This page summarises the relevant legislation and then presents legal decisions in support of that position.
EECC is the law – ICNIRP is just guidelines
- The European Electronic Communications Code (EECC) underpins the local competence of Local Planning Authorities (LPAs) to do this and obliges them accordingly under the law.
- The EECC was brought into UK law and makes “health an imperative”. The EECC makes local Planning Authorities (LPAs) the local competent authority in this area of telecom mast planning and this was affirmed by the DDCMS by recognition of LPAs by function in a written parliamentary answer and which is on the parliamentary record.
- Under existing UK law adverse health effects cited by local residents can be considered under the weighing up of Material Planning Considerations (MPCs) under the Town & Country Planning Act (TCPA).
- The NPPF can be regarded itself as an MPC, to be weighed up against other issues.
Section 70(2) of the Town and Country Planning Act 1990
- Requires a planning authority to have regard to the development plan and other material considerations when determining a planning application.
- Unlike statutory instruments, policy statements (NPPF) are not legally binding upon local planning authorities.
- The NPPF is therefore just another Material Planning Consideration to be taken into account with multiple other considerations.
- NPPF is ‘policy’ and should not be interpreted as a statute.
The Supreme Court ruling in R (Wright) v Resilient Energy Severndale Ltd. and Forest of Dean Council  UKSC 53.
- Government policy statements cannot ‘undermine’ what the settled case law has determined the term ‘material consideration’ means, in the planning statutes (paragraph 45).
- A policy statement cannot redefine the concept of a ‘material consideration’, which is a legal question that has an answer ‘consistent over time’.
- ‘A decision-maker will err in law if he fails to take into account a material consideration.’
Lord Gill in the Supreme Court judgment in Suffolk Coastal District Council v Hopkins Homes Ltd et.al.
- ‘the guidance given by the Framework (the NPPF) is not to be interpreted as if it were a statute. Its purpose is to express general principles on which decision-makers are to proceed in pursuit of sustainable development.’
Fishersgate – Brighton – details
The mast was 27m from a school and no properly evaluated exclusion zones were provided
- “The Council failed to address the health impacts of this particular proposal and to obtain adequate evidence of the assessment of the proximity to the school and the amended proposal”
- A Judicial review was ordered and the council was fined £13,000
Frome Town Council.
Councils imagine that they cannot refuse planning applications owing to safety concerns. However the Frome town council recently turned down, with legal backing, a 5G mast “due to concerns on the impact to public health for all ages“. RR/2022/2442/TN
The Frome Planning Board recognised that they were not in possession of enough evidence concerning the safety of 5G:
“The refusal is carried. We have closed the loop. That is now a legal decision” Meeting minutes -“RESOLVED – refused contrary to Officer Recommendation due to concerns on the impact to public health for all ages and lack of backed up evidence of the impact to health“. (Excerpt from the meeting transcript, Frome Town Council).
However, the record of their refusal on health grounds is not on the Frome planning portal as the Telecoms Co withdrew their proposal after the refusal decision. This has muddied the legal water somewhat and could well lead to a legal challenge.
A letter to the Minister, DDCMS, Wera Hobhouse MP:
Refers to the un-insurability aspect of this technology and which might leave any council open to a potential unlimited liability should any resident potentially bring a personal injury claim against a council in respect of harm to health caused by radiation from telecom masts.-
“In this respect a council might say we followed ICNIRP guidelines and so we are quite safe – but DLA Piper ( solicitors to PHE/UKHSA) make it clear that a council is liable if it follows guidance not the guidance itself, ICNIRP guidance in this case, or the guidance issuer, PHE/UKHSA in this case.”