Factual and Procedural Background
The Plaintiff challenged a decision by the Defendant local planning authority ("the Council") dated 26 May 2023, which held that prior approval was not required for the proposed development of electronic communications equipment—a 15m high mobile phone mast and ancillary apparatus—within a Central Conservation Area of The City. The application had been made by Company A, operating under a trading name, with Company B named as an Interested Party but not participating in the proceedings.
The Plaintiff raised concerns that the Council's Planning Officer, whose report and recommendation were adopted by the Council, failed to address specific worries about the effect of radiofrequency electromagnetic fields ("EMFs") on medical implants such as pacemakers and hearing aids. One such concern was voiced by a resident of a nearby residential building for persons over 55 years old, located within approximately 100 metres of the proposed mast site.
The lower court judge found that the Planning Officer erred in his approach by not properly considering the potential impact of EMFs on medical implants but declined to grant relief on the basis that the outcome would not have been substantially different, applying section 31(2A) of the Senior Courts Act 1981. Unusually, the Council, as the successful party below, was granted permission to appeal this finding. The Plaintiff was refused permission to cross-appeal.
The appeal raised issues about the Court of Appeal's jurisdiction and the circumstances in which a successful party may appeal, referencing prior case law on these procedural points.
Legal Issues Presented
- Whether the potential impact of electromagnetic fields on medical implants is a material consideration in planning decisions concerning electronic communications equipment.
- Whether the Planning Officer erred by failing to consider the potential impact of EMFs on medical implants in determining whether prior approval was required.
- The scope and application of section 31(2A) of the Senior Courts Act 1981 in refusing relief despite an error in the Planning Officer's approach.
- The extent to which the National Planning Policy Framework (NPPF) and compliance with International Commission on Non-Ionising Radiation Protection (ICNIRP) guidelines constrain local planning authorities in considering health-related objections.
Arguments of the Parties
Appellant's (Council's) Arguments
- The Council contended that the judgment below might be misinterpreted as establishing a general principle that the potential impact of EMFs on medical implants is always a material consideration that must be addressed in every case.
- The Council accepted that such matters could be material depending on facts and evidence but argued that they did not meet the threshold of obvious materiality under the Wednesbury irrationality test that would make failure to consider them unlawful.
- It was submitted that the Planning Officer did take the potential impact on medical implants into account as part of overall health considerations but gave it little or no weight.
Appellee's (Plaintiff's) Arguments
- The Plaintiff argued that the Planning Officer failed to properly consider specific concerns about EMF effects on medical implants, which should have been treated as a distinct material consideration separate from general health concerns.
- The Plaintiff relied on representations from residents with medical implants and the limitations of ICNIRP guidelines, which do not address interference with medical devices.
- The Plaintiff contended that the Planning Officer's reliance on compliance with ICNIRP guidelines improperly fettered his discretion and precluded adequate consideration of the concerns raised.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Cie Noga d'Importation et d'Exportation SA v Australia and New Zealand Banking Group Ltd [2002] EWCA Civ 1132; [2003] 1 WLR 307 |
Limits on Court of Appeal jurisdiction to hear appeals only against final orders or judgments and not findings made en route unless recorded in an order. |
Applied to confirm that the appeal was properly before the Court of Appeal because the lower court's order recorded the finding challenged. |
| Floe Telecom Ltd (In Liquidation) v Office of Communications [2009] EWCA Civ 47; [2009] Bus LR 116 |
Exceptional jurisdiction for successful parties to appeal where there are points of wider public importance or legal uncertainty. |
Referenced to justify hearing an appeal by the successful party (the Council) due to concerns about the wider implications of the judgment. |
| Mansell v Tonbridge and Malling Borough Council [2019] PTSR 1452 |
Interpretation of planning officer’s report with reasonable benevolence. |
Applied to interpret the Planning Officer's report and confirm that it did not adequately address the specific concerns about EMFs and medical implants. |
| R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] UKSC 52; [2021] 2 All ER 967 |
Framework for identifying material considerations in public decision-making: mandatory, prohibited, and discretionary information. |
Used to categorise the potential impact of EMFs on medical implants as discretionary material information subject to planning judgment. |
| Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 |
Distinction between materiality as a matter of law and weight as a matter of planning judgment. |
Referenced to clarify that the question of materiality is legal, but the weight given is for the planning authority. |
| Harris v The First Secretary of State and Others [2007] EWHC 1847 (Admin) |
No obligation to address indirect health risks unsupported by evidence. |
Applied to support the conclusion that the Council was not obliged to treat the EMF impact on medical implants as material absent substantive evidence. |
Court's Reasoning and Analysis
The Court analysed the Planning Officer’s report and the legal framework governing planning decisions on electronic communications apparatus, including the National Planning Policy Framework (NPPF), the Town and Country Planning (General Permitted Development) Order (GDPO), and the ICNIRP guidelines. It noted that the ICNIRP guidelines provide detailed protections against EMF exposure to the public but explicitly exclude interference with medical implants, which is managed by medical professionals and is outside the guidelines' scope.
The Court emphasised that the Planning Officer misunderstood paragraph 118 of the NPPF, wrongly believing that compliance with ICNIRP guidelines barred consideration of the potential impact of EMFs on medical implants. This misapprehension led to a failure to independently consider whether that concern was a material consideration and what weight it should be given.
Applying the three categories of material considerations from Friends of the Earth, the Court held that the potential impact on medical implants falls within the discretionary category, meaning the decision-maker may choose whether to consider it and what weight to afford it, subject only to rationality.
The Court found that the Judge below correctly identified the Planning Officer’s error as a fettering of discretion rather than a failure to consider a mandatory material consideration. However, the Judge was also correct to conclude, on the evidence before him, that even if properly considered, the concerns would likely have been given no or little weight because of the lack of medical evidence demonstrating risk in this particular case.
The Court rejected the Council’s submission that the lower court’s judgment laid down a broad principle that EMF impact on medical implants must always be treated as material. Instead, the judgment was fact-specific and did not establish a general rule. The Court agreed with the need to clarify this point to avoid misinterpretation.
Holding and Implications
The Court DISMISSED THE APPEAL.
The direct effect of this decision is that the Planning Officer’s error in failing to consider the potential impact of EMFs on medical implants was acknowledged but did not warrant quashing the planning decision because the outcome would not have been different. The Court clarified that the potential impact of EMFs on medical implants is a discretionary material consideration subject to planning judgment and rationality, not a mandatory one that must always be addressed.
No new legal principle was established beyond the fact-specific ruling, and the decision does not impose a general obligation on local planning authorities to treat EMF effects on medical implants as always material. This preserves the discretionary nature of such considerations in planning decisions.