CASEBOOK: Court cases - Mast challenge upheld over alternative location

In allowing a challenge to an inspector's decision to allow Hutchison 3G to site a telecommunications mast in Hampshire, the High Court has held that concerns over health effects were a material consideration and as a consequence a site should be chosen which raised the fewest objections.

A local resident claimed that the siting of the mast near her home and local nursery school was unacceptable because it gave rise to unacceptable concerns over the health and well-being of residents. Mr Justice Richards stated that in dealing with planning applications, decision-makers should go beyond deciding whether a particular site passes the test of suitability.

Decision-makers should also examine alternative locations to assess whether they are to be preferred having regard to the levels of local objection, the judge reasoned. The government's own policy on telecommunications development lists health concerns as a material consideration, he noted, and the existence of such concerns is one of the reasons why the location of telecommunications structures is such a sensitive issue.

He concluded that where two alternative sites which are acceptable in land-use and environmental terms are available, it is open to the decision-maker to refuse approval for one of the sites if a mast on that site would give rise to substantially greater concern among local residents than its location on an alternative site. He concluded that the inspector's decision should be quashed on the basis that an assessment of alternative sites had not been carried out.

Phillips v First Secretary of State; Date: 22 October 2003; Ref: CO/2229/2003.

COMMENT: This judgement could possibly rank as a landmark ruling. On the face of it, it requires a comparison to be made of alternative sites based on the level of local objection. Thus a council or inspector, in deciding between two equally acceptable sites in environmental and operational terms, would be required to choose on the basis of which site attracts the least public objection.

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