ECS Limited May 2003

Perception of Risk – a matter of opinion?

The most common concerns of the general public in respect of mobile phone masts are related to health and safety and give rise to the perception of risk. Planning Officers and Members often find this particularly difficult to deal with. This document aims to give an up-to-date review of the general trends in taking perception of risk into account. It is largely based on the current English legislation and Guidance (there are subtle difference in the guidance in Wales and in Scotland the legislation itself is different). It does not aim to give value judgements.

It has been written by ECS Limited, an independent consultancy that has provided independent advice on planning applications for masts to over 170 Local Authorities over the last 10 years. ECS does not accept work from mobile phone companies or anti-mast groups. However our previous experience does come from within the telecommunications industry; we use that experience to help us to provide objective information to Local Authorities.

Government Guidance

Planning Policy Guidance Note 8 issued in August 2001 gives guidance on matters pertaining to health and safety considerations in relation to mobile phone masts. In essence there are two strands to this. The first relates to known health risks associated with the heating effect of radio waves. This is an effect that has been known about for many years and conservative guidelines have been developed to protect the general population from these heating effects.

The current edition of PPG8 was drawn up after the publication of the Stewart Report, an independent report on mobile phones and health, commissioned by the Government. The Stewart Report concluded in respect of base stations that:

“... the balance of evidence indicates that there is no general risk to the health of people living near to base stations on the basis that exposures are expected to be small fractions of guidelines. However, there can be indirect adverse effects on their well being in some cases.”

The guideline levels referred to are those issued by the International Commission on Non-Ionising Radiation Protection. These are science-based guidelines designed to protect the general population from a known adverse health effect of radio waves (i.e. heating). The guidelines are formulated to protect people of all ages, in all states of health and for continuous exposure. Over the last 18 months, independent surveys carried out by the Radiocommunications Agency at over 100 schools across the UK which showed that the highest level of exposure encountered was 279 times less than the guideline levels.

The Stewart Report also concluded that there was some evidence to show that there are non-thermal biological effects but said that there was no evidence to show that these were harmful. It recommended further research into health effects associated with mobile phones.

Perception of Risk

It is perhaps the later part of Stewart’s conclusion, regarding non-thermal biological effects, that has given rise to the public perception of risk. This is picked up in PPG8 which states that:

“Health considerations and public concern can in principle be material considerations in determining applications for planning permission. Whether such matters are material in a particular case is ultimately a matter for the Courts. It is for the decision maker to determine what weight to attach to such considerations in any particular case.”

This paragraph sets out the legal position in which it has been established that perception of risk is a material consideration. (Newport County Borough Council v Secretary of State for Wales and Browning and Ferris Environmental Services). The problem faced by many Local Authorities is therefore how much weight to attach to the perception of risk.

PPG8 goes on to say:

“.. it is the Government’s firm view that the planning system is not the place for determining health safeguards... if a proposed... base station meets the ICNIRP guidelines for public exposure it should not be necessary .. to consider further the health aspects and concerns about them.”

Appeal Decisions

Appeal decision are not definitive, however they do give useful guidance on how the Planning Inspectorate is interpreting both the guidance and the legislation on behalf of the Government.

Stroud (APP/C1625/A/01/1072125) in respect of perception:

“.. the perceived health concerns do not provide a robust basis on which to dismiss the appeal, also (taking) into account other facts set out in PPG8 which support the proposal”. (Paragraph 23 – decision letter)

Brixham (APP/X1165/A/01/1071531) where residents wanted an unequivocal assurance that there would be no health risk:

“However, in my judgement that is not too strict a test. Indeed the Stewart Committee found it to be unrealistic (Paragraph 6.15) and went to say that science can never provide a guarantee of zero risk. It may, however, offer strong reassurance that any risks from technology are small in comparison with many other risks we accept in our lives ..... the lead from Government is that the installation should be ICNIRP compliant, a stance that has its genesis in the recommendations of the Stewart Committee.”

Neath Port Talbot (APP/Y6930/A/02/1106716)

“The Council, in this instance, does not point to any direct evidence as to the extent of any actual or perceived risk to health that may result from installation of the proposed mast. While others refer to certain documentation, this is only generalised in nature or refers to TETRA systems or mobile phone handsets rather than to masts of the type proposed. Accordingly I can only afford such references limited weight….At the school boundary [emission levels] would be only 0.15% of the [ICNIRP] guidelines.”

“Bearing in mind the above points [which relate to ICNIRP compliance] I would conclude that there is no justification for withholding permission on the ground of the perceived risk to human health.”

Guildford (APP/Y3615/A/E1069715) in regard to health considerations:

“they can be a material planning consideration in the determination of applications and appeals to be weighed along with other considerations, including Government policy guidance. Whilst I accept the materiality of concerns about the health and well-being of those people who live, learn and work in the area, I find that there is no basis in national policy for dismissing the appeal for that reason alone. The health implications of base stations have been very recently considered at national level. They will continue to be a matter for ongoing research and debate. The installation meets the current guidelines of ICNIRP. At this time, the appeal proposal accords with the precautionary approach that has been accepted by the Government and is set out in PPG8. In so far as the development plan is relevant with regard to issues of need and alternative sites, the proposal complies. I heard no substantive evidence of sufficient weight to support taking an alternative approach.”

Watford, Langley Way (APP/Y1945/A/01/1060758)

“While understanding the genuine and sincerely held anxieties of local residents, the health and safety aspects of telecommunications systems are matters on which I must be guided by national policy. The Government’s approach in the new version of PPG8 could not be clearer or more up to date. Health considerations and public concerns can, in principle, be material considerations in dealing with prior approval applications. However, Paragraph 98 of the Appendix states the Government’s firm view that the planning system is not the place for determining health safeguards; it remains a separate responsibility of central Government. If a proposed base station meets the ICNIRP guidelines it should not be necessary, in dealing with an application for planning permission or prior approval, to consider further the health aspects and concerns about them. Paragraph 101 adds that specific precautionary actions recommended by the Stewart Report have been accepted by the Government and that the report does not provide any basis for precautionary actions beyond those already proposed. In the Government’s view, planning authorities should not insist on minimum distances between new telecommunications development and existing development.”

And he went on to say:

“While accepting the materiality of concerns about the health and well-being of people in the vicinity, I find there to be no basis in national policy for dismissing the appeals for that reason alone. The health implications will no doubt be a matter for ongoing research and debate. In the meantime, the appeal proposals comply with the precautionary approach as accepted by the Government and they hence accord with the objectives of Policy SE16(C). Draft Policies U24a/U24b and the Council’s SPG do not carry sufficient weight to support an alternative approach.”

Stafford (APP/Y3425/A/02/1084110)

“In the absence of any demonstrable harmful effects arising from the proposal I do not consider the concerns or perceptions of health implications expressed would, in themselves, amount to sufficient justifications for withholding prior approval.”

These are just a few examples which show the main trend in such decisions.

However, there were two widely reported Inspector’s decisions in 2001 that appeared to weigh perception of risk more heavily. These were decisions at Thurrock (T/APP/M1595/A/00/1052881/P6) and Harrow (APP/M5450/A/00/1053232). Less well known is that the Thurrock decision was subsequently overturned and that in the Harrow decision, perception of risk was only one of a number of issues that the Inspector took into account in reaching his decision, one of which was the failure of the operator to provide adequate written assurances about compliance with the ICNIRP guidelines.

Masts are usually considered as detracting from visual amenity and there is no doubt that there is a balance to be achieved between need and amenity – also a common theme in Inspector’s decisions. Whether perception of risk and the subsequent anxiety that masts may cause can be given much weight in the decision making process is less clear.

To sum up this section, while accepting that appeal decisions are not definitive, a common theme emerges and that is that provided ICNIRP compliance is proved, perception of risk will be afforded little weight in the balance.

Court Judgements

Perception of risk has also been explored in several Court cases.

The comments of Mr Justice Carnwrath in the case of R v. Tandridge District Council ex parte al-Fayed are interesting.

“[applicants should] expect planning decisions to be guided by a consistent and scientifically informed national policy approach. Indeed, if a particular Local Authority departs from such national policy guidance and such national technical advice without good reasons, it risks being overturned on appeal and being ordered to pay the costs”.

Also in a recent High Court judgement in the case of Trevett v. Secretary of State relating to a judicial review of three inspector’s decisions in Stroud, Mr Justice Sullivan said:

“In Paragraph 26 the Inspector is rejecting that argument, saying that the residents’ fears appear to be based in part on selective research and expert opinion, and that he considers that “greater weight” should be attached to the expertise of the organisations he identifies. I have underlined the word “greater” because it makes it plain that the Inspector was not dismissing the residents’ fears as being of no account whatsoever because they were not objectively justified, but concluding that they should be given lesser weight.”

He went on to say:

“Just as it is erroneous to proceed on the basis that perceived health risks cannot justify a refusal of planning permission unless they are objectively justified, so it is equally erroneous to assert, as was the Council in effect, that merely because there are perceived risks to health, that justifies a refusal of planning permission without any regard to the extent as to which those fears are objectively justified in the circumstances of the particular case and given the particular characteristics of the site in question. Those are the factors which the Inspector considered in concluding that the perceived risks as to health, whilst material considerations did not justify a refusal of planning permission in these three cases.”

And in the costs award he said:

“Whilst I have carefully considered the papers referred to by those who oppose the proposal, I have also had regard to the contrary findings of national and international bodies who can draw on a broad range of relevant expertise and I consider that greater weight should be attached to the views of those organisations...... I can understand resident’s wish for an unequivocal assurance that there would be no health risks from the equipment. However, in my judgement that is too strict a test and the Stewart Report notes that science can never provide a guarantee of zero risk. In the absence of evidence of a perceptible health risk I do not believe that dismissal of this appeal would be justified in the interim.”

Schools

Government Guidance advises that a consultation process be undertaken with Schools located near to proposed masts (“near” in this context is undefined). The result of such a process is usually the expression of concern relating to perception of risk from the schools. If this is to be given little weight, one might reasonably ask what the consultation is for. There are at least three possibilities: