Court of Appeal clarifies Planning Court judgment in case on effect of phone masts on medical implants but acknowledges ruling might have been “open to misinterpretation”

Cheltenham Borough Council has taken the usual step of appealing a case in which it was successful because of concern that the Planning Court’s ruling would have meant the potential impact of radiofrequency electromagnetic fields (EMF) on medical implants would always be a material planning consideration.

Lady Justice Andrews said in the Court of Appeal that this was not the case and was not what HHJ Jarman KC, sitting as a Judge of the High Court, had meant.

Claimant Steven Thomas challenged Cheltenham’s decision that prior approval was not required for operator Three to build a 15m high mobile phone mast on a site in its central conservation area.

HHJ Jarman decided the planning officer erred in his approach, but refused to grant relief, applying section 31(2A) of the Senior Courts Act 1981, on the basis that it was highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

Andrews LJ noted a proposed appeal by a successful litigant was unusual but allowed in certain circumstances.

HHJ Jarman had included a recital: “And upon the court finding that the claimant's grounds of challenge succeed insofar as they allege that the defendant erred in failing to consider the potential impacts of EMFs on those with medical implants"

Cheltenham appealed because it was concerned that the judgment might be interpreted as laying down a general principle that the potential impact of EMFs on medical implants is always a material consideration.

The council said this could mean no rational decision maker could properly omit it, and a failure to address it would mean the decision became legally deficient.

Andrews LJ said: “The council's concerns are legitimate, but in my judgment they are based on an unduly wide interpretation of the judge's decision.

“Properly understood, the judge's finding…turns on a much narrower point which was specific to this case, namely, that the planning officer approached the matter on the mistaken assumption that his discretion and/or his planning judgement was fettered by a combination of paragraph 118 of the version of the National Planning Policy Framework, which was then in force, and the self-certification by the applicant that the proposed equipment and installation was fully compliant with the requirements of the International Commission on Non-Ionising Radiation Protection."

This had meant the officer never properly addressed whether the prospective impact of EMFs on medical implants was material to the decision on prior approval.

Andrews LJ said: “Seen from this perspective, the judgment is entirely orthodox and turns on its own facts.

“I do not understand the judge to have been seeking to lay down any principle of wider application…however, I accept that the way in which the judge expressed his reasons and his conclusions might be open to misinterpretation.”

She said HHJ Jarman did not find the potential impact of EMFs on pacemakers or other implants were material even in this specific case, “let alone that it would always be a material consideration in applications of this nature”

Lady Justice Asplin and Lord Justice Peter Jackson both agreed.

Mark Smulian