Introduction

In the case of Thomas v Cheltenham Borough Council ([2025] EWCA Civ 259), the Court of Appeal was called upon to address an appeal arising out of an error by a Planning Officer regarding the evaluation of potential health risks associated with a proposed mobile phone mast installation. Mr Thomas, the Claimant, challenged the decision of the local planning authority (the Council) not to require prior approval for a development proposal by CK Hutchison Networks (UK) Ltd., trading as "Three". The dispute centered on whether the potential impact of electromagnetic fields (EMFs) on medical implants such as pacemakers and hearing aids was given adequate consideration.

The case was unusual for several reasons. Not only did Mr Thomas raise concerns on behalf of residents living within a 100‐metre radius of the proposed site (notably at Lefroy Court) but the judgment also turned on technical statutory issues, including the interpretation of the National Planning Policy Framework (NPPF) and related statutory elements such as the GDPO. The Council, although successful at the lower level, sought to appeal part of the Judge’s findings, specifically the judicial interpretation of whether or not the potential impact of EMFs on medical implants was a material consideration.

Summary of the Judgment

The Court of Appeal, in delivering its decision, confirmed that while the Planning Officer’s failure to address the specific concerns – particularly the risk of EMFs adversely affecting the functioning of medical implants – was an error in his approach, it did not necessarily alter the outcome of the planning decision. The Judge had held that under section 31(2A) of the Senior Courts Act 1981, even if such an error had been rectified, the overall result of the decision would have remained unchanged.

Importantly, the decision clarified that the potential impact on medical implants does not automatically render it a material consideration in every case. Instead, its relevance must be assessed in the circumstances of each application. The Court articulated that the error arose because the Planning Officer mistakenly assumed that the statutory reference (specifically paragraph 118 of the NPPF) precluded any examination of the specific health concerns raised, leading him to treat that information as irrelevant rather than considering whether it might have been appropriate to weigh it.

Analysis

Precedents Cited

The judgment references several key precedents which illustrate the boundaries of judicial review and the evaluation of material considerations in planning applications. One significant case cited was Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Ltd, which established that findings of fact cannot be challenged merely on the basis of dissatisfaction with the conclusions drawn. The principles from this case were used to determine that an order recording a disputed finding would suffice to engage appellate review.

Additionally, reference is made to the decision in Floe Telecom Ltd (In Liquidation) v Office of Communications and another [2009] EWCA Civ 47. In that case, the Court recognized that appeals by a successful party can be reviewed even when they appear to be academic, provided there is a “real prospect of success” and broader implications on regulatory obligations. Moreover, the Supreme Court’s guidance in R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] UKSC 52 was extensively used to elucidate the three categories of information that a decision-maker may either be mandated or allowed, at their discretion, to consider.

Legal Reasoning

The Court’s legal reasoning in this case revolves around the nuanced distinction between the compulsory and discretionary evaluation of relevant information. It emphasized that while compliance with the International Commission on Non-Ionising Radiation Protection (ICNIRP) Guidelines satisfactorily addresses general public health concerns, they deliberately do not account for the potential interference with active implantable medical devices.

The Court highlighted that the Planning Officer erroneously assumed that paragraph 118 of the NPPF limited his discretion, which resulted in him failing to duly consider the specific concerns regarding patients with pacemakers or other implants. Instead of handling the issue as one that might enjoy limited consideration (as part of the third category in the Friends of the Earth framework), he effectively disregarded it as though it were expressly excluded – a misinterpretation of the statutory framework.

Although the Judge was careful to note that this misapplication was confined to the facts of the present case, the decision underscores that the potential impact of EMFs on medical implants, while relevant, does not always constitute a material consideration that must be accorded weight. The Court stressed that it is ultimately a matter for the decision-maker to determine how much weight to assign such issues, provided that this discretion is exercised rationally and in accordance with the principles set out by established case law.

Impact on Future Cases and Legal Principles

The judgment is significant because it clarifies that the potential harm of EMFs to medical implants should not be automatically deemed material across all planning applications. The Court’s clarification helps to mitigate concerns that the decision might be misinterpreted as creating a per se criterion whereby any failure to address EMF-related risks would render a decision legally deficient.

This nuanced approach will likely influence future cases by:

• Reinforcing the principle that not all health-related concerns need to be considered with equal weight in planning decisions.
• Emphasizing that the discretion of the Planning Officer includes assessing the relevance and weight of diverse considerations.
• Providing guidance on the interplay between national policy frameworks (such as the NPPF) and specific technical standards like those issued by ICNIRP.

Complex Concepts Simplified

The judgment touches upon some complex subject matters which can be explained as follows:

• Material Consideration: In planning law, a “material consideration” is a factor that should be taken into account when making a decision. In this case, the issue was whether the potential effect of EMFs on medical implants was significant enough to affect the planning decision.
• ICNIRP Guidelines: These are technical guidelines issued by an international commission aimed at setting safe limits for exposure to electromagnetic fields. While funding overall public safety, they explicitly state that they do not address the risk posed to individuals with medical implants.
• Fettering Discretion: This legal concept refers to a situation where a decision-maker improperly restricts their own powers by rigidly applying a rule or misinterpreting statutory guidance, thus failing to exercise their judgment appropriately.
• Wednesbury Test: A principle used to determine if a decision is irrational or unreasonable. The test was indirectly referenced when considering whether the Planning Officer’s decision should have been reconsidered.

Conclusion

The Court of Appeal’s decision in Thomas v Cheltenham Borough Council brings much-needed clarification on the role and scope of material considerations in planning decisions, particularly as they relate to the potential impacts of EMFs on sensitive medical devices. While the Planning Officer’s error in disregarding the specific concerns was acknowledged, the Court made clear that such concerns do not automatically mandate a different outcome if, when properly considered, they would not have altered the overall decision.

The judgment carefully walks the line between statutory obligation and discretionary planning judgment, reiterating that the decision-maker is entitled to determine the weight of various factors provided that the process remains rational and consistent with established legal principles. This will help ensure that future planning decisions are both flexible and robust, with the understanding that not every health-related concern necessitates a re-evaluation of compliance with national guidelines.

In summary, this case is significant for confirming that while the potential effect of EMFs on medical implants is certainly relevant, it is not universally material. It remains incumbent upon local planning authorities to exercise their discretion judiciously, ensuring that they do not overinterpret statutory references and inadvertently restrict their capacity to balance competing considerations.