Trevett v. S/S Transport Local Government and the Regions and Others

Transcript date:

Monday, November 25, 2002

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Sullivan J

CO/3189/2002

Neutral Citation Number: [2002] EWHC 2696 Admin

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

Monday, 25 November 2002

B E F O R E:

MR JUSTICE SULLIVAN

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SUSAN TREVETT

(CLAIMANT)

-v-

(1) THE SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS

(2) MEDLOCK COMMUNICATINS LIMITED

(3)SPECTRASITE TRANSCO COMMUNICATIONS LIMITED

(4) BT AIRWAVE

(5) STROUD DISTRICT COUNCIL

(DEFENDANTS)

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Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

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DR D WOLFE (instructed by Richard Buxton, 40 Clarendon Street, Cambridge, CB1 1JX) appeared on behalf of the CLAIMANT

MR T MOULD (instructed by Treasury Solicitor) appeared on behalf of the FIRST DEFENDANT

MR C BOYLE (instructed by Laurence Graham, 190 Strand, London, WC2R 1JN) appeared on behalf of the FOURTH DEFENDANT

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J U D G M E N T

(As Approved by the Court)

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Crown copyright©

Monday, 25 November 2002

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 to quash an Inspector's decision, contained in a decision letter dated 31 May 2002, to allow three appeals made under section 78 of the Act and to grant conditional planning permission for the installation of telecommunications masts and associated equipment at three separate sites all within the area of Stroud District Council in Gloucestershire. The proposals are linked in the sense that all the masts are intended to form part of Gloucestershire Constabulary's emergency telecommunications network. The three sites are at Stroud Police Station, immediately to the east of Stroud town centre, (the Stroud site); at Selsey Common, a former quarry in an extensive area of open land to the south-west of the urban area of Stroud, nearly three kilometres from the Stroud site; and at West Ridge, in the countryside some distance to the north of the town of Wotton under Edge, nearly 15 kilometres from the Stroud site.

2. The three applications for planning permission were made by Medlock Communications limited, Spectrasite Transco Communications Limited and BT Airwave and were refused by Stroud District Council on 12 June, 8 August and 13 November 2001 respectively. For convenience, all three appeals were heard by the appointed Inspector at a single inquiry between 23 and 26 April 2002. The Inspector dealt with the merits of the three appeals in a single decision letter, but in paragraphs 38, 39 and 40 of that letter he set out his formal decisions to allow the three appeals and to grant three separate planning permissions.

3. An application under section 288 may be made by any person who is " aggrieved" by the Inspector's decisions to allow the appeals and grant the three planning permissions. The Act does not define "person aggrieved". In Turner v Secretary of State for the Environment [1973] 28 P&CR 123 Ackner J, as he then was, rejected the proposition that to be aggrieved a person had to have a legal grievance and held that a person who had made representations at an inquiry, at the Inspector's discretion, was a person aggrieved:

"I see no merit in the proposition that a person who has merely been given notice of the existence of the inquiry at the request of and not by the requirement of the Secretary of State and whose right to attend and make his representations has resulted from the exercise of the inspector's discretion should be obliged to sit by and accept the decision, which, ex hypothesi , is bad in law. I can see no compelling matter of policy which requires this form of silence to be imposed on a person who has, again ex hypothesi , a clear grievance in law. On the other hand I see good reason, so along as the grounds of appeal are so restricted, for ensuring that any person who, in the ordinary sense of the word, is aggrieved by the decision, and certainly any person who has attended and made representations at the inquiry, should have the right to establish in the courts that the decision is bad in law because it is ultra vires or for some other good reason."

(Pages 138 to 139). That approach was endorsed by the Court of Appeal in Times Investments Limited v Secretary of State for the Environment [1990] 61 P&CR 98.

4. The grounds in support of the claimant's application merely stated that:

"[She] lives near to one of the sites and was involved with the community prior to the inquiry concerning the Police Station site."

The defendants enquired of the claimant's solicitors as to the precise nature of her interest in the three appeals, and whether she claimed to be a person aggrieved in respect of all or any of them. The defendants ascertained that the claimant's home is some 200 metres from the Stroud site, but not in the line of sight of the proposed mast. By a letter dated 13 August, the claimant's solicitors confirmed that her challenge:

" ... is to the one site known as the "police station" site. You will see from the contents of the witness statement that she lives in close proximity to this site and has concerns about children attending the local school."

"However, we consider that the principle under challenge applies equally to all three sites. In these circumstances, there may be good reason to leave the challenge as it stands for the sake of legal certainty."

5. In a witness statement dated 2 September the claimant explains that she lives next door to the Stroud Valley Community Primary School. The school playground abuts her rear garden and parking facility. She is aware of the concerns of parents, teachers and governors about the health effects of the mast proposed at the Stroud site. She says that she first became concerned about the proposed development after attending two public meetings in April 2002. She did not attend the inquiry because she had already arranged a trip to America as a volunteer representative of an organisation at an international event. She says that she would have attended the inquiry had she not had to travel to America, and adds this in paragraphs 7 to 11 of her witness statement:

"7. However, I was sufficiently concerned about the development to raise the matter with Stroud's Mayor, Councillor Marjoram. I understood he intended to attend the inquiry as an objector. I specifically raised with him my fears that all the evidence demonstrated that this development could cause personal harm. We discussed the evidence raised by Lynne Edmunds [who had spoken at the first of the public meetings in April 2002]. I told him I was very concerned that the development was being rushed through when there was insufficient evidence to prove its safety. I remember expressing my disbelief that the development might be allowed when human health was at risk.

"8. I also raised my concerns with my neighbour, Philip Hodgson. He lives two doors away from me. I knew him to be very active in his opposition to the development and he told me that he would be attending the inquiry to object. I told him that I would be away during the inquiry and would not be able to attend. However, I was reassured that my objections would be taken care of both by the objections he intended to raise, those of Councillor Marjoram's and the objections of Lynne Edmunds.

"9. As soon as I returned home from America, I asked my neighbour about the inquiry. I hoped it was still going on and I might still be able to appear and make a submission. Later he told me that the Inspector had granted all three applications for planning permission relevant to the TETRA development. I felt outraged by the decision.

"10. ... I am very worried about the potential health effects on the development upon the children attending the local Stroud Community Primary school. Although I do not have children who currently attend the school I do have concerns as a resident of the local community over how this development could affect the young people of my community.

"11. I am also concerned about the development as a mother of two children, 12 and 13 years old respectively. Although my children currently live with their father in America they visit me every year for a period of between six to eight weeks. From what I have learned about the potential health effects of the TETRA system on children I am very anxious that they could be harmed by the development during their stay with me. I certainly cannot rule out that they might be harmed or affected by the development."

6. It will be immediately apparent that, whatever her interest in the Inspector's decision to grant planning permission at the Stroud site, there is no conceivable basis upon which the claimant could claim to be a person aggrieved in respect of the decisions relating to the Selsey Common and West Ridge sites, and Dr Wolfe conceded as much on her behalf in his submissions. However, he submitted that, since the claimant was a person aggrieved for the purposes of the Stroud site, and since the same error of law underlay all three of the decisions, it would be nonsensical if the court, having quashed one of the Inspector's decisions, took no further action in respect of the remaining two. In this context, he referred to certain dicta of Sedley J, as he then was, in R v Somerset County Council and ARC Southern Ltd, ex parte Dixon [1997] Env LR 111. That was an application for judicial review. Sedley J reviewed the relevant authorities on standing and said this, at page 121:

"I have taken some time on this issue because I am concerned to see that even the clear decision in the World Development Movement case, affirming as it does a strong line of modern authority and restoring, as it turns out, a powerful line of older authority, does not appear to have stopped attempts, some of them successful to elevate the question of standing at the leave stage above the elementary level of excluding busybodies and troublemakers and to demand something akin to a special private interest in the subject matter. Such an argument may -- depending on the issue -- be insufficient even at the substantive hearing to exclude an applicant. At the leave stage it is, in my respectful view, entirely misconceived.

"Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs -- that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to such an apparent misuse of public power. If an arguable case of such misuse can be made out on an application for leave, the court's only concern is to ensure that it is not being done for an ill motive."

In the present case it is said that, if the claimant had attended the inquiry and made representations in respect of all three appeals, then she would have been a person aggrieved in respect of all three of them, even though she does not live near two of the sites. It is submitted that it would be absurd to refuse her relief in respect of all three decisions, if she manages to establish that one of the decisions is flawed by an error of law, which is common to all three.

7. On behalf of the Secretary of State, Mr Mould accepted that the claimant was a person aggrieved for the purposes of section 288 in respect of the Stroud site. On the particular facts of the present case, the Secretary of State did not seek to distinguish between a person who attends and makes representations at an inquiry and the claimant who was unable to attend but raised her concerns with people who she knew were proposing to attend and make representations which would reflect her concerns. Although no formal proxy had been given by the claimant, the position was, in substance, no different from a case where a person who is prevented from attending an inquiry gives another person their proxy to enable them to attend and make representations on their behalf.

8. On behalf of the developers, Mr Boyle submitted that this concession was wrongly made by the Secretary of State: merely exchanging concerns with other opponents of the Stroud proposal did not give the claimant a sufficient interest in the outcome of that appeal to bring her within the description of a person aggrieved. Both Mr Mould and Mr Boyle submitted that, since the claimant did not on any basis fall within a person aggrieved for the purposes of the Selsey Common and West Ridge sites, the court had no jurisdiction to quash those decisions upon her application, even if the same legal error had pervaded all three decisions. The Dixon case could be distinguished in this respect since it was concerned with standing in judicial review proceedings; a more flexible concept than that of a person aggrieved in a statutory appeal under section 288.

9. I agree with this latter point. Once it is (rightly) accepted that the claimant is not a person aggrieved for the purposes of the Selsey Common and West Ridge decisions, the court simply has no power to quash those decisions at her behest, even if she manages to establish that they were founded upon some error of law. That remains the case whether or not the claimant is able to establish that the decision in respect of the Stroud site is legally defective. For convenience, the three appeals were heard at a single inquiry and dealt with in a single decision letter, but they are, as a matter of law, three separate decisions conferring three separate grants of planning permission.

10. Given my very firm conclusion that there is no force in the substantive argument raised on behalf of the claimant, I find it unnecessary to decide whether or not she is a person aggrieved for the purposes of the decision in respect of the Stroud site. I am prepared to proceed upon the assumption that she is, without endorsing or rejecting the position adopted on behalf of the Secretary of State. Given my views on the substantive issue raised on her behalf, any views expressed by me about her standing as a person aggrieved would have been obiter in any event.

11. Against this procedural background, I turn to the sole ground of challenge to the Inspector's decision. It is said that the Inspector failed to have regard to a material consideration: namely, the residents' fears about the health implications of the particular equipment involved in these three proposals (TETRA equipment) because he concluded that they were not objectively justified. In so doing, the Inspector failed to follow the approach laid down by the Court of Appeal in Newport County Borough Council v Secretary of State for Wales and Another [1998] JPL 377.

12. In that case the Local Planning Authority had refused planning permission for a chemical waste treatment plant in an urban area. There was very substantial public opposition to the plant and the Local Planning Authority had refused planning permission on the ground, inter alia, that:

"The proposed development is perceived by the local community to be contrary to the public interest generally and to their interests in particular."

But the Inspector granted planning permission and awarded costs against the council. It was common ground between the parties to the appeal that a perceived concern about safety was a material planning consideration which had to be taken into account by the Inspector. At page 283 Hutchison LJ said:

"That the Inspector accepted that genuine public perception of danger, even if not objectively well-founded was a valid planning consideration, is apparent from what he said in paragraph 9.33 of his substantive report where, it will be remembered, having stated his conclusion that the evidence had not established that there would be any demonstrable harm to the environment or to public health, he continued: 'The public's perception of the hazards and risks remains. In my judgment this is a factor which counts against the development.'

"He went on to conclude that it was insufficient to override the other considerations."

Hutchison LJ continued:

"However, as I suggest the passages I have cited show, in his costs report he adopted a different approach. As I read the material passages in which he gives his reasons for his award of costs, he was ... directing himself that:

"' ... perception of public concern without substantial supporting evidence does not amount to demonstrable harm nor is it, on its own, a sound and clear-cut reason sufficient to warrant the refusal of planning permission.'

"[Counsel for the Secretary of State's] argument is that this and the passages I have cited from paragraph 5.06 and 5.07 can be understood as accepting that perception of fear which is not objectively based can but on the particular facts of this case did not constitute a valid reason for refusing permission, must in my view be rejected since it is simply incompatible with the language he uses.

" ... I have concluded that if the passage is read as a whole the proper construction is that the Inspector was indeed ... stating a general proposition, a proposition contrary to what he had said in his earlier report dealing with the substantive application."

"The Secretary of State who adopted his reasoning, was approaching the question whether the council had behaved unreasonably on the basis that the genuine fears on the part of the public, unless objectively justified, could never amount to a valid ground of refusal."

Aldous LJ gave a judgment to the same effect.

13. Dr Wolfe submits that the Inspector in the present case has fallen into the same error in believing that there must be reasonable grounds for a perception before it can amount to a ground for refusing planning permission (see also page 382). I have no hesitation in rejecting those submissions.

14. There is no doubt that the Inspector recognised that the perceived adverse effects on health could justify a refusal of planning permission. In paragraph 6, he identified the main issues as:

" ... firstly, the effect that the proposed developments would have on the character and appearance of the areas in which they would be sited;

"and secondly, whether the perceived adverse effects on health justify withholding planning permission."

Having resolved the first of those issues in favour of the proposed developments, he concluded:

"The proposals therefore satisfy the requirements of Structure Plan Policy TEL 1. Planning permission should therefore be granted for the proposed developments in accordance with the development plan, unless there are material considerations that indicate otherwise."

15. Under the subheading "Health Concerns", in paragraph 15, he continued:

"It is necessary therefore for me to consider whether there are material considerations that indicate that permission should not be granted. All three proposals have given rise to expressions of public concern regarding the effect of the proposed TETRA equipment on the health of residents in the area and their children. In my view, those concerns represent the principal issue raised by the appeal proposals."

Thus we have the Inspector expressly acknowledging that public concern is a material consideration. The Inspector continued, in paragraph 16:

"As PPG8 acknowledges, health considerations and public concern can in principle be material considerations in determining applications for planning permission. The judgment in Newport County Borough Council v Secretary of State for Wales and Browning Ferris Environmental Services Ltd (1998) makes it clear that such concerns do not have to be objectively justified to be material and that they should be given such weight as might be appropriate in the particular circumstances of the case. Therefore, as PPG8 advises, it is for the decision maker to determine what weight to attach to health considerations and public concern in a particular case."

16. Pausing there, Dr Wolfe acknowledged that, thus far, there was no error in the Inspector's approach. He had specifically directed himself, by reference to the Newport case, that public concerns about health do not have to be objectively justified to be material, and that it was for him to decide what weight to attach to them. Pausing there, it is helpful to set out paragraphs 97 and 98 of PPG8, to which the Inspector referred:

"97. Health considerations and public concern can in principle be material considerations in determining applications for planning permission and prior approval. Whether such matters are material in a particular case is ultimately a matter for the courts. It is for the decision-maker (usually the local planning authority) to determine what weight to attach to such considerations in any particular case.

"98. However it is the Government's firm view that the planning system is not the place for determining health safeguards. It remains central Government's responsibility to decide what measures are necessary to protect public health. 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."

Against that background, the Inspector, in paragraphs 17 to 21, dealt, firstly, with health considerations in considerable detail. Having reviewed the extensive technical literature, he concluded in summary that the exposure estimates fell well within the relevant guidelines. Thus, he concluded in the final sentence of paragraph 21:

"Having regard to the above exposure estimates, in accordance with the advice in paragraph 98 of the appendix to PPG8, it should not be necessary for me to consider further the health effects of the proposals and the concerns about them."

17. If the Inspector had been simply considering whether there was an objectively justifiable risk to health, then the decision letter could and would have stopped there, but it does not because the Inspector goes on in paragraph 22 to consider public perceptions about the extent of the health risk in the following terms:

"However, as the Stewart Report noted, the insensitive siting of base stations may cause anxiety to sections of the community and in that respect they may indirectly affect health and reduce quality of life. The Stroud Policy [sic] Station site is the closest of the proposed sites to schools and residential properties. I appreciate that the proposed development is of great concern to the Governors, Staff and Parents of the school, who are concerned about the long-term of the health of the pupils. The Stewart Report acknowledges the greater vulnerability of children to RF radiation. As a result the group recommended that particular attention should be paid initially to the auditing of base stations near to schools and other sensitive sites. The Radiocommunications Agency undertook an audit programme of mobile phone base stations with a focus on base station sites on school premises between December 2000 and December 2001. The highest recorded value was 1/279 of the ICNIRP guidelines and typical levels were may [sic] thousands of times below the guidelines. Those guidelines take account of the exposure levels experienced by all sections of the community, including children, as do the recommendations of the Stewart Report."

18. Then, in paragraphs 23 to 25 the Inspector considered in detail the particular locations of the three proposed masts: how visible they would be; whether they would be a "constant reminder of the presence of the TETRA equipment" ; whether "residents ... would therefore be constantly reminded of its presence". Having resolved those site specific aspects in favour of the proposed developments, he went on, in paragraphs 26 and 27, to identify the basis for the perceived health risks saying this in paragraph ;26:

"The perceived health risks as expressed at the inquiry appear to be based in part on selective research and expert opinion regarding the health effects of mobile phones and the TETRA system. I have given due consideration to the findings of the research papers and the scientific opinion referred to by those who object to the appeal developments. However, I consider that the significance of that research and scientific opinion should be assessed having regard to the findings of those national and international bodies which can draw on a broad range of relevant expertise such as ICNIRP, the WHO, the NRPB and IEGMP. I consider that greater weight should be attached to the professional views of those organisations. The suggestion that the proposed TETRA base stations would operate at higher power levels and pose a greater risk to health than mobile telephone base stations is not supported by the available technical evidence."

He then considered that evidence.

19. It is accepted on behalf of the claimant that the Inspector was entitled to have regard to the extent to which the perceived health risks had any objective justification in deciding what weight he should attribute to them. It is said that this was the sole issue considered by the Inspector. He wrongly rejected the residents' concerns as having no weight at all, simply and only because they were not objectively justified. In my view, this submission is based upon a misreading of the Inspector's decision letter. The objectors had, after all, urged that their concerns -- the perceived public health risks -- should be given great weight because they were objectively justified. In paragraph 26 the Inspector is rejecting that argument, saying that the residents' fears appear to be based in part on selective research and expert opinion, and that he considers that "greater weight" should be attached to the expertise of the organisations he identifies. I have underlined the word "greater" because it makes it plain that the Inspector was not dismissing the residents' fears as being of no account whatsoever because they were not objectively justified, but concluding that they should be given lesser weight.

20. In paragraph 27 the Inspector continued by identifying another basis for the objectors' fears:

"In part the objectors' fears appear to be based on concerns regarding the emissions from handsets."

For the reasons set out in that paragraph, the Inspector did not accept that the fears were justified upon that basis. In paragraph 28 he drew the threads together saying this:

"In conclusion on the second issue, in addition to the clear and up-to-date advice in PPG8 regarding the approach to be taken to perceived health risks when determining planning applications for telecommunications development, the evidence in these cases regarding anticipated exposure levels and the specific circumstances of the appeal sites lead me to conclude that there is no justification in any of the cases for withholding planning permission on the basis of the perceived risks to human health."

Thus the Inspector is not saying that planning permission cannot be refused on the grounds of perceived health risks because the fears are not objectively justified, but that the perceived health risks do not, on the fact of these three appeals (which included the circumstances of the individual sites and the extent to which the bases of the fears had been made out) justify refusing planning permission.

21. That is precisely the same approach as that of the Inspector in the substantive decision in the Newport case. It will be recalled that the Inspector's substantive decision in the Newport case was not challenged and his approach was acknowledged by the parties and by the Court of Appeal to have been correct. The Court of Appeal quashed the costs decision in that case precisely because it differed from the approach set out in the substantive decision and proceeded upon the basis that fears, unless objectively justified, could never justify a refusal of planning permission. Plainly, that was not the approach adopted by this Inspector in this decision letter.

22. During the course of submissions I asked Dr Wolfe what else the Inspector should have considered in his decision letter in deciding what weight should be attributed to the perceived health risks, given that it was accepted that the Inspector was entitled to have regard to the extent to which the residents' fears were objectively justified. The sole matter identified by Dr Wolfe, in addition to the extent to which there was objective justification for the fears, was the extent of those fears: the number of those who shared the perception that there was a health risk. But that factor was expressly acknowledged by the Inspector at the outset of paragraph 22:

"I appreciate that the proposed development is of great concern to the Governors, Staff and Parents of the school ... "

Thus the Inspector considered the extent of public concern, the nature of the particular sites in question, and the extent to which the masts would be a constant reminder to the public of the TETRA equipment, and he then went on to consider the bases on which that concern had been expressed and the extent to which those bases were made out. The position is put beyond doubt by paragraphs 33 and 35 of the decision letter. In paragraph 33 the Inspector was responding to submissions that had been made to him in respect of Article 6(1) of the European Convention on Human Rights. He said this:

"It was also contended at the inquiry that the approach set out in paragraphs 97 and 98 of the appendix to PPG8 effectively precludes a proper consideration of the health concerns regarding the appeal proposals, thus fettering the rights of local residents to debate the issue in contravention of Article 6(1). For reasons which I have previously explained, I am required to take into account the advice in PPG8 as a material consideration. However, I assessed the advice in paragraph 98 of the guidance note in the context of the submitted evidence regarding the estimated emission levels, which are a small percentage of the ICNIRP guidelines which form the basis of the precautionary approach recommended by the Stewart Report, and the particular circumstances of each of the sites. I have not therefore been fettered in my decision on the appeal, and I do not consider that the rights to a fair hearing under article 6(1) of the Convention were violated."

23. Dr Wolfe referred me to the decision of the Court of Appeal in R (on the application of S) v Brent London Borough Council and another , a case concerned with the exclusion of pupils from school. While the facts are very far removed from those in the present case, he helpfully drew my attention to the Court of Appeal's discussion of the role of the Secretary of State's guidance. In paragraph 15 of the Court's judgment, Schiemann LJ said this:

"The first consequence of this is that Appeal Panels, and schools too, must keep in mind that guidance is no more than that: it is not direction, and certainly not rules. Any Appeal Panel which, albeit on legal advice, treats the Secretary of State's Guidance as something to be strictly adhered to or simply follows it because it is there will be breaking its statutory remit in at least three ways: it will be failing to exercise its own independent judgment; it will be treating guidance as if it were rules; and it will, in lawyers' terms, be fettering its own discretion. Equally, however, it will be breaking its remit if it neglects the guidance. The task is not an easy one."

Similarly, in the present case, the Inspector's task in respect of the advice in PPG8 was not an easy one, but, in my judgment, he discharged it impeccably. He did not neglect the guidance, nor did he allow it to fetter his own independent judgment, having regard to the particular circumstances of each of the sites. In paragraph 35 the Inspector set out his overall conclusions in these terms, so far as relevant for present purposes:

"My overall conclusions on the issues in these cases are that the perceived health concerns and the visual impact of the appeal proposals, while material to my consideration of the proposals, do not provide compelling reasons for withholding planning permission. In coming to these conclusions I have taken account of the benefits which would arise from the introduction of the TETRA emergency services communications system ... "

Thus the Inspector had not regarded himself as being prevented by PPG8 from investigating residents' concerns. He expressly acknowledged that those concerns were material to his consideration of the proposal, but he did not conclude that they justified a refusal of planning permission, bearing in mind the benefits that would flow from the new system. In my judgment, the Inspector's approach in this regard cannot be faulted.

24. Although the Inspector's decision letter on costs was not challenged on behalf of the claimant, Dr Wolfe sought to rely on its terms as 'illuminating' the Inspector's allegedly erroneous approach in the substantive decision letter. I do not accept the underlying proposition. These are two separate decision letters and, as the decision of the Court of Appeal in the Newport case shows, it may well be that an Inspector adopts the correct approach in one letter and errs in the other letter.

25. I proceed, nevertheless, to consider the substance of the point, which places reliance upon paragraph 11 of the costs decision letter, which is in the following terms, so far as material:

"In addition, I do not consider the original decisions to have been reasonable. As I acknowledge in my decision letter, public concern about the effects of a proposal can be a material consideration. However, as paragraph 15 of Annex 3 of the Circular [on costs] explains, while local planning authorities are expected to consider the views of local residents when determining a planning application, local opposition to a proposal is not, by itself, a reasonable ground for the refusal of a planning application, unless that opposition is founded on valid planning reasons which are supported by substantial evidence. The Courts have held, as paragraph 52 of PPG1 explains, that the Government's statements of planning policy are material considerations which must be taken into account in determining planning applications. The Council's sole reason for refusal, namely the perceived health risks of the proposals, is specifically addressed by the advice in paragraphs 97-100 of the Annex to PPG8. If a planning authority fail to follow that advice, having regard to paragraph 52 of PPG1, they should provide convincing reasons for not doing so. In each of the appeal cases the estimated emissions were well within the ICNIRP guidelines for public exposure. However, the Council, in refusing the applications, in two of the cases contrary to officer advice, chose not to follow that advice and the Authority has not provided convincing reasons for imposing what appears to be a blanket restriction on TETRA proposals."

If there was any error, then the error would be in the costs decision letter and not in the decision letter on the substantive appeals; but I do not accept that the Inspector fell into error in the costs decision letter. The council, in refusing planning permission (in the case of two of the appeals, contrary to the advice of officers) was pursuing what appeared to the Inspector to be "a blanket restriction on TETRA proposals". Thus the Council, which did not attend the inquiry to justify its reasons for refusal, had failed to examine the basis for the public's fears to see what, if any, weight should be given to them and whether they justified a refusal of planning permission, given the benefits of the proposals. It would clearly be unreasonable to proceed upon the basis of a blanket restriction on TETRA proposals. Just as it erroneous to proceed on the basis that perceived health risks cannot justify a refusal of planning permission unless they are objectively justified, so it is equally erroneous to assert, as was the council in effect, that merely because there are perceived risks to health, that justifies a refusal of planning permission without any regard to the extent as to which those fears are objectively justified in the circumstances of the particular case and given the particular characteristics of the site in question. Those are the factors which the Inspector considered in concluding that the perceived risks as to health, whilst material considerations, did not justify a refusal of planning permission in these three cases.

26. For these reasons, there is no inconsistency between the substantive letter and the costs decision letter and this application must be refused.

27. MR MOULD: My Lord, I apply for the application to be refused with the Secretary of State's costs. I appreciate that if your Lordship is with me on that, that, in the light of the fact that the claimant is an assisted person, the usual order should follow in relation to that.

28. MR JUSTICE SULLIVAN: Can you resist that?

29. DR WOLFE: I plainly cannot resist the principle of it. I simply alert your Lordship to the public funding situation and add my application for assessment on the usual basis of my costs, given that my client is publicly funded. That is not by way of resistance; it is by way of further application.

30. MR JUSTICE SULLIVAN: Yes. The application is dismissed. I am satisfied that the claimant should pay the Secretary of State's costs, those costs to go for detailed assessment. The associate will put in, what I call, the usual legal aid order, whatever it is these days. Dr Wolfe can have what I still call legal aid assessment. Anything else? No? Thank you.