An electronic communications provider proposed to carry out permitted development, within Class A of Part 16 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, consisting of the installation of 5G electronic communications apparatus comprising a 15-metre pole with antennas at the top, ground-based apparatus and ancillary development. It applied to the local planning authority pursuant to paragraph A.3(3) of Part 16 for a determination of whether its prior approval would be required for the siting and appearance of the development. The application attached a document headed “Health and Safety—including ICNIRP compliance” including a certificate on behalf of the provider declaring that the proposed equipment and installation was designed to be in full compliance with the International Commission on Non-Ionizing Radiation Protection (“ICNIRP”) guidelines, as expressed in EU Council Recommendation 1999/519/EC of 12 July 1999 on the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz). Objections were lodged, including by the claimant, about health risks to people living at a residence for the over-55s about 50 metres away from the proposed site, many of whom had medical implants and hearing aids, on the basis that the ICNIRP guidance stated that such people needed protection from radio frequency electromagnetic fields (“EMFs”). One of the objectors was a resident there who had a pacemaker and expressed concerns that the strong EMFs from the communications apparatus could seriously put his health at risk. Having summarised the relevant provisions of the National Planning Policy Framework 2021 (“NPPF”), including paragraph 118 which provided that applications had to be determined on planning grounds only and that local planning authorities ought not to “set health safeguards different from the International Commission guidelines for public exposure“, the local authority’s planning officer’s report concluded that the principle of electronic communications infrastructure ought to receive general support from the local authority, which should neither question the need for it nor seek to impose different health standards from those set out in legislation. The report further stated that, as the 2015 Order provided the opportunity for local authorities to take a view of proposals based on siting and design, those were the key issues for consideration. While noting the objections, the authority approved the report’s recommendation that an application for prior approval was not required, the certification being sufficient to comply with paragraph 118 of the NPPF. The claimant issued judicial review proceedings challenging the authority’s decision on the ground, inter alia, that it was irrational and unreasonable as posing avoidable risks of harm, injury and nuisance to the public.
On the claim for judicial review—
Held, claim allowed in part. The purpose of the ICNIRP guidelines was, in part, to offer a high level of protection to all people and, while stating expressly that EMFs could cause harm by unintentionally interfering with implantable medical devices, they also made clear that such issues were beyond the scope of the guidelines. It was therefore not possible to infer from the absence of reference in the guidelines to potential impact from telecommunications equipment on medical implants that there was no such impact. Moreover, the wording of the guidelines, albeit in the context of medical procedures, clearly referred to such a potential impact. Where the purpose of the guidelines was in part to offer a high level of protection to all people, the local authority had been obliged to give effect to the NPPF and to proceed on the basis that compliance with the guidelines would offer such a level of protection, that being a proper approach in relation to health concerns generally. However, where the objections raised the related but distinct issue of the potential impact of EMFs from the development on medical implants, compliance with the guidelines did not obviate the need for local planning authorities to consider that important specific issue. Consideration of such an issue, for example by considering whether the proposed development ought to be sited further away from the residence for over-55s, would not have involved setting health guidelines different from those of the ICNIRP for public exposure so as to fall foul of paragraph 118 of the NPPF, since the ICNRP guidelines did not address the issue of potential harm caused by EMFs in relation to medical implants. The local planning authority had therefore erred in failing to grapple with that issue. However, having regard to the evidence in the present case relating to the low level of EMFs from the proposed equipment, its local coverage and its distance from the residence, it was highly likely that the outcome would have been the same had the issue been properly and relief would be refused accordingly (paras 34–40, 43, 45–47).
The claimant appeared in person.
Ryan Kohli (instructed by One Legal, Tewkesbury) for the local planning authority.
The interested party, Cignal Infrastructure UK Ltd, did not appear and was not represented.