepting Orange's approach, which is to say, 'We never used them.' My Lord paraphrased that, I think, perhaps a little bit too compactly. Paragraph 45, which dealt with that, where Orange are recorded as saying, 'We would never use the power in this instance', in other words, in relation to all sites, particularly against authorities. My Lord compressed that in his judgment, no doubt inadvertently, to say, 'We would not use them against authorities, particularly police or railways.' My Lord, the difference is significant. They were saying, 'We would never use these.' So one goes from, a matter of course, not being required to never being required and, in my submission, it is plainly arguable with a reasonable prospect of success that that is to apply the wrong test.

My Lord in Lee, again I say that a wider public interest point arises both in relation to alternatives, particularly the use of the Code powers, but also in relation to the assessment of health perception factors, and in particular whether it is permissible to rely on purely objective factors in rejecting public health perception questions. My Lord, in terms of alternatives, my Lord has focused on the fact that the way the Council put it was that Orange had not proved the negative, in other words absence of alternatives. But my Lord, in my submission, too hastily overlooks paragraph 64 of the appendix to PPG 8 which applies here, because this is an AONB, but there are many AONBs and many mobile phone installations within them, which expressly requires the developer to demonstrate that there are no suitable alternatives. So that which the Council was pointing to was a matter which in this case, and in others AONBs, the developer was indeed required to demonstrate. So the Inspector was indeed, in my submission, required to resolve the point and not simply to leave it as it did, somewhat hanging in the air.

My Lord, within the context of the facts, the Inspector's reasoning, compressed as it were, I think that was my Lord's words, in relation to alternatives, cannot be forgiven in this context because the North Star site had floated to the surface as being the only one left in place. So whilst the Inspector might have said what he said in relation to the rest of the sites, in my submission in relation to North Star, particularly in the context of the AONB obligations, he was required specifically to deal with it and, in my submission, my Lord has too quickly forgiven him for not doing so.

As I already mentioned, the other element on which I would seek permission would be in relation to -- and my Lord that of course leads into the use of the Code's powers, because the two are inextricably linked. My Lord, in relation to the public concerns point, I have accepted, and have throughout accepted, that the Inspector was required to look at the factors he did look at, the objective factors of distance and so on. My criticism was that the Inspector did not look beyond those matters to the other factors that were not necessarily objectively justified. In my submission, my Lord simply has not arguably dealt with those matters, they were very well canvassed in the papers by Ms Lee, and the Inspector simply did not deal with them. In my submission, my Lord leaves the position in the following terms, namely that the decision-maker can simply look at the objective factors in deciding the weight to give to things which are material even if not objectively justified. My Lord, that circulatory, in my submission, wholly undermines the New Port principle (as heard).

So, my Lord, in both cases, both for reasons of wider public importance and in relation to the prospect of success in the individual appeals, I would invite my Lord to grant permission in both cases.

MR JUSTICE SULLIVAN: Yes, thank you very much. I do need to trouble you. I do not think it is appropriate to grant permission to appeal. I quite appreciate that, in principle, the ambit of paragraph 5 powers is a matter of wider interest. But, in my judgment, the Inspector in the St Leger case had to apply it to the particular alternative sites that were before him. On his factual findings relating to those sites, there is no real prospect of overturning his decision that realistically they were not available.

So far as the Lee case is concerned, in my judgment it turns very much upon its own particular facts and the particular way in which the particular terms in the representations were expressed to the Inspector. I do not think it raises any broader issue. I therefore refuse permission.

Given the lateness of the time, it is almost five o'clock, I hope I well be forgiven for saying that relatively briefly.