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Planning And
Telecommunications
26 February 2003 John
S Turner MRICS
1. Introduction
1.1 Telecommunications have over the years become a controversial issue. There
are two main aspects to the controversy - health and visual. Regulation stems
from a number of legislative sources.
1.2 Overriding is the requirement for an Operator to obtain a Licence issued by
the Secretary of State of Trade and Industry under the Telecommunications Act
1984. This Act includes, at Schedule 2, ‘the telecommunications code’. Such
Operators are known as ‘Code System Operators’. There may be a requirement for a
licence under the Wireless Telegraphy Acts 1949 and 1968. Regulation is provided
by a non-ministerial Government Department - the Office of Telecommunications (OFTEL).
In Northern Ireland there is an Advisory Committee on Telecommunications (NIACT)
to ensure that OFTEL and the companies that supply telephone networks,
communications services and equipment take into account the needs of consumers
in Northern Ireland.
1.3 Whereas free-standing telecommunications masts, cabling and equipment are
not subject to building control regulations, if the masts or equipment are
attached to, or placed on, a building such approval may be required. The Health
and Safety Executive and the National Radiological Protection Board have
interests in telecommunication provision which is considered under health
issues.
1.4 It is a feature of planning control not to replicate controls over
development which exist under other control regimes. There are features of the
regulatory code which refer to amenity issues and acts in parallel with planning
control. The two systems are linked in that permitted development rights do not
apply to masts erected in contravention of the Operator’s Licence.
1.5 The main purpose of this article is to examine the current planning issues.
The growth in the use of mobile telephones and the requirements generated by
technology in the industry have given rise to increasing numbers of masts and
ancillary equipment over the country.
2.0 Background Information
2.1 There are a number of different licensed operators in the United Kingdom
(UK). They provide a competitive service and are constantly showing innovations
in the services provided. The UK Government has acknowledged that good
telecommunications are important to the economic vitality of the country and
consequently further development is encouraged. The use of information
technology is seen by the Government as particularly helping development in
rural and peripheral areas. This is acknowledged as being an important feature
for the economic future of Northern Ireland.
2.2 It is considered there are a number of social and educational benefits to
the increased use of telecommunications. They can help to promote social
inclusion by providing opportunities to participate in work, learning and social
interaction. Mobile phones appear to be increasing social contact more than the
fixed line telephone. Also, the growth in the use of the internet for education,
entertainment and shopping are recent phenomena.
3.0 Health Aspects
3.1 Many objectors in making representations to the Planning Service and the
Planning Appeals Commission about proposed masts and equipment provision raise
the issue of the perceived adverse impact on health. The health issues are the
proper provenance of the Health and Safety Executive and National Radiological
Protection Board (NRPB). In 1999, the Government asked the NRPB to set up an
Independent Expert Group on Mobile Phones (IEGMP). This Group considered
concerns about the health effects from the use of mobile phones, base stations,
and transmitters. A Report, ‘Mobile Phones and Health’, the ‘Stewart Report’,
was published on the 11 May 2000.
3.2 In summary, the report found no conclusive evidence to support an adverse
health impact in general terms. However, it recommended a precautionary approach
and a number of specific measures. Making sure that these measures are complied
with is the responsibility of the Government, the telecommunications regulating
authorities and the telecommunications industry. They are not matters for action
by the planning system and should not be taken into account in planning
decisions relating to the development aspects which are the concern of planning
legislation. All new mobile phone base stations in the UK are expected to meet
the guidelines of the International Commission on Non-Ionising Radiation
Protection for public exposure to electromagnetic fields, as accepted by the
World Health Organisation. Accordingly, where concerns are expressed on the
health effects it is the view of the Department of Health, Social Services, and
Public Safety that if the proposal meets the guidelines in all respects it
should not be necessary for this to be considered by the Department further.
3.3 The mobile telecoms industry has responded to all the controversy under the
leadership of the Mobile Telecoms Advisory Group (MTAG) of the Federation of
Electronics Industry. It has argued against increase planning controls but has
produced its own ‘Ten Commitments'. These were implemented by the industry on 1
September 2001. They cover consultation with stakeholders and the implementation
of standards by the industry. Since they have been enshrined in a ‘Code of Best
Practice’. A revised ‘Code of Practice’, replacing the 1996 version, was issued
at the end of 2002 jointly by the government, local authorities and the mobile
phone industry.
3.4 Some private persons and communities are challenging whether the guidelines
are adequate or allow too great an amount of electromagnetic field to radiate
from a mast. Nevertheless, at the present time, it is sufficient for each
planning application to be accompanied by a declaration that the apparatus, when
operational, will meet the guidelines, and, secondly, a statement for each site
and proposal indicating its location, the height of the antenna, the frequency
and modulation characteristics and the power output.
3.5 Health considerations and public concern can be material considerations in
determining planning applications for development proposals, but in the light of
the above, such matters are not considered relevant at the present time. Whether
such matters become a material consideration is ultimately a matter for the
courts. If the courts ruled that they could be material considerations it would
be for the Planning Service or Planning Appeals Commission to decide what weight
to attach to such considerations in any particular case.
4.0 Planning Policy
4.1 The Regional Development Strategy for Northern Ireland 2025 (RDS) has been
the highest level of Planning Policy for Northern Ireland since its publication
in September 2001. Policy SPG-ECON 5.1 states “Develop a long-term investment
strategy supportive of the regional economy, involving both public and private
sectors to: ........ promote the development of an up-to-date, highly
competitive telecommunications infrastructure - in terms of capacity,
technology, access and costs;” (Page 143).
4.2 The RDS also encourages the use of information technology,
telecommunications and tele-working in rural areas to help facilitate the
development of rural industries, businesses and enterprises - see Policy SPG-RNI
1.2 (Page 96).
4.3 More detailed planning policies are found in “Planning Policy Statement 10 -
Telecommunications” (PPS 10), published in April 2002.
4.4 The Policy Objectives are:
1. facilitate the continuing development of telecommunications infrastructure in
an efficient and effective manner;
2. ensure that where appropriate new telecommunications development is
accommodated by mast and site sharing;
3. ensure that the visual and environmental impact of telecommunications
development is kept to a minimum;
4. minimise, as far as practicable, undue interference that may be caused to
terrestrial television broadcasting services by new development;
5. encourage appropriate provision for telecommunications systems in the design
of other forms of development.
4.5 It may be necessary for the Department (Planning Service) to allocate
particular sites in the development plan for major telecommunication
developments. This will only arise if the Operators make representations to the
Department. Such developments may be the provision of tall shared masts.
4.6 PPS 10 proposes two specific planning policies TEL 1 and TEL 2.
‘Policy TEL 1 - Control of Telecommunications Development
The Department will permit proposals for telecommunications development where
such proposals, together with any enabling works, will not result in
unacceptable damage to visual amenity or harm to environmentally sensitive
features or locations.
Developers will therefore be required to demonstrate that proposals for
telecommunications development, having regard to technical and operational
constraints have been sited and designed to minimise visual and environmental
impact.
Proposals for the development of a new telecommunications mast will only be
considered acceptable by the Department where the above requirements are met and
it is reasonably demonstrated that:
(a) the sharing of an existing mast or other structure has been investigated and
is not feasibility; or
(b) a new mast represents a better environmental solution than other options.
Applications for telecommunications development by Code System Operators or
broadcasters will need to include:
(1) information about the purpose and need for the particular development
including a description of how it fits in to the operator’s or broadcaster’s
wider network;
(2) details of the consideration given to measure to mitigate the visual and
environmental impact of the proposal; and
(3) where proposals relate to the development of a mobile telecommunications
base station, a statement:
Indicating its location, the height of the
antenna, the frequency and modulation characteristics, details of power output;
and
Declaring that the base station when
operational will meet the ICNIRP guidelines for public exposure to
electromagnetic fields.
Where information on the above matters is not
made available or is considered inadequate the Department will refuse planning
permission.’
4.7 The Department justifies and amplifies on this policy in the text of the PPS
(pages 19 to 27). The gist of this text is to reduce the visual and environment
impact to the minimum whilst acknowledging the technical and operational
constraints which may be present. A check list of factors to be taken into
account is:
Installing smaller antennas;
Disguising antennas and equipment, for example
as part of a building or street furniture;
Designing antennas and equipment so that they
appear to be an integral part of a building, structure, or landscape;
Sharing existing sites, masts and other
infrastructure;
Installing antennas on a building or structure
not already used; and
Developing a new mast only when
other options are not possible or it represents a better environmental solution
than other options.
4.8 Operators should always use the smallest equipment practicable. In some
cases it may not come within the definition of development and therefore not
require planning permission. This is expanded upon in the section on
legislation. This applies to small television aerials.
4.9 In large installations attention will be paid to the antenna, mast,
equipment housing, cable runs, fencing, planting, landscaping, access, power
supply and land lines. In some environmentally sensitive areas and landscapes, a
landscape or visual impact assessment may be needed. Reference is made to
camouflage techniques which may be acceptable. Skylines are important and the
effect on them must be minimised. It may be alternative sites may be needed.
Cumulative impacts are matters of concern.
4.10 Areas of particular concern where such development may not be acceptable
would include: archaeological remains, listed buildings and conservation areas,
areas of outstanding natural beauty, sites of nature conservation importance,
sites where there are protected species, local landscape policy areas and other
environmental designations.
4.11 The Department will expect mast sharing to take place wherever practicable.
Environmental and operational aspects will be taken into account in weighing the
mutual benefits of sharing v new masts.
4.12 Applications with 3 kilometres of the perimeter of an aerodrome, will be
required to include evidence that the Civil Aviation Authority, the Ministry of
Defence or the aerodrome operator, has been notified of the proposal. The
Department will take into account any relevant views expressed. Similarly, where
there may be interference with other electrical equipment then views of the
relevant bodies will be considered.
4.13 There are a number of particular matters which may require planning
permission depending on the size of the installations, such as satellite
television antenna; amateur radio, taxi firms and other private users. The legal
aspects are described below.
‘Policy TEL 2 - Development and Interference with Television Broadcasting
Services
The Department may refuse planning permission for development proposals which
would result in undue interference with terrestrial television broadcasting
services.’
4.14 The Department seeks to be satisfied that the potential for interference by
antenna and buildings to broadcasting signals has been fully taken into account
in all telecommunication proposals. Useful information is available in ‘The
Impact of Large Buildings and Structures (including Wind Farms) on Terrestrial
Television Reception produced by the BBC the Independent Television Commission
and the Radiocommunications Agency. Advice will be taken by the Department on
this issue.
5.0 Legislation
5.1 The erection of masts and buildings is development. Part 17 of Schedule 1 of
the Planning (General Development Order) NI 1993 (as amended) sets out the
freedoms and limitations on development by Telecommunications Code Systems
Operators. These are the operators licensed under the Telecommunications Act
1984.
5.2 On the 21 June 2002 new provisions came into force in Northern Ireland (SR
of NI 2002 No 195) and since that date planning permission has been required for
most ‘development’ by the Operators. Some very minor operations may not
constitute development on the de minimis principle (see para. 6.6 of PPS 10).
Permitted development rights were reduced in 2002 to the following:
‘Class A’
Permitted Development A 'Development by or on behalf of a telecommunications
code system operator for the purposes of the operator's telecommunications
system in, on, over or under land controlled by that operator or in accordance
with his licence, consisting of the use of land in an emergency for a period not
exceeding 6 months to station and operate moveable telecommunications apparatus
required for the replacement of unserviceable telecommunications apparatus,
including the provision of moveable structure on land for the purpose of that
use’.
5.3 This permitted development is subject to conditions (A1), that:
(1) ‘........ the operator gives written notice of the development to the
Department as soon as possible after the emergency begins, and in any case not
later than three days thereafter;’ and
(2) ‘....... that any apparatus or structure provided in accordance with that
permission, shall -
(i) be located as close as operationally practicable to the existing
unserviceable telecommunications apparatus,;
(ii) ...... not exceed the height of the existing telecommunications apparatus;
and
(iii) at the expiry of the relevant period be removed from the land and the land
restored to its condition before the development took place.’
5.4 The section 'Interpretation of Class A’ defines the words or phrases used.
For example: the relevant period is defined as 6 months from the commencement of
the use permitted or when the need ceases which ever comes first.
6.0 Cases
6.1 There are many legal cases in England and Wales relating to aspects of
telecommunications. Some are listed:
On health issues:
R v Tandridge DC & another ex parte Al Fayad 2001: PLR 858, and JPL (1999) 825
R v SSER and Restormel BC ex parte Lindsay and Matthews 2000
Anscombe v SSETR 2002
On perception:
Newport BC v SoS Wales 1997 (re chemical waste) JPL (1998) 377
Prior Approval Procedure:
Tandridge DC v Telecom Securicor Cellular Radio Ltd 1995 EGCS 121 JPL (1996)
B128
R v Staffordshire Moorlands DC ex parte Bartlam 1998 PLCR 385
Balancing by Inspector:
Telecom Securicor Cellular Radio Ltd v National Assembly of Wales 2000
6.2 Planning Appeals in Northern Ireland have examined a number of aspects since
2000. The three listed below have been decided since PPS 10 was issued.
(i) Hutchinson 3G UK, Lurgan 2002/A118
The appeal was allowed. PPS 10 was the policy basis. The parties did not query
that the mast was needed; mast and site sharing were not feasible; and other
sites in the area were not available. The appeal was decided on the
acceptability of the site rather than whether there were more suitable sites. In
balancing the competing policy objectives with PPS 1, the Commission was not
persuaded that the effect on the houses or gardens of nearby properties
justified rejection of the proposed mast. The proposal complied with ICNIRP
Guidelines and this issue did not justify rejection of the proposal.
(ii) Hutchinson 3G UK, Portadown 2002/A063
The appeal was allowed. PPS 10 was the policy basis. The Commission did not
consider that the proposed mast would be unduly detrimental to visual amenity.
Evidence that alternative suggested solution were not practical was not
rebutted. Concerns of residents about possible health effects were not of
determining weight as the proposal complies with the ICNIRP Guidelines.
(iii) Orange PCS Ltd, Templepatrick 2002/A064
The appeal was dismissed. The Commission considered that PPS 10 was the
appropriate policy context. The Commission accepted that additional
telecommunications coverage was required in the area. The new mast was not
unacceptable in itself, but it did not represent a better environmental solution
and the sharing of a nearby mast would be preferable. The Commission was not
persuaded that it had been reasonably demonstrated by the appellant that mast
sharing unfeasible because of technical unfeasibility or unavailable or due to
local opposition.
7.0 Conclusions
It is difficult for objections to proposals to be substantiated on health
grounds if the planning application is accompanied by the required two
statements. The visual impact and other environmental aspects, such as vehicle
access, are matters which properly lie within planning controls. However, the
overriding policies in the RDS and PPS 10 are in favour of such developments
unless there are overwhelming adverse environmental impacts.
8.0 Bibliography
‘Mobile Phones and Health’ Independent Expert Group on Mobile Phones, Chaired by
Sir William Stewart, 11 May 2000
Government’s Response to the above Report May 2000, available on
www.doh.gov.uk/mobile.htm
'Shaping Our Future, Regional Development Strategy for Northern Ireland 2025’
Department of Regional Development 20 September 2001.
‘Developing Mobile Networks: Ten Commitments to best siting practice’ and ‘Code
of Best Practice’ FEI, Russell Square House, 10-12 Russell Square, London WC1B
5EE November 2001
Planning Policy Statement 10 - Telecommunications DoE NI April 2002
The Planning (General Development) ( Amendment) Order (NI) 2002 SR of NI 2002 No
195
'Perceived risk as a material consideration: the case of telecoms developments’
Ray Kemp JPL Jan. 2003 page 13-22
‘Code of Practice’ 2002
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