Telecommunications masts - human rights
Telecommunications masts – human rights
Saturday, July 01, 2006
The Compatibility of Part 24 of the General Permitted Development Order with the Convention has recently been considered by the Court of Appeal in Nunn v Leeds City Council and T-Mobile  EWCA 101. This was a procedurally unusual case which started life as a prior notification under Part 24. T-Mobile served the requisite notice on Leeds, who publicised the application. Dr Nunn and others objected on grounds of appearance, damage to amenity and health risks/fears. Leeds duly informed T-Mobile that they wished to consider appearance and siting. Officers reported to the Planning Committee, recommending refusal on grounds of visual harm to AONB, Conservation Area and residential amenity. Members resolved not to approve on these grounds. Written notification to T-Mobile was not sent until the 57th day.
After considerable discussion between Leeds and T-Mobile, including consideration of alternative sites, T-Mobile commenced building the mast, claiming that they had planning permission by virtue of the “time-out” provisions. This caused consternation locally and Leeds served enforcement notices. These were appealed. At the Inquiry, Dr Nunn and her husband (also a doctor) gave evidence of their firm belief that the presence of the mast some 120m from their house would exacerbate her propensity to migraines and, by reason of these concerns, adversely affect their residential amenity. They called an expert witness, Dr Hyland who is a well-known proponent of theories attributing harmful effects to mobile phone masts. They and others also supported the Lpa’s case on visual harm.
T-Mobile had appealed on Ground (b) of s.174 TCPA, relying on their alleged pd rights. They had also included a Ground (a) appeal on the planning merits. The Inspector, after a 3 day inquiry, found that the Ground (b) appeal was well founded because the mast enjoyed planning permission by virtue of 56 days having elapsed without the Lpa notifying them to the contrary. Therefore, he held, there was no need for him to consider the Ground (a) appeal and the planning merits.
Dr Nunn, having no right of appeal as a third party to an enforcement notice appeal, launched proceedings for judicial review. She claimed that the failure of the inspector to consider the damage to her amenity/health concerns constituted a breach of her Article 6 right to a fair hearing in the determination of her civil rights. Sullivan J refused permission on paper. Collins J refused permission after an oral hearing. Undeterred, Dr Nunn sought permission from the Court of Appeal which Carnwath LJ granted. At his suggestion, the substantive hearing unusually took place before the Court of Appeal sitting as a court of first instance.
The argument, as it developed, focussed on “the process” of Part 24 and the inquiry overall. Leeds chose to take no part in the litigation. It was submitted that, by virtue of Dr Nunn’s representations made pursuant to the statutory consultation, determination of the prior notification and/or appeal constituted a determination of her civil rights for the purposes of Article 6. This contention raises interesting questions as to whether any of Dr Nunn’s “civil rights” were engaged and whether the Part 24 process constituted a “contestation” in relation to her, as well as T-Mobile. The Inspector, she said, should have construed the enforcement/appeal provisions of TCPA in such a way as to give effect to her Convention rights. Alternatively, if this was impossible, the Court should make a declaration of incompatibility and/or strike down elements of Part 24.
In the event, these questions were not authoritatively decided, although Waller LJ said that it seemed clear to him that Dr Nunn’s Article 6 rights had been infringed. He went on:
“Both T-Mobile and Dr Nunn had, under Article 6, the right to expect that those points would be determined by the LPA, by an effective decision which might be the subject of an appeal to an Inspector, controlled by the court by Judicial Review or even such as to be under the direct control by the court by Judicial Review.”
Laws and Wall LJJ agreed. The basis of these statements, however, was concessions made for the purposes of the hearing, because it became clear that the Court was most interested in deciding what “the consequence” of the situation should be. The Court accepted the submissions of the First Secretary of State and T-Mobile that, if there was a breach, neither of those parties had done anything wrong but that Dr Nunn had remedies against the Lpa under s.8 Human Rights Act 1998 (damages) and by way of complaint to the Ombudsman (potential compensation). On this basis, the claim was dismissed. Permission to petition the House of Lords on the basis that damages and/or the possibility of compensation would not secure Dr Nunn’s Convention rights was refused.
The Court of Appeal’s decision will doubtless be of some concern to Lpas as mistakes occur quite regularly in the implementation of Part 24. Ombudsman decisions have ended not to be very generous; it remains to be seen whether s.8 litigation will be more productive.
Whilst Nunn is a sensible, pragmatic decision, the judgments do not grapple with the “bigger” questions under the Convention. To what extent are views or freedom from worry “civil rights”? Is a process for regulating the grant of planning permission by development order a “contestation”? On “reading in”, however, Waller LJ said:
“The scheme and the legislation can be operated compatibly with the Convention. It is the LPA which has infringed Dr Nunn’s convention rights, but at the same time established the right of innocent third parties T-Mobile to commence the erection of a mast for which the GDPO grants planning permission. to contemplate writing in words which will have the effect of undoing the rights of a third party, and indeed forcing the third party to remove that which it has had a right to erect, simply because the statute has been operated by the LPA in a way that infringes a convention right seems to me to be going beyond what Section 3 had in contemplation.”