The Planning Inspectorate Appeal Decision 4/11 Eagle Wing Temple Quay House Inquiry opened on 22 October 2008 2 The Square Temple Quay Bristol BS1 6PN
0117 372 6372 by Martin Pike BA MA MRTPI email:[email protected] ov.uk an Inspector appointed by the Secretary of State Decision date: for Communities and Local Government 26 May 2010
Appeal Ref: APP/J9497/A/08/2064768 The Copse, Glebe Farm, Widecombe-in-the-Moor, Devon TQ13 7TR • The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission. • The appeal is made by Airwave Solutions Ltd against the decision of Dartmoor National Park Authority. • The application Ref: 0452/07, dated 1 June 2007, was refused by notice dated 11 September 2007. • The development proposed is a telecommunications installation comprising replica telegraph pole and associated ancillary development.
DECISION
1. I allow the appeal, and grant planning permission for a telecommunications installation comprising replica telegraph pole and associated ancillary development at The Copse, Glebe Farm, Widecombe-in-the-Moor, Devon in accordance with the terms of the application, Ref: 0452/07, dated 1 June 2007, subject to the following conditions: 1) The development hereby permitted shall begin not later than three years from the date of this decision. 2) The development hereby permitted shall be carried out in accordance with the following approved plans: P/DAC169G/GEN/001/A P/DAC169G/GEN/003/C P/DAC169G/GEN/004/C 01-384-402 01-384-403. 3) Notwithstanding the details of the submitted application, prior to the commencement of the development hereby permitted, details of the external facing materials and colour of the mast, equipment cabinet and any other ancillary apparatus shall be submitted to and approved in writing by the local planning authority. Development shall be carried out in accordance with the approved external facing materials and colours. Thereafter the mast and shroud shall be retained in a dark brown colour. 4) Prior to the commencement of the development hereby permitted, details of the proposed landscaping and planting scheme shall be submitted to the local planning authority for approval. The landscaping and planting shall be carried out in accordance with the approved scheme within 12 months of the commencement of the development, or such longer period as the local planning authority shall specify in writing. The landscaping
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and planting shall be maintained for a period of 5 years from the date of the commencement of the development, such maintenance to include the replacement of any trees or shrubs that die or are removed. 5) Any necessary cables to the site shall be concealed underground.
PROCEDURAL MATTERS
Main Inquiry, October 2008 – January 2009
2. At the main inquiry an application for costs was made by Airwave Solutions Ltd against Dartmoor National Park Authority; a second application was made by Dartmoor National Park Authority against Airwave Solutions Ltd. These applications are the subject of separate Decisions.
3. The site address as stated on the application and appeal forms is “Copse area, Coombe, Widecombe-in-the-Moor”. It became apparent during the main inquiry that the site was part of Glebe Farm, which was agreed by the main parties to be a more accurate and identifiable address than “Coombe”. I have amended the site address accordingly.
Position of local planning authority and nature of evidence
4. A few days before the inquiry opened, the appellant submitted to Dartmoor National Park Authority (DNPA) a series of supplementary and rebuttal proofs of evidence. 1 New technical material contained within these proofs, relating to an increase in the mast height necessary to give adequate coverage from alternative sites, caused DNPA to re-evaluate its case. As a consequence of this new evidence, DNPA decided not to contest the appeal. It kept a watching brief on the proceedings, participated in the discussions about procedural matters, conditions and the section 106 obligation (submitted by the appellant at the opening of the inquiry), and was involved in the costs applications.
5. As a result of the withdrawal of DNPA from the inquiry, the case in opposition to the proposal was put by third party objectors, mostly local residents. When the inquiry opened they (like me) had not seen the appellant’s supplementary and rebuttal proofs. Because of the amount of new information that had been provided, it was clear that a lengthy adjournment would be necessary to allow time for the new information to be assimilated and responses prepared. These responses and further rebuttals were received (for the most part) in accordance with a timetable I set out. All parties had the opportunity to make their cases in full at the inquiry, which then sat for 3 days on 21-23 January 2009. I carried out accompanied visits to the site and an extensive tract of surrounding countryside on 22-23 October 2008 and 27 January 2009.
6. Two matters arose regarding the weight to be given to evidence. The first concerns the status of the written proofs of evidence submitted by witnesses who were to have presented the DNPA case at the inquiry. This was the subject of considerable discussion: ultimately DNPA conceded that the proofs were to be withdrawn. Accordingly, while they remain as inquiry documents because they were properly submitted before the inquiry and record the
1 These were not sent to the Planning Inspectorate because the appellant surmised that they would have been returned as being outside the timetable for submission.
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authority’s position at that time, I have not given this evidence any weight in my appeal decision. The same applies to the revised proofs submitted on 21 January before DNPA withdrew its evidence. The second matter concerns the representations of third parties. Many local residents indicated that they were not willing to be cross-examined by the appellant’s advocate. It follows that such evidence carries less weight than if it had been tested by cross examination; nevertheless, it remains evidence which I have taken into account and given some weight in reaching my decision.
Site visit and accuracy of plans
7. At the site visit on 27 January 2009, which took place after the inquiry had closed, a local resident queried whether the equipment cabinet could be positioned as shown on the amended site plan (drawing P/DAC169G/GEN/ 002/B). This plan shows the ‘track’2 which provides access through the copse, curving round the proposed stone bank that is intended to shield the cabinet from view. I subsequently compared the site plan with the surveyed section 106 plan (drawing SJA TMP 01 Rev B), which suggested that (1) the ‘track’ runs from the field gate at a more acute angle, and with less of a bend, than is shown on the site plan, and (2) the line and/or the width of the existing Devon bank is not accurately shown on the site plan. From my own observations on the site visit, it was apparent that the site plan was not accurate and that the development could not be built as shown on drawing P/DAC169G/GEN/002/B.
8. Based on my observations, I felt that any adjustments necessary to accommodate the cabinet would be minor and would not have a significant impact on the issues debated at the inquiry. Nevertheless, I considered that it was important to have an accurate site plan available before any development is carried out. Consequently in February 2009 I sought the views of the main parties on the possibility of imposing an additional condition on the planning permission which would require the appellant to submit an accurate site plan to DNPA for its approval before any works commenced. The appellant and DNPA agreed that this would be an appropriate way to proceed. The local residents did not, making three main points: (a) If the scheme cannot be implemented as originally proposed it should simply be rejected. (b) It is unclear whether or not the scheme as amended would be materially different to that which was applied for. (c) It is not possible to say whether the amended layout would have a material impact on the issues debated at the inquiry.
9. Having regard to the concerns of local residents, I decided that it was necessary to re-open the inquiry so that the arguments for and against acceptance of an amended site plan could be fully examined. To facilitate a meaningful debate about the extent of the changes required to the site layout, I asked the appellant to prepare and submit an amended site layout plan before the inquiry re-opened. This is drawing 01-384-402; an additional drawing, 01-384-403, gives a section through site.
2 The word ‘track’ is in parentheses because there was a dispute at the inquiry about its existence as a track in the commonly accepted use of the word. I deal with this matter later in my decision.
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Re-opened inquiry, October 2009 – March 2010
10. At the re-opened inquiry, applications for costs were made by Airwave Solutions Ltd against Dartmoor National Park Authority, by Dartmoor National Park Authority against Airwave Solutions Ltd, and by Mr Casey on behalf of local residents against Airwave Solutions Ltd. These applications are the subject of separate Decisions.
Amended plans
11. The re-opened inquiry sat on 28-29 October 2009 and 24-25 March 2010. I made an accompanied visit to the site on 28 October 2009 at which the amended location of the proposed equipment cabinet (as shown on drawings 01-384-402 and 01-384-403) was viewed, and a comparison was made with the assumed location of the cabinet as shown on the original drawings – primarily P/DAC169G/GEN/002/B. DNPA agreed that the amended drawings were a good representation of the site conditions, and stated that they were significantly more accurate than the original drawings. No-one expressed a contrary view. There is no doubt in my mind that drawing 01-384-402 portrays the existing site layout with much greater accuracy than drawing P/DAC169G/GEN/002/B. I visited the site, unaccompanied, on 25 March 2010 to see the effect of the removal of a cluster of holly trees close to the site.
12. To minimise the extent of encroachment on the ‘track’ through the copse, the amended site plan shows the proposed equipment cabinet and the stone bank that would surround it being moved north-westwards by about 4 metres, close to the location of the mast. DNPA indicated that the revised positioning would be an improvement on the original scheme, with the visual impact being reduced. From my observations on the site visit, this is manifestly so. The new cabinet would be slightly smaller 3, sited in excavated ground so as to make it lower, and set against a section of the existing Devon bank that is higher than the section close to the gate where the cabinet was originally proposed.
Depiction of application site on plans
13. DNPA stated that it did not regard the repositioning of the equipment cabinet as constituting a material change to the original application; although it was clearly different, it was a minor change that was not material in the context of the development a whole. However, it questioned whether the amended location for the equipment cabinet and stone bank is within the application site as defined by the red line on the submitted drawings. From an analysis of the DNPA case file, I established the following:
(i) Some copies of the original site location plan (drawing P/DAC169G/ GEN/001/A) show the development drawn on a 1:2,500 scale Ordnance Survey base plan as a small black curved line and a dot. On at least one copy of the site location plan, which is date stamped 4 th and 6 th June 2007, a manually applied red ‘blob’ covers the development, thereby highlighting its location in the conventional ‘red-line’ manner. On this annotated plan, the ‘red-line’ area is much smaller than is
3 The appellant stated that the cabinet originally proposed was no longer being manufactured and that an alternative unit would have to be supplied.
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shown on the site location plan submitted with the appeal, where the site is depicted by a red triangle.
(ii) The appellant asserts that a set of revised application plans submitted to DNPA shortly before it made its decision included a site location plan with the red triangle rather than the red blob. However, there is no red triangle plan on the DNPA case file; the revised version of drawing 001/A that appears to have been sent has no red marking at all. Moreover this revised plan was no different (in the sense that the information on it had not changed) from the originally submitted 001/A drawing. The revised drawings were not date-stamped by DNPA.
(iii) The original 1:100 scale site layout plan (drawing P/DAC169G/GEN/ 002/A), date stamped 4 th and 6 th June 2007, shows a red line closely drawn around the stone bank which encloses the cabinet and a narrow rectangular strip which extends to the mast. A significant part of this red-line site area (the part closest to the field gate) lies outside the area covered by the red blob on plan 001/A. Shortly before DNPA made its decision, this site layout plan was stamped “Superseded” and was replaced by drawing 002/B, which does not have a red line drawn on it. The differences between drawings 002/A and 002/B relate to the position of the GPS antenna attached to the mast; there is no change to the proposed location of the cabinet or the stone bank.
(iv) Thus the plans before DNPA when it made its decision included just one plan with a red line marking the application site, the 1:2,500 site location plan (001/A) with the red blob. However, neither the site location plan included in the Powerpoint presentation to the DNPA Planning Committee, nor the site location plan stamped by DNPA as “Refused”, were annotated with a red line. The Powerpoint and “Refused” versions of layout plan 002/B were also missing a red line.
(v) The revised, accurate site layout plan now submitted by the appellant (drawing 01-384-402) shows the development located wholly within the area covered by the red blob on the site location drawing P/DAC169G/GEN/001/A, but partly outside the red-line area on the superseded site layout plan drawing P/DAC169G/GEN/002/A.
14. DNPA argues that the site location plan 001/A and the site layout plan 002/A should be read together – the former establishing the broad location of the proposed development, the latter the precise area to be developed. For this reason it considers that the discrepancy between the red-line site areas on these two plans is not significant. Even if these had been the two plans on which DNPA based its decision, it could be argued that the “reading together” process means that both plans should remain extant, particularly as the discrepancy between them was not identified or resolved by DNPA. But drawing 002/A was replaced by 002/B, the latter not being marked with a red line. DNPA says that the failure to go back to the applicant to ask for a red line to be applied to the revised plans was an administrative error. It believes that the red line on plan 002/A should be assumed to apply also to 002/B on the basis that, as a general rule, subsequent plans on an application cannot change the red-line site area.
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15. This is a difficult argument to sustain, in my view. The plain fact is that the plans on which DNPA based its decision include only one with a red-line site area, the red blob on P/DAC169G/GEN/001/A. To say that this plan should be disregarded and, instead, be replaced by an assumed red line taken from a plan (002/A) that has been superseded, seems to me to go beyond what is reasonable, having regard to the Regulations 4 which require a planning application (inter alia) to “be accompanied by a plan which identifies the land to which it relates….”. The red blob plan is the one which, at the time the decision was made, best satisfies the Regulations. DNPA’s argument that it does not normally accept Ordnance Survey location plans at 1:2,500 scale was contradicted by the appellant’s evidence that this is a commonly used scale for planning applications submitted to the Authority. Moreover, there is no reason why such a scale should not be acceptable in this case, for it clearly identifies the site location. Indeed, it identifies the site with sufficient precision to enable DNPA to agree that the development proposed on the amended drawing 01- 384-402 falls within the red blob of plan 001/A.
16. Local residents argue that the late substitution of plan 002/A for 002/B meant that Planning Committee members would not have been aware that plan 002/A had been superseded when they made their decision. Whether or not they were aware of the absence of a red line on plan 002/B is not clear, but in any event I regard it as a technicality which is unlikely to have had any bearing on the validity of the decision they reached. Those members that had visited the site knew precisely where it was and what was proposed; those that did not are most likely to have taken the information in the first instance from the Committee report, on which DNPA officers had drawn the site on a 1:2,500 plan as a black rectangle which covered a larger area than the combined red- line areas of plans 001/A and 002/A. The fact that the Powerpoint plans had no red lines is of little consequence, particularly as the fundamental concern of members was the position of the mast, which has not changed, rather than the precise location of the equipment cabinet.
17. The final point concerning the original application plans is the fact that the site layout drawings (whether version 002/A or 002/B) are not accurate. The width of the Devon bank and the position of the ‘track’ are not correct, so the development could not be built as these drawings intended. It is likely, therefore, that if planning permission had been granted in line with the officer recommendation, it would have been necessary for (at least) a revised site layout plan to be submitted prior to installation of the development. The local residents’ argument that a fresh application would have been required, rather than a revised plan (or plans), is unlikely to have succeeded given DNPA’s view that the amended site layout does not represent a material change to the original application.
Amended plans - conclusion
18. To summarise, the site layout shown on the plan that was extant when DNPA determined the application (drawing P/DAC169G/GEN/002/B), and which was subsequently submitted with the appeal, is inaccurate and the development could not be built in accordance with it. The amended site layout and section submitted for the re-opened inquiry (drawings 01-384-402 and 01-384-403)
4 Town and Country Planning (Applications) Regulations 1988, Regulation 3(1)(b)
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are accurate and the development could be built as shown. The amended site location is within the red-line site area of the red ‘blob’ plan that was extant at the time that planning permission was refused. The amendment relates to the position of the equipment cabinet and the surrounding stone bank; the position of the mast, the fundamental issue in this appeal, is unchanged. The cabinet would be moved a few metres away from the original position close to the field gate and would be close to the mast. There is broad agreement that the amended position for the cabinet is a significant improvement, for it would be appreciably less visible than was assumed having regard to the location based on plan 002/B. DNPA regards the amendment as minor and not material.
19. Taking all these matters into account, and having regard also to all the other procedural matters raised on this issue at the re-opened inquiry, I consider that the amended plans are a minor alteration and do not constitute a material change to the proposal. Accordingly I have determined the appeal on the basis of the amended location plan (drawing 01-384-402) which supersedes drawing P/DAC169G/GEN/002/B. Although not raised at the inquiry, should there be any argument that the south east elevation drawing P/DAC169G/GEN/004/C and the new section drawing 01-384-403 show different dimensions for the Devon bank and/or the proposed stone bank, I consider the section drawing to be the more accurate and its provisions should prevail.
Application of Case Law
20. If I am wrong in my conclusions (i) that the amendment is minor and non- material and/or (ii) that the red blob location plan is the drawing that correctly identifies the application site, it is pertinent to address the factors which determine whether more significant variations in the site details and location could be accepted by exercising discretion. I was referred to three legal authorities: Bernard Wheatcroft Ltd v Secretary of State for the Environment and Another (1982) 43 P&CR 233; Breckland District Council v Secretary of State for the Environment and Hill (1993) 65 P&CR 34; and British Telecommunications Plc v Gloucester City Council (2002) 2 P&CR 33.
21. The Wheatcroft case established that a reduced scale of development could be accepted provided it did not change the substance of the application, the main test being whether it would deprive those who should have been consulted on the change the opportunity of such consultation. In Breckland it was held that the enlargement of a gypsy caravan site which would bring the site significantly closer to nearby residences did substantially alter the proposal, with a lack of consultation of those parties who were entitled to be consulted confirming the finding that the amendment was substantial. The most recent ( Gloucester ) case determined that significant amendments to an application could be accepted, including extensions to the site boundary, in circumstances where appropriate consultation had been undertaken.
22. In the present case, I believe that moving the equipment cabinet and surrounding stone bank a few metres from the originally proposed position does not change the substance of the application. In reaching this conclusion I have had regard to the particularly high sensitivity of the National Park landscape, but because all parties accept (and I agree) that the amended location is less visible in the landscape, the revised plan would result in a scheme that has less impact on the scenic beauty of the National Park. To this
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extent, and because the amendment would have no material effect on the proximity of the development to interested third parties, I consider that the appeal proposal has greater resonance with the Wheatcroft case than with Breckland . The minor change in the position of the equipment cabinet would not have triggered the need for re-consultation, and though the site area has not been reduced as in Wheatcroft , the change would result in a development that has less impact on the interests of acknowledged importance than was previously the case. It is manifest, in my view, that the substance of the application has not changed.
23. In any event, this is a case where there has been appropriate consultation with the third parties who would be affected. The main purpose of re-opening the inquiry was to seek the views of local residents on both the admissibility of the amended plan and the substance of the proposed change. There has been full and thorough third party participation, with DNPA and the appellant both stating that such participation has been far greater than is normal. Thus even if it was decided that the proposed changes fell outside the parameters of the Wheatcroft and Breckland cases, the greater leeway extended by the Gloucester judgement would apply. I appreciate that Elias J made reference in the Gloucester case to the more limited scope to accept amendments at appeal stage, but that was in the context of further consultation not usually being possible; this does not apply here.
24. In response to my questions, DNPA’s Director of Planning & Sustainable Development expressly stated that if the exercise of discretion was necessary in this case, firstly, there would be no prejudice to third parties if the amended plan was accepted, and secondly, it was open to me to grant planning permission for the revised proposal. For the reasons given, and having regard to case law, this is a view that I share.
New evidence and other matters
25. The re-opened inquiry also considered new evidence that has arisen since the main inquiry closed in January 2009. Because it was necessary to adjourn and reconvene the re-opened inquiry, I allowed new evidence to be submitted in two stages – that arising prior to October 2009 was submitted for the October 2009 session, and that arising from October 2009 to March 2010 was heard at the final session. The new evidence focused on two main areas: recent incidents involving police telecommunications activity in Widecombe, and recent developments in the debate on health issues. Because recent health concerns were only raised in the period before the final session, I ruled that only evidence that was published in the September/October 2009 to March 2010 period could be admitted. Both these areas of new evidence inevitably led to considerable overlap with the evidence given in the main inquiry, with local residents and the appellant seeking to rehearse arguments previously made on the back of the new evidence. I have taken all these matters into account in reaching my decision.
26. I turn briefly to the allegation by Mr Staniland, in particular, that there has been a failure to follow the correct procedure during inquiry adjournments by not directly seeking his views on procedural issues at times when other parties have been notified. Mr Staniland makes this allegation on the basis that he is an “entitled person” under Rule 18 of The Town and Country Planning Appeals
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(Determination by Inspectors) (Inquiries Procedure) Rules 2000. As I explained to the inquiry, Rule 11 makes a distinction between those who are ‘entitled’ to appear and those who the Inspector ‘permits’ to appear. The persons ‘entitled’ to appear under Rule 11 include the appellant, the local planning authority, any statutory party (generally the landowner or tenant), the Parish Council, and any Rule 6 parties (persons who notified the Secretary of State of an intention to appear at the inquiry and submitted a statement of case). In this case, as neither Mr Staniland nor other local residents sought Rule 6 status, they do not qualify as persons who are ‘entitled’ to appear.
27. That said, Mr Staniland is correct to point out that the Planning Inspectorate did correspond with one local resident, Mr Casey, but not with him. This was the continuation of an arrangement that I had agreed with the inquiry before it was adjourned in October 2008. At that time it was suggested that it would be beneficial to have a contact among local residents in addition to those persons entitled to appear (the appellant, the NPA and Widecombe Parish Council); Mr Casey agreed to act as a distribution point for local residents. Mr Casey undertook this role diligently throughout the proceedings, to the extent that members of the public were far better informed about evolving matters in this case than typically occurs when correspondence is distributed only to the ‘entitled’ parties. Thus far from failing to follow the procedures set out in the 2000 Rules, in this case the requirements of the procedures were exceeded.
28. One final procedural matter dealt with at the re-opened inquiry is the description of the site location as a result of Glebe Farm and most of its land (apart from the Copse) being sold in 2009 by the owner of the appeal site. Notwithstanding the changes in ownership, it was agreed at the final session of the inquiry that “The Copse, Glebe Farm” remains the most appropriate description of the location.
MAIN ISSUES
29. There are two main issues in this appeal: (i) the effect of the proposed installation on the character, scenic beauty and cultural heritage of the Dartmoor National Park; and (ii) whether there is a need for the proposal and, if so, whether that need could be met on any available and operationally suitable alternative site that would have fewer adverse effects on the National Park.
REASONS
Character, scenic beauty and cultural heritage
30. The proposed mast would be installed on the side of a steep valley some 500m west of the village of Widecombe, a popular tourist destination which nestles close to the valley bottom. The site is immediately to the south-east of a small copse of mainly oak and larch trees and would be close to a substantial Devon bank which separates the copse from the adjacent public right of way. The equipment cabinet would be about 2m from the mast, positioned near the Devon bank and enclosed by a new stone bank (with a gate) constructed around it. Access to the installation would be taken from Church Lane, a steep single track road which terminates some 30m to the east, thence along a stone
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track (part of the historic Church Way) 5 and through a field gate into the small field which contains the copse.
31. The equipment cabinet would be almost completely hidden from public view by the existing and proposed banks. A fleeting glimpse of the top of the cabinet may be possible from Church Way through any areas of sparse vegetation on top of the existing bank, while riders on horseback might see slightly more of the cabinet from their elevated position. Once the planting on the new bank had become established and vegetation had regenerated on top of the existing bank (see below), this element of the proposal would have negligible impact on the landscape and scenic beauty of the National Park. The mast, on the other hand, would be visible – indeed, the functional requirement to be able to broadcast signals into and across the valley necessitates an elevated structure. To minimise its visual impact and to aid its assimilation into the landscape, the appellant proposes to disguise the mast as a telegraph pole. It would be 10m tall, 250mm in diameter and would be finished with a GRP wood-effect covering which, in both colour and texture, is designed to resemble a typical wooden telegraph pole.
32. On my site visits I observed the appeal site from a large number of viewpoints on both sides of the valley. I was also able to assess the visual impact of similar utility structures (telegraph poles and poles supporting overhead electricity lines) in a variety of locations. The site lies towards the upper edge of the cultivated slope of the valley side, below the open moor. It is a location where poles which provide utility services are not a wholly uncharacteristic feature of the landscape, though I saw that there are relatively few on this side of the valley. The nearest existing structures are a line of wooden poles carrying the electricity supply to Kingshead Farm across fields about 300m to the north.
33. When viewed from high ground on the eastern side of the valley, including the approach to Widecombe on the B3387 and the open access land on either side, I consider that the proposed mast would have minimal impact on the scenic beauty of the landscape. I accept that it would just be discernible, particularly on sunny mornings, but at all times it would be set against the rising ground of high moors beyond. From most viewpoints the mast would have the copse as a backdrop and it would take a focused gaze to distinguish it from the vertical trunks of trees. From the vicinity of the road it would be seen directly above the tower of St Pancras Church, but at a distance of 1.5km or more it would not be conspicuous; even for observers who discern the mast as different from the trees it is likely to be perceived as a utility pole and would not appear out of place. From some areas, notably around Bonehill Rocks, it would be more easily identified against the backdrop of a field, but the distance is such that it would be an extremely small component of the landscape and would not appear inharmonious or inappropriate.
34. From the valley bottom and Widecombe village I believe that the mast would mostly be hidden by buildings, mature trees and the convex profile of the hill- slope. From the heart of the settlement, around the major attractions of the
5 This east-west route was referred to variously as Church Lane, Church Way and Church Path during the inquiry. I refer for convenience in this decision to the tarmac section of the route as Church Lane and the track that extends westwards from this as Church Way.
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village green and church, I think it unlikely that it would be visible. Even if there are locations within Widecombe village from which the mast (or, more likely, the top of it) could be identified, it would be a very small feature in the view and would not appear discordant. There would be limited visibility from the roads heading away from the village on the western side of the valley; the structure would be more visible from the roads on the eastern side of the valley floor, but at distances of about 750m or more, and set mostly against rising ground, it would not be prominent.
35. From much of the open-access high moor on the western side of the valley the mast would be completely shielded from view by the copse. However it would be visible within a small arc to the south-west, on the moor above Southcombe, at a minimum distance of about 150m. From this location it would be seen against a backdrop of fields and would appear as a distinct, man-made feature in the landscape. Nevertheless, the distance is sufficient for the mast not to be unduly conspicuous or out of place. From publicly accessible locations to the north there would be a fleeting glimpse through a gated gap in the bank along the footpath to Kingshead Farm, though at a distance of some 500m it would not be especially noticeable.
36. On the approach to the site along Church Lane, the mast would be hidden from view by a combination of the landform, vegetated Devon banks and clusters of trees. Until March 2010 this screening included a prominent group of evergreen holly trees at the eastern end of Church Way, but shortly before the final session of the inquiry the bulk of this group was felled, leaving just one tree standing. This has created a more open aspect at this point, allowing greater visibility towards the site, though I saw that the mast would still be hidden behind the tracery of the remaining vegetation, which includes a larch tree close to the field gate. In time, if the holly trees are left alone (and there is no reason to think that they would not be left alone for a further significant period), there is likely to be re-growth from the stumps and the better screening afforded by these trees would return.
37. The nearest residential property to the site is Bowden Barn, which lies off Church Lane about 70m to the south of the site. From the few openings on the north elevation of the dwelling only the top of the mast would be seen, above an oil tank and other raised features on the curtilage boundary, with a backdrop of trees behind it. More of the mast would be visible from the grass area to the east of the barn, but again it would have taller trees behind it. Whilst the mast would be recognisable at this distance, the treed backdrop and the fact that it would not break the skyline means that, in my opinion, it would not be highly noticeable in the outlook from the dwelling or its curtilage.
38. Close-up views of the mast would be obtained from Church Way, the right of way which gives access to the open moors. Heading west (uphill), the vegetation on the Devon bank and then the canopy of the larch tree would screen the mast from view almost until the field gate is reached. All but the lower part of the mast would be visible at the gate; at this point it would just break the skyline formed by the taller trees beyond, though the treed backdrop means that it would not be highly conspicuous. Only when moving along Church Way towards the mast would the structure protrude substantially above the surrounding vegetation and, at close proximity, it would be prominent. In the easterly, downhill direction, there would be fleeting glimpses of the central
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section of the mast until a larch tree close to the path is passed. At this point most of the mast would be seen in silhouette against the sky, with tree and shrub canopies on either side; it would be a substantial component of the view and would be highly conspicuous.
39. Much of the vegetation which normally grows on the Devon bank had been cleared shortly before my first visit to the site, so my perception of the extent to which the mast would be visible was a “worst case” situation. Along the rest of this section of path there is extensive vegetation on both sides of the bank, which in places forms a tunnel. Once the vegetation on the cleared section of bank has re-grown this would, in places, filter views of the mast, making it a less obvious feature. It is also pertinent that Church Way is a rough, uneven track with a rocky surface in places which becomes the course of a rivulet after wet weather. Consequently, many users of the path are likely to be glancing down at regular intervals to be sure of their footing, further limiting views of the mast.
40. The mast would be seen at close quarters from a relatively short section (less than 40m) of the right of way. I consider that the “telegraph pole” disguise would help to lessen any sense of incongruity from finding a man-made structure in this relatively remote location. Although it would be taller than most telegraph poles, because the lower section (and therefore its full height) would be hidden, I think the extra height would not be so obvious as to draw particular attention to it for that reason. I acknowledge that a single replica telegraph pole with no wires attached to it might appear odd on close inspection, but I suspect that many passers-by would not be conscious of this and, because of the disguise, would not give the mast a second thought. On the other hand, I expect that some local residents who use this path regularly would be highly sensitive to the mast and would find it obtrusive and discordant.
41. The copse of trees is important in forming a backdrop to the proposed mast in views from the east, and in concealing the mast in most views from the high moors to the west. Although many of the trees in the copse, especially the larches, have a limited lifespan, the proposal in the section 106 obligation to plant at least 40 new trees in the open parts of the copse, and to exclude grazing animals from the whole area and thereby encourage natural regeneration, should ensure that the benefit of these trees would endure for the foreseeable future. I accept that the two larch trees close to the field gate are unlikely to survive for a lengthy period, but in my view these are not critical to the acceptability of the proposal. Whilst these larches currently assist in screening the mast on the approach along Church Lane/ Church Way, such that their loss would increase the length of path along which the mast would be visible, the maintenance of a copse of trees behind the mast is sufficient to ensure that the increased visibility from the east would not be harmful. 6
42. Planning Policy Statement (PPS) 7: Sustainable Development in Rural Areas advises that National Parks have the highest status of protection in relation to landscape and scenic beauty. Overall, I conclude that the proposed mast would detract from the scenic beauty of the National Park. It would therefore
6 In these circumstances the debate at the inquiry about the effect on the lifespan of these larch trees of a tractor driving close to them has little bearing on the decision.
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be contrary to the development plan policies which aim to conserve or enhance the distinctive qualities of the National Park landscape. The most relevant of these policies are Devon Structure Plan policy CO2, Dartmoor National Park Core Strategy Development Plan Document (DPD) policy COR4, and part (i) of Dartmoor National Park Local Plan First Review saved policy UT6. Nevertheless, because prominent views of the mast would be restricted to one short stretch of path, and because the disguise would help to assimilate it into the landscape, I consider that the degree of harm would be slight.
43. In reaching this conclusion I have taken account of local residents’ concern that the development would harm Church Way, an historic route between the moors and Widecombe village. Whilst there is little doubt that Church Way has been an important route for many centuries, it is not designated for its historic or cultural significance under the planning system, nor given any special protection. The path is not in or close to a conservation area (the nearest is Widecombe village) and it is about 400m from the nearest listed building, Southcombe Farm. Furthermore, the development would not involve any physical changes to Church Way, so the route would not be directly affected. The fact that the mast would be visible from a short stretch of Church Way does not, in my view, amount to a material adverse effect on the cultural heritage of the National Park.
Need and alternative sites
Need
44. The proposed installation would be part of the Airwave TETRA (Terrestrial Trunked Radio) digital network, a national integrated telecommunications system that is dedicated for use by the police and, increasingly, other emergency services. The system has been progressively rolled out across the country since 2000 and is now used by all police forces. The mast at Widecombe is intended to fill the last gap in network coverage for Devon. Computer generated radio coverage charts indicate a pronounced absence of signal strength in the valley of the East Webburn River, centred on Widecombe village; this is supported by anecdotal evidence from the police and others about a loss of signal in the valley bottom.
45. A chart predicting coverage with the proposed mast in place demonstrates conclusively that the main target area (a circle with a 2km radius centred on Widecombe village) would achieve the desired ‘hand-held’ signal strength. Some objectors point out that other areas of Widecombe Parish would remain without adequate signal coverage - notably parts of the West Webburn River valley and the combined Webburn Rivers valley south to its confluence with the River Dart. The predictive chart confirms this to be so – indeed, it appears that there are a number of river valleys in the southern part of Dartmoor where signal strength would be below the minimum (vehicle level) coverage. It is evident, however, that the proposal would eliminate the largest area of deficiency, the East Webburn valley. This also seems to be the area most settled and visited, with Widecombe village itself and the annual fair being major tourist attractions. The appellant and the police maintain that the appeal proposal is the final base station needed to provide an acceptable level of coverage for the parish of Widecombe.
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46. Many local people contend that the proposal is unnecessary because a ‘Gateway’ system, using vehicle-based repeater units, could deliver adequate communications in Widecombe for the emergency services. It is also argued that systems put in place for events such as the annual fair have worked well in the past and would continue to be acceptable into the future. These suggestions are strongly refuted by the appellant and the police, the latter producing recent examples of instances where a loss of signal has put officers at risk and could potentially threaten the health or safety of the public. The police accounts of some of these incidents are disputed by local residents, who say that police officers attending incidents in the village were seen to express surprise when discovering that their radios worked.7
47. As Mr Casey fairly acknowledged, the divergence of opinion between the police and local residents about existing coverage is not necessarily irreconcilable. A drive trial of ‘vehicle level’ coverage demonstrates that some areas close to the village (including Rugglestone Inn) receive a signal, whereas the core of the village does not. This is quite different to the predicted coverage plots submitted with the application, which suggest that there is no coverage in the valley bottom. The explanation is that existing coverage from neighbouring cells is greater than normal as a result of a lack of down tilt on these antennas, thereby stretching the service to provide some coverage to Widecombe. The predictive coverage plots are shown with down tilt applied.
48. The appellant contends that stretching the coverage causes problems of multiple handovers and temporary signal loss on the approaches to Widecombe across the moors, and means that coverage in the neighbouring cells is not fully provided. It also submits that not only does the use of Gateway require a higher than normal signal strength to function properly, but it also involves significant operational constraints and gives only temporary network enhancement. There was little hard evidence to counter the appellant’s technical arguments, local residents focusing instead on undermining the assertions about poor signal strength in the village by reference to the few specific incidents. It is simply not possible for me to determine whether all the accounts of police officers talking on their radios were instances where communication was directly with the control centre rather than with other officers in ‘direct mode’ operation. But even if these were all examples of communication with the control centre, the many and significant limitations of the current communications system remain.
49. To my mind the police, not local residents, are better placed to determine both the required level of coverage and the means by which that coverage is achieved. There is substantial force to the Constabulary’s assertion that there is a critical need for police officers to have signal coverage when attending an emergency or incident away from a vehicle. It is clear to me that there are significant shortcomings with Gateway/repeater systems in terms of their technological limitations and restricted availability (both spatially and temporally). I therefore accept that such alternative methods would be unsuitable for long-term operational use and would not meet the identified need.
7 In this respect I give most weight to the evidence of Mr Palmer about an incident at Rugglestone Inn, as this evidence was subject to cross examination.
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50. Planning Policy Guidance (PPG) 8: Telecommunications advises that, whilst the need for the telecommunications system which the proposal is to support should not be questioned, the need for the specific development as part of that system is a material consideration. In my view the evidence on the need for Widecombe to be connected to the state-of-the-art communications system for the emergency services is compelling. Not only has it been demonstrated that the proposed installation would resolve a significant gap in coverage, but it is also evident that the roll-out of TETRA in Widecombe would potentially bring substantial public benefit with regard to considerably increased capabilities and response times to emergencies.
51. I appreciate the concern about the possibility of additional equipment being required to fill in future gaps in coverage or to provide resilience. Indeed, the appellant acknowledged that it is not possible to predict with precision whether additional facilities would be needed until the proposed cell becomes operational and optimisation of all the surrounding cells has taken place (ie down tilt has been applied). Nevertheless, any future proposals would be the subject of separate applications. More importantly for this case, there is no evidence before me of any environmentally acceptable installation at an alternative location in or around Widecombe which would provide better coverage over a wider area (see below).
Alternative sites investigated
52. PPG8 advises that high priority should be given to the need to safeguard areas of particular environmental importance. In National Parks, proposals should be sensitively designed and sited and the developer should demonstrate that there are no suitable alternative locations. The aim is to find the optimum environmental and network solution on a case-by-case basis. Part (ii) of Local Plan policy UT6 reflects the national advice. In this instance the search for the optimum solution has been under way since 2002: some 28 sites or locations have been investigated since then.
53. To limit visual intrusion, PPG8 encourages the sharing of existing telecommunications masts and sites. The sole existing site in the locality is a television repeater station at Blackslade Farm, some way to the south of the village. An application for a separate 20m tripole tower alongside the existing 17m lattice mast was submitted in 2002, but refused planning permission. The subsequent appeal was dismissed on the grounds of visual harm to the National Park landscape and the fact that a thorough and detailed comparison of alternative sites had not taken place (APP/J9497/A/03/1124025). Having visited this site during the inquiry, there is no doubt in my mind that a second, taller mast at this location would cause significantly greater harm to the scenic beauty of the National Park than the proposal before me.
54. Another often-used means of reducing the visual impact of telecommunications installations is to fix them to or within existing buildings or other structures. But it is difficult to find suitable structures in this sparsely populated rural area which, outside Widecombe village, consists mainly of scattered hill farms. Within the village the only obvious suitably tall structure is St Pancras Church, which has a prominent tower that overlooks the valley. However this is a Grade I listed building; there is no evidence that it would be possible to install
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an antenna on the church without causing harm to this nationally important building.
55. If a suitable existing mast, mast site, building or other structure cannot be found, a ground based mast is usually the only practical solution. A large number of potential sites around Widecombe village were investigated before the application was submitted to the planning authority, the majority at outlying farms. In most cases a mast significantly taller than that proposed at the appeal site would be required, and in many instances the installation would adversely affect the setting of a nearby listed building. There is no evidence before me that a site at any of these locations would cause less harm to the National Park than the Glebe Farm proposal. A further 8 sites were investigated before the inquiry in response to suggestions from local residents. The same considerations apply – a much taller mast would be required, and in many instances the setting of nearby listed buildings would be adversely affected. Equally important is the fact that, without exception, the owners of all these sites were unwilling to allow a mast to be installed on their property. I discuss the consequences of this in the following section.
56. A small number of sites close to the village were seen as potential options and have been investigated in greater detail. Telecommunications operators do not require a landowner’s consent to use most highway verges and one such site was proposed at the rear of The Old Inn. In 2005 Airwave submitted an application for a 7.3m high telegraph pole mast surmounted by a 2.7m antenna at this location, which was refused permission by DNPA because of the adverse visual impact on the National Park and conservation area. I observed on my visits that a 10m high mast, however well disguised, would appear noticeably taller than the nearby telegraph poles and, because the entire installation would be visible at the roadside, it would add significantly to the clutter of utility works close to the heart of this picturesque village. This is a highly visible location in the conservation area and such a solution would have a significantly greater impact on the character and appearance of the locality than the current appeal proposal.
57. A site was identified towards the rear of the main village car park. A 10m telegraph pole mast was originally proposed at his location, which is just outside the conservation area. It would be close to a tree of similar height and, with rising ground beyond and partly hidden by smaller trees in the foreground, the top section would be visible but not prominent from the village green at the entrance to the car park. Nevertheless its full height would be seen at close quarters by the substantial number of visitors who use the car park, from where it would appear taller than other nearby utility services. I appreciate that (compared to the appeal site) this is a location where service poles are more commonly found, but because it would be seen in its entirety, by substantially more people for longer periods of time, I consider that the harm to the landscape of the National Park would be greater than the Glebe Farm proposal, despite the higher sensitivity of the latter location.
58. The appellant maintains that it had long had doubts about the ability of a 10m high mast in the village to provide the required level of coverage towards the edges of the main target area. Further surveys in preparation for the appeal led it to determine that a 15m high mast would be required at the car park location. Shortly before the inquiry the appellant commissioned a drive trial of
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the locality which found that a mast of at least 19m high would be needed to provide adequate coverage (it was this information that caused DNPA to withdraw its case). It is beyond reasonable doubt that a mast of 19m high, with a noticeably greater diameter, would be highly prominent from the centre of Widecombe and would cause substantial harm to the village, its conservation area and the setting of the listed buildings.
59. A similar situation applies to another preferred location, Lower Southway Farm, which is in the valley bottom a short distance from the heart of the village. A 10m high mast was originally proposed adjacent to a barn at this farm, which was subsequently increased to 15m and then to 19m. In this location a mast would be visible from Rugglestone Inn (a Grade II listed building) and the nearby road, and to a lesser extent from St Pancras churchyard and near Northway bridge at the entrance to the village. As with the car park site, the substantial height of a 19m mast would draw attention to the installation, thereby emphasising its incongruity and causing significant harm to the National Park. Even a 10m mast would be noticeable, at least in part, from all these locations; because of its greater visibility over a wider area, and its effect on the setting of a listed building and the conservation area, I think that a 10m mast at Lower Southway Farm would cause at least as much harm as the appeal proposal, despite the fact that it would not be seen at such close range.
60. During the inquiry two local residents suggested an alternative location on Glebe Farm land, 8 in the corner of a field to the south of the appeal site close to a small group of beech trees. This is a more elevated site on the edge of the open access land and, as the available tree cover is little more than a single mature tree, it is much more exposed. A 10m mast in this location would be visible on the skyline from much of the hillside below it, including parts of Church Lane, as well as from the village (though at this distance it would be a very small feature). Although it would not be seen from close range by as many walkers as would the appeal proposal, it would be highly visible over a much wider area from the moors to the west, particularly from the track from Dunstone Down to Church Way. In my view any site in this field would be significantly more visible than that at the copse and would cause greater harm to the National Park landscape. A substantial length of track would also be required to gain access to this site, which would further detract from the scenic beauty of the locality.
61. Overall I am satisfied that a thorough and extensive search has taken place, over a protracted period, to try and find the site that would cause least harm to the National Park. On the evidence before me, and from what I saw on my wide ranging visits to the area, none of the alternatives proposed would have fewer adverse effects on the character, scenic beauty and cultural heritage of the National Park. Consequently there is no reason to doubt that the optimum environmental and network solution has been identified, as required by national and local planning policy.
Availability of alternative sites
62. As indicated above, most of the potential alternative sites had to be discounted at an early stage because the landowners were unwilling to allow the
8 Since the suggestion was made the land has been sold by the appellant.
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installation on their land. In addition, the landowner of the existing mast site at Blackslade Farm is now opposed to a further installation on his land, and it was confirmed at the inquiry that St Pancras Church is not available.
63. The few sites that were examined in detail were ones where, initially, it was believed that landowner consent would be forthcoming. The car park site in Widecombe is owned by Teignbridge District Council, who did not object when first approached. Early in 2007 the applicant was advised that the car park site would not be made available without the unreserved support of Widecombe Parish Council and the ward councillor. As the Parish Council strongly opposes any site in or near the village, this site is no longer available. At the same time the owner of Lower Southway Farm advised the applicant that, because of pressure from members of the local community, she was withdrawing consent for any site on her land.
64. The extent to which the availability of sites has been restricted by the actions of some people who are implacably opposed to any TETRA mast in or near Widecombe village is not known. In practice, following the indication from the (now former) owner of Glebe Farm that the only site he will provide is the appeal site, not one of the identified alternative sites is now available. It was mooted that, in some cases, it may have been the appellant’s failure to resolve the question of liability in the event of future claims that caused the non- availability. However, there is no evidence that this has been a determining factor with any landowner. I received evidence about availability from an expert witness who is bound by a professional code of practice to give accurate and truthful evidence; such evidence was not proved to be incorrect, and I have no reason to doubt its reliability.
65. At the inquiry it was suggested that some of the contacts with potential landowners amounted to no more than a brief telephone call, with no attempt made to persuade the respondent to make land available or to offer a more attractive financial package. Whilst that might be so, it is perhaps hardly surprising given that (i) the applicant was aware of the strength of opposition and peer pressure in the village, and (ii) it considered the appeal proposal to be less harmful to the National Park than any of the alternatives put forward. It is pertinent that, when recommending that the application be granted planning permission, DNPA officers accepted that all alternative options had been explored and exhausted. There is nothing in the evidence submitted at this appeal which causes me to question that view.
66. Some local residents argue that the use of a power available to code system operators under the Communications Act 2003 should be considered in this case. This enables an operator to compulsorily acquire rights over land to establish a base station in circumstances where consent is withheld by the landowner. This matter was the subject of the Court of Appeal judgement in Phoebe St Leger-Davey and James Harrison v First Secretary of State [EWCA Civ 1612]. The Court determined that “whilst a planning authority is entitled to have regard to the existence of (such a) power, it is not obliged to ignore, as a material consideration, the stand taken by occupiers of alternative sites.” The judgement states that “seeking the best location does not involve ignoring the rights and views of concerned landowners”.
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67. I appreciate that the circumstances of the St Leger-Davey case at Byron Avenue, Winchester 9 differ, in that the alternative locations there were occupied by ‘responsible authorities’ and were not in a National Park. However, at Byron Avenue the alternatives were considered to be better sites, in environmental terms, than the appeal site; thus the fact that they were not available led to a less preferable site being approved. That is not the case in Widecombe: here there is no compelling evidence that any of the alternative sites would cause less harm to the landscape and scenic beauty of the National Park. In such circumstances no advantage would be gained by using a power which would allow the installation to be sited at an alternative location, even if the power could properly be used in this way.
Conclusion on need and alternative sites
68. I have found that the TETRA communications network used by the police and other emergency services has a significant gap in signal coverage in the East Webburn Valley, centred on Widecombe. I also consider that the operational requirements of the emergency services are not adequately met by the existing arrangements, and that the strong case for access to the TETRA network would not be addressed satisfactorily by other means of operation. I therefore conclude that the need for the proposed installation in the Widecombe area has been clearly demonstrated.
69. An extensive search has been conducted, over many years, to find the most suitable site in operational and environmental terms. The installation proposed at the appeal site would provide coverage, at the required signal strength, to the identified target area. A large number of alternative options have been investigated, some in greater detail than others. I have determined that none of these alternatives would cause less harm to the character, scenic beauty and cultural heritage of the National Park than the appeal proposal. Equally significant is the evidence that none of the alternatives is available to the appellant because the landowners have refused consent for the siting of the installation on their land. I therefore consider that the optimum environmental and network solution has been found, as sought by PPG8 and Local Plan policy UT6.
70. Irrespective of the unavailability of alternative sites, the identification of the optimum site to meet the demonstrable need for an installation that would potentially have substantial public benefit is sufficient, in my judgement, to outweigh the slight harm that would be caused to the scenic beauty of Dartmoor National Park.
Other matters
Health concerns
71. Many residents living in the surrounding area are concerned about the potential health risks arising from radiofrequency (RF) emissions from the antenna. In particular, it is argued that walkers and horse-riders passing the mast would be very close to the source of RF emissions and would experience high levels of exposure. The owner of the nearest property, Bowden Barn, is extremely worried about the potential threat to the health of his family. Parents are
9 I was the Inspector who determined the Byron Avenue appeal, so I am very familiar with the circumstances.
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concerned about the health of children attending Widecombe school, given the vulnerability of children to the effects of RF emissions.
72. The Courts have established that health considerations and public fears can, in principle, be material considerations in determining applications for planning permission. In response to increasing public concern, the Government in 1999 commissioned the Independent Expert Group on Mobile Phones, under the chairmanship of Sir William Stewart, to report on the health effects of mobile phones and base stations. The Stewart Report concluded, on the balance of the evidence, that there is no general health risk to people living near to mobile phone base stations. It accepted, however, that in some cases there could be indirect adverse effects on their well-being. In relation to base stations, Stewart recommended that emissions should meet the International Commission on Non-Ionising Radiation Protection (ICNIRP) guidelines for public exposure, which are five times more restrictive than the guidelines of the Government’s own advisers.
73. The Government accepted the precautionary approach advocated by Stewart, but argues that the planning system is not the place for determining health safeguards: that remains central Government’s responsibility. PPG8 advises that where the ICNIRP guidelines are met, it should not be necessary to consider further the health aspects and concerns about them. Information supplied with the application indicates that the general public would be exposed to RF levels that are well below the ICNIRP guidelines. The highest levels would be experienced by users of Church Way; here exposure for pedestrians would be less than 1% of the ICNIRP compliance level. The concern that a horse rider would be at such a height as to breach the ICNIRP guidelines is not supported by the evidence, which suggests that a rider would be over 5m below the exclusion zone that encircles the antenna. At Bowden Barn the level would be 0.08% of the guidelines, and at the school the level would drop to 0.0014% of the guidelines. Thus in most cases public exposure would be a small fraction of the ICNIRP guidelines, and in Widecombe village it would be many thousands of times below these levels.
74. Part of the anxiety arises from the particular characteristics of the TETRA system, which uses RF signals that are amplitude-modulated near a frequency which Stewart recommended, as a precautionary measure, should be avoided if possible. The possible health effects of TETRA were examined by the Advisory Group on Non-Ionising Radiation, chaired by Sir Richard Doll. It reported in 2001, concluding that “it is unlikely that the special features of signals from TETRA mobile terminals and repeaters pose a hazard to health”. It is pertinent that the Doll Report focuses on the mobile terminals used by operators of the system, which transmit the pulsed signals about which there is most concern; Doll concludes that the signals from base stations are continuous, not pulsed. The Doll Report states that the general public will experience exposures from TETRA base stations that are comparable with those arising from other telecommunications systems. There was no evidence before me to the contrary. I note that the health concerns of the Lancashire Police Federation relate to exposure from radio handsets, not masts, and that when these were investigated by the Health and Safety Executive, no link was found; moreover, excessive noise (audio spikes) rather than the effects of RF emissions is the issue in at least some of the cases that are subject to Court action.
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75. Research into the health effects of RF emissions is continuing and is peer- reviewed at regular intervals, as recommended by Stewart. A report by the National Radiological Protection Board in 2004 endorsed the findings of Stewart and did not recommend any changes to the guidelines. The most recent UK study is the 2007 report of the Mobile Telecommunications and Health Research Programme (MTHR). From the results of 23 scientific studies (which includes research into the effects of TETRA signals), the MTHR report concludes that “none of the research … demonstrates that biological or adverse health effects are produced by RF exposure from mobile phones”.
76. Little direct evidence on health was given at the inquiry; local concern is largely based on information available on the internet which challenges the current orthodoxy. Most of the reports to which my attention was drawn, including those by Mr Barry Trower, were published some time ago and would have been available to the peer-reviews mentioned above. The worries about calcium efflux and about interference with medical devices have been investigated, with the peer-review reports concluding that no adverse effects are likely from base station emissions. I note the concern about animal welfare, particularly bees, but there is no convincing evidence that directly attributes the decline in bee colonies to RF emissions.
77. I have taken account of the recently published scientific material and the claims therein that adverse health effects have been observed, but I do not believe it is reasonable to draw meaningful conclusions from a small number of studies without knowledge of the wider spectrum of latest research. Much greater weight should be placed, in my view, on the regular peer reviews mentioned above. As to the argument that the ICNIRP safety level is too high and should be replaced by the much lower international BioInitiative recommendation of 0.6v/m, it was stated that emissions from the proposed mast would (at 0.345v/m) be significantly below the BioInitiative level, and would therefore comply even if this were to be adopted.
78. In short, there was no evidence before me of unusual health factors which fall outside those which have been taken into account in setting the policy in PPG8, and there is nothing in the subsequent reviews of research which persuade me that the policy is inappropriate. As to the application of the precautionary principle, the Government’s view is that the ICNIRP standard has been formulated at a level which gives full effect to the precautionary principle. Given the very much lower power levels predicted from the proposed mast, which add a further safety margin to those already incorporated within the ICNIRP standard, there is no scientific basis for concluding that the development would have direct adverse health effects on people or wildlife in the locality.
79. It is also necessary to consider the perceived fear that the installation could cause harm to local people, even when not supported by current science, as the resulting anxiety could adversely affect the well-being of some individuals. For many Widecombe residents the installation would not be visible from their homes and I do not believe it would be seen from the school. For those who would see the mast (or part of it) from the village or beyond, I think it unlikely that distant views of a barely discernible structure resembling a telegraph pole would arouse significant concern. For the occupier of Bowden Barn, the only property close by, I appreciate that the top of the mast would be visible from
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parts of the dwelling and garden. It would not appear in the main outlook to the south and east, however, and at all times it would be seen some 70m away against a backdrop of taller trees. Because the mast would not be so conspicuous as to be a constant visual reminder of its perceived hazard, I think that for many people such proximity would not give rise to undue concern.
80. People’s reactions differ and for some I accept that simply knowing about the existence of the installation would stimulate a fear of risk to their health. I sympathise with such concerns. However, I believe that they would need to be based on particularly special or compelling circumstances to override the Government’s firm advice in PPG8. In this case the proposal is a relatively typical telecommunications installation, in my experience, with emissions substantially below the ICNIRP guidelines. There is nothing to suggest that the risk to health from this base station would be any different to that arising from very many similar installations throughout the country. Consequently, I can find no convincing reason for reaching a conclusion on health grounds contrary to national policy.
81. Turning to development plan policy, there is no specific policy dealing with telecommunications and health. The most relevant is Core Strategy policy COR1, which at criterion (c) seeks to promote the health, safety, economic and social well-being of the local population. In the absence of a proven health risk from the installation, there is little doubt in my mind that the provision of a significantly improved communications system for the emergency services in the Widecombe area is likely to have appreciable benefits for the health and safety of the local community. Thus there is no conflict with policy COR1.
82. Some disquiet was expressed that, as an Inspector acting for the Secretary of State and required to have regard to Government policy, I am not in a position to undertake an impartial assessment of this case. I ascertained at the inquiry that the criticism was not aimed at me as an individual, but at the system that exists to deal with telecommunications appeals. The principle of the independence and impartiality of an Inspector has been established in the Courts, where it has been held that the right to challenge a particular decision by recourse to the High Court provides a sufficient safeguard, even in cases where another Government department or agency is involved. For the same reason there is no merit to the contention that there is a breach of Article 6 of the European Convention on Human Rights, the right to a fair hearing. 10
83. Moreover, it is important to state that my decision is not fettered by the advice in PPG8. In assessing the health issue, PPG8 is a material consideration which has to be weighed in the balance with other material considerations. Having carried out that exercise, I conclude above that the health concerns in this case are not sufficiently compelling to outweigh the advice in PPG8.
Public consultation
84. The appellant, like most telecommunications operators, is party to a Code of Best Practice which sets out standardised procedures designed to encourage better communication and consultation between operators, local authorities and local people. Airwave contends that it fully complied with the pre-
10 The leading case is the House of Lords judgement R v Secretary of State for the Environment, Transport and the Regions ex parte Holding and Barnes plc…… ( Alconbury [2001] UKHL 23; [2001] 2 All ELR 929)
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application requirements of the Code; on a strict interpretation of the Code, this is true. On the other hand, it refused the request from Widecombe Parish Council to attend a public meeting to discuss the proposal (offering a closed meeting with Members instead), and it failed to directly consult the local school.
85. The appellant says that its experience of public meetings is that they are neither productive nor informative for any of the parties. Whilst that may be so, from the local community’s perspective it is not surprising that the refusal to attend a public meeting is viewed with antagonism and suspicion. It is hardly good public relations on Airwave’s part, for it suggests that the company is not genuinely seeking to involve local people but, instead, will only accept participation on its terms. As to the failure to consult the school, I appreciate that the school is beyond the distance that the company normally deems appropriate for consultation, but the Code indicates that local circumstances, including a history of concern about base stations, should be taken into account.
86. It is clear that there was substantial and productive pre-application discussion with DNPA, so there can be no criticism of the applicant in that regard. And as it complied with the minimum requirements of the Code of Best Practice, the failure of the applicant to carry out the form of consultation desired by the local community is not a matter that carries significant weight in this decision. In any event, it is evident from the large number of representations concerning the application and appeal, and the many people attending and speaking at the inquiry, that the local community is wholly conversant with the proposal and has taken the opportunity to participate fully in the decision making process.
Property values
87. The occupier of Bowden Barn believes that the development would result in a drop in the value of his property. Many planning decisions have some effect on property values, however, and as indicated in Government advice The Planning System: General Principles , it is not for the planning system to protect the private interests of one person against the activities of another. PPG8 indicates that the material question is not whether owners of nearby property might suffer financial or other loss, but whether the installation would have a detrimental effect on the locality generally, and on amenities that ought to be protected in the public interest. In this case I have concluded that the loss of amenity would be slight and confined to a small area, and that the optimum environmental and network solution has been found. Consequently I do not believe that there is a wider public interest that merits protection.
Right of access through the Copse
88. When the owner of the Copse sold the surrounding fields in 2009, provision was made for the purchaser of the land to the north to have a right of access across the Copse. There was much evidence at the inquiry about the implications of the encroachment of the proposed equipment cabinet and the surrounding bank onto the ‘track’ that is said to be the route of this access through the Copse. I saw on my visits that the track is not a clearly defined or surfaced route, but two parallel ruts in the soft ground which had been formed by the occasional passage of a tractor past the appeal site. Local residents
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claimed that there would be insufficient room for a modern tractor and trailer to manoeuvre past the compound and through the field gate. I find this surprising, for on the site visit it seemed to me that there was ample space to enable a tractor and trailer to move around the compound and through the gate. The appellant produced a swept path analysis which purports to demonstrate that a medium-sized tractor with a 3m long trailer could comfortably perform this manoeuvre, arguing that it is the gate rather than the compound which limits the size of vehicle that can be used.
89. The Transfer document simply refers to “a right of access and egress” to the adjoining land; it does not specify the route of the access, its specification or purpose, or who or what is entitled to use the access. There is no doubt in my mind that the proposed compound would not prevent access being taken through the Copse to the adjoining land; the evidence suggests that, at the very least, this manoeuvre could be performed by a small-to-medium sized tractor and trailer. But the critical point is that even if the development did breach the right of access, this is not a matter which could be given weight in the consideration of this appeal. It is a private matter between the land owner and another party who has rights over the land. As I indicate above, the planning system does not exist to protect the private interests of one person against the activities of another. On the available evidence I do not believe that, in the unlikely event of the development leading to a breach of the right of access across the Copse, there would be a detrimental effect on the locality or on other amenities that ought to be protected in the public interest.
Other matters - Conclusion
90. As well as considering the matters above, I have taken into account the wide range of other matters raised by the parties at the inquiry. I find nothing which, individually or in combination, is sufficient to outweigh my conclusions on the main issues.
Conditions
91. I have considered the conditions suggested by the Council in the light of the discussion at the inquiry and the advice in Circular 11/95: The use of conditions in planning permissions . In addition to the statutory time limit for the commencement of the development, it is necessary to ensure that the details of the development are appropriate to protect the character and appearance of the National Park. These conditions relate to the materials of construction, the landscaping of the site and the requirement that all cables to the site should be run underground. In terms of materials, I have used the form of wording discussed at the inquiry which enables the National Park to decide whether the mast should be faced in its entirety in timber-effect GRP or whether the bottom section should be natural timber. As I am determining this appeal on the basis of the revised scheme that was considered at the re-opened inquiry, for the avoidance of doubt it is necessary to list the plans to which the permission relates.
Conclusions
92. Although I have determined that the proposed development would cause slight harm to the character and scenic beauty of the Dartmoor National Park, I have found that, following a thorough and extensive investigation, there is no
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available or less harmful alternative that would better meet the proven need for this telecommunications installation. In these circumstances the proposal accords with national planning policy in PPG8 and with the policies of the development plan.
93. I have taken account of all the other matters raised, including the strong local opposition on health and other grounds, but I find nothing to outweigh my conclusions on the main issues. For the reasons given above I conclude that the appeal should be allowed.
Martin Pike
INSPECTOR
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APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY:
Graham Gover Solicitor, 10 Southernhay West, Exeter EX1 1JG *Mr C Walledge Barrister, Head of Legal Services, Dartmoor NPA *Mr C Hart Senior Planning Officer, Dartmoor NPA BSc MA MRTPI *Mr C France Director of Planning and Sustainable BSc BTP MRTPI Development, Dartmoor NPA *Did not give evidence but answered questions (see paragraph 4)
FOR THE APPELLANT:
Trevor Blaney MSc LAMRTPI Solicitor and Partner, Lawrence Graham LLP He called Mr R Holt Director, TileHouse Solutions Ltd BEng(Hons) NDEE MIEE Mr P Russell-Vick Partner, Enplan DipLA MLI Mr M Pearce Conservation planner ARIBA MRTPI IHBC Mr M Mackworth-Praed Senior Associate Consultant, Simon Jones BA MSc FArborA Associates Ltd, Mr I Waterson Town Planning Solutions Ltd BA(Hons) DMS MRTPI
INTERESTED PERSONS:
Ms A Murray-Preece Local resident Mr R Newbolt-Young Chairman, Widecombe Parish Council Mr D Sibley Local resident Mr R Casey Local resident Mr R Staniland Local resident Dr G Blackwell Local resident Mr N Storrs Local resident Mrs A Bell Local resident Mr N Millard Local resident Mr R Constant Local resident Mr J Mousely Local resident Mr G Tomlinson Local resident Mr R Claxton Local resident Mr W Bell Local resident Mrs A Claxton Local resident Mr Palmer Landlord, Rugglestone Inn Mrs C Coombes Local resident
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DOCUMENTS SUBMITTED DURING THE INQUIRY (Main statements of evidence and documents only; excludes covering letters, emails and correspondence regarding procedural matters)
Appellant’s Documents
APP/HOL/1 Mr Holt’s supplementary proof APP/HOL/2 Mr Holt’s rebuttal proof to evidence of Mr Hoskin APP/HOL/3 Mr Holt’s rebuttal proof to statement of Mr Casey 1 APP/HOL/4 Mr Holt’s rebuttal proof to statement of Mrs Hill APP/HOL/5 Mr Holt’s rebuttal proof to statement of Mr Staniland 1 APP/HOL/6 Mr Holt’s rebuttal proof to statement of Mr Casey 2 APP/HOL/7 Mr Holt’s rebuttal proof to statement of Mr Casey 3 APP/HOL/8 Mr Holt’s rebuttal proof to statement of Mr Casey 4 APP/HOL/9 Mr Holt’s rebuttal proof to statement of Mr Staniland 2 APP/HOL/10 Mr Holt’s rebuttal proof to statement of Mr Staniland 3 APP/HOL/11 Mr Holt’s rebuttal proof to statement of Mr Sibley 1 APP/HOL/12 Mr Holt’s rebuttal proof to statement of Mr Sibley 2 APP/HOL/13 Mr Holt’s rebuttal proof to statement of Mrs Bell APP/HOL/14 Mr Holt’s rebuttal proof to statement of Mr Mitchell APP/HOL/15 Mr Holt’s rebuttal proof to statement of Mr Tomlinson and Mr Storrs APP/HOL/16 Mr Holt’s proof on layout of Airwave base station APP/HOL/17 Mr Holt’s supplementary proof submitted August 2009 APP/HOL/18 Mr Holt’s rebuttal proof submitted October 2009 APP/HOL/19 Mr Holt’s supplementary proof submitted February 2010 APP/HOL/20 Mr Holt’s rebuttal proof to statement of Mr Casey 5 APP/HOL/21 Mr Holt’s rebuttal proof to statement of Mr Casey 6 APP/HOL/22 Mr Holt’s rebuttal proof to statement of Mr Casey 7 APP/HOL/23 Mr Holt’s rebuttal proof to statement of Mr Sibley 3 APP/HOL/24 Mr Holt’s rebuttal proof to statement of Mr Sibley 4 APP/HOL/25 Mr Holt’s rebuttal proof to statement of Mr Staniland 4 and 5 APP/HOL/26 Mr Holt’s rebuttal proof to statement of Mr Staniland 6 APP/HOL/27 Mr Holt’s rebuttal proof to statement of Mrs Bell APP/HOL/28 Mr Holt’s rebuttal proof to Costs application of Mr Casey APP/RUV/1 Mr Russell-Vick’s supplementary proof and appendix APP/RUV/2 Mr Russell-Vick’s rebuttal proof to statement of Mr Casey 1 APP/RUV/3 Mr Russell-Vick’s rebuttal proof to statement of Mr Casey 2 APP/RUV/4 Mr Russell-Vick’s rebuttal proof to statement of Mr Tomlinson APP/RUV/5 Mr Russell-Vick’s rebuttal proof to statement of Mr Storrs APP/RUV/6 Mr Russell-Vick’s proof on layout of Airwave base station APP/RUV/7 Mr Russell-Vick’s rebuttal proof to statement of Mr Sibley APP/RUV/8 Mr Russell-Vick’s rebuttal proof to statement of Mr Casey 3 APP/RUV/9 Mr Russell-Vick’s rebuttal proof to statements of Mr Tomlinson 2, Mr Sibley 2, Mr Casey 4 APP/RUV/10 Mr Russell-Vick’s rebuttal proof to statements of Mr Claxton, Mr Casey 5 APP/RUV/11 Mr Russell-Vick’s rebuttal proof to statement of Mr Casey 6 APP/PEA/1 Mr Pearce’s supplementary proof APP/PEA/2 Mr Pearce’s rebuttal proof to statement of Mr Claxton APP/PEA/3 Mr Pearce’s supplementary proof submitted September 2009 APP/MAP/1 Mr Mackworth-Praed’s proof and appendices APP/MAP/2 Mr Mackworth-Praed’s rebuttal proof and appendices to statement
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of Mr Casey APP/MAP/3 Mr Mackworth-Praed’s proof on layout of Airwave base station APP/MAP/4 Mr Mackworth-Praed’s supplementary proof and appendices submitted September 2009 APP/MAP/5 Mr Mackworth-Praed’s rebuttal proof 2 to statement of Mr Sibley and Mr Casey APP/MAP/6 Mr Mackworth-Praed’s supplementary proof 2 and appendices submitted February 2010 APP/WAT/1 Mr Waterson’s supplementary proof APP/WAT/2 Mr Waterson’s rebuttal proof APP/WAT/3 Mr Waterson’s rebuttal proof to statement of Mr Casey and Mr Staniland APP/WAT/4 Mr Waterson’s rebuttal proof to statement of Mr & Mrs Hill APP/WAT/5 Mr Waterson’s rebuttal proof 4 APP/WAT/6 Mr Waterson’s proof on layout of Airwave base station APP/WAT/7 Mr Waterson’s supplementary proof submitted September 2009 APP/WAT/8 Mr Waterson’s rebuttal proof to statement of Mr Casey, Mr Sibley and Mr France APP/WAT/9 Mr Waterson’s rebuttal proof 6 APP/WAT/10 Mr Waterson’s supplementary proof submitted February 2010 APP/WAT/11 Mr Waterson’s rebuttal proof 7 APP/WAT/12 Mr Waterson’s rebuttal proof 8 APP/WAT/13 Mr Waterson’s rebuttal proof 9 APP/DOC/1 Section 106 Obligation APP/DOC/2 Application for Costs (main inquiry) APP/DOC/3 Response to DNPA application for Costs (main inquiry) APP/DOC/4 Signed copy of Fire Service note of meeting with Widecombe PC APP/DOC/5 Press announcement of Airwave operational in London underground APP/DOC/6 Extract from ECS Consulting website APP/DOC/7 Photograph of GPS equipment APP/DOC/8 Closing submissions for appellant (main inquiry) APP/DOC/9 Costs application (re-opened inquiry) APP/DOC/10 Response to DNPA Costs application (re-opened inquiry) APP/DOC/11 Response to Mr Casey Costs application (re-opened inquiry) APP/DOC/12 Extract from Police Federation News, 24 April 2005 APP/DOC/13 Lancashire Police Authority – bundle of claims against Airwave APP/DOC/14 Additional Closing submissions for appellant (re-opened inquiry)
National Park Authority’s documents
DNPA/1 Email 20.10.08 advising that DNPA no longer contests the appeal DNPA/2 Application for Costs DNPA/3 Statement of reasons for withdrawal from appeal DNPA/4 Response to Airwave application for Costs DNPA/5 Report to DNPA Development Management Committee, 7 November 2008, and Committee minute DNPA/6 Extract from DNPA Standing Orders DNPA/7 DNPA Scheme of Delegation DNPA/8 Note on relationship between National Park Management Plan and Core Strategy DPD
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DNPA/9 Copy of letter of representation from Dartmoor Preservation Association DNPA/10 Statement of Mr France regarding amended plan DNPA/11 Breckland DC v Secretary of State for the Environment and Hill [1993] 65 P&CR 34 DNPA/12 Note about reporting procedure for late information DNPA/13 Costs application (re-opened inquiry) DNPA/14 Further submissions regarding Costs (re-opened inquiry)
Interested Persons’ documents
IP/HIL/1 Rebuttal statement of Mr & Mrs Hill IP/CAS/1 Letter 2 of Mr Casey (14/22.10.08) and appendices A to G IP/CAS/2 Email 25.10.08 from Mr Casey with aerial view and sight lines IP/CAS/3 Letter 3 of Mr Casey (30.10.08) and appendix IP/CAS/4 Letter 4 of Mr Casey (30.10.08) and appendices IP/CAS/5 Letter 5 of Mr Casey (31.10.08) IP/CAS/6 Letter 6 of Mr Casey (3.12.08) and appendices IP/CAS/7 Letter 7 of Mr Casey (7.01.09) and appendices and photomontages IP/CAS/8 Letter 8 of Mr Casey (15.01.09) IP/CAS/9 Statement of Mr Casey IP/CAS/10 Letter 11 of Mr Casey (18.02.09) IP/CAS/11 Letter 9 of Mr Casey (23.09.09) IP/CAS/12 Letter11 of Mr Casey (16.10.09) IP/CAS/13 Letter 14 of Mr Casey (15.12.09) IP/CAS/14 Letter 16 of Mr Casey (25.02.10) IP/CAS/15 Letter 17 of Mr Casey (25.02.10) IP/CAS/16 Letter 19 of Mr Casey (12.03.10) IP/CAS/17 Closing submissions of Mr Casey IP/CAS/18 Costs application of Mr Casey IP/BEL/1 Letter 28.10.08 from Mrs Bell and appendix IP/BEL/2 Letter 3.12.08 from Mrs Bell IP/BEL/3 Scientific Paper: Bees, Birds and Mankind – Destroying nature by “electrosmog” ; Ulrich Warnke, 2007 IP/BEL/4 Letter from Mrs Bell dated 26.02.10 IP/BEL/5 Letter and bundle of research documents submitted by Mr Stein IP/CLA/1 Email 31.10.08 from Mr Claxton and statement IP/CLA/2 Rebuttal statement 2.12.08 of Mr Claxton IP/CLA/3 Rebuttal statement of Mr Claxton, February 2010 IP/STA/1 Letter 31.10.08 of Mr Staniland and appendices IP/STA/2 Letter 3.12.08 of Mr Staniland and appendices IP/STA/3 Extract from National Policing Improvement Agency: Automotive and Equipment Section IP/STA/4 Letter 16.10.09 of Mr Staniland and appendices IP/STA/5 Statement of Mr Staniland, October 2009 IP/STA/6 Letter 18.12.09 of Mr Staniland IP/STA/7 Letter 26.02.10 of Mr Staniland and appendices IP/STA/8 Letter 08.03.10 of Mr Staniland IP/SIB/1 Letter 0.11.08 (sic) from Mr Sibley and appendix IP/SIB/2 Email 4.12.08 from Mr Sibley and appendix
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IP/SIB/3 Letter 17.02.09 from Mr Sibley IP/SIB/4 Letter 12.03.09 from Mr Sibley IP/SIB/5 Email 24.09.09 from Mr Sibley IP/SIB/6 Letter 18.12.09 from Mr Sibley IP/SIB/7 Letter 24.02.10 from Mr Sibley IP/MIT/1 Letter 3.12.08 from Mr Mitchell IP/TOM/1 Letter 3.12.08 from Mr Tomlinson and illustrations IP/TOM/2 Letter 15.12.09 from Mr Tomlinson IP/STO/1 Letter 4.12.08 from Mr Storrs IP/STO/2 Statement of Mr Storrs IP/STO/3 Statement of Mr Storrs, 25 March 2010 IP/GRE/1 Letter 12.01.09 from Dr Greeves IP/NBY/1 Statement of Mr Newbolt-Young IP/BLA/1 Statement of Dr Blackwell IP/BLA/2 Statement of Dr Blackwell, 24 March 2010 IP/PAR/1 Letter 25.09.09 from Mr Partridge IP/PAR/2 Letter 23.03.10 from Mr Partridge
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