Town and country planning: telecommunications




Telecommunications mast - planning permission - refusal of permission to install and extend transmission equipment - application to quash planning inspector's decision - whether inspector misconstrued government policy document PPG 8 - whether inspector failed to give adequate reasons - application granted

T-Mobile (UK) Ltd and others v First Secretary of State and another: QBD (Administrative Court): Sir Richard Butler, sitting as a deputy judge of the division: 23 June 2004



The claimants were developers who wished to install and extend certain telecommunications transmission equipment at Harrogate.



Their application for planning permission was refused by the second defendant, as local planning authority, on the basis that the proposed mast and headframes, owing to their bulk and massing notwithstanding the existing installation, would unreasonably detract from the residential amenity of the nearby dwelling houses and the amenity of the local facilities such as to conflict with policies of the district local plan.


A planning inspector appointed by the first defendant did not uphold the original refusal on amenity grounds, since he considered that the adverse impact of the proposal would be slight and the probable amenity of mast-sharing would outweigh any harm that might be caused visually by the replacement mast.


However, the grounds relied on by the inspector for dismissing the appeal related to the perception of health risks. He concluded that the proposal provided insufficient reassurance that there could be no material harm to the living conditions (in terms of health concerns) of children at nearby schools.


The claimants applied under section 288 of the Town and Country Planning Act 1990, to quash that decision on the basis that, on a proper interpretation of government planning policy, PPG 8 (dealing with planning aspects of telecommunications), which the inspector purported to apply, sufficient reassurance was provided by confirmation that the guidelines set by the International Commission on Non-Ionising Radiation Protection (ICNIRP) had been complied with, and that the inspector did not give an adequate reason for his conclusion that insufficient reassurances had been provided in this case.


Christopher Katkowski QC and Galina Ward (instructed by Freshfields Bruckhaus Deringer, London) for the claimants; Philip Coppel (instructed by the Treasury Solicitor) for the first defendant. The second defendant did not appear and was not represented.


Held: application granted. The guidance contained in PPG 8 was perfectly clear and there was nothing open-ended about government policy in this respect. There was no doubt that the claimants' present proposals met the ICNIRP guidelines for public exposure, and that it was made clear to all concerned that there would be no material harm to the living conditions (in terms of health concerns) to young children. It was also clear that the claimants had given sufficient reassurances about those concerns.


Regrettably, the inspector appeared to have misunderstood government planning policy as set out in PPG 8 and had failed to give adequate reasons for his decision. Accordingly, the inspector's decision would be quashed and the appeal remitted for reconsideration by the first defendant.





Wildlife and countryside: right of way





Public rights of way - byway open to all traffic (BOAT) - inclusion of way on council's definitive map - extent of public right over way - whether inspector applied correct standard of proof for existence of BOAT - claim allowed

Todd and another v Secretary of State for Environment Food and Rural Affairs: QBD (Administrative Court): Mr Justice Evans-Lombe: 22 June 2004



The claimants applied to quash an order made by the local council and confirmed by the defendant's inspector, modifying the council's definitive map of public rights of way pursuant to section 53 of the Wildlife and Countryside Act 1981.


The modification was to include in the map as a byway open to all traffic (BOAT), a way over land which, in the past, had formed part of an estate.


The claimants had an interest in the extent of the rights over the way, and although the claimants did not object to the inclusion of the way on the definitive map as footpath or bridleway, they objected to its designation as a BOAT, which would subject the way to motorised vehicular traffic.


Section 53 of the 1981 Act placed a duty on the council, as surveying authority, to modify the definitive map by an order under subsection (2) in consequence of the occurrence of any of the events specified in subsection (3) of the Act.


The present case concerned an event specified in subsection (3)(c)(i) of the Act, namely the discovery by the authority 'of evidence which (when considered with all other relevant evidence available to them) shows that a right of way which is not shown on the map and statement subsists or is reasonably alleged to subsist...'.


The claimants contended, among other things, that the inspector had applied too low a standard of proof for the existence of a BOAT, namely, that the council was able to establish facts from which the existence of such a way could 'reasonably be alleged to subsist', as opposed to the normal civil burden of proof that such a way subsisted on the balance of probabilities.


George Laurence QC and Ross Crail (instructed by William Sturges & Co, London) for the claimants; Timothy Morshead (instructed by the Treasury Solicitor) for the defendant.


Held: claim allowed. As there was no express statutory guidance as to the burden of proof applicable on confirmation of an order under section 53(3)(c)(i) of the Act, it was reasonable to assume that the legislature intended to subject the issue of proof of the existence and extent of public rights of way to the ordinary civil burden of proof - that is, that the case should be decided on the balance of probabilities.


It would be anomalous if a test of reasonable allegation were sufficient for the purposes of subsection (c)(i) of the Act, when the civil burden of proof was required to obtain an order varying the permitted user of a way under (c)(ii) and in removing a way under (c)(iii).



The court rejected the argument that a lesser test applied in section 53(3)(c)(i) as a recognition by Parliament that, if it was reasonably alleged that a right of way subsisted, it ought to be put down in the public interest on the map, leaving an interested party to show that that was wrong, applying the burden of proof set out in section 53(3)(c)(iii): R (on the application of Leicestershire County Council) v Secretary of State for Environment Food and Rural Affairs [2003] EWHC 171 not followed.



An applicant under section 53(3)(c)(iii) had to produce 'cogent' evidence to justify an order. If all that a proponent had to do to obtain confirmation of an order modifying the map, so as to include a new right of way, was to satisfy a test of reasonable allegation, that placed on his opponent the unjust burden of proof of establishing that no right of way existed to at least the standard of the balance of probabilities.