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TELECOM SECURICOR CELLULAR RADIO LIMITED v. NATIONAL ASSEMBLY FOR WALES v. BRECON BEACONS NATIONAL PARK AUTHORITY [2000] EWHC Admin 412 (2nd November, 2000)
CO/575/2000
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London
WC2A 2LL
Thursday, 2 November 2000
BEFORE:
THE HON MR JUSTICE RICHARDS
BETWEEN:
TELECOM SECURICOR
CELLULAR RADIO LIMITED
Claimant
- v -
THE NATIONAL ASSEMBLY FOR WALES
First Defendant
- and -
BRECON BEACONS NATIONAL PARK AUTHORITY
Second Defendant
- - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -
MR C BOYLE (instructed by Lawrence Graham Solicitors) appeared on behalf
of the Claimant
MR G WALTERS (instructed by The Treasury Solicitor, London WC1H)
appeared on behalf of the 1st Defendant
THE SECOND DEFENDANT WAS NOT PRESENT OR REPRESENTED
Judgment
(As Approved by the Court)
Crown Copyright
MR JUSTICE RICHARDS
1. I heard this case on 23 October 2000 at a sitting of the Administrative
Court in Wales, at Cardiff. Because no shorthand writer was present, I
announced my decision and dealt with consequential matters, but indicated that
the reasons for my decision would follow in writing. I now give those
reasons.
2. The case concerns a challenge under s.288 of the Town and Country Planning
Act 1990 to a decision dated 11 January 2000 of an inspector appointed by the
National Assembly for Wales. The decision was made under s.78 of the 1990 Act
against a refusal by the Brecon Beacons National Park Authority to grant
planning permission. The appellant - the claimant in this court - was Telecom
Securicor Cellular Radio Limited, also known aS BT Cellnet. It had sought
planning permission for the erection of a telecommunications mast and ancillary
development near the village of Bwlch, which is situated on the A40 (T) between
Brecon and Abergavenny. The facility was said to be needed in order to fill a
gap in BT Cellnet's mobile telephone network. The site of the proposed
development is situated in the Brecon Beacons National Park. It is close to an
existing telecommunications tower used by other operators.
Policy Framework
3. The development plan consists of the adopted Powys Structure Plan and the
adopted Brecon Beacons National Park Local Plan. The relevant policy in the
Structure Plan is CS9:
"Development proposals which would improve and/or provide new facilities or
infrastructure, enabling the expansion of telecommunications, telematics,
information technology and information services throughout Powys will be
permitted, providing they do not create unacceptable planning, access, service,
environment or amenity problems."
4. There are two relevant policies in the Local Plan. First, Policy G3 states,
so far as material:
"Development will only be approved when the following relevant criteria are
satisfied:
i) its use, scale, siting and appearance will be appropriate to its
surroundings and will respect the quality and character of the Park's landscape
and built environment; ...."
5. The Local Plan also contains a policy dealing specifically with
telecommunications masts. It is policy PU10, which reads:
"Telecommunication masts and installations required by statutory undertakers,
telecommunications providers and the emergency services will be permitted where
they conform to other policies in this Local Plan and where:
i) they are demonstrated to be essential for their operation;
ii) there is no satisfactory alternative means of providing for the facility
nor the opportunity for sharing an existing facility."
6. National policy concerning the control of development in national parks is
contained in Planning Guidance (Wales): Planning Policy, April 1999 Revision.
Paragraph 5.3.6 of that document states that the Government regards national
park designation as conferring the highest status of protection as far as
landscape and scenic beauty are concerned. The statutory purposes of national
parks are to conserve and enhance their natural beauty, wild life and cultural
heritage, and to promote opportunities for public understanding and enjoyment
of their special qualities. Where it appears that there is a conflict between
those purposes, greater weight shall be given to the first. Planning policies
and development control decisions in national parks should give great weight to
conserving and enhancing the natural beauty, wildlife and cultural heritage of
these important areas.
7. Section 8.8 of the same document contains provisions relating to
telecommunications. It states that the Government's telecommunications policy
seeks to ensure that people have a greater choice of provider and range of
telecommunications services. The policy aims to facilitate the growth of new
and existing telecommunications systems and the provision of sites for such
installations, whilst taking full account of the effect upon the environmental
amenity of neighbouring areas. Paragraph 8.8.2 states that authorities should
not question the need for the service which the proposd development is to
provide, nor seek to prevent competition between different operators.
8. That general guidance is supplemented by more specific advice in Technical
Advice Note (Wales) 19, dated August 1998. Paragraphs 19 and 20 of that
document point out that the nature of some telecommunications development may
in some cases bring it into apparent conflict with established local and
national planning policies designed to protect high quality landscapes, and
local planning authorities need to keep in mind the special needs and technical
problems of telecommunications development. The significance of the proposed
development as part of a national network is a material planning consideration.
In some cases existing development plan policies are framed in terms of
convention building and land use, and may not be adequate to deal with
telecommunications apparatus or other operational needs. Paragraphs 21 ff of
the Note provide detailed advice on mast and site sharing, siting and
design.
The Decision
9. The National Park Authority refused planning permission on the ground that
the proposal was considered to be contrary to Policy CS9 of the Structure Plan
and Policies G3 and PU10 of the Local Plan, in that if permitted it would
result in the erection of a second telecommunications mast adding to the
detrimental effect of existing equipment nearby. The erection of a second mast
would be visually detrimental and harmful to the character and appearance of
this part of the National Park both in terms of short and long range views of
the site.
10. On appeal before the inspector, the claimant contended that the proposal
complied with the relevant policies and with national planning guidance. The
contentions, in essence, were that there was a need for a facility in the area,
there was no alternative way of providing it, and the location and nature of
the proposed mast minimised its visual impact. The National Park Authority, on
the other hand, argued that the visual impact would be detrimental, that the
potential for mast or site sharing had not been fully explored, and that the
proliferation of such facilities eroded the character of the area still
further. The development plan policies and government advice made it clear
that such facilities should not be at the expense of causing demonstrable harm
to such important landscapes. It is, however, to be noted that the Authority
made clear that it was not seeking to question the need for the proposed
facility.
11. Against that background the inspector identified the main issue in the case
as being "the effect of the proposals on the character and appearance of this
part of the national park". The parties agree that that was indeed the main
issue.
12. Having referred to the development plan and other planning policy, the
inspector continued with the following section by way of "reasons and
conclusions":
"10. The proposed mast would be sited in an isolated and prominent location in
the local landscape, with little or no tree or other screening. Further,
whilst on its own the slim profile of the mast would be a mitigating feature,
nevertheless, since it would be close to the existing lattice tower, this
design would appear particularly incongruous in my view. Since the two
structures would each be on their own small site, and contrary to the
Appellants' contention, I do not consider that there would be any site sharing
as such. It is also a drawback of the proposals that they do not seem to
provide for any other operator to share the proposed mast.
11. I have considered that, for technical rather than ownership reasons, the
Appellants evidently cannot share the existing tower. I have also taken into
account that there is a gap in the Appellants' transmission and reception
coverage in the Bwlch locality, including along some 6 km of the A40.
Nevertheless, bearing in mind that they already provide service for 98% of the
population of the country - whatever that area might be - compared with their
licence requirement to provide service to 90% of the population, there would
appear to be no overriding need for the proposed mast.
12. I conclude, therefore, on the main issue in this case that the proposals
would have a seriously harmful effect on the character and appearance of this
part of the National Park, and that there is no overriding need for them in the
public interest. As such, it would not be in accordance with Policy CS9 of the
structure plan in that they would cause unacceptable planning, environmental
and amenity problems for the conservation of this specially designated
landscape. At the same time, they would not be in accordance with Policy PU10
of the local plan since they are not essential for the operation of the
relevant licensed service, even though no satisfactory alternative means of
providing for the facility has been suggested nor is there the opportunity for
sharing the existing lattice tower.
13. In addition, the proposals would be contrary to national guidance but where
there appears to be a conflict with other interests in the National Park,
greater weight should be given to the preservation and enhancement of the
natural beauty of the area than to those other interests."
13. The Inspector then referred to another appeal decision upon which reliance
had been placed by the claimant. In that case the appeal had been allowed
largely because, as the inspector observed, it had been concluded that the
minor visual impact of the development would be outweighed by the need to
provide service along some 7 km of the relevant trunk road. In the present
appeal the inspector concluded that, combined with that of the existing mast,
the visual impact of the proposed mast would be seriously harmful to the
national park and that the provision of a better service along some 6 km of the
A40 in the vicinity of Bwlch did not override that environmental amenity
objection. There was thus a material difference in circumstances between the
two appeals.
The Issues before this Court
14. The submission made by Mr Boyle on behalf of the claimant is that the
inspector erred in his approach towards Policy PU10. Having accepted that
there was a gap in the claimant's transmission and reception coverage in the
Bwlch locality, the inspector nonetheless went on to find that the proposed
development was not essential for the operation of the relevant licensed
service and would not therefore be in accordance with the policy. The only
reason for that finding must be what is contained in the latter part of
paragraph 11 of the decision letter, namely that the claimant already provided
service for 98% of the population of the country compared with a licence
requirement to provide service to 90% of the population, so that there appeared
to be no overriding need for the proposed mast. That, it is submitted, is an
erroneous approach towards the policy. The requirement that the development be
demonstrated "to be essential for their operation" in sub-paragraph i) of the
policy is a reference to need in the relevant locality, not to need for the
business as a whole. By relying erroneously on the fact that the claimant
would not be in breach of its licence obligation as to coverage if the proposed
development were not to proceed, the inspector came to the erroneous conclusion
that the development would not be in accordance with Policy PU10. Had he not
made that error, he might have concluded that the proposed development would be
in compliance with Policy PU10: he appeared to accept that sub-paragraph ii)
would be satisfied. In that event the policy would have operated in favour of
the development rather than against it. In the overall balancing exercise he
might have reached a different conclusion from that which he in fact
reached.
15. Mr Boyle submitted that the inspector erred in law in considering Policy
PU10, and in finding a conflict with that policy where he should have found the
policy to support the development he can be said either to have taken account
of an immaterial consideration (namely the level of service provided outside
the area in question, or the position under the licence rather than operational
requirements) or to have come to an irrational decision (in that, having regard
to his other findings, the only rational conclusion was that the development
satisfied Policy PU10).
16. Mr Walters, for the first defendant, submits that there was no error of
approach by the inspector and that even if there was, it was in relation to a
subsidiary issue and did not have an effect on the outcome of the decision, so
that the court should refrain from granting the relief sought (see Simplex
G.E.(Holdings) v Secretary of State for the Environment (1988) 57
P&CR 306).
17. As to the general approach of the decision letter, Mr Walters submits that
the inspector, having correctly identified the main issue, proceeded in
paragraphs 10-12 to address that issue. In paragraph 10 he examined the effect
of the proposed development on the character and appearance of the relevant
part of the national park, referring to its isolated and prominent location and
to the incongruous design. The point is picked up in paragraph 15, where he
refers to the visual impact of the proposed mast as being seriously harmful to
the national park, a point of distinction between the present case and the
other appeal to which his attention had been drawn. In paragraph 11 he went on
to consider operational requirements, taking into account the gap in coverage.
But he went on to explain, by reference to the licence obligation as to
coverage, why he did not consider there to be an overriding need for the
proposed mast. That, it is submitted, is not necessarily the same issue as
arises under Policy PU10. Whether there is an overriding need for the
development (Mr Walters could not identify a specific source of the terminology
of "overriding need") is a material consideration properly taken into account.
Reference to the licence obligations is both understandable and legitimate,
since the representations made by the claimant on the appeal before the
inspector relied heavily on the licence. The suggestion made in those
representations, though not properly particularised, was that infill of cell
coverage, such as would be achieved by the proposed development, was necessary
in order to comply with licence obligations.
18. This leads, says Mr Walters, to the primary conclusion at the beginning
of paragraph 12 that the proposals would have a seriously harmful effect on the
character and appearance of this part of the national park, without any
overriding need for them in the public interest. That moves on to the
conclusion that they would cause unacceptable problems in terms of policy CS9
of the Structure Plan. And then, as a subsidiary or ancillary point ("At the
same time..."), the conclusion is reached that the proposals would not be in
accordance with Policy PU10 since they are not essential for the operation of
the relevant licensed service. Even if that particular conclusion is vitiated
by legal error or absence of reasoning, it does not undermine the force of the
earlier part of the inspector's reasoning. It should not therefore lead to the
decision being quashed.
19. Mr Walters also submitted in his skeleton argument that, although no
specific reference is made to it in the decision letter, the inspector must
also have held the development to be contrary to policy G3. I think, however,
that one must be extremely wary about reading into a decision reasons, in
particular by reference to individual policies, that are not articulated in the
decision. I shall say no more about this in my conclusions, to which I now
turn.
Conclusions
20. The inspector plainly found that the proposed development would not be in
accordance with PU10 by reason of its failure to satisfy sub-paragraph i).
That is apparent from the language of paragraph 12 of the decision letter
("they would not be in accordance with Policy PU10 of the local plan
since they are not essential...", emphasis added). There is moreover
nothing to suggest that, in the view of the inspector, there was a failure to
satisfy sub-paragraph ii). He accepted that the claimant could not share the
existing tower and he gave no hint of the existence of any satisfactory
alternative means of providing for the facility.
21. On what basis did the inspector find that the proposed development was not
essential for the operation of the licence service? I cannot accept Mr
Walter's submission that the finding is unexplained. That would be very
surprising and in the context wholly inadequate, especially given that the
National Park Authority was not challenging the existence of an operational
need. On a fair reading of the decision letter, I think it plain that the
reason is to be found in paragraph 11, albeit that the inspector there used the
unexplained language of "overriding need" rather than the actual terminology of
Policy PU10.
22. The difficulty is that the reasoning in paragraph 11 runs counter to any
reasonable construction of the policy. When the policy talks of a development
being essential for operation, it must be referring to what is essential for
the operation of the service within the relevant locality, rather than to what
is essential for securing compliance by the operator with its licence
obligations or what is otherwise essential for the success of the business as a
whole. The logical consequence of the inspector's approach would be that no
mast could satisfy Policy PU10, since no individual mast is essential for
compliance with the licence or for the wider success of the business. Such an
approach would be absurd and cannot be what was intended by the policy. By
contrast the policy has a perfectly sensible purpose, against the general
policy background that I have described, if it seeks to ensure that
telecommunications masts are not constructed within an area of the national
park simply for reasons of convenience or marginal improvement, but only to the
extent that they are shown to be essential to the provision of coverage within
that area.
23. I therefore conclude that the inspector fell into legal error in his
approach to Policy PU10. It matters not whether the error is categorised as a
misdirection or expressed in terms of his taking into account an immaterial
consideration. The error has the consequence of vitiating the inspector's
finding that the development does not accord with the policy. But for that
error, it is difficult to see how, in the light of his finding that there was a
gap in coverage together with his findings on sub-paragraph ii), he could have
failed to be satisfied that the development accorded with the policy. It
suffices, however, to hold that he might have found the development to accord
with the policy. Had he found that, it would have had a significant effect on
the balancing exercise and could have effected the outcome of the decision.
Once the local plan tells in favour of the development, rather than against it,
it is an obviously important shift of emphasis.
24. Moreover it is not impossible that this might also have affected the
inspector's conclusion as to the unacceptability of the proposal in terms of
Policy CS9 of the Structure Plan, though again I need go no further. It
suffices that the error cannot be termed insignificant or insubstantial and I
cannot say that the decision would have been the same if the inspector had not
made the error.
25. Accordingly I see no option but to quash the decision. It is common ground
that the matter will then have to be considered afresh by a new inspector, who
will be able to carry out the relevant balancing exercise. Subject to the
avoidance of any legal error, the matter is classically one for the exercise of
planning judgment. I stress that nothing in what I have said is intended in
any way to determine the outcome of the new decision.
26. For the reasons given I will make a quashing order in respect of the
decision under challenge. Having heard argument on costs at the time of
announcing my decision, I ruled that the first defendant is to pay the
claimant's costs, summarily assessed in the sum of £10,000, within 28
days. In making that summary assessment, I reduced the claimant's costs by
over a third as compared with the amount claimed. It seemed to me that the
amount claimed was disproportionate both in terms of time spent and in terms of
use of a grade 1 London practitioner. Even the figure allowed may be unduly
high for a straightforward case of this kind. As an exercise of discretion, it
should certainly not be regarded as setting any precedent in the claimant's
favour.
27. An order will be drawn up accordingly, bearing the effective date of 23
October 2000.
© 2000 Crown Copyright
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