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In a similar case to that of the Gorsehill Water Tower, Winchester planning
department refused permission for Orange to erect a 12m phone mast in Byron
Avenue, Winchester. The mast was to be placed 17m from the nearest house and
50m from Western C. of E. Primary School playing field. The council's
decision was based on the high level of health concerns that the mast was
causing in the local community.
Case number - CO/956/2001:3
- The final decision of Winchester City Planners made on 12upthMarch
2002:
- ``The proposed telecommunications equipment by reason of its siting and
its proximity to residential properties and the Western Primary School,
is perceived by the community as having an unacceptable health risk
which outweighs the fact that the equipment is in compliance with the
ICNIRP guidelines referred to in PPG8. Its installation will therefore
be harmful to the amenity of those who live, learn and work in the
area.
''
There were two other grounds of refusal: failing to demonstrate that all
alternative sites had been investigated, and that of visual intrusion.
The conclusion was based upon the Stewart Report and PPG8.
- Paragraph 6.68 of the Stewart Report states:
- ``6.68 We recommend, in relation to macrocell base stations sited within
school grounds, that the beam of greatest RF intensity should not fall
on any part of the school grounds or buildings without agreement from
the school and parents. Similar considerations should apply to macrocell
base stations sited near to school grounds.
''
- ``1.19: We conclude therefore that it is not possible at present to say
that exposure to RF radiation, even at levels below national guidelines,
is totally without potential adverse health effects, and that the gaps
in knowledge are sufficient to justify a precautionary approach.
1.21: We note that a precautionary approach, in itself, is not without
cost (paragraph 6.16) but we consider it to be an essential approach at
this early stage in our understanding of mobile phone technology and its
potential to impact on biological systems and on human health.
6.63: There is evidence that at the frequencies used in mobile phone
technology, children will absorb more energy per kilogram of body weight
from an external electromagnetic field than adults (see paragraph 4.37).
A one year old could absorb around double, and a five year old around
60%, more than an adult. Additionally, since children are being exposed
to RF radiation from base stations (and from mobile phones) from a
younger age than adults, they will have a longer time in which to
accumulate exposure over the course of their lives, and a longer time
for any delayed effects of exposure to develop.
''
- The argument used the statements in both paragraphs 29 and 30
from PPG8:4
- ``29: 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.
30: 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.
''
A judicial interpretation of these two paragraphs was given by:
- The Queen on the application of Julia Herman & Others v Winchester
City Council and Orange Personal Communications Services Limited Mr.
Justice Hooper and the Honourable Mr. Justice Ouseley Case No.
CO/956/2001
- ``This is a renewed application for permission to apply for judicial
review of a decision by the defendant made on the 26upthJanuary 2001. The
effect of the decision was to permit the building of a mobile phone mast
within close proximity to a school. The claimants rely heavily upon
passages in the Stuart report, particularly the passage at 6.68. The
claimant points to a number of comments made by the defendant's officers
which would only be understood by those interested in this matter as
meaning that health issues are not to be taken into account when making
this kind of decision. Those passages are set out helpfully at pages
143-144 of page 4 and page 5 of Mr Water's skeleton argument. Some of
those were not available to the learned judge when he refused permission
on paper. Mr Findlay, in an attractive argument, submits that those
statements should be viewed against the background of the report written
by Lorna Hutchings (at pages 90-91) and the government guidance on
masts. He submits that, having regard to the report of Lorna Hutchings
and to what Mr Hearn has written, the health issues were taken into
consideration. Secondly, he submits that even if he were wrong on that,
the result would inevitably have been the same if the proper test had
been applied.
''He concludes
- ``It seems to me that arguably local residents are entitled to a decision
which explains why it is appropriate for a mast to be built so close to
a school, given, in particular as, what they say they were told by the
officers.
''
We can see from this judgement that the decision maker should
consider the fear that the local community hold of adverse health
effects, even when the ICNIRP guidelines are not exceeded.
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