Can council not refuse these masts?

How effective is your LPA?

You are absolutely right, Ben. Much more could be done by LA's to ensure that sensitive siting of masts is adhered to. However, I fear that because of the cosying up between the Council Liaison Officers from the MOA and the Planning Officers - and the persistent "planning workshops" which give totally biased advice - phone operators are reaping the benefits.

We are constantly hearing that "Council cannot refuse these masts". Then you hear that Officers have been supplied with free mobiles!

Sylvia

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Something like that would be great! We here have managed to force Planning to get 'outside' legal advice, and gave them the details of unbiased experts, but whether they actually used these experts is unknown at present. We have some sympathetic Councillors here who would be very interested indeed in such a briefing. Would it be a huge job to put it together, do you think?

Angie

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Terrific idea. Perhaps a briefing pack containing several of the most recent independent research documents with copies of CD's of the recent radio interviews with Olle Johansson, Magda Havas etc, similar to the Mast Sanity Doctors Pack could be prepared also.

Maybe we should also have a "bullet point" list of the various tricks that the operators get up to in providing false information on planning applications that planning officers should look out for and check.

Like:

1. Altering the relative height of surrounding trees to make the mast look smaller.

2. Omitting existing road furniture so that the pole masts do not make the site look so cluttered.

3. Making sure that there is a NEED for a mast when there may already be coverage in the area.

4. Checking that the distance of the mast to the nearest residential properties or schools are accurate.

5. Insisting that the operator provides minutes of consultation meetings held with local schools and residents who will be affected.

6. Ask for details as to why alternative sites where rejected and whether the reasons for rejection are valid.

7. To accept that the "fear of ill health or perceived risk" is a material consideration.

etc, etc. etc.

I am sure you can all add many more to the list.

This would at least give all planning officers a standard base from which to consider the applications.

Peter Mobley
w-a-r-t

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Dear Angie and Peter,

Here in Haringey, we had a scrutiny review re: mobile mast applications last autumn and Sarah P and I wrote a briefing paper for every meeting. Sadly, what we learned in the process was that our Head of Planning had very little idea on how the law can be interpreted or any of the precendent legal cases. In the end, some very small improvements were achieved, but but a lot more could have been done. For example, we kept banging on about the loss of amenity suffered through the abject fear of health effects.

There is also the loss of amenity for an entire community if a focal point of the community is affested, like a school or public library. Our council however still feel, they can't make this argument, especially where prior appproval notices are concerned. However, we have had planning applications refused now for not consulting with the primary school 200m away, which is progress.

Two of those, however, are now in Appeal, and we shall see what happens to them.

Our briefing papers we produced for the occasion were probably too wordy (they were drawn up in reply to the Head of Planning's reports,) but they might be starting point.

What we need to do is to get up to date with the latest appeal decisions and High Court cases (for example the Arun appeal decision from november 2005) which was rejected by the Hight Court for very strange reasons.

Another issue that needs clarifying is whether additions to existing equipment, i.e. upgrades from 2G to 3G need planning permission or not.

In spite of all our banging on about it, our council still claims it does not matter since they still believe they are only allowed to refuse on visual grounds, so which system is in place does not matter to them since that would be related to health!

If we all contributed different things and agreed a final edit together, it should not be too much work. We could use our individual emails to send the working docs to each other in order to not clutter the list and make the finalised version available to everyone and post it on mastsanity's website. I think it would be a worthwhile exercise, every little progeress we can achieve, will help.

Andrea

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Just spoken to Bromley planning and apparently not much has been done about the independent legal advice they are meant to be getting. Apparently, they want advice from a barrister, rather than a planning consultant. My fab councillor, David McBride, managed to get agreement for an Article 4 (which he is drafting) but everything seems to be on hold at the mo.

I have a suspicion that the telco's are playing a waiting game with a view to replacing the existing three masts with the new ones such as QS4. Maybe we should concentrate on ensuring that these 'replacements' are subject to planning regs (which would mean health effects need to be taken into consideration - here we go again!). Although, maybe a head start is what we need to get proper regs in place before the next 'wave'.

Also, my contact at planning told me that Japan don't use masts, but satellites. Is this true? I have had a look around the internet but can't make sense of it all. How does this work and are there any health implications? I'm kinda going on the premise that the 'beams' go up rather than out so would this be an improvement (unless you live above other people)? Would it be the same technology?

Any information greatly appreciated (sorry, it seems everytime I post I'm asking questions!).

Thanks

Angie

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Angie:

They call it decision under "delegated powers" and our council have a policy to only use the delegated powers procedure where hardly any objections are made, if a certain number of objections is made (don''t know what their cut-off point is, though), they have it decided by the members of the Planning Committe.

Sylvia: You experience from the planning workshop makes just confirms my view that we need to have a more co-ordinated stategy about how to handle councils. I still believe a briefing paper would be the answer I would be prepared to work at it, if some others offer their input, too.

Sarah P: I don't think it's constrcutive to just hand Chris Maile's supplemetary planning policy to Councils. It's far too complex for them, The briefing paper would have to break down the issue and explalin things insimple terms. It could then refer to Chris Maile's doc for further reading/action.

Councils are generally badly informed and we can't allow that the industry's representatives are the only ones to offer them information. We have to be out there, too. Maybe we need to even train a few people up to go round the country and give presentations.

Andrea

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I have followed the recent exchanges about the effectiveness of LPAs with considerable interest. For what it's worth......

By way of background, for the past three years or so, I have provided planning advice on behalf of Mast Sanity and lose count at well over 200 individuals/campaign groups with whom I've been in contact - sometimes exchanging a dozen or so e-mails on individual cases as they have progressed through the pre-application stage to appeal and beyond. Throughout this period I have kept in close touch with Chris Maile on telecoms planning and studied planning law in the telecoms context. I have also been involved personally with both applications and appeals in my local area - taking Rule 6 status as a third statutory party to fight an appeal via public inquiry against the refusal of consent for a Tetra base station in my own village. Without wishing to dampen the enthusiasm being displayed by correspondents, I think that a few home truths would not go amiss.

It is quite true to say that many planning officers (and indeed council solicitors) are ignorant of planning law for telecoms installations. Medicine has GPs and specialists, law comprises 'small town' solicitors and experts in particular fields, and so on, whilst very few LPAs, if any, have planners trained specifically for, and dedicated to, telecoms planning. The associated government guidance and regulations are now so complex, and so poorly drafted in many cases, that a wide variety of interpretations can be made, and invariably are - and this against the backdrop of powerful communications code operators with vast sums of money and influence.

In many cases it is far easier to avoid confrontation with the operator. Hence, the almost automatic approval given by officers to mast applications where no public objection is registered. And here, a word about delegated powers. These are granted by the elected members to planning officers to simplify and speed the planning process where the issue is uncontroversial (and what is given can be taken away). Whenever there is considerable public representation, a Parish/Town Council submits an objection or one of the ward councillors concerned determines the need, then the issue should be taken out of the officers' hands and presented to elected representatives in committee for their decision. It doesn't always happen this way - in a recent case I was involved in, the Chief Planning Officer in Manchester City reportedly claimed a statutory right to determine prior approval applications under the General Permitted Development Order (GPDO) and, despite being made aware of the reality, his councillors refused to challenge this utterly false assertion.

But even when put to committee, as we all know the officers often take the line that nothing can be done and go to great pains in their briefings to justify a recommendation to 'permit'. This is, again, a manifestation of their extreme reluctance to argue the pros and cons of a particular case when it is so much easier to have the application approved rather than go through the nausea of a likely appeal against refusal with all the extra work that this entails. Regulations are interpreted incorrectly and I have lost count of the the number of occasions when, in the case of disagreement, a chief planning officer has, in effect, invited campaigners to 'test the issue in court' knowing full well that the majority cannot possibly afford such action.

Turning to Supplementary Planning Guidance (SPG), many LPAs have introduced such documents but they have rather blunt teeth - or rather more blunt than mast campaigners would wish - since their contents cannot contravene the provisions of 1990 T&CPA, GPDO, other Statutory Instruments, PPG8 et al. A prime example of how far they can reasonably go is illustrated by the SPG produced and adopted by Milton Keynes Council in May 2005, to which Mast Sanity contributed at the draft stage - and most of it will not satisfy many of those who have contributed to the recent exchanges. The LPAs are, quite simply, fettered by statutory regulation, which includes PPG8 following the absurdity of the Harrogate judgement in the Court of Appeal.

On the subject of briefing material for LPAs, all should be aware that Chris Maile has spent some years on like matters. Although he now passes many of the 'individual' queries to Planning Sanity on telecoms planning over to me, he still spends considerable time giving advice to both LPAs and the legal profession. That said, it is apposite that, as many of you will know, he was forced to cancel an intended telecoms planning forum in Ealing this month due to a lack of interest by prospective speakers and LPA officers. This is the reality.

When considering the effectiveness of LPAs, I think it important to distinguish between officers and councillors. There is often a tendency for the former to seek primacy as the 'professionals' of the organisation and to expect elected members to do their bidding. As we all know, many councillors stand up to be counted but, unfortunately, far too many follow the advice and recommendations of their officers without question. Be that as it may, planning officers and their legal staffs do not generally take kindly to lay members of the public proffering advice and 'telling them what to do' - particularly campaign groups - so more is sometimes to be achieved by targetting the elected members, particularly those sitting on development committees. It is the attention of these people that should be drawn to what PPG8 says on pre and post-application consultation, the statutory requirements regarding the study of alternative sites, the scope of loss of amenity via mast development, and other such material planning considerations - and very importantly, the provisions of the GPDO which are so frequently misinterpreted by the officers. This can generally only be done when the councillors are involved in, and focussed on, a local telecoms planning issue.

A word on health. Following 'Harrogate', it is rather pointless representing the health concerns of the public, perceived or otherwise, as a serious material planning consideration. I acknowledge that the three judges agreed that health concerns might be taken into account in 'exceptional circumstances'; at the same time, however, they did not accept that a Beam of Greatest Intensity falling on two primary schools came into this category. It is therefore very difficult to envisage what they might have meant by the word 'exceptional'. Rather, health concerns must be tied in with loss of amenity. In other words, the result of telecoms development on the proposed site is likely to create such anxiety and worry to the public that the associated loss of amenity of the area and well being of its residents would be unacceptable.

Chris Maile has been drawn in to spending much time and effort on such projects as briefing packs in the past with promises of assistance in collating documentation and marketing the package - only to find that initial enthusiasm dissipates as the enormity of the task dawns. If it is intended to proceed along the lines suggested, then you may wish to bear these comments in mind.

All best wishes.

David

--------

Hi David

Many thanks for all the effort you've put into this.

However, "complexity" is relative to the brain's abilities. In my experience of Councillors (and most people including myself), they don't like having to think about or analyse things. I'm sure there are many reasons; that most peoples analytical faculties are crippled by the effects of childhood trauma, poor diet and microwaves, that thinking independently might expose one to unpalatable truths and alienation from work colleagues (possibly making ones job difficult or untenable), etc.

Most Councillors and planners IMO are therefore afraid to really look at these issues, they would rather let sleeping dogs lie. Many I imagine will have looked at the law at some stage, made up their minds and operate on that (limited and mistaken?) basis throughout their period of employment for an easy life. So corruption is not necessarily why they act as they do, just incompetence.

One local Green Councillor who is concerned about masts has told me the Planners normally wave masts through because otherwise they get stung with £17000 for every mast that eventually is given the green light by a Gov't inspector. Personally I think this is only ONE reason. In general they just don't want all the hassle and extra work involved in turning masts down. They are also, ironically, afraid of not doing their jobs right and so go along with Gov't guidelines and their colleagues.

David, I wonder if you could give us, from your experience, a shortlist of suggestions for getting masts refused? I think your point about Planners and Councillors not liking being told what to do by campaigners is an important one. Both ego and fear of being pushed into potentially incorrect decisions out ot ones comfort xone of the rules one goes by by the strenous exertions of campaigners will probably, tragically, IMO cause these snails to withdraw back into their shells.

So though it may seem quite daunting, perhaps a "softly, softly" approach which is repeated time after time after time might be the answer? This of course would take a lot of time and resources from local campaigners.

What do you think?

Gary

--------

I couldn't agree more with Gary's conclusion. We used Chris Maile's materials for the scrutiny review in Haringey and, sadly, it was clearly beyond what our planners could take in. At the end of the review, we still had a very narrow interpretaiton of the planning regs, e.g. our head of planning still believes he can't refuse a prior application notification on amenity grounds (he frimly blieves only visual gorunds are valid, amenity gorunds only for proper planning applications!). However: Since we are banging on about things, quoting the law and relevant precedent cases time after time again, he has now started to use some of our info as "additional information". The last prior notification application he refused was still on visual grounds, yet he added under a heading "Additional Information" that the application was flawed (pretending to be 2G for 3G equipment) and that it had not consulted with the local primary school 200m away. That's a small step in the right direction, but it would not have happened, if we did not repeat it time after time until it slowly reaches their brains. "Steady drop hollows the stone" ... as we say in Germany.

Andrea

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First up, thank you David for your insightful comments and injection of realism, and of course for the thousands of hours you have selflessly put into fighting masts all over the country.

I wonder if during this thread, we've fallen into a pattern of thinking – that the only way to fight masts is to get them refused by the LPA when the application is made.

Forgive me if I've misunderstood, but this seems to be an underlying assumption in the comments on the thread.

Of course this is where most of us started off – being backed into a corner by a powerful phone operator wanting a mast at the end of our garden... How do I get it refused?

But on seeing wave after wave of mast proposals in our area, I’m becoming more of the opinion that this situation is partly the local planning authority's making.

PPG8 puts an enormous number of responsibilities in the LPA's hands:

"8. Government strongly encourages telecommunications operators and local planning authorities to carry out annual discussions about rollout plans for each authority's area."

- Our LPA did nothing with the annual rollout documents which the Operators provided (ok, they were pretty hard to read, but they didn't even try)

"9. Pre-application discussions should be carried out between operators and local planning authorities on a specific development proposal..."

- Our LPA systematically ignores pre-application notices, claiming it doesn't have the resources to deal with them until a formal application is made

"15. Local planning authorities and operators should work together to find the optimum environmental and network solution on a case-by-case basis.

27. Local planning authorities and operators are encouraged to explore possible alternative approaches, particularly the opportunities for mast and site sharing and also in terms of the location and alternative design of the apparatus."

- For prior approval masts under 15m, our LPA rarely has any input into the design or siting of the proposal. It's patchy and sporadic, depending on the particular officer involved, and there is no policy.

More often than not our LPA rejects a mast application. But then it is allowed on appeal.

So the LPA are being systematically useless, but don't shoulder any of the blame because it's all the planning inspectorate's fault.

David, do you think there's anything that can be done to encourage LPAs to hold effective annual rollout discussions, or become involved at the pre-application stage, to find "least worst" sites before an application is made.

Nobody has held up a shining example of an LPA which does any of this, so I presume there aren't any, or (being naively optimistic) maybe residents in those boroughs didn't need to join this mailing list ;-)

Can we hold our LPA accountable to their responsibilities in PPG8?

Or should we just continue fighting our corner when the applications come in?

Ben

--------

One of the positive outcomes of our Council's scrutiny review on telecoms installations was the commitment to hold annual roll-out discussion and consult at that stage with local interest groups. We will see when it comes to (in autumn) whether they keep to it or not. My worry is however, that the operators will have a much stronger voice in these discussions than we, and that' why I don't expect much out of them. We learned this during our scrutiny review: Planners seem to be more likely to believe every word the operators say even if we are better more knowledgeable and give the more neutral information. I have a few local concillors who always consult me first, yet the planners are much more likely to be influenced by the operators and their henschmen, i.e. all these "independent " companies offering planning seminars in telecoms matters, none of which is independet as far as I can see it. That's why I feel a briefing paper would be good, especially if it is not just done by one person (I have done that for our council, but I simply don't carry enough weight!), but rather an organisation such as mastsanity. The briefing paper should also be approved by a solicitor.

Andrea

--------

Thanks Andrea,

Is there any document you could send which records your Council’s commitment to hold annual discussions and consult with interest groups? I’d love to have something to show my Councillors, as evidence of what more they could be doing. Of course we’ll see what happens in the autumn...

Ben

--------

Ben,

I wasn't looking for plaudits but thank you for the kind words.

My contribution was very broadbrush by necessity and I quite agree with you that LPA's do not act as they should - indeed, abrogation of responsibility is a phrase that frequently comes to mind. I would certainly like to see planning officers better educated in telecoms planning and most certainly in relation to PPG8, which has always given scope for considerable activity and action pre-application.

The unfortunate 'Harrogate' judgement provides the catalyst. You may recall that the Appeal Court judges found that the wording of para 98 (30) has primacy over that at 97(29) - "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". The judges went further and pronounced this a clear statement of Government policy which, in the absence of non-defined 'exceptional circumstances', must be given associated measure in the decision making process. Not to put too fine a point on it, these three judges turned guidance into legislation.

But one cannot 'cherry-pick' the provisions of PPG8; what is sauce for the goose is sauce for the gander. (Sorry about the mixed metaphores!) If "In the Government's view" amounts to a statement of Government policy, so do those you mention:

"LPAs should take account of the protection of urban and rural areas in other PPG notes" (para 7)

"The aim should be for LPAs and operators to work together to find optimum solutions to development requirements. The Government strongly encourages pre-development and pre-application discussions between operators, and between operators and authorities, local people and other interested bodies. (para 8)

"Government strongly encourages operators and LPAs to carry out annual discussions...." (para 57)

"Pre-application discussions should also be carried out by the operators with other organisations with an interest in the propsed development, such as residential groups, parish councils or amenity bodies." (para 59) And note that a mere letter of intent is not sufficient.

"Authorities are strongly encouraged to undertake any additional publicity that they consider necessary to give people likely to be affected by the proposed development an opportunity to make their views known to the authority." (para 61)

And so it goes on. Following 'Harrogate', these statements with others must also be considered to reflect Government policy - ergo any failure to take them on board constitutes not only maladministration but unlawful process. We should all be stressing this to LPA officers, although since I suspect most will ignore the principle, a good example will probably need to be tested in the High Court.

David

--------

I have read one or two emails on this but because of exams not many - but have issue with some of what has been said.

I think you are missing the point on several issues.

On upgrade issue the starting point is the original planning application for a 2g mast. When that original application was placed for a 2g mast there was a debate around need, coverage maps and all other planning issues and the applicant had to prove and justify a need. When they want to upgrade to 3g there is a whole new debate on need, existing coverage etc and so a new debate on the planning issues starts so on that basis yes they need planning permission and if those arguments are submitted I don't see how a planning officer can justify saying they don't need permission. But as we don't know how many replacements or alteration there have been without the knowledge of the planners or residents the can of worms needs to be opered first and someone needs to put in the work to find out. Plus the chances are the original 2g application was incorrect in some way as I have never seen a phone mast application that has been correctly submitted. Invalidating the application for being incorrect is an easier option. There is also a difference between illegal and unlawful which is where the operators escape on the upgrade issue.

Yes I have heard that the odpm line is that planning permission is not generally required for alteration or replacement but as odpm (now someting else), DTI. and Ofcom can't even agree on basic fundamentals such as whether operators should be paying rent as well as business rates for masts on higways then they probably disagree on this too.

I don't think any two cases are the same so each case needs to be argued on its merits. The legislation is also complex and anyone fighting a mast needs to read a raft of documentation and have a team of people able to interpret the rights of the residents involved in the campaign.

The written submission system of appeal denies natural justice because the operator has a right to comment on any submissions made by third parties but the third parties (residents) are not given the opportunity to come back on the operators comments on their submissions. That doesn't provide natural justice to the objectors. In the minds of many this renders it unlawful.

The planning inspector is acting in a quasi-judicial role so any procedural or failures in process render them open to acting unlawfully and the procedure has to be halted. An appeal can't proceed if there have been procedural or other failures right from the very start of when the application was first submitted to the local authority as the whole process is one integrated whole.

Planning Inspectorat documentation is litered with phrases such as the procedure and process has to be open, transparent, fair, consistent and provide natural justice. Prove it dosen't and the appeal collapses.

Most appeals by operators are submited on the last day of the six month period the operator is allowed to appeal and done by email, When an appeal is submitted full grounds for the appeal have to be submitted within the six month period or its not a valid appeal - I fail to see how an email from an operator's agent to the planning inspectorate on the very last day can fulfil those criteria. So how ever many have been done like this could be rendered invalid if someone were to put in the work to find out.

When you start getting into matters of procedural failures the system quickly collapses and its by using that tools we can win. We have just forced hutchison to withdraw from an appeal in Bath - we forced it into public enquiry. got rule 6 status so we got access to all their submissions and then started pulling them and the planning inspectorate to pieces on procedure and process used functional safety issues and disability rights legislation.etc amongst others which they seem to want to keep well clear of so they pulled out.

On ICNIRP certification issue I personally think this is best left as they will always comply - whether self-certification is EU compliant and human rights compliant and whether its a planning issue is another debate.

I think its a health and safety issue and fighting on grounds of functional safety and particularly interference with medical equipment where emissions exceed 10 volts a meter (the critical level) is an easier option. If a market stall holder wants to get a licence from the council for a fete in or near a football stadium where there are enough masts so emissions could exceed this 10 v/m - should the council put up a notice saying this area is a health and safety hazard - don't come if you have a medical device on your body?

We are lobbying our bath mp to bath at present to get amendments to the Wireless Telegraphy Bill 2006 to force ofcom to deal with functional safety issues.

On Harrogate I think its misinterpreted. The local authority as I understood it originally refused the masts on visual and other grounds. The planning inspector dismissed the operators appeal but used only health grounds for refusal and didn't use the visual and other grounds he could have also used which the planning officers had used and didn't give clear and full reasons for refusing on health grounds - a wishy washy decision so of course the operators successfully challenged him in court. If he had used all the material and relevent planning isues he could have and so refused on many grounds the operators wouldn't have challenged him successfully.

I still think using health isn't a good idea because there are so many other ways of getting masts refused which I wouldn't put on this network because of who may read them. I think it will be years before we can use it effectively.

One simple example being amenity - there are three or more categories of amenity

impact on general amenity
impact on housing amenity
impact on residential amenity
impact on visual amenity

all with enorme muscle when you bring issues in such as landlord and tenant agreements and leaseholder agreements when you force landlords and councils into a situation where they breach contracts or fail to act in the interests of tenants by allowing masts on buildings - even the tenants right to 'quiet' can kill a mast application on the roof of a building.

I think keep well clear of health per se and its much easier to win.

My view is that in many cases campaigners aren't being given the right tools to win especially where campaigners have been told to fight on health issues and thats why the operators have been so successful in getting masts up because councillors need the right tools which well equipped campaigners must give them.

On the other topic of call-in one councillor in Bath has just called in an application for an extension on a cottage which a planning officer had refused using delegated powers. My understanding is that each council has its own policy on this and if the policy is that a councillor can call in an application or if there are 2 or more objections it must be heard by planning committee that is what must be done.

On the supplementary planning guidance issue the full council voted through a motion in bath some time ago to order planning officers to write this.

The odpm (what was) stopped them on the grounds it would be unenforcable. Its like trying to shut the stable door when horse has bolted. Its a long process as it has to be incorporated into the local plan etc and only really helps on appeals in green belts and conservation areas really where it helps the visual and amenity arguments. I think its a waste of space and time and is best left as there is a raft of other stuff far more powerful.

I will get off my soap box and go back to my revision books and won't comment further.

Sian

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